Thursday, 3 September 2020
That the Senate—
(a) notes that:
(i) the Prime Minister has established a 'National Cabinet' comprising of the Prime Minister, state Premiers, and territory Chief Ministers,
(ii) the Prime Minister has claimed that National Cabinet is to be part of the Federal Government's Cabinet system and subject to requirements of Cabinet secrecy, and
(iii) the Department of the Prime Minister and Cabinet has claimed National Cabinet's records and deliberations are exempt completely from release under the Freedom of Information Act 1982, and Cabinet secrecy has also been applied to the deliberations of other bodies including the National COVID-19 Advisory Commission and the Australian Health Protection Principal Committee;
(i) the creation of National Cabinet as a part of the Federal Cabinet system to be inconsistent with long-established principles of responsible Cabinet Government in Australia, and
(ii) that the assertion of Cabinet secrecy in relation to National Cabinet and the deliberations of associated bodies is excessive, impedes the proper scrutiny of Executive Government, and is not supported by the law; and
(c) urges consideration is given to the introduction of legislation that would place key aspects of long-established and accepted Cabinet convention and practice on a statutory basis.
This motion deals with an issue that is at the very centre of Australian government. In Sydney on 13 March 2020 the Council of Australian Governments held its 48th meeting, which had been convened to deal with the rapidly escalating COVID-19 crisis. At that meeting the Prime Minister and the premiers and chief ministers endorsed measures that had been taken in response to the pandemic and agreed to commission protocols underpinned by advice from the Australian Health Protection Principal Committee, the AHPPC, relating to the management of mass gatherings, school closures, the health needs of more-remote communities, and public transport. COAG further agreed that the AHPPC advice will have the status of COAG advice and to implement and follow the advice as necessary. The COAG communique did not include any references to changes in intergovernmental consultation and decision-making.
But at the following press conference the Prime Minister announced that it had been resolved to form what is called a national cabinet, comprising himself and the premiers and chief ministers, that would meet on a weekly basis to ensure a coordinated response across the country to COVID-19. The first national cabinet meeting took place on 15 March 2020 and met frequently thereafter.
On 29 May, the Prime Minister announced the abolition of COAG and its replacement with the national cabinet as the apex of a new National Federation Reform Council. The Council on Federal Financial Relations, consisting of the federal, state and territory treasurers, will report to national cabinet. Various intergovernmental councils and task forces will also be subordinate to the national council, as will the AHPPC.
This motion goes not to the performance of the national cabinet but to the nature of its radical change in practices. I might point out that—again, consistent with what I was saying, that I'm not critical of the work of the national cabinet—in World War II we had a national council. It's not a new idea to bring premiers, the Prime Minister and territory leaders together. What's new with this particular arrangement is that the Prime Minister has sought to veil all activities under the national cabinet under cabinet-in-confidence. That goes against all principles of democratic and responsible government.
Cabinet has been around for a long time. It's not a creature of statute; it's a creature of convention. Ever since Federation, we've had a cabinet. It was not necessarily well organised in the first 20 or so years. In 1926, we had our first cabinet handbook. That was secret. In the 1980s it was published, setting out rules around the convention that gave some consistency and integrity to the cabinet body and to the officials that worked around it but also gave some flexibility to the Prime Minister as well. Except what's happening now is the Prime Minister has abandoned what most people would consider to be a cabinet, and that is a cabinet of ministers—and that means people appointed in parliament—and has extended it to other categories, such as the AHPPC. Suddenly now a cabinet is not a cabinet of ministers; it's a cabinet of doctors. Also, there's the NCCC. That's a cabinet of entrepreneurs and executives.
The difficulty here is the government is challenging any requests for information on anything that these bodies do either from the COVID committee, which has had great difficulty getting access to information, or indeed, from people who simply want to participate in democracy using FOI. What's happening is that the national cabinet and its secrecy provisions are being expanded to the point where they intrude upon statute rights. This parliament has granted rights to Australian citizens to have access to information. Of course, cabinet-in-confidence information is an exemption under FOI. But, by purporting to lawfully expand the national cabinet to cover all manner of things, it intrudes upon the rights that were set up when that bill was first introduced in 1982, and that is not acceptable. And it is now subject to challenge.
I do have an Information Commissioner challenge. I can inform the chamber that the Information Commissioner is now considering elevating that to the AAT, recognising the complexity and importance of the question that is being put to them, and that is: is the national cabinet a cabinet for the purposes of the FOI Act? Can a cabinet be, as the national cabinet is, one Prime Minister and no other permanent members? When the Prime Minister has a meeting with his COMCAR driver or his gardener, could that be cabinet-in-confidence? So we have to look at how we deal with that.
I'm also challenging the fact that the national cabinet is not a cabinet of government that reports to one parliament. So we will have to see how that plays out. But I suggest that what this parliament now needs to consider, in order to make sure that we don't have this sort of abuse moving forward, is perhaps wrapping some statute around cabinet itself. I support the idea of cabinet, but when it starts to intrude on responsible government it has to be challenged.