Rex Patrick (SA, Centre Alliance) Share this | Hansard source

I rise to take note as well. I support the statements in relation to the religious freedom review and the implications of that as raised by Senator McAllister, Senator Rice and Senator Hinch. I want to talk about the actual claim made by the government in relation to this document, the claim of cabinet in confidence. I want to talk about the purpose of that doctrine. Going back to the very basics, the purpose of the cabinet-in-confidence doctrine is to protect the confidentiality of cabinet process to ensure that the principle of collective material responsibility is not undermined. That is the fundamental purpose, and I support that purpose and the doctrine, but the protections of that doctrine are limited; they are not unbounded.

Cabinet is not referred to in our Constitution, although I make no contest of the fact that it has legal status, and I once again recognise the role of cabinet and indeed cabinet confidentiality. Cabinet is a creature of convention, not statute; whereas the Senate's oversight powers are a creature of a statute and, in fact, that statute is the ultimate statute and that is the Constitution—section 49 of the Constitution. Of course, statute always overrides both common law and convention.

Both the courts—and I refer the Senate to the High Court case of Sankey v Whitlam back in 1978—and the parliament have powers to call for cabinet documents. The court made it very clear that in the interests of justice that may, in certain circumstances, override the doctrine of cabinet in confidence. I refer people to the Harry Evans lecture last year by Bret Walker SC where he clearly asserted that the parliament ultimately has the same power as the courts. I accept that that absolute power, that absolute right, is one that should be exercised in extremis, and I don't say that it's warranted in this particular case for us to use our absolute power in relation to this particular OPD.

What I will do is turn to Odgers and read very briefly from Odgers, because that's the norm:

It is accepted that deliberations of the Executive Council and of the cabinet should be able to be conducted in secrecy so as to preserve the freedom of deliberation of those bodies. This ground, however, relates only to disclosure of deliberations.

So not documents, and certainly not documents written by an independent person such as Mr Ruddock.

There has been a tendency for governments to claim that anything with a connection to cabinet is confidential.

It's the aroma of cabinet kind of argument. We wield it through the cabinet on a coffee tray, and therefore the Senate is not able to get access to it.

A claim that a document is a cabinet document should not be accepted; as has been made clear in relation to such claims in court proceedings…

I will go on to provide you with what the courts have said in relation to this. The High Court, in the Commonwealth v Northern Land Council, a 1993 decision, said—and this should be listened to carefully:

It should be observed at the outset that the documents for which the Commonwealth claims immunity from disclosure are documents which record the actual deliberations of Cabinet or a committee of Cabinet.

So just the idea that deliberations are occurring is not sufficient to invoke the doctrine. I accept that cabinet submissions may contain, at the very least, the deliberations of the minister advancing the proposition to the cabinet, so I might accept a public interest immunity claim over a cabinet submission. Cabinet submissions have a particular form. They have particular security requirements, as laid out in the Cabinet Handbook. Typically they are no longer than 50 pages. I suspect that, when this document is finally released, we will find that the Ruddock review in no way, shape or form complies with the requirements of the Cabinet Handbook as a cabinet submission.

I point out that this document is an independent report written by Mr Ruddock. He does not express the views as a member of the cabinet, despite his history. So there can be no case to argue that the views of Mr Ruddock in this report, as well informed or as ill informed or as widely briefed as he was, are in any way a deliberation of the cabinet. This document should be produced, for all the reasons I have just talked about. The government is undermining the very doctrine it seeks to rely upon in this instance. It's inappropriate that it should make that claim. The document should be tabled.

Question agreed to.