3.1
This chapter presents the views of submitters and witnesses about the bill. The majority of stakeholders who engaged with the inquiry focussed their comments on the objectives of the Schedule 3 provisions, making little or no comment on Schedules 1 and 2.
3.2
This chapter considers a number of issues brought forward in evidence in response to the bill’s proposed amendments, including:
the appropriateness of the amendments proposed by Schedules 1 and 2 of the bill;
whether National Cabinet meets the threshold of a ‘Cabinet’; and
the appropriateness of confidentiality and exemptions from the Freedom of Information Act 1982 (FOI Act) for the proceedings of National Cabinet.
3.3
The chapter concludes with the committee’s views and recommendation.
Comments on Schedules 1 and 2
3.4
Most submitters and witnesses offered support for Schedules 1 and 2 of the bill, noting that these Schedules make necessary amendments to terminology in Commonwealth legislation, as a result of abolishing COAG and establishing National Cabinet.
3.5
The Accountability Round Table (ART) noted that the amendments in Schedules 1 and 2 were ‘more cosmetic than substantial’, which ‘do little more than refresh and re-start the clock on intergovernmental agreements’.
3.6
Professor Anne Twomey likewise noted that with regard to Schedule 1, there was ‘nothing objectionable about such changes and they have no substantive effect’, and that the amendments proposed by Schedule 2 would avoid the need for future legislative changes to update the names of particular councils.
3.7
However, Professor Andrew Podger AO stressed the importance of ensuring that any ‘re-badging’ of government activities (in this case, replacing ‘COAG’ with ‘National Cabinet’) has ‘substantial advantages’.
Schedule 3
3.8
The majority of evidence received by the committee focused on Schedule 3 of the bill and the designation of National Cabinet as a Cabinet body. The following sections provide some background information about the amendments proposed by the Schedule, and outline the evidence received in relation to this Schedule.
Administrative Appeals Tribunal Decision
3.9
On 5 August 2021, the Hon Justice Richard White, sitting as a Deputy Presidential Member of the Administrative Appeals Tribunal (AAT), overturned a decision of the Department of the Prime Minister and Cabinet (PM&C) to refuse access under the FOI Act to certain National Cabinet documents.
3.10
The AAT held that, on the basis of the evidence before it, the documents were not exempt under the Cabinet exemption in section 34 of the FOI Act, or under the Commonwealth-State relations conditional exemption in s47B of the FOI Act.
3.11
The Law Council of Australia advised that his Honour found that the evidence before him:
… did not support a finding that the disclosure of the particular documents was reasonably likely to be harmful to intergovernmental relations, and tended to support a conclusion that their release would promote the objects of the FOI Act to facilitate transparency and scrutiny.
3.12
On 2 September 2021, in compliance with the AAT’s decision, PM&C provided the documents in issue to the FOI applicant, Senator Rex Patrick.
3.13
PM&C explained that the AAT decision found that the Commonwealth had ‘not established (as a matter of fact or law) that the National Cabinet was a committee of the Cabinet within the meaning of the FOI Act’. PM&C submitted to the committee that:
The decision of the AAT is not considered to have precedential force beyond the fact and documents before it.
3.14
The amendments put forward by the bill therefore confirm the Government’s position that National Cabinet has always fallen within the definition of ‘Cabinet’, and that the proceedings of National Cabinet are ‘confidential in the same way as Cabinet information under longstanding and well established conventions of Cabinet’.
Status of National Cabinet
3.15
Witnesses and submitters took issue with the designation of the National Cabinet as a Cabinet body.
