Rex Patrick (SA, Independent) Share this | Hansard source

I move:

That the Senate take note of the minister's answer.

Again, this question relates to a simple request as to how much money was spent in my case against the Prime Minister in relation to national cabinet. I'm interested in finding out the answer. I'd love to know why, whatever amount was spent, we spent that money when the government was not going to comply with the principles that Justice White has put.

The second part goes to the cost of looking at a section 37 certificate to censor an Auditor-General's report that was issued by Attorney-General Porter—again, an AAT matter where the AAT overturned the Attorney-General's censoring. All I asked was: how much did the proceedings cost? That's an accounting system question.

It's not like I stand up here after every question time and surprise the minister. I actually do the right thing, in accordance with the President's guidance in relation to the standing order. I contact the relevant minister's office and I advise them that a particular question hasn't been answered and that I may choose to exercise my rights under the standing orders. It's not like I somehow surprise the minister in doing this. I go back to last week, when Senator Birmingham stood up and said—actually, I think it might have been Senator Duniam on his behalf—'Look, we're trying to get to this answer.' But, after the second time I asked the question and now the third time, I seek an explanation, I would have thought that the minister would have picked up the phone to the Prime Minister and said, 'You know what; can we just give Senator Patrick his answer?' But, no, that's too hard.

Again, this question goes to costs around the proceedings in the AAT in relation to national cabinet. It does disturb me, because, firstly, on the evidence that was supplied to the tribunal by Geoffrey Watson SC, an eminent barrister—and I thank him for his pro bono work on the issue—I think that it would have been obvious to anybody that there was no argument to be had, that national cabinet did not meet any of the requirements of a cabinet. It didn't have cabinet solidarity. It didn't have cabinet responsibility. It wasn't even formed by the federal cabinet. It wasn't a committee of the cabinet, because it was proposed by COAG—it was a committee of the COAG. There are all these things. There's the fact that a cabinet consists of members of parliament and is responsible to one parliament, not to nine, as is the case with the national cabinet.

The Prime Minister had said, in his own words: 'We have these cabinet meetings, and sometimes some premiers disagree. But the bus leaves the bus station and you either get on or you don't.' That's not allowed in the cabinet system. In a cabinet system the principle is: you go in, you have your argument but, when you come out, everyone sings off the same hymn sheet, such that there is a confidence in those decisions of cabinet. It was clear going into those proceedings that there was no chance that Justice White would find in any other way than that it wasn't a committee of the cabinet.

Yet, sadly, in the last couple of days, I have had yet another FOI decision that has come back. I was not after cabinet minutes this time. I was seeking 'access to the following information relating to the infrastructure and transport national cabinet reform committee established in October 2020. I want the minutes of all meetings and the action items of all meetings.' So I am not after, in this instance, even the meetings of the national cabinet. I'm after some peripheral committee that they've established that might feed in and provide advice.

If you look at where national cabinet extends to, it's quite amazing. Half of the government could well be covered by a national cabinet claim, if it were permitted under law, which it is not. Again, I have an official here. In this case, it is Petra Gartmann—and I will continue to name people. I point out that I have had over 200 FOIs and I've never come into this chamber and named a decision-maker. I normally simply appeal them. That's the normal process. But in this instance, it's so offensive in respect of the claims that are being made against such a prominent and weighty judgement from Justice White. I get an answer that makes an acknowledgment: 'I am aware of and have considered the Administrative Appeals Tribunal decision delivered on 5 August 2021 by deputy president Justice White in Patrick and the Secretary, Department of the Prime Minister and Cabinet 2021, AAT 2719.' Then it says: 'In addition to the decision in Patrick, I have considered the national cabinet's terms of reference of 15 March 2020'—made public after the decision in Patrick—'and a joint statement made on 17 September by the Prime Minister, state premiers and territory chief ministers on the importance of confidentiality about relationships between the Commonwealth, and the states and territories. I have formed the view that national cabinet is a committee of the cabinet for the purposes of the FOI Act.'