A meeting of the national cabinet to discuss COVID-19. (Image: AAP/Alex Ellinghausen)

The newly-formed national cabinet may become a permanent fixture of Australian politics, Prime Minister Scott Morrison announced last week, as he praised the cabinet’s speedy response to the COVID-19 crisis.

Made up of state and territory premiers and chief ministers, the national cabinet is essentially the Council Of Australian Governments (COAG) with two key differences: the national cabinet meets far more frequently and documents remain secret for up to 30 years. 

While the national cabinet has been praised for cutting through bureaucracy and red tape, experts have expressed concerns the cabinet hinders Australia’s democratic process — especially with no sitting parliament to scrutinise its decisions.

What is the national cabinet?

The national cabinet was formed on March 13 during a COAG meeting to coordinate and deliver a consistent national response to COVID-19.

Griffith University principal research fellow Jennifer Menzies told Inq she believes the national cabinet was invented for “rhetorical purposes”: “It got people to understand everyone was working together in the national interest.”

While COAG meets two to four times a year, the national cabinet convenes weekly. It has the final say on COVID-19 health, social and economic policies, based on advice provided by committees (including the Australian Health Protection Principal Committee (AHPPC)).

This is the second time the cabinet has formed (the first being in World War II), but the first time it’s consisted of non-federal MPs.

What happens in the cabinet, stays in the cabinet

The national cabinet has been made a subcommittee of the federal cabinet, Anne Twomey, former solicitor and professor of constitutional law at the University of Sydney told Inq.

One reason for doing this, she said, is to keep the information presented during cabinet meetings secret.

“[The cabinet can] avoid applications made under the Freedom of Information Act (FOI) to get access to material, for the purpose of maintaining secrecy,” she said. 

The Department of the Prime Minister and Cabinet confirmed the rules of the cabinet handbook apply to the national cabinet, which states cabinet documents are the property of the government — not of the minister or department who wrote them. 

This means documents stay secret for 20 to 30 years after the cabinet meets. While FOI applications can be lodged for some documents, cabinet records and notebooks are exempt.

Importantly, conflicts of interest declared in cabinet committee meetings are recorded by the cabinet notetakers, making them secret too.

COAG is nowhere near as secretive, Law Council of Australia president Pauline Wright told Inq. “The traditional legal conventions of cabinet secrecy and solidarity do not appear to apply to COAG,” she said.  

Instead, she said, COAG members likely agreed on what should and shouldn’t be made public. 

“For example, the deliberations of COAG are not recognised as a type of ‘class claim’ for public interest immunity, and there are no established exceptions in FOI legislation that specifically recognises COAG,” she said.  

The national cabinet creates a democratic deficit

Liberal and Labor representatives are the only parties at the table. With parliament suspended, other parties aren’t able to ask questions and scrutinize decisions the cabinet makes.

Menzies said this created a “democratic deficit”:

“We need to return to accountability mechanisms,” she said. “The government needs to find some way to make sure the opposition is included to feed views into the national cabinet.”

Wright agreed: “One present difficulty is that parliamentary sittings in most jurisdictions have been suspended … while the national cabinet continues to meet. This reduces, but does not remove, the ability for members of the parliament of each polity to scrutinise decisions.” 

Instead of being able to raise issues in parliament, Greens senator Rachel Siewart told Inq she now relies on the media and calling ministers directly to have issues considered at the national cabinet.

“We use whatever sources we can to feed information into the decision-making process, but it’s not the same as if we were involved in the process,” she said.

During World War II, the Advisory War Council was formed to advise on defence and war matters. It was made up of government and opposition MPs.

A Senate select committee on COVID-19 has been established, made up of seven members including Liberal Senator James Paterson as deputy chair, and senators from Labor, the Greens, the Nationals and independent Jacqui Lambie. It will be chaired by Labor Senator Katy Gallagher. 

But scrutiny is a long way off — a final report isn’t expected until the end of June in 2022. 

Rules as clear as mud 

There has been no public communication around what rules do and don’t apply to the national cabinet. Several representatives from Greens and Labor contacted by Inq had no idea which rules were applicable, while both Menzies and Twomey expressed frustration at the lack of information.

“The difficulty is we don’t really know how this all works,” Twomey said. 

Unlike other federal cabinets, premiers on the national cabinet are there to represent their state, not the federal government. This creates discrepancies around how the national cabinet rules are applied.

The Department of the Prime Minister and Cabinet confirmed the usual solidarity and collective ministerial responsibility provisions of cabinet apply: these usually mean that no matter how controversial a decision is, the cabinet members publicly support all government decisions. If they don’t agree with a cabinet decision, they have to resign from cabinet. 

Given each minister is there representing a sovereign state, it’s unclear how this would be enforced — and already, it hasn’t been the case: NSW Premier Gladys Berejiklian and Victoria Premier Daniel Andrews went against the national cabinet and shut schools earlier than the federal government advised. 

“A premier can’t resign because they don’t agree, that doesn’t make sense,” Twomey said.

The Department of the Prime Minister and Cabinet confirmed all documents presented to the cabinet remain secret. As the previous national cabinet was disbanded in 1945, FOI legislation — enacted in the ‘80s — remains “untested and undetermined”, Wright said. 

The Department of the Prime Minister and Cabinet didn’t respond to Inq’s questions around these discrepancies.

The national cabinet is not just COAG by another name: currently, its weekly decisions cannot be challenged in parliament. Documents remain secret. And, until national cabinet rules are clarified (or established), we have no idea exactly how the national cabinet will function.