3.16
For example, Professor Twomey suggested that Schedule 3 presented several issues in that it undermined the federal system and the constitutional principle of responsible government, while reducing governmental accountability and transparency. Professor Twomey summarised the findings of the AAT when it concluded that National Cabinet was not a committee of Cabinet, noting that the AAT found that:
… the National Cabinet is not a committee ‘of’ the Commonwealth Cabinet. It is not fully or even primarily comprised of members of the Commonwealth Cabinet, its membership is not determined and cannot be altered by the Commonwealth Cabinet or the Prime Minister, it was not established by the Commonwealth Cabinet or, indeed, the Prime Minister, it does not derive its powers from the Commonwealth Cabinet, it is not accountable to the Commonwealth Cabinet, it can make decisions without the approval of the Commonwealth Cabinet and its decisions cannot be overturned by the Commonwealth Cabinet.
3.17
In addition, Professor Twomey made clear her view that the National Cabinet could not be a ‘subservient committee of one participant in the federal system’, as it needed to be a body of equals, responsible to their own legislature. As each First Minister remains responsible to its own jurisdiction (and not the Federal Parliament), Professor Twomey observed that the Cabinet requirement of collective ministerial responsibility could not apply—therefore calling into question the basis for applying ‘Cabinet confidentiality’ to the National Cabinet.
3.18
Similarly, the Australian Human Rights Commission (AHRC) noted that while the National Cabinet was a replacement for COAG, it was not a Cabinet body. The AHRC suggested that the:
The use of the term ‘cabinet’ is misleading and obfuscates the nature of the body. The National Cabinet is an intergovernmental forum, made up of representatives of jurisdictions with sovereign powers, and the Prime Minister is the only member accountable to Federal Parliament.
3.19
The ART likewise submitted that there were ‘serious constitutional and legal doubts as to the validity of equating National Cabinet with Federal Cabinet’. The ART was of the view that collective ministerial responsibility, as the first criterion for determining whether a governmental entity may be considered a Cabinet, could not apply to National Cabinet. In addition, the ART observed that:
National Cabinet is an intergovernmental forum made up of the representatives of the jurisdictions, each with their own sovereign powers and, except for the Prime Minister, not responsible to the Commonwealth Parliament. Its ministers or members are not required to resign should they lose the confidence of the Commonwealth Parliament. They are not subject to the unanimity rule.
3.20
In light of the above, the ART went on to say that ‘to regard the National Cabinet as equivalent to the federal Cabinet, therefore, is to misunderstand the constitutional position’.
3.21
The sentiments expressed by the ART were shared by the AHRC, which urged for caution in any possible expansion of executive power, saying:
COVID-19 has instigated potentially transformational changes to government operations in Australia. It is important to ensure that Executive power is not unnecessarily or permanently expanded through related administrative efficiency measures, as this would have negative implications for democratic principles and the rule of law.
3.22
Professor Podger argued that the idea that ‘a forum of ministers from separate and different governments accountable to their own respective parliaments and voters can constitute a ‘cabinet’ runs afoul’ of the essential characteristics of a cabinet. Professor Podger continued that:
… calling Australia’s heads-of-government meeting the ‘National Cabinet’ rather than COAG does not constrain any of the members representing its own sovereign government from departing from the decisions made. They are accountable not to National Cabinet, nor to the prime minister’s parliament, but to their own parliaments.
Legal positioning
3.23
Questions were raised in evidence as to whether the government could legislate to make National Cabinet a Cabinet within the traditional meaning of that framework.
3.24
The ART, for example, questioned whether the Parliament could by legislation, ‘simply declare a governmental entity … to be a committee of the Federal Cabinet’. The ART asserted that it would be counter-intuitive for the Parliament to act in such a way in accordance with any ‘sensible, legal understanding or analysis’. The ART continued that, in legal terms:
… it is reasonably clear that the Commonwealth Parliament could legislate to declare something as a matter of fact, when that matter has no factual foundation. However, the situation here is quite different. This is because the purported legal change here, takes place in a constitutional context.
…
To declare some other governmental entity as a Cabinet, in circumstances where it is clearly not so, would be in effect to alter the nature and operation of the doctrine of responsible government. It would be to constitute a governmental entity as a constituent element of Australia’s constitutional system of responsible government in circumstances in which that entity would, in no way, be responsible either to the Parliament or the people.
