Independent senator Rex Patrick has won his legal fight to access national cabinet documents, after a Federal Court judge decided that the documents were not ‘an official record of a committee of the cabinet’.
Patrick launched proceedings in the Administrative Appeals Tribunal in September, after his freedom of information requests relating to national cabinet meeting minutes and procedures were denied. The Office of the Australian Information Commissioner then referred Patrick’s appeal to the AAT the following month.
The Department of the Prime Minister and Cabinet had rejected Patrick’s requests on the basis that the documents were official records of the cabinet, and were therefore exempt under the Freedom of Information Act.
But Justice Richard White, in a decision published by the AAT on Thursday, has ruled that the national cabinet is not a committee or a sub-committee of the cabinet, and so the documents Patrick requested are not protected by the FOI Act.
“The mere use of the name ‘national cabinet’ does not, of itself, have the effect of making a group of persons using the name a ‘committee of the Cabinet’. Nor does the mere labelling of a committee as a ‘Cabinet committee’ have that effect,” White said.
White also rejected PM&C’s argument that the national cabinet was a cabinet committee because the prime minister had established it as such.
“This seemed tantamount to a submission that any committee may be a ‘committee of the cabinet’ for the purposes of the FOI Act merely because the prime minister of the day has purported to establish it as such. This premise is unsound,” he said.
“But in any event, as will be seen, the evidence does not support a conclusion that the prime minister ‘established’ the national cabinet. All the evidence provided to the tribunal concerning the establishment of the national cabinet was secondary in nature. That is to say, the tribunal did not receive evidence from any primary participant who could give first hand evidence of its establishment.”
Responding to the decision, Patrick said the group Morrison had labelled as national cabinet was a ‘faux cabinet’, and just another intergovernmental meeting.
“This is another political, legal and administrative shambles produced by a prime minister making things up as he went along,” he said.
The national cabinet was set up in March 2020, in response to COVID-19. In May, Morrison announced that the group would continue to meet following the pandemic, and would replace the Council of Australian Governments.
The senator said White’s decision was a ‘win for transparency and accountability’.
“For almost 40 years Australians have had a legal right under the Freedom of Information Act 1982 to access information relating to intergovernmental meetings, subject only to a test of public harm,” he said.
“Last year Prime Minister Morrison tried to take that right away. He did not ask the parliament to change the law, he just declared that national cabinet to be part of the federal cabinet and as such exempt under the cabinet secrecy exemption of the FOI Act. That arrogant declaration has now been overturned.
“Although the Morrison government may yet appeal this decision to the Federal Court, and perhaps ultimately the High Court, all at the expense of taxpayers, this is a landmark decision that opens the way for more effective scrutiny of the response of Australian governments – federal, state and territory – to the COVID19 pandemic.”