Rex Patrick (SA, Independent) Share this | Hansard source

I move:

That the Senate take note of Minister Birmingham's response.

I rise to take note of that response from the minister. This is an important question, Minister, and it shouldn't have been a difficult one to answer. So I'll just read the question for you:

Since the decision in Patrick and Secretary, Department of Prime Minister and Cabinet (Freedom of Information) [2021] AATA 2719 was handed down on 5 August 2021, how many Freedom of Information requests has the Department received relating to National Cabinet documents.

Now, I would've thought that would be a pretty simple answer to get access to, and it actually is disturbing that, of the four questions that are outstanding in relation to the Notice Paper, three of them are from the Prime Minister's office—almost treating this place with contempt by just not answering questions in a timely fashion.

I want to go to why this question is important. It relates to a response that a constituent of mine received a couple of weeks ago and, indeed, a response that I received a week ago from the Department of the Prime Minister and Cabinet in relation to an FOI request that I made. The requests from my constituent and from me were in similar terms. I'll read what my request was. I requested the agendas, minutes and records of decisions of the initial 10 cabinet meetings, excluding documents that were already released but including the full minutes of the national cabinet dated 15 March 2020. So I was after national cabinet minutes.

In response to that—and I'm just going to read from it—a decision was made by Ms Angie McKenzie, and I think it's a disgraceful decision. It's a disgraceful decision that really does warrant some consideration by the government because it seeks to override Justice White's decision, and I'll explain how it does that. Ms McKenzie puts in her decision reasoning, in refusing to grant access to these documents:

I am aware of and have considered the Administrative Appeals Tribunal (AAT) decision delivered on 5 August 2021 by Deputy President (Justice) White in Patrick and Secretary, Department of Prime Minister and Cabinet[2021] AAT 2719(Patrick). Justice White was of the view that, on the evidence available to him, the National Cabinet was not a committee of the Cabinet for the purposes of the FOI Act.

I just want to read to you how this officer inside the PM&C made a determination. She writes:

In view of all the evidence available to me (not all of which was available to the AAT in making its decision in Patrick) and as set out below, I have formed the view that National Cabinet is a committee of the Cabinet for the purposes of the FOI Act, and therefore National Cabinet documents are exempt from disclosure under s 34 of the FOI Act.

To summarise what is being said here: Justice White says, and says quite explicitly, in his judgement, that the matters 'point persuasively against the National Cabinet being a committee of the Cabinet within the meaning of the statutory expression'. So that's what judges do—they look at the statutory expressions and they try and interpret their meaning. o there's no doubt as to what Justice White was saying: national cabinet is not a committee of the federal cabinet. That was his decision. It wasn't appealed. And then we find, some short time later, we have some low-level official, an assistant secretary, cabinet division, saying don't worry about what Justice White says; she has found that it is a committee of the federal cabinet. I just cannot reconcile that. What she did was she said, 'No; I've got some new evidence that Justice White didn't have.'

The assistant secretary says: 'On 15 March the national cabinet endorsed the terms of reference for national cabinet, which explicitly provide that national cabinet was established as a committee of the cabinet'—and she goes on to talk about, among other things, its proceedings and so forth. She is basically saying: 'That's new evidence that Justice White didn't have.' Let me read from Justice White's judgement at para 189. He said:

The respondent,—

that's PM&C—

who has the relevant onus, did not adduce formal evidence of adoption by the members of the National Cabinet of the principles of collective responsibility and solidarity. I am willing to accept, however, that, by the adoption of the Terms of Reference attached to the minutes of the National Cabinet, it did resolve to act in accordance with such principles.

So we have an FOI officer that says: 'The judge didn't see the terms of reference.' Yet, in his judgement, he references them! The judge references and acknowledges them. This is incompetence of an order that I haven't seen before: that Justice White's decision actually mentions the evidence that this official says was not available to Justice White.

Ms McKenzie, the assistant secretary, then goes on to suggest that the other piece of evidence that Justice White didn't have was a statement by the Prime Minister, premiers, and chief ministers that they expect this to be confidential—as though a statement by a prime minister or a statement by a premier that something ought to be confidential makes it law. Well, I'm sorry: it doesn't. You can't have a prime minister saying: 'This is my view, and that is law.' That's not how it works. For it to be law, it has to pass through both chambers in this building, not just be a statement. It doesn't matter whether it's by the Prime Minister or a premier. Ms Angie McKenzie clearly has no idea of how the law works, even. It's a disgrace that this sort of material comes out of Prime Minister and Cabinet, an organisation that's supposed to be the pre-eminent department in the Commonwealth. I actually think Ms McKenzie has breached her obligations under the Public Service Act. What's happened is she has not just trimmed her political sails, she's actually put up her Liberal Party spinnaker to make this decision.

I see Senator Duniam is shaking his head at me: how do you get a situation, Senator, where a judge says—