Deliberations of the national cabinet may not be exempt from freedom of information disclosures as the Morrison government claims, according to legal advice obtained by a major environment group.
According to that advice it is also unclear whether or not the national cabinet can be set up as a cabinet office policy committee of the federal cabinet – which is the current plan – because premiers and chief ministers are not ministers in the federal government, they are leaders in another tier of government.
The Australian Conservation Foundation sought the legal opinion from the Sydney barrister Jeremy Farrell in an effort to clarify the disclosure regime that would accompany the new decision making body created by Scott Morrison and the state and territory leaders during the Covid-19 crisis.
Farrell told the ACF the national cabinet framework, which replaced the Council of Australian Governments, was “an expedient and improvised system of governance that operates in a vacuum of statutory authority or intergovernmental agreement”.
Rather than create uncertainty, he said it would be better for governments to set out the processes for the national cabinet through legislative reform or formal intergovernmental agreement to achieve “long term clarity … and to improve transparency”.
The head of Morrison’s department, Phil Gaetjens, has told the Senate committee inquiry into the government’s management of Covid-19 that the national cabinet would be a committee of the federal cabinet.
Asked whether that meant that documents created for the dominant purpose of national cabinet would be subject to the same freedom of information exemption as federal cabinet documents, Gaetjens replied: “My judgment would be that they would be covered by the cabinet rules and the FoI rules that currently apply to cabinet documents.”
But the ACF’s legal opinion says it is not clear whether or not national cabinet documents would automatically attract the cabinet exemption. “Although the prime minister has indicated that national cabinet documents cannot be obtained under the FOI Act, there is some doubt as to this proposition and it is yet to be tested by the courts.”
“Some documents may not be exempted from disclosure. In the circumstances, legislative amendments may need to be considered to address this uncertainty.”
On the point of whether state leaders can be members of a federal cabinet policy committee, the advice says: “In my opinion, the federal cabinet and committees and subcommittees of the federal cabinet must be comprised of federal government ministers, as opposed to state premiers and territory chief ministers.”
Labor, crossbenchers, including the Centre Alliance senator Rex Patrick and the independent lower house MP Zali Steggall, and civil society groups, have raised concern that the governance structures being created to manage the pandemic are eroding the transparency of government decision making.
Patrick has signalled his intention to test the limits of the new regime. He says he has requested minutes of a national cabinet meeting under FoI. Patrick has predicted the request will be rejected and he will challenge the rebuff “on the basis the national cabinet is not a cabinet for the purposes of the FoI Act”.
This week Morrison signalled that one of the other groups created during the crisis, the National Covid-19 Coordination Commission, comprised largely of business leaders, would now “work within government and can form part of the cabinet deliberative processes – which is an important innovation”.
The practical effect of the shift is it will be harder to obtain the advice provided by a group that has already been criticised for a lack of accountability procedures.
Matt Rose, the democracy program manager at the ACF, said he was concerned “about a rise in secrecy around decision-making which undermines democracy in Australia”.
Rose said last Friday that leaders had agreed to move environmental approvals to a single touch process after a scathing review of national environmental regulation, “yet beyond that one sentence, Australians are in the dark about what that means and how it will be achieved while protecting nature”.
He said it was incumbent on the governments of Australia “to be open with the Australian public on what was exactly discussed, including any deals on handing over commonwealth environmental responsibilities to the states”.
Rose also raised concern about the implications of this week’s administrative revamp of the Covid commission: “It is extraordinary that unelected citizens selected by the government have been granted privileged access to federal cabinet to provide secret advice on Australia’s national budget.”
