At the state and federal levels, there were legislative mechanisms in place to respond to the public health crisis that is COVID-19.
As these laws and regulations were drafted, the particular disease they would be applied to was unknown, but there was an expectation that such a crisis was coming.
The formation of the National Cabinet in March 2020 was different. No legislative framework had been set in place to establish the body, made up of the prime minister, state premiers and territory chief ministers. Instead, it was formed on the fly to deliberate upon the national pandemic response.
Indeed, the National Cabinet is basically the same body as COAG (the Council of Australian Governments), which is the intergovernmental body that meets to discuss matters of national importance.
However, since the National Cabinet’s inception, Scott Morrison has been asserting that the same secrecy mechanisms that apply to the federal cabinet, should apply to this body.
And following a court ruling that this was a false claim, his government is now attempting to pass laws to hide National Cabinet documentation.
Whilst this move to avoid transparency appears to be an endeavour to avoid negative public scrutiny, the proposal is particularly problematic as this information is highly valuable at a time when COVID-19 is likely not the only pandemic we’ll be facing.
Stretching the rules
Senator Rex Patrick had submitted a freedom of information request to access National Cabinet minutes. And on 10 August 2020, the PM’s office denied his request, stating that the cabinet in confidence rules that apply to the federal cabinet extend to the national body.
All Australian jurisdictions have a cabinet, which is a body made up of senior ministers empowered to take decisions on behalf of the government of the day.
And under section 22A of the Archives Act 1983 (Cth), any federal cabinet documents produced since 1990 remain hidden from the public for the period of 31 years.
So, Patrick took the matter to the Administrative Appeals Tribunal in August this year. The senator argued that there were no grounds for the prime minister to extend cabinet confidentiality to the National Cabinet, as it is a body that operates beyond the scope of a single government.
AAT Justice Richard White found that the government’s assertion that the National Cabinet is a subcommittee of the federal cabinet is “tantamount to a submission that any committee may be a ‘committee of the Cabinet’” in terms of freedom of information laws.
“This is unsound,” his Honour added.
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