The term national cabinet is “misleading” and extending cabinet secrecy to the intergovernmental body would permanently reduce transparency, Australia’s top human rights body warned.
The Australian Human Rights Commission made the comments in a presentation calling for the central part of the government bill to extend secrecy to the national cabinet be rejected.
However, national cabinet leaders are rebuffing attempts to subjugate their deliberations to make them more transparent, releasing a special joint statement on Friday night underscoring the importance of the nation’s leaders in keeping their discussions confidential.
“Disclosure of national cabinet documents or discussions that are not in accordance with the principles agreed by the national cabinet would undermine its effective functioning and seriously damage relations between the Commonwealth and the states and territories,” the joint statement said.
“It would potentially expose negotiations and discussions before their conclusion and impede the open flow of information between members of the national cabinet.
“This would undermine trust between the Commonwealth and the states and territories and prevent full and frank discussions that would achieve the best results for the Australian public.
“In turn, this would lead to worse results and negatively affect the ability of all governments to consider and respond to problems urgently, and undermine the key decisions necessary to generate results in the public interest.”
The Morrison government introduced legislation in early September to mitigate the impact of a recent court decision that would have allowed access to key documents.
In early August, the Administrative Court of Appeals ruled that the national cabinet, made up of the prime minister, prime ministers, and chief ministers, was not, as Scott Morrison regularly maintained, a subcommittee of the federal cabinet.
The bill would change the law so that when Commonwealth legislation establishes provisions to protect the secrecy of federal cabinet deliberations, such as freedom of information laws, those same protections extend to the “cabinet committee known as the national cabinet.” .
The bill has been referred to a Senate investigation after the protest of Senator Rex Patrick, who presented the winning case and accused Morrison of acting as a “sore loser” and seeking to stifle public scrutiny.
In the AHRC presentation, President Rosalind Croucher said that the national cabinet “is not a cabinet body,” arguing that “the use of the term ‘cabinet’ is misleading and confuses the nature of the body.”
“The national cabinet is an intergovernmental forum, composed of representatives of jurisdictions with sovereign powers, and the prime minister is the only member responsible to the federal parliament.”
In addition to exempting it from freedom of information laws, the AHRC noted that the bill would allow ministers to issue certificates that prevent the disclosure of national cabinet material.
Rather, the AHRC noted that the national cabinet’s predecessor, the Council of Australian Governments, was required to publish the results of its meetings, that its materials were accessible through FOI requests, and that Coag members could openly comment on their decisions.
“The [AHRC] it is concerned that placing the national cabinet under the mandate of cabinet secrecy rules will reduce transparency and accountability, and may imply the right to freedom of expression by unnecessarily restricting the open communication of information to and by the public ” , said.
The AHRC noted that Covid-19 had instigated “potentially transformative changes in such operations in Australia.”
“It is important to ensure that the executive branch is not expanded unnecessarily or permanently through related administrative efficiency measures, as this would have negative implications for democratic principles and the rule of law.”
The AHRC recommended that the third program of the bill, related to the secrecy of the national cabinet, “not be enacted.”
In May 2020, Morrison defended cabinet secrecy as it applied to policy discussions between the state and federal governments, telling reporters in Canberra’s national cabinet that it was “not a spectator sport” but rather a “serious political deliberation”.
The Labor Party has been highly critical of the legislation, with shadow attorney general Mark Dreyfus arguing that “at a time when record amounts of taxpayer funds are being spent responding to the pandemic, the Australian people have all the the right to be informed about what is being done in his name and not to be fooled by the secrecy and turn of Mr. Morrison ”.
In their statement, released after the most recent national cabinet meeting where the matter was discussed, federation leaders, which include Labor prime ministers and chief ministers, argued that cabinet confidentiality principles applied to the national cabinet they had not prevented the disclosure of their results.