Not so confidential after all: PM’s national cabinet to be subjected to scrutiny

Is Scott Morrison’s national cabinet of secrets over? A Federal Court judge has ruled the national cabinet is not a cabinet under Australian law, and therefore not entitled to confidentiality. 

The decision means that thousands of documents tabled before the national cabinet can be released under freedom of information (FOI) laws, shattering efforts by Morrison’s government to keep large parts of its management of the pandemic secret.

The government has 28 days to appeal. After that documents can be released by request. But independent Senator Rex Patrick, who launched the action against the Department of Prime Minister and Cabinet in the Administrative Appeals Tribunal (AAT), says it is a decisive victory against the one of most “secretive governments” the country has ever seen.

“The culture of secrecy is led from the top and that’s evident in the way Prime Minister Morrison set up this cabinet,” he said. “The primary objective of calling it a national cabinet was to cover it with a secrecy blanket. They chose to call it a national cabinet specifically for the purpose of excluding the public’s involvement in the pandemic response.”

What does it mean? 

National cabinet has been responsible for some of the most crucial decisions since the pandemic began, from the design of the hotel quarantine system, to last week’s plan to reopen the country under a vaccination target of 70%. Yet the public has relied on statements from Morrison and state and territory leaders for insight into the decision-making — and the health advice behind it. 

Attempts to get access to documents and advice tabled in national cabinet have been stymied by the government which has consistently relied on “cabinet confidentiality” to dismiss requests. But Federal Court judge Richard White, sitting as a presidential member of the AAT, ruled the department was wrong to classify national cabinet as a cabinet, and ordered that documents could be released under FOI. 

“The mere use of the name ‘national cabinet’ does not, of itself, have the effect of making a group of persons using the name a ‘committee of the cabinet’. Nor does the mere labelling of a committee as a ‘cabinet committee’ have that effect,” White said.

Unless it appeals, the government has less than a month to brace itself for a potential wave of FOI requests that it no longer has any grounds to ignore.

Patrick says he’s not deliberately pursuing any particular information but that he has thrown open the vault. 

The decision has ramifications for the controversial and now defunct National Covid-19 Commission, which has also used cabinet confidentiality to keep its inner workings secret. It could also allow for the release of information from inside the Australian Health Protection Principal Committee (AHPPC), which is made up of the Commonwealth and state chief medical officers. Most critically, it gives the Senate committee that has the job of examining the government’s response to the pandemic access to documents that had been deemed confidential. 

The national cabinet has wielded enormous power over the lives of Australians in the past 18 months. It will be a win for transparency if it can now be subjected to the scrutiny it deserves.

Do you consider this a win for democracy? Let us know your thoughts by writing to letters@crikey.com.au. Please include your full name if you would like to be considered for publication in Crikey’s Your Say column. We reserve the right to edit for length and clarity.