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

Tonight I rise to speak about an issue at the very centre of the governance of our country: Prime Minister Morrison's so-called national cabinet. National cabinet has been widely regarded as a success in bringing together Commonwealth, state and territory governments in a national response to COVID-19. Some of the gloss of that success may have come off with differences over state border closures and blame games over quarantine breakdowns and the mismanagement of the COVID-19 outbreaks in aged-care facilities. The cohesion of national cabinet is likely to be further tested in the months to come as the discussion increasingly focuses on very challenging financial problems.

However, the issue I want to address tonight is not the performance of the national cabinet but rather its corruption of a well-established cabinet convention, its lack of legal foundation and its threat to transparency and accountability. National cabinet is indeed a legal sham. It rides roughshod over long-established cabinet practices and conventions and potentially creates a precedent for future governments to subvert the foundations of responsible government. For those reasons, I have initiated what is a first-of-its-kind legal challenge to the PM's authority to unilaterally determine cabinet practice and processes as he wishes.

This is not the first time a crisis has generated changes in federal state relationships and interaction. The national cabinet's innovation is not in bringing together the Prime Minister and premiers and chief ministers in streamlined meetings free from the bureaucracy that had built up round the COAG processes; that could have been achieved simply by removing the crowds of bureaucrats cluttering COAG meetings. Rather, the novelty of the national cabinet is the PM's deeming that this new body is part of the federal cabinet, protected by absolute cabinet confidentiality and Commonwealth secrecy laws.

That secrecy has been extended to other bodies and organisations that are reportedly directed by and report to national cabinet, including the AHPPC, or Australian Health Protection Principal Committee, the National COVID Advisory Commission and, following the abolition of COAG, a host of old and new intergovernmental bodies, ministerial councils and other advisory bodies. At the stroke of the PM's pen, and with the complicity of state and territory leaders, federal cabinet secrecy has been massively expanded within the Commonwealth government and across the great expanse of intergovernmental activity. This has serious consequences for accountable ministerial government at all levels of the federation. This new structure is already being used to obstruct examination of the federal government's COVID response by parliamentary committees and through freedom of information. It is likely to be used by state governments to avoid accountability as well.

This is a serious threat to responsible government and it will not go unchallenged. As I mentioned, I commenced a legal test case to expose the arbitrary nature of national cabinet and its lack of sound foundations. The Department of the Prime Minister and Cabinet has rejected my FOI application for the minutes of the national cabinet's first meeting and other information relating to procedures. The department claimed that the records of national cabinet are exempt from FOI because they are 'official records of cabinet'. I've appealed that decision to the Information Commissioner. Cabinet is not mentioned in the Constitution. Its legislative recognition is limited to the FOI Act and the National Archives act. Cabinet exists and operates in accordance with political precedent and practice.

Some of that precedent and practice is laid out in the Cabinet Handbook, a book that came into existence in 1926 and was held as secret. It was declassified in 1982 and published by the government in 1984. However, while cabinet practices have evolved over decades, some things are clear. This goes to the heart of my legal challenge. The national cabinet is constituted as a cabinet office policy committee of the Commonwealth cabinet, of which the PM is the only permanent member. A cabinet or even a subcommittee of cabinet is, properly, a single cabinet of ministers—ministers plural—exercising collective responsibility, not a single minister and not even a prime minister. The PM alone is not a cabinet. Federal cabinet is a collective gathering of ministers of state who, according to our Constitution, must be members of the federal parliament. If it were accepted that the national cabinet is part of the federal cabinet, then any meeting between the PM and other persons, including his gardener, could be designated as a cabinet meeting and be subject to cabinet secrecy. The national cabinet is also not a cabinet because it is not constituted by members of government responsible to one parliament. Rather, it is better characterised as an intergovernmental body. Cabinet is not a meeting of prime ministers and premiers, and cabinet is certainly not a meeting of doctors. A meeting of the AHPPC is not a meeting of cabinet, as has been claimed in answers to questions on notice.

Furthermore, the decisions by the executive to establish a national cabinet which will ultimately replace COAG creates a confidentiality span so broad that it intrudes on the rights created by statute, including in the FOI Act, and additionally interferes with the accountability of government that is the very essence of responsible government. Commands by the executive cannot interfere with commands of this parliament, and that will be tested.

One might ask why the Prime Minister has established a national cabinet as he has. After all, COAG discussions have long been conducted on the basis of intergovernmental confidentiality that is effectively recognised in FOI at the federal, state and territory levels. The answer lies in the fact that the federal FOI allows for the application of what's called a public interest test to claims of exemptions on grounds of potential damage to Commonwealth-state relations. So you can overcome exemptions by arguing public interest, but no such public interest test applies to cabinet-in-confidence secrecy claims.

The core purpose of the way in which the PM constructed national cabinet was to extend cabinet secrecy. It is a wholly artificial construct—a most serious corruption of cabinet government designed with the intention of reducing transparency and accountability across a huge swathe of public policy and administration. We'll have to see where my legal challenge goes. Meanwhile, it would be timely for the parliament to consider whether it's necessary to enact legislation to define the basic elements of cabinet structures and processes. This is, after all, the central part of responsible government in Australia, and yet for 120 years it has had no statutory foundation.

The PM is now effectively is claiming cabinet is whatever he wants it to be. We, the parliament, need to ask ourselves whether that is a credible or responsible claim. To that end, I will shortly introduce a private senator's bill—a ministers of state cabinet membership and other arrangements bill—that will seek for the first time to establish a statutory basis for cabinet, the Prime Minister's role as the chairperson of the body, its membership, its subcommittees and other matters, including the basis and the extent of cabinet confidentiality. This is really important.

We cannot have a Prime Minister expanding the conventions of cabinet to interfere with the commands of parliament and with the rights given to citizens by the parliament. That is not acceptable. So I invite senators to carefully watch this space.