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

Pursuant to standing order 74(5), I would like to seek an explanation from the Minister representing the Prime Minister as to why question No. 4085, which has been on the Notice Paper since 6 September, has not been answered.

Simon Birmingham (SA, Liberal Party, Minister for Finance) Share this | Link to this | Hansard source

In relation to question 4085, I think Senator Patrick indicated, dating back to 6 September, I shall look into those matters for the senator.

Rex Patrick (SA, Independent) Share this | Link to 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—

Government Senator:

A government senator interjecting

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

Yes, I am having a go at a public servant—because this public servant is incompetent. It's incompetent. And public servants ought to know that if they do something as stupid as what she has done, I'm going to call it out. And I'm going to do that over and over again. I respect public servants, but not when they are politicised like this. Justice White made a determination that national cabinet was not a committee of the federal cabinet. You don't have to be a rocket scientist to work out that it is not appropriate for a public servant to say: 'Disregard what the judge says.' That is not okay. The problem we've got now—and this goes to the reason why this question ought to have been answered—is that the number is somewhere above 50. Fifty applications have been made to PM&C for access to national cabinet documents since the decision was handed down by Justice White. And that's likely to be 50 decisions wrongly made by PM&C that go off to the Information Commissioner and clog up the entire system. And that may well suit those on the other side of the chamber, who love secrecy. They don't want to have anything disclosed to the public. The news is that everything that a government does is paid for by the public and is supposed to be for the benefit of the public, and the public are entitled to see it, except in very narrow circumstances. This is just an abuse.

So, yes, Senator, I am going to name a public official, particularly one who has behaved in such an abhorrent way.

A government senator interjecting—

If you want to file me up you're welcome to. This is just wrong. You ought to be standing up and agreeing with me that we respect what our judicial officers say.

The government says, 'Oh, well, the AAT is not binding upon the executive.' Let's look at who was involved in this. The matter went to the Information Commissioner. She bumped it up the chain, saying: 'This is an important matter. It needs to be sorted out by the AAT.' It got to the AAT. The AAT recognised its importance and assigned a judicial officer as the presiding member. It wasn't as though bush lawyer Rex Patrick argued the case. It was Geoffrey Watson SC, a most eminent barrister with a long history, a gentleman and someone who knows the law inside out, and on the other side was Mr Berger QC from PM&C. This wasn't a kangaroo court. Serious legal minds dealing with this issue were overturned by someone in PM&C, a public official who ought absolutely to respect the way the rule of law works in this country and who should absolutely be respecting exactly the authority of a justice in making a statutory interpretation.

So, yes, I am naming Ms Angie McKenzie. I'm naming her as incompetent and I'm naming her as politicised. She has been directed to make a decision contrary to law because it suits the Prime Minister, because the Prime Minister doesn't want anyone to know about anything that happens in national cabinet. He doesn't want anyone to know about all of the decisions that have been made about the National COVID-19 Coordination Commission or what the Australian Health Protection Principal Committee might have been saying about masks or protecting children or vaccinations. They are all things that we ought to be able to see. National cabinet is a meeting of the federal government and the states. It's an intergovernmental meeting. The FOI Act actually protects those sorts of meetings. It just doesn't give a blanket protection. It's not controversial. I'm not saying we should open the floodgates, and neither was Justice White. He made the point that there are protections for intergovernmental exchanges that are sensitive, that might give rise to a concern, but, in relation to the minutes that I originally requested, they were released to me.

There are a number of organisations, journalists, NGOs and people who are trying to get access to see what's happened inside the national cabinet, who are now getting frustrated by an official. Every one of those decisions—because she's ignored them because she's incompetent and she's politicised—will now have to go through a process that will take a year. It will take a year because your government hasn't properly resourced the Office of the Australian Information Commissioner. When the Labor Party set up that office there were three commissioners: the Information Commissioner, the FOI Commissioner and the Privacy Commissioner. Tony Abbott tried to defund the whole organisation, and we were left with one, the Information Commissioner, trying to do the work of three. Finally, with some arm twisting, I've managed to help get us an FOI commissioner, but we're still without a privacy commissioner. The whole organisation is underfunded because the whole plan of the government is: 'FOI request? We make a cavalier claim, it goes to the Information Commissioner and, two years later, an answer pops out. If you still need to delay it beyond the election, you appeal to the AAT at taxpayers' expense.' It's a disgrace, and the fact that Ms Angie McKenzie is in on it is just disgusting, and that's why I am calling her out.

You understand as well, Senator Van, that parliamentary privilege is not my privilege. It's the privilege of my constituents that allow me to say in this chamber what people can't say outside of it. It's a really important democratic principle. You need to understand exactly how this thing works and why it is important. Have you just not listened to the Leader of the Government in the Senate and the Leader of the Opposition in the Senate? No, you didn't listen to them, did you? They were just talking about the importance of parliamentary privilege. You ought to understand it. You ought to respect what happens in this place. This is absolutely a disgrace. There's no other word for it. The government has directed an official to apply secrecy in contravention to the ruling of a judicial officer. I've never seen that before, and I think it breaks the rule of law.

Sue Lines (WA, Deputy-President) Share this | Link to this | Hansard source

Thank you, Senator Patrick. I remind you in future to direct all your comments to the chair.

Question agreed to.