The Prime Minister and his department’s evasion of Freedom of Information regarding the minutes of the national cabinet should disturb all Australians.
The efforts by senior officers of the Department of Prime Minister and Cabinet to deny access under Freedom of Information to the minutes of the national cabinet reflect very badly on their independence and integrity.
The purpose of the Freedom of Information Act is to promote representative democracy by giving the public access to information held by the Commonwealth government. In particular, FOI is intended to:
- Increase public participation in government processes, with a view to promoting better informed decision-making;
- Increase scrutiny, discussion, comment and review of the government’s activities; and
- Recognise that information held by the government is to be managed for public purposes and is a national resource.
I have argued in previous articles (Pearls & Irritations, April 19-20 and August 9, 2021) that the provision of information is critical to policy development and the integrity of public administration.
The present Prime Minister, Scott Morrison, is however obsessed with secrecy and has a very different view about public access to information held by the government. According to Morrison, only he and his ministers should be able to determine what information is released, and when and under what circumstances. In this way Morrison believes he can better control the political debate.
The Parliament, when it introduced the FOI legislation, recognised that a government would not always welcome this new form of public scrutiny and laid down tight procedures governing decisions on whether or not to grant access, with a presumption in favour of granting access.
Nevertheless, the Parliament did recognise there are good reasons why documents submitted to the Commonwealth cabinet and its minutes should be exempt from FOI. The whole point about cabinet government is that decisions are reached collectively and are then deemed unanimous as all members of the cabinet are held responsible for them.
Of course, many cabinet decisions reflect compromises between different interests and points of view, but effective government requires that those differences remain secret as ministers are collectively responsible for the final decision. Public disclosure of cabinet deliberations would impede the free expression of different views in the cabinet room. Consequently, if a minister wants to go public voicing their disagreement with any cabinet decision, the unanimity rule then requires that they must resign from the cabinet.
But while there are good reasons why cabinet documents should be exempt from the provisions of FOI, equally the definitions of what constitutes a cabinet document should be strictly controlled. Documents generated by other committees which are not part of the Commonwealth cabinet and not subject to its disciplines should not be exempt from FOI.
Recently this principle was tested when Senator Rex Patrick asked to see the minutes of the national cabinet, comprising the heads of the Australian, state and territory governments, which was established to coordinate the Australian response to the COVID pandemic.
The Department of Prime Minister and Cabinet (PM&C) refused this request on the grounds that the national cabinet had been decreed by the Prime Minister to be a sub-committee of the Commonwealth cabinet, and as such all its minutes were exempt from FOI requests. But PM&C should have recognised and warned the Prime Minister that just because he wants to ordain an outcome does not mean that the law can be ignored.
The reality is that the national cabinet is not part of the Commonwealth cabinet system and does not observe the conventions of that system. Thus, the national cabinet does not reach unanimous decisions. Instead, each member develops their own positions according to the policies and circumstances of their own electorates.
There is no uniform national response in many of the national cabinet’s decisions and there has never been any question of resignation where members differ. Nor do the members of the national cabinet feel inhibited about publicly criticising the views and policies of other members.
That does not mean that the national cabinet is useless – no doubt the different jurisdictions find the information sharing useful, but in the end each jurisdiction makes and announces its own decisions about how it will respond to the COVID pandemic.
In the past, as a former cabinet and PM&C secretary, I am sure that the conventions governing what constitutes cabinet government were well understood in PM&C. Equally PM&C used to understand that other committees, whose members are not part of cabinet and which do not observe the cabinet conventions, cannot therefore be considered to be part of cabinet.
Thus, it should have been perfectly obvious to the present officers in PM&C, including secretary Phil Gaetjens, that the national cabinet could never qualify as a sub-committee of cabinet for the purposes of the FOI Act and be exempt from its provisions.
Indeed, no one should have been surprised when Justice Richard White of the Administrative Appeals Tribunal, who reviewed this FOI decision on appeal from Patrick, found that the national cabinet did not meet the requirements to make it a sub-committee of cabinet. Furthermore, the judge found that the evidence of the senior PM&C officials “was inconsistent with documentary evidence and seemed to assume the truth of the matter to be decided by the tribunal”.
Justice White also found that these officials “expressed opinions about the effect of disclosure of the minutes on a view of their content which is not borne out by an examination of the documents”. For example, the judge found that the minutes only recorded decisions by the national cabinet, with no further detail, and these decisions were typically announced by the Prime Minister shortly after the meeting. It is therefore difficult to see how release of these minutes could damage relations with the states or between the states.
But notwithstanding the judicial determination to grant access, PM&C decided to ignore the judge’s decision and continued to refuse further requests for the national cabinet minutes. The decision-maker, assistant secretary Angie McKenzie, said that if the Prime Minister declared that the national cabinet was a committee of the Commonwealth cabinet, then it was. She declared that she would therefore not comply with the ruling by Justice White and would not grant access to the national cabinet minutes under FOI.
Frankly, this ruling by a PM&C officer should be deeply disturbing to us all. First, we live in a democracy. The Prime Minister like everyone else is subject to the rule of law. Unlike autocratic leaders such as Vladimir Putin or Xi Jinping, our Prime Minister cannot just issue an edict to overturn a legislative outcome whenever he doesn’t agree with it, and PM&C officials should understand that.
As Justice White put it: “The premise that any committee may be a ‘committee of cabinet’ for the purposes of the FOI Act merely because the prime minister of the day has purported to establish it as such is unsound.”
Second, in my view, PM&C should have been sufficiently aware to warn Morrison that his device of evading FOI by declaring the national cabinet to be a sub-committee of the Commonwealth cabinet could not work. Then if Morrison refused to listen, they should have complied with the law anyway and granted Patrick’s request to see the minutes of the national cabinet. I believe this is how PM&C would have operated in the past.
Ironically, PM&C itself seems to have finally recognised that it was in the wrong, and it dropped its proposed appeal against Justice White’s decision to grant access under FOI to the national cabinet minutes.
However, the leopard doesn’t change its spots. Instead, the government is seeking to amend the FOI Act to prevent the national cabinet minutes becoming available. Clearly it is to be hoped that this proposed amendment will fail to gain parliamentary approval. But even if the government does fail in this endeavour to weaken FOI, this whole episode reflects poorly on the independence and integrity of senior PM&C officers, including the most senior.