3.25
Professor Twomey argued that the amendments proposed by Schedule 3 ‘defy the self-evident facts, which brings the law into disrepute’. Professor Twomey expanded on this point by saying:
While Parliament can enact a law that asserts things that are not true, it is unwise to do so as it brings the law into disrepute and damages public confidence in the law.
3.26
Professor Twomey continued that by legislating that the National Cabinet is a committee of Federal Cabinet, it could be interpreted as changing the nature, status, composition and powers of the National Cabinet to the point where it ceases to be an intergovernmental body, and instead becomes a committee controlled by Federal Cabinet and the Prime Minister.
3.27
Professor Twomey reiterated this point when appearing before the committee, stating that the bill would create ‘a cascading level of nonresponsibility’, through the Commonwealth Cabinet to its committees, including National Cabinet, which may then have committees of its own. This could, in the view of Professor Twomey, result in the National Cabinet label being applied to ‘absolutely anyone—business leaders, unions or any other organisation you could imagine’.
3.28
In response to the arguments put forward by submitters and witnesses, PM&C noted that the amended definitions of ‘Cabinet’ flow from a ‘foundational operational rule of the National Cabinet….that the National Cabinet is a committee of the Commonwealth Cabinet’. Because of this, National Cabinet’s ‘operations and its conventions are the same in respect to the Commonwealth Cabinet’.
3.29
Further, Ms Leonie McGregor, First Assistant Secretary, Cabinet Division of PM&C, advised the committee that National Cabinet operates in the same way that any committee of Cabinet operates, noting that:
… decisions of the national cabinet are endorsed by the Commonwealth cabinet, and, in the terms of reference that national cabinet operates under, it's made clear that state and territory governments would also determine in what way they wished to pass decisions of national cabinet to which they are a party through their own parliaments.
National Cabinet confidentiality
3.30
Submitters and witnesses voiced concerns over the proposal to make the deliberations and discussions of National Cabinet confidential, in line with the longstanding practice of Cabinet confidentiality.
3.31
Australia’s Right to Know (ARTK), a coalition of media organisations, expressed ‘considerable concerns’ with the bill’s provisions establishing confidentiality of National Cabinet proceedings and documentation. ARTK observed that:
Stretching the shroud of secrecy in this way, with little justification, is detrimental to the healthy functioning of our Federation and Australia’s democracy. ARTK does not support the amendments, particularly but not only to the Freedom of Information Act 1982 (FOI Act) and the Public [Interest] Disclosure Act 2013 (PID Act), and recommends they be removed from the Bill.
3.32
Ms Fiona McLeod AO SC, Chair of the ART, advised the committee that with regard to the FOI Act amendments proposed by the bill it was ‘unacceptable that the carefully calibrated exemptions and confidentiality protections’ of the Act were being ‘swept away’. Ms McLeod expressed concern that with the changes:
… the good work of the national cabinet and public trust in the public health response … will be undermined by a general fear that there is something to hide. The good work that has occurred steering Australia through the pandemic has, for the most part, been effective and
well-regarded.
3.33
The ART did not consider National Cabinet to fall within the requirements of a ‘Cabinet’; while the National Cabinet could agree that its proceedings were confidential, ‘such an agreement has no constitutional standing’. Ms McLeod put forward the view that while it was reasonable that certain aspects of National Cabinet’s deliberations should not be made public, the bill as drafted instead ‘casts the net of secrecy very widely’ and ‘represents a frontal attack on the entire constitutional system of responsible government’.
3.34
The AHRC was concerned that the placement of the National Cabinet under the same secrecy rules of Cabinet would ‘reduce transparency and accountability, and may implicate the right to freedom of expression by unnecessarily restricting the open communication of information to, and by, the public’.
