John Menadue. Conservatives, conventions and traditions.

Mar 6, 2014

Conservatives extoll the importance of conventions, traditions, and respect for established institutions. But it seems to be only when it suits them.

They lecture us and others about democracy, free elections, the separation of powers and the independence of the judiciary. Colloquially they sum it up ‘If it is not broken, don’t try to fix it’.

There is an important convention on Cabinet papers. But the Abbott Government has decided breach that convention and hand over Cabinet papers concerning pink batts to a Royal Commission examining that issue. This is despite the clear Westminster convention as set out in my blog of February 10. The Cabinet Handbook is quite explicit.

‘The convention is that Cabinet documents are confidential to the government that created them and not the property of the sponsoring minister or department. Access to them by succeeding governments is not granted without the approval of the current parliamentary leader of the appropriate political party.’ (PM & C website – Cabinet Handbook, paras 17 to 19).

It is clear that the Abbott Government has wilfully breached this long-held convention. The Prime Minister presumably instructed the Secretary of the Department of Prime Minister and Cabinet who has official responsibility in this matter, to hand over the Cabinet documents relating to pink batts to the Attorney General’s Department. This department then handed them to the Australian Government Solicitor. A PM&C official told the Legal and Constitutional Affairs Committee of the Senate on Monday February 24 “Documents were provided by the Department of the Prime Minister and Cabinet to Attorney General’s Department, who is co-ordinating compliance, in conjunction with the Australian Government Solicitor on the 31st [of January].’  PM & C cannot absolve itself of its responsibilities in this matter by passing the buck to the Attorney General’s Department or the Australian Government Solicitor.

I have not seen any suggestion that Bill Shorten has agreed  to this handover as the Convention requires.

Vilification of the ALP has not been enough for the Abbott Government in pursuing the pink batts issue. It has torn up a long-standing Westminster convention that Cabinet documents are the property of the government of the time.

There are sound reasons for this Cabinet convention. Cabinet ministers should in confidence be able without fear or favour to discuss and decide important public issues. That is why the Cabinet convention stipulates that Cabinet documents are not to be released for 20 or 30 years.. Well-tried and valuable conventions should not be set aside for political point-scoring. Only in exceptional circumstances should conventions be set aside. This is not an exceptional circumstance.

Our Westminster conventions are being breached by Conservatives who give lip service to our institutions, conventions and traditions but act quite differently.

Malcolm Fraser broke the Westminster convention that was fought over for centuries in England that governments are made and broken only in the lower house, the people’s house.

During the loans crisis, Sir Garfield Barwick, our Chief Justice, broke the convention of the separation of powers by briefing and politically fortifying John Kerr.

We have also now recently learnt that High Court Judge Mason had clandestine meetings with John Kerr to support him in the dismissal of the Whitlam Government. He trashed the convention of the independence of the judiciary.

Now Tony Abbott has trashed the convention of the confidentiality of Cabinet documents. This is no trivial matter.

I hope the ALP can avoid the temptation of pay-back when it is next in government. There is a lot at stake.


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