Plan to ‘kill’ proposal that will give national cabinet immunity from scrutiny

By Melissa Coade

Monday September 27, 2021

Senator Rex Patrick.
Senator Rex Patrick. (AAP Image/Mick Tsikas)

Senator Rex Patrick has proposed an amendment that will challenge what he calls the federal government’s ‘oversight obstruction efforts’ to keep the deliberations of the national cabinet secret.

The South Australian crossbencher is hoping for support from other crossbenchers and the Labor Opposition to remove Schedule 3 of prime minister Scott Morrison’s COAG Legislation Amendment Bill 2021.

The move aims to block an attempt by the federal government to prevent the release of any further National Cabinet information under FOI laws

In August, the Administrative Appeals Tribunal found in favour of Patrick, who mounted a legal challenge to the government’s position that cabinet confidentiality should apply to the COVID-19 national cabinet meetings convened with state and territory premiers and chief ministers. Justice Richard White found that the national cabinet could not have cabinet confidentiality extended to its deliberations as it was not a subcommittee of the federal cabinet. 

“The prime minister has been unable to introduce a ICAC bill in the two years of this parliament, but can introduce an oversight obstruction Bill in just 28 days,” Patrick said of the government response to the AAT finding.

“None the less, it’s not surprising that following the […] ruling that ‘national cabinet is not a real cabinet’ the prime minister introduced a bill into parliament to prevent any further release of national cabinet information under FOI laws”.

The senator accused Morrison of being ‘obsessed with secrecy’ and said the government measures were an example of changing the law once it was discovered it had been acting outside of it.

“I aim to put a stop to that. I have introduced an amendment that will remove Schedule 3 of the Prime Minister’s COAG Legislation Amendment Bill 2021,” Patrick said.

“If supported by the Labor Opposition and crossbench senators, that amendment will kill the prime minister’s secrecy plans stone dead.”

The Senate’s finance and public administration legislation committee is currently reviewing the proposed amendment and will hold a public hearing on Monday on the issue. Patrick said of the 13 submissions made to the committee, only one — from the Department of Prime Minister and Cabinet — supported the amendment. 

On the issue of Schedule 3 amendment of the bill, the PM&C submission explained the intention was to grant the national cabinet the same confidentiality protections as the federal cabinet. It proposed to do this by changing all the relevant definitions of what a cabinet is.

“The purpose of the amendments in schedule 3 is to provide that rules of this kind in Commonwealth legislation protect national cabinet information from disclosure in the same way as federal cabinet information,” the PM&C submission read.

“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.”

PM&C’s submission further explained that federal cabinet has close oversight of issues to be considered by, and outcomes of, the national cabinet. Federal cabinet and its committees are also briefed in advance on issues which are proposed for the national cabinet, it read. 

Furthermore, the department argued, confidentiality afforded the national cabinet opportunities for ‘full and drank discussions’ with a view to ‘ensuring robust decisions in the interests of all Australians’.

“All first ministers agreed to the establishment of a 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,” the submission said. 

“While the national cabinet’s first priority is to respond to the health and economic effects of the COVID19 pandemic, it is also a platform for leaders to collaboratively address issues of national significance.”

Senator Patrick said that he was disappointed PM&C secretary Phil Gaetjens would not be attending Monday’s committee hearing. First assistant secretary, cabinet division, Leonie McGregor appeared instead.

“[Gaetjens] was asked to attend the committee hearing but has sent other lower-ranked officials in his place,” Patrick said. 

“He was the respondent in my successful ‘national cabinet’ FOI case before the Administrative Appeals Tribunal and I would like to question him about some of the claims he and his department made that Justice White found to be factually incorrect and not supported by law.”

The senator said that since the national cabinet was a ‘political creation’ of the prime minister ‘with the Secretary of his department doing the work in attempting to shield its decisions and deliberations from public scrutiny’, it was only right that Gaetjens should appear before the committee. 

“Intergovernmental meetings have always been subject to FOI with a harm threshold and an appropriate public interest test. Mr Morrison is seeking to change that and impose a complete ban on scrutiny.

“There’s no justification for doing so and to do so would erode participation by everyday people in the governing of our Federation,” Patrick added.


Call for laws to keep public information sharing routine

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