3.35
The Grata Fund recognised that while the full scope of matters which the National Cabinet might consider is not yet clear, that already National Cabinet subcommittees included the Council on Federal Financial Relations and the National Cabinet Reform Committees, ‘which between them consider a breadth of issues including health, housing, taxation, energy and migration’. The Grata Fund suggested that ‘[t]his expansive remit makes it all the more important that transparency standards that have been in place for decades are not taken away’.
3.36
The Grata Fund noted that National Cabinet is distinct ‘in both form and powers from the Cabinet of Australia’, and that extending the confidentiality of Cabinet to an intergovernmental forum like National Cabinet was an ‘unnecessary privilege … which undermines the federated accountability system that is an integral part of our system of government’.
Freedom of information amendments
3.37
The bill proposes to amend the FOI Act to give a similar exemption from release of Cabinet documents, currently provided for by section 34 of the FOI Act, to the documents of the National Cabinet. The committee received evidence voicing concerns over these proposed amendments.
3.38
Senator Rex Patrick, the original FOI applicant in the AAT matter detailed earlier in this chapter, made a submission to the inquiry and argued that the proposed amendments to the FOI Act would ‘implement an unwarranted block to the release of intergovernmental related information’, and further would unjustifiably constrain the ‘treatment and handling of such information under…other legislation’. Senator Patrick concluded that:
The proposed changes would further subvert long-accepted principles of responsible Cabinet Government.
All senators should be fully aware of both the unprecedented nature of what is proposed in Schedule 3 and its potential to have unpredictable consequences of a most undesirable nature.
3.39
ARTK argued that the proposed FOI Act exemption for National Cabinet, for a broad range of documents, was ‘contrary to the Act itself and the important tenants of transparency and accountability in a democracy’.
3.40
ARTK submitted that the amendments to the Public Interest Disclosure Act 2013, in conjunction with the proposed amendments to the FOI Act, would ‘effectively shut down the public’s right to know’ about a significant range of matters. It went on to suggest that:
The amendments included in Schedule 3 [of] the Bill, particularly amendments to the FOI and PID Acts, unjustifiably makes secret more decisions made by elected officials that affect the day-to-day lives of all Australians.
3.41
The Office of the Victorian Information Commissioner (OVIC) echoed these views, submitting that the proposed amendments were contrary to the public interest, and would ‘reduce government transparency and accountability in relation to important deliberations and decisions that affect all Australians’.
3.42
The Law Council of Australia argued that the proposed amendments to the FOI Act would capture a much broader range of documents than that considered by the AAT in the Patrick matter, and would ‘significantly expand an existing and carefully calibrated exemption to a legally enforceable right of public access to information’. The bill would unconditionally exempt documents from disclosure—with no requirement for a decision-maker to apply a public interest test. The Law Council suggested that documents would be exempt only because they fell within a class of documents, and:
… solely by reason of their status as National Cabinet documents, without any requirement or discretion for the decision-maker (or reviewer, such as the FOI Commissioner or AAT) to assess the sensitivity, or otherwise, of the contents of the specific documents covered by an individual disclosure request.
3.43
The Office of the Australian Information Commissioner (OAIC) indicated that the proposed changes to the FOI regime in relation to National Cabinet documents would apply to a body which did not properly meet the criteria of a ‘Cabinet’, saying:
The proposed amendments extend the existing Cabinet exemption in s 34 of the FOI Act to a different construct which does not adhere to the Cabinet principles and conventions … The proposal would also extend the existing Cabinet exemption beyond the National Cabinet to ‘a committee of the National Cabinet, however described’. The proposal is a significant extension of the exemption which would result in a corresponding reduction in the public’s right to access information held by governments.
3.44
PM&C submitted that the bill reflected the position that it had always been intended that National Cabinet information is confidential in the same way as Cabinet information, under longstanding and well established conventions of Cabinet:
Consistent with that original intention, the Bill confirms that position by proposing amendment to the definition of ‘Cabinet’ in the FOI Act to expressly provide that the Federal Cabinet includes a committee known as the National Cabinet and any committee of the National Cabinet.
