Introduction
Schedules 1 and 2 of the COAG Legislation Amendment Bill 2021 (the bill) update outdated references to the Council of Australian Governments (COAG) and the COAG Reform Fund where they occur in legislation. These legislative changes are uncontroversial in nature, though Labor Senators note the Government has seen fit to introduce them more than a year after COAG ceased to exist.
Schedule 3 of the bill purports to make the intergovernmental body known as National Cabinet part of the Commonwealth Cabinet and extend Cabinet exemptions in various Acts, including the Freedom of Information Act 1982 (FOI Act), to its deliberations and decisions.
National Cabinet
National Cabinet was formed in response to the pandemic and succeeded COAG as the Commonwealth-state intergovernmental forum comprising First Ministers.
Labor Senators believe National Cabinet has played a useful role, not least in enabling Premiers and Chief Ministers to act as a check on the pandemic policy missteps of the Morrison Government.
Through the vehicle of National Cabinet the states and territories have also fulfilled functions the Morrison Government has refused or failed to do, such as providing quarantine facilities and effectively administering mass vaccinations.
Notwithstanding its useful role to date, the capacity of National Cabinet to act as an effective vehicle for Commonwealth-state relations on an ongoing basis is by no means certain.
In contrast to COAG, the President of the Australian Local Government Association (ALGA) is not a member of National Cabinet. This omission unnecessarily denies a voice to the third tier of government and weakens, not strengthens, National Cabinet. The Prime Minister should admit he erred by ejecting local government from the successor to COAG and invite ALGA back to the table.
Secrecy
Secrecy has been a foundational feature of National Cabinet, just like the Morrison Government.
Since it was established the Morrison Government has withheld information from the Parliament and the public on the spurious grounds that National Cabinet is part of the Commonwealth Cabinet.
The tentacles of National Cabinet secrecy have extended without justification to other bodies which pre-dated National Cabinet including the Australian Health Protection Principal Committee (AHPPC). The decision to treat documents previously published by AHPPC as Cabinet-in-Confidence upon the creation of National Cabinet has diminished public knowledge and buttressed the ability of dangerous fools to spread misinformation about Australia’s public health response during the pandemic.
In his evidence to the committee Mr Oliver Ray from the Grata Fund expressed well-grounded concern about an expansion of the Cabinet exemption to bodies that advise National Cabinet.
The obsession with secrecy that motivates this bill is entirely consistent with the pattern of behaviour exhibited by the Prime Minister since his appointment, including when he took the unprecedented step of creating a one person Cabinet committee for the sole purpose of hiding documents from the Parliament and the public.
AAT decision
The Administrative Appeals Tribunal (AAT) decision in Patrick v Secretary, Department of the Prime Minister and Cabinet exposed the fallacy of the Morrison Government’s claim National Cabinet is part of the Commonwealth Cabinet.
White J found National Cabinet does not fall within the existing statutory meaning of a committee of the Commonwealth Cabinet, the National Cabinet does not observe longstanding Cabinet conventions including collective responsibility and Cabinet solidarity, and designating National Cabinet as a committee of the Commonwealth Cabinet would be inconsistent with the conventions of responsible government.
The Morrison Government’s humiliating defeat at the AAT was made more humiliating by White J’s refusal to accept the purported ‘expert’ status of Mr Phil Gaetjens, the Secretary of the Department of the Prime Minister and Cabinet, and Ms Leonie McGregor, the First Assistant Secretary of the Cabinet Division in the department.
The defeat in the AAT is the reason the Senate is dealing with the proposed bad law subject to this inquiry.
Bad law
Experts and statutory office holders who gave evidence to the committee at a public hearing on 27 September 2021 unanimously opposed the Morrison Government’s attempt to cloak National Cabinet in a veil of Cabinet secrecy.
The non-partisan Accountability Round Table told the committee the bill is ‘bad law’ that will ‘endanger the public respect for the work of the National Cabinet’ and Schedule 3 should be deleted. Labor Senators concur.
One of the most disturbing aspects of the bill is its attempt to legislate the fiction that National Cabinet is part of the Commonwealth Cabinet.
The President of the Australian Human Rights Commission, Emeritus Professor Rosalind Croucher AM, told the committee ‘the change proposed in this bill is based on the false premise that National Cabinet is a committee of the Federal Cabinet.’
In her written and oral evidence the eminent constitutional scholar Professor Anne Twomey AO said the Government was asking the Parliament to make a fiction the law. In her written submission Professor Twomey compared the bill to legislation that declared the earth flat or the moon a ball of green cheese. In her oral evidence Ms Twomey labelled the bill ‘bizarre’.
