Nowhere to hide: the significance of national cabinet not being a cabinet

When is a cabinet not a cabinet? When it is really an intergovernmental body that is pretending to be a cabinet so it can avoid transparency? Simply calling itself a “cabinet” is not enough to trigger an exemption in freedom of information legislation.

Justice Richard White this week so held in a proceeding before the Administrative Appeals Tribunal brought by Senator Rex Patrick.

What was the case about?

Patrick was seeking, through freedom of information (FOI), certain records of the “national cabinet” as well as documents concerning the formation and functioning of the cabinet. This would include its rules, how it makes decisions, whether any jurisdiction has a right of veto over its decisions, whether those decisions are binding, what conventions apply to it and whether its deliberations are recorded and transcribed.

The Department of the Prime Minister and Cabinet (PM&C) refused access to the records on the ground they were records of a committee of the federal cabinet and therefore exempt from disclosure.

Patrick successfully challenged this refusal in review proceedings before the Administrative Appeals Tribunal.

Read more: Morrison government loses fight for national cabinet secrecy

What is the ‘national cabinet’?

The national cabinet was established in March 2020, at the beginning of the COVID pandemic, to replace the Council of Australian Governments (COAG). It is an intergovernmental body comprised of the political leaders of the Commonwealth, states and territories.

The national cabinet reaches agreed positions on matters of national and intergovernmental importance, so there can be some consistency and coordinated planning across the nation. But it leaves it to each jurisdiction to implement the agreed standards or principles in its own way.

What is meant by the term ‘cabinet’?

The Constitution does not refer to the cabinet or the prime minister, but it was always intended they exist. Their existence, however, is based on convention and an understanding of how the system of responsible government works.

Ministers advise the governor-general through the Federal Executive Council. But it is the cabinet (which at the federal level is a smaller group of senior ministers) that makes the important policy decisions.

Those decisions are given effect through the enactment of legislation or by formal acts of the governor-general (such as proclamations or regulations), or by public servants developing and administering the policies and programs of the government.

A critical element of a “cabinet” is that it derives its existence from, and is accountable to, parliament. This is a fundamental aspect of the principle of “responsible government”. Ministers are responsible to parliament for their actions as ministers. The lower house can hold the government to account for cabinet’s decisions by voting no confidence in it, forcing its resignation or an election.

Another important feature of a cabinet is that it makes collective decisions for which all members are equally responsible. To maintain this collective responsibility, records of who argued for and against a decision are kept strictly confidential for decades. Otherwise, ministers could absolve themselves of responsibility for government decisions by saying they did not support the decision at the time. If a minister fundamentally objects to a decision and is not prepared to support it publicly and be responsible to parliament for it, then he or she is, by convention, obliged to resign.

The convention of cabinet confidentiality applies to support this principle of collective ministerial responsibility.

Does calling something a ‘cabinet’ turn it into one?

Justice White rightly commented that 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.

He considered that a “committee of the cabinet” means a subgroup of the cabinet, and that the cabinet must be comprised of ministers who, according to the Constitution, must be members of parliament within three months of their appointment.

PM&C argued that any committee was a cabinet committee as long as the prime minister decided to establish it as such. Justice White called this argument “unsound”. He did not think the prime minister could change the statutory meaning of a cabinet committee simply by giving a committee that name.

In any case, he also concluded that neither the prime minister nor the federal cabinet created the national cabinet. It was instead established by resolution of COAG on March 13 2020.

Why is the ‘national cabinet’ not a federal ‘cabinet committee’ under FOI?

First, a cabinet and its committees are comprised, at least substantially, of ministers responsible to the one parliament or government. National cabinet is comprised of ministers responsible to different parliaments, governments and political parties. Only the prime minister is a member of both the national cabinet and the federal cabinet.

Another feature of a federal cabinet committee is that the prime minister appoints its members. In contrast, Justice White found that the members of the national cabinet were not appointed by the prime minister. They are members of national cabinet because of the offices they hold.

Federal cabinet committees derive their powers from the federal cabinet, have their decisions endorsed or overridden by that cabinet, and are ultimately subject its powers and directions. The national cabinet does not meet this description. Its decisions do not have to be endorsed by the federal cabinet and the federal cabinet cannot overrule them. National cabinet also addresses matters over which the federal cabinet has no authority or control.

Read more: The national cabinet's in and COAG's out. It's a fresh chance to put health issues on the agenda, but there are risks

What are the consequences?

The Commonwealth has 28 days to initiate an appeal of the decision. No doubt it will – even though the decision seems to be plainly correct. If the decision stands, it means Rex Patrick will be able to gain access to the national cabinet’s documents (unless other exemptions apply), increasing transparency about how it operates and the decisions it makes.

It will also remove a convenient method for the Commonwealth government to assert secrecy over anything it wants.

Finally, it should (but probably won’t) put an end to the government’s claims of cabinet confidentiality when parliamentary committees seek access to the documents of the national cabinet or any other dubiously established cabinet committees. If this were to happen, it would greatly enhance government accountability.