Adequacy of existing provisions
3.45
The OAIC also submitted that the existing FOI framework adequately balanced the need to maintain the confidentiality of ‘opinions, advice, recommendations and deliberations’ which arise during government decision-making against the public’s right to access government-held information.
3.46
Ms Angelene Falk, Australian Information Commissioner, advised the committee that existing exemptions in FOI legislation were adequate, and also that there was a temporal aspect to determining whether the release of documents under FOI was in the public interest and this should be taken into consideration. Ms Falk noted that:
The public interest changes over time. It may be that access is denied at a particular point in time because those deliberations are still ongoing, that the matter is still under consideration and that it's against the public interest to release it in such circumstances, but one could conceive that, after a passage of time, those same documents may be the subject of a final decision and that release may be appropriate.
3.47
The Law Council of Australia objected to the FOI Act amendments proposed by Schedule 3, on the basis that existing FOI exemptions were adequate, and due to the absence of any meaningful justification for applying an absolute exemption based on the status, rather than the substance, of information. The Council further noted that there had been no demonstration of any harm which might be sustained if documents relating to National Cabinet were released, nor did it appear that any alternative approaches (instead of the bill as drafted) had been explored.
3.48
Mr Geoffrey Watson SC, who appeared before the committee in a private capacity, also observed that the findings of Justice White in the Patrick matter did not give open access to National Cabinet documents. Mr Watson observed that:
Justice White's decision, which is perfectly legally orthodox, left in place all of the ways in which we necessarily protect serious documents. For example, if the national cabinet, or the body called that, was deliberating on national security matters or commercial-in-confidence matters, or for that matter something which properly attracted legal professional privilege, all of those privileges remain and would protect the documents. [The decision] does no harm to that whatsoever.
3.49
The AHRC expressed concerns about the extension of the FOI Act amendments to other pieces of legislation, including the Australian Human Rights Commission Act 1986, and the fact that the amendments would exempt all National Cabinet documents from the FOI regime, regardless of the public interest. Emeritus Professor Rosalind Croucher AM, President of the AHRC, told the committee that the AHRC was of the view that:
… by placing a permanent exemption around this intergovernmental forum, schedule 3 is disproportionate to the commitment to freedom of speech and the flip side of that, the right to know, under the International Covenant on Civil and Political Rights. So we would say it's disproportionate and not appropriate.
3.50
Mr Graeme Edgerton, Acting General Counsel for the AHRC, observed that the FOI exemptions extended to a number of regulatory agencies, including the AHRC and also:
… the Ombudsman and the Australian Information Commissioner, which limits their ability to obtain documents that relate to their inquiries. Again, there are existing provisions in each of those acts that allow ministerial certificates to be given [for exemptions], and the effect of those certificates is that information and documents don't have to be provided in certain circumstances … this bill will provide an additional ability for the Attorney-General to require that certain information and documents not be provided to the [AHRC].
3.51
The Grata Fund took issue with the retrospective application of Schedule 3 amendments in relation to FOI, suggesting that applying the section 34 exemption retrospectively to the proceedings of National Cabinet was a ‘clear attempt to prevent public scrutiny of government decision-making during the COVID-19 pandemic, despite the fact that COAG would not have enjoyed those same privileges’.
3.52
The Grata Fund concluded that:
The existing provisions of the Freedom of Information Act already provide sufficient scope to withhold documents that ought not be subject to FOI requests, including on the grounds of national security, the protection of public safety, and where they affect Commonwealth-state relations.
Proactive disclosure
3.53
The ART suggested that a better positon was for the FOI Act to provide for proactive disclosure of all Cabinet and National Cabinet records, except on occasions where there was a public interest against disclosure, or disclosure would detail the opinions or advocacy of a minister.
3.54
The OAIC echoed this view, observing that proactive disclosure promotes ‘transparency, accountability and trust in government’, and that consideration should be given to legislating for the proactive release of some National Cabinet documents.