In his appearance before the committee Mr Geoffrey Watson SC described the bill as akin to one that declared a cat a dog or vice versa.
Despite the decision by the Hon Justice Richard White in the Patrick matter, evidence from expert witnesses, and the longstanding conventions outlined in the Cabinet Handbook, officials from the Department of the Prime Minister and Cabinet who appeared before the committee insisted National Cabinet is part of the Commonwealth Cabinet.
Reminiscent of the Black Knight in Monty Python’s Knights of the Round Table, officials from the Prime Minister’s department did not allow facts to stand in the way of a written submission and oral evidence that defies credulity.
What these officials did not explain is why, if National Cabinet is genuinely part of the Commonwealth Cabinet, this bill is necessary at all.
Deliberations already protected
As the committee heard from many witnesses, Schedule 3 of the bill is not necessary to protect the deliberations of First Ministers.
Ms Angelene Falk, the Australian Information Commissioner, told the committee:
It is the view of the OAIC, with which state and territory information commissioners and ombudsman concur, that the existing provisions in the FOI Act provide an adequate framework to balance the need, in appropriate circumstances, to maintain the confidentiality of opinions, advice, recommendations and deliberations that occur as part of government decision-making, including by national cabinet, with the public's interest in, and right to, access government held information.
Labor Senators agree. It is clear the conditional exemptions in 47B and 47C of the FOI Act provide more than adequate protection, as demonstrated by their longstanding operation in relation to COAG deliberations.
Professor Twomey asked the committee to consider what problem the bill is seeking to address:
So, what's the problem? They haven't really identified one. They just want to keep things secret. I don't think 'I want to keep things secret' is a good enough answer.
‘I want to keep things secret’ is not just a bad answer, it’s an answer the Senate should never accept as the rationale for legislation that diminishes the Australian public’s right to know.
Accountability
It is a matter of regret the Secretary of the Department of the Prime Minister and Cabinet, Mr Gaetjens, did not appear before the public hearing on this bill despite a request from the committee.
It was unacceptable for the then Acting Secretary of the Department of the Prime Minister and Cabinet, Ms Stephanie Foster, to write to the committee on Friday, 24 September 2021, informing the committee Mr Gaetjens would not appear at a public hearing on Monday, 27 September 2021. It was also unacceptable for Mr Gaetjens to not make himself available at another time, noting the bill concerns his core responsibilities.
It was unacceptable for the head of the department’s Cabinet Division, Ms McGregor, to fail to accurately cite the longstanding Cabinet conventions of collective responsibility and solidarity when appearing before the committee. Officials are expected to provide accurate evidence even when that evidence is inconvenient or embarrassing for the government of the day.
It was utterly unacceptable for the Department of the Prime Minister and Cabinet to ignore the deadline set by the committee for the return of questions on notice.
Labor Senators are concerned the contempt for accountability that is the hallmark of the Morrison Government now extends to his department which once exemplified the very best of the Australian Public Service.
This committee—and the Senate—should not accept the undermining of its scrutiny role by a department led by a former functionary of a sitting Prime Minister.
Acknowledgements
The capacity of the Senate committee system to deliver better legislative and policy outcomes is underpinned by the willingness of citizens and civil society groups to participate in its inquiries.
Labor Senators sincerely thank everyone who made written submissions to this inquiry and appeared before the committee at a public hearing on 27 September 2021.
The deliberations of Labor Senators greatly benefited from written submissions and oral evidence given at the public hearing.
We draw the attention of those interested in the bill and the Senate’s consideration of it to the submissions published on the inquiry website and the oral evidence recorded in the Hansard report of the public hearing conducted on 27 September 2021.
There they will find a comprehensive legal and policy demolition of a schedule to a bill that, if passed into law, would have substantial, systemic and negative consequences for transparency, accountability and the functioning of the federation.
Recommendation
The bill be passed with the omission of Schedule 3.
Recommendation
If Schedule 3 is not omitted from the bill, the bill be opposed.
Recommendation
The Department of the Prime Minister and Cabinet provide an explanation for its decision to ignore the deadline set by the committee for the return of answers to questions on notice.
Recommendation
The Secretary of the Department of the Prime Minister and Cabinet and other senior officials of the department reacquaint themselves with:
the scrutiny functions of the Senate and its committees; and
the obligations of official witnesses who appear before Senate committees.
Senator Tim Ayres
Deputy Chair