Lawyers oppose national cabinet secrecy provisions

By Jackson Graham

September 28, 2021

The Law Council of Australia joins opposition making the national cabinet exempt from FoI requests.
The Law Council of Australia joins opposition making the national cabinet exempt from FoI requests. (AAP Image/James Ross)

The Law Council of Australia has joined opposition to federal legislation that would make the national cabinet exempt from freedom of information requests. 

The coronavirus pandemic has led the national cabinet, which allows the nation’s state, territory and federal heads to meet virtually, to replace a more formulaic intergovernmental forum of Council of Australian Governments which had met since 1992.

Now the federal government is attempting to cover national cabinet deliberations with secrecy provisions from the Freedom of Information Act, arguing its intention is to mirror the same confidentiality the federal cabinet has. 

As reported by The Mandarin on Monday Senator Rex Patrick has proposed an amendment to challenge the legislation. 

The Law Council of Australia has added to that concern in a submission to a senate inquiry examining the provisions

The council’s president Dr Jacoba Brasch said the bill in its current form meant the cabinet would be “unconditionally exempt” from disclosing its discussions.

“It is not just official records that would be off limits, but proposals by individual Ministers to place matters on the agenda, briefings of Ministers on submissions, and drafts of all these documents,” Brasch said. 

She said there was no meaningful justification for secrecy and called for discussions to be subject to a public interest test if documents were requested. 

“Existing FOI exemptions are already adequate. Under these exemptions, national cabinet documents would not be released if the harm it would cause to specified national interests outweighs public interest,” Brasch said. 

The Law Council has called for the section of the bill guaranteeing confidentiality, section three, to be removed from the legislation. 

Its submission also includes four guiding principles if the section was to remain with amendments, including a request for a sunset clause, an expiry of confidentiality, clearer definitions of the scope of information covered, and that secrecy not extend to committees.


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