3.55
The Australia Institute further suggested that it was possible to maintain Cabinet confidentiality, while ‘radically increasing public access to cabinet documents’, pointing to New Zealand where there is a proactive release of Cabinet papers and minutes within 30 business days of a decision being taken. The Australia Institute pointed out that this process has ‘not appeared to interfere with the ability of NZ cabinet ministers to robustly debate policy ahead of a decision being made’.
Transparency in COAG
3.56
Several submitters noted that the COAG framework provided for some level of public accountability, without damaging the work of COAG. For example, the AHRC drew attention to the fact that the COAG Handbook included:
… requirements that key decisions and outcomes were made available publicly within one week of a meeting, along with publication of core work where required. COAG members could comment openly on COAG decisions, as long as they made clear that their commentary was representing the view of COAG or of individual COAG members.
3.57
In addition to the above, the Grata Fund observed that since its establishment, COAG had been subject to the FOI regime. Ms Isabelle Reinecke, Director of the Grata Fund, suggested that this was ‘entirely appropriate for a decision-making body’ of COAG’s nature, and further, that there had never been any suggestion that COAG ‘suffered from a lack of full and frank’ discussions. The ART likewise agreed that the confidentiality proposed by the bill has been unnecessary thus far for the effective workings of COAG, and the National Cabinet.
3.58
The Law Council of Australia made a similar point, noting that it was not aware of FOI legislation ‘ever having contained an absolute exemption’ from the release of documents relating to COAG and the various Ministerial Councils.
3.59
OVIC also pointed out that before it ceased, the documents of COAG and its committees were not subject to specific FOI exemption and that for nearly 20 years, ‘existing exemptions in the FOI Act could be applied to deny access to COAG documents where appropriate and necessary’.
Issues with current arrangements
3.60
Some submitters objected to the provisions of the bill on the grounds that the case had not been made that the current Cabinet confidentiality arrangements were not working, or were not allowing for open discussion within National Cabinet.
3.61
For example, the OVIC asserted that ‘no persuasive case has been publicly articulated that National Cabinet will produce better outcomes for all Australians if its deliberations are unconditionally hidden from scrutiny’.
3.62
Professor Podger took issue with the argument that the bill was needed to allow ‘full and frank discussions’ between all jurisdictional representatives, arguing that no evidence has been presented suggesting that the current arrangements inhibit these types of discussions.
3.63
However, the statement from First Ministers makes clear that the members of National Cabinet have participated on the understanding that meetings were conducted according to Cabinet conventions, including the confidentiality applied to discussions, papers and records, and stated:
The disclosure of National Cabinet documents or discussions other than in accordance with the principles agreed by the National Cabinet would undermine its effective operation and severely damage relations between the Commonwealth and the States and Territories… this would undermine the trust between the Commonwealth and the States and Territories and would prevent full and frank discussions that achieve the best outcomes for the Australian public.
The need for confidentiality
3.64
The sentiments expressed by some submitters regarding National Cabinet confidentiality were not supported by PM&C. PM&C instead argued that ‘maintaining confidentiality over National Cabinet information and discussions is critical to its effective operation, and reflects the close relationship that National Cabinet has to the Federal Cabinet’.
3.65
PM&C continued that Federal Cabinet has close oversight of the issues considered by National Cabinet, and any outcomes arising from it. Further, the Federal Cabinet and its committees are briefed in advance on issues which are proposed for the National Cabinet. PM&C concluded that:
Maintaining the confidentiality of National Cabinet information is an essential part of maintaining the protection of Federal Cabinet information. The application of cabinet conventions over National Cabinet information supports full and frank discussions between leaders with a view to ensuring robust decisions in the interests of all Australians.
