The Morrison government has moved to keep national cabinet deliberations secret by introducing new legislation intended to blunt the impact of a recent tribunal decision that would have allowed access to key documents.
The draft legislation, introduced into parliament on the last day of the sitting fortnight, follows a ruling in the Administrative Appeals Tribunal in early August that the national cabinet – comprised of the prime minister, premiers and chief ministers – was not, as Scott Morrison regularly contended, a sub-committee of the federal cabinet.
The first-of-its-kind case in the AAT was brought by the Senate crossbencher Rex Patrick, who argued the prime minister had no valid grounds to extend cabinet confidentiality to his regular national cabinet meetings with premiers and chief ministers.
Patrick’s argument was ultimately upheld in the tribunal ruling. Justice Richard White said none of the documents sought by Patrick under the freedom of information system were an “official record of a committee of cabinet” and were, therefore, not covered by the cabinet exemption.
The bill introduced on Thursday was intended to make clear that where commonwealth legislation makes provisions to protect the secrecy of federal cabinet deliberations, those same protections extend to the “committee of cabinet known as the national cabinet”.
Patrick blasted the move. He noted it was not yet clear whether or not the government intended to appeal the AAT’s ruling.
“Scott Morrison is clearly a sore loser, but more importantly he’s still trying to stifle public scrutiny of national cabinet decision making as well as many other dealings of federal, state and territory governments,” Patrick said.
Labor will refer the legislation to a Senate committee. The shadow attorney general, Mark Dreyfus, said “at a time when record amounts of taxpayers’ funds are being spent responding to the pandemic, the Australian people have every right to be kept informed about what is being done in their name and not be fobbed off with more of Mr Morrison’s secrecy and spin”.
Lou Dargan, the co-head of strategic litigation at the Grata Fund, told Guardian Australia existing freedom of information requests could be caught by the new laws. Patrick’s request may, however, be granted if the government failed to appeal the case.
Isabelle Reinecke, the executive director of Grata Fund, said the bill was “a blatant attempt by the prime minister to undermine the rule of law so that he can continue to manage the national Covid-19 response without any public accountability”.
“If this legislation passes, then the prime minister will be able to hide advice from fossil fuel executives including those advising on issues such as the so-called ‘gas led’ recovery, the national quarantine system and the rollout of vaccines to at risk groups like First Nations communities, people in aged care and people living with disability,” she told Guardian Australia.
Bill Browne, a senior researcher at the Australia Institute’s democracy and accountability program, told Guardian Australia the bill would “extend a pall of secrecy over national cabinet”.
“Worryingly, it does this despite doing nothing to address the root problems identified in Rex Patrick’s case.
“National cabinet doesn’t have the properties of a cabinet … [of] collective responsibility or solidarity. The bill is just papering over the problems the government now faces [after the AAT decision].”
Browne argued if the government pushed ahead with the bill instead of appealing Patrick’s case then it “didn’t trust its own legal arguments” about the status of national cabinet.
