PM&C hires lawyer to fight attempts to access national cabinet documents

By Shannon Jenkins

Thursday March 11, 2021

The Prime Minister Morrison has insisted all national cabinet deliberations are confidential.
The Prime Minister has insisted all national cabinet deliberations are confidential. (AAP Image/Dean Lewins)

The Department of the Prime Minister and Cabinet has reportedly hired a senior lawyer to prevent the contents of national cabinet meetings from being made public.

On Wednesday The Australian reported that PM&C had brought on Andrew Berger QC to block attempts to access confidential national cabinet deliberations. Berger was appointed Commonwealth Queen’s Counsel in October.

In September, independent senator Rex Patrick launched proceedings in the Administrative Appeals Tribunal after his freedom of information requests relating to national cabinet meeting minutes and procedures were denied.

The Office of the Australian Information Commissioner referred Patrick’s appeal to the AAT the following month.

The matter will be heard before Federal Court judge Richard White as early as May, according to The Australian.

In a tweet on Thursday, Patrick said he would not let Prime Minister Scott Morrison “unilaterally cast a secrecy blanket” over the operation of the government, “no matter how many taxpayer-funded QCs he hires”.

“A Federal Court judge will now hear this important transparency matter,” he wrote.

READ MORE: The Briefing: Information Commissioner refers Senator Rex Patrick’s national cabinet challenge to the AAT

This week the Australian Conservation Foundation (ACF) also filed a case with the AAT in an attempt to obtain information on more than a dozen environmental approvals that were fast-tracked by the government. The approvals related to 15 infrastructure projects, including gas and uranium developments.

While Morrison has insisted that all national cabinet deliberations are confidential, legal advice obtained by the ACF has raised questions about the exemption, according to Guardian Australia.

“Although the prime minister has indicated such 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,” the legal advice states.

“Some documents may not be exempted from disclosure. In the circumstances, legislative amendments may need to be considered to address this uncertainty.”

Morrison established the national cabinet in March 2020, in response to the COVID-19 pandemic. He made it a committee of federal cabinet — along with the Australian Health Protection Principal Committee, National COVID-19 Commission, and National Cabinet Reform Committees — exempting them from FOI laws.

READ MORE: For public servants, the future of the national cabinet means adapting to centralised power and engineering accountability


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