3.66
In evidence to the committee, Mr John Reid, First Assistant Secretary, Government Division, PM&C, noted that existing FOI exemptions do not ‘provide the necessary certainty that members of the National Cabinet are after in relation to confidentiality of National Cabinet information’. Mr Reid noted that the bill’s proposed amendments were doing no more than ‘making good on the decision of the Prime Minister earlier in 2020 that the National Cabinet be established as a committee of Cabinet’.
3.67
In its submission, PM&C clarified that the proposed amendments to the FOI Act will apply to requests for National Cabinet documents which were made on, after or before the commencement of the bill, ‘but only where the request is not finally determined on commencement of the bill’. A request is not ‘finally determined’ unless all rights of review or appeal have expired or have been exhausted.
3.68
With regard to transparency, PM&C drew attention to the fact that after each National Cabinet meeting, the Prime Minister, in his role as Chair of that committee, issues a statement summarising the outcomes of the decisions made. In addition, state and territory leaders made similar statements and respond to media questioning in their own jurisdictions, following National Cabinet meetings.
Committee views
3.69
The body known as National Cabinet was established primarily as a vehicle for Premiers, Chief Ministers and the Prime Minister to work closely together to lead the national response to the COVID-19 pandemic. As the PM&C submission to this inquiry describes:
All First Ministers agreed to the establishment of National Cabinet as the most appropriate way to provide a coordinated and responsive approach to the complex and fast-moving policy and implementation challenges posed by COVID-19.
While the National Cabinet’s first priority is to respond to the health and economic effects of the COVID-19 pandemic, it is also a platform for leaders to collaboratively address issues of national significance.
3.70
This role of National Cabinet as the primary and preferred mechanism for First Ministers to consult and deliberate on issues of national significance as a collective was confirmed in May 2020, when the National Cabinet agreed to the cessation of COAG.
3.71
This bill makes the necessary legislative arrangements resulting from the establishment of National Cabinet and the winding up of COAG.
3.72
Schedules 1 and 2 of the bill update obsolete legislative references to COAG and the COAG Reform Fund. These schedules are uncontroversial and were broadly supported by those who provided submissions which commented on them.
3.73
Schedule 3 of the bill seeks to give effect to the intention of the Prime Minister, Premiers and First Ministers that, upon its establishment, the National Cabinet was to operate with the same confidentiality protections as a Committee of Cabinet by updating relevant provisions in existing Commonwealth legislation, including the FOI Act.
3.74
As the Explanatory Memorandum to the bill explains:
The confidentiality of information and decision-making is critical to the effective operations of the National Cabinet, enabling issues to be dealt with quickly, based on advice from experts. The sharing of sensitive data, projections and judgements—which relies on these principles of confidentiality—has been the foundation of effective decision making in the interests of the Australian people.
3.75
In Australia, the Cabinet and its relevant committees operate and evolve through convention. As per paragraph 2 of the Cabinet Handbook (14th edition):
The Cabinet is a product of convention and practice. There is no reference to the Cabinet in the Commonwealth Constitution and its establishment and procedures are not the subject of any legislation. Provided the guiding principles of a Cabinet system are met—collective responsibility and solidarity—it is for the Prime Minister of the day to determine the shape, structure and operation of the Cabinet.
3.76
Further, paragraph 4 of the Cabinet Handbook stipulates that committees of the Cabinet are:
… usually established either around a subject area, such as national security, or around a general function of Government, such as expenditure. Temporary or ad-hoc Cabinet committees may also be established by the Prime Minister to carry out particular tasks.
3.77
In the course of this inquiry, the Committee was provided with a joint statement from the Premiers, Chief Ministers and Prime Minister stating that ‘Cabinet confidentiality ensures that members of National Cabinet may exchange differing views and achieve outcomes together’; that the ‘confidentiality of information and decision-making has been invaluable to National Cabinet’; and that:
… the disclosure of National Cabinet documents or discussions other than in accordance with the principles agreed by National Cabinet would undermine its effective operation and severely damage relations between the Commonwealth and the States and Territories.
3.78
It is clear from these statements, as well as contemporary statements by the Prime Minister at the time of the formation of National Cabinet, that it was the intention of First Ministers that National Cabinet would be able to meet and deliberate confidentially, in the same manner and with the same protections as a committee of cabinet.
3.79
These statements regarding the importance of confidentiality relating to National Cabinet meetings—coming from the Premiers, Chief Ministers and Prime Minister as the members of National Cabinet—carry significant weight.
3.80
The wish of the heads of Australian Governments to be able to consult and make decisions in a Cabinet-like forum, with the protection of confidentiality in the same manner in which Cabinet discussions and documents have confidentiality—does not seem unreasonable.
3.81
A significant amount of the submissions and evidence provided during the course of this inquiry focused on the matter of whether the National Cabinet actually is a cabinet or a cabinet committee.
3.82
Submitters on both sides of this argument relied on reference to convention. On one hand, a number of submitters argued that cabinet conventions and traditions do not support the formulation of National Cabinet as a committee of cabinet, for reasons including that its members are not drawn from or accountable to the Federal Parliament, and by extension cannot be bound by the principle of cabinet solidarity in the usual way. On the other hand, PM&C noted that, by convention, it is for the Prime Minister of the day to determine the structure and operation of Federal Cabinet. The Prime Minister has made clear his position that National Cabinet was established as a committee of that Cabinet.
3.83
Although there is a wide divergence of views regarding which conventions have primacy and much of the evidence provided to the Committee focused on this matter, submitters agreed that it is not the Parliament which decides what can and cannot be constituted as a committee of cabinet. The Parliament’s role is to define ‘Cabinet’ only for the limited purpose of interpreting relevant Commonwealth legislation, and this bill seeks to provide clarification on this matter to give effect to the intention that National Cabinet is afforded cabinet-like confidentiality protections.
3.84
Self-evidently, given the amendments proposed in Schedule 3, it is unclear whether National Cabinet currently meets the definition of a Cabinet Committee within the Commonwealth Acts which will be amended by this bill. This creates uncertainty because, as is the argument put by PM&C, it is the Prime Minister who can determine the structure of cabinet, and he has done so in determining that National Cabinet operates as a committee of the Cabinet.
3.85
In considering this bill, the committee does not believe it is our role to adjudicate on the structure and operation of Cabinet or its committees. This bill seeks to provide National Cabinet with similar confidentiality protections to a Cabinet or Cabinet Committee. The statements of First Ministers make the case that this is essential to the operation of National Cabinet and that the effective operation of National Cabinet would be undermined without that protection. The committee believes that, having regard to those statements from First Ministers, it is not inappropriate for the Parliament to provide these protections for the formal deliberations and discussion of issues of national significance between heads of government.
3.86
The passage of this bill would give effect to that intention to provide confidentiality, rather than being a matter of Parliament endorsing any broader view about National Cabinet and the evolution of Cabinet conventions.
3.87
It is important and appropriate that the Parliament retains the ability to scrutinise the activities of National Cabinet and its sub-committees. As outlined in advice provided by the Clerk of the Senate, the proposed changes in this Bill should not affect the Senate’s ability to obtain information about the activities of National Cabinet and its sub-committees. The Clerk noted that the Senate has information gathering powers which do not derive from Commonwealth statutes.
3.88
There were a number of matters raised during the course of this inquiry which extend beyond the scope of the committee’s reference to inquire into the provisions of this bill and relate to broader discussions and debate around Federal-State relations and the architecture of National Cabinet. The role and purpose of National Cabinet and its committees will undoubtedly continue to be the focus of much public debate and discussion. As the cessation of COAG demonstrates, there is no guarantee that arrangements deemed suitable in the present will continue to be seen as the best architecture to deliberate on matters of national significance in the future.
3.89
The committee recommends that the COAG Legislation Amendment Bill 2021 be passed.
Senator Claire Chandler
Chair