This chapter provides detail on all three schedules of the bill. Schedules 1 and 2 replace references to the COAG Reform Fund, and amend other references to intergovernmental bodies in Commonwealth legislation. Schedule 3 addresses the confidential nature of the proceedings of National Cabinet.
Schedule 1 updates references in legislation to the ‘COAG Reform Fund’ as a result of the cessation of COAG, and replaces this term with reference to the Federation Reform Fund.
The COAG Reform Fund was established under the COAG Reform Fund Act 2008 (COAG Reform Fund Act), allowing the Commonwealth to make financial grants to the states. The Act also provides that the terms and conditions on which financial assistance is granted must be set out in written agreements between the states and the Commonwealth. The bill’s EM notes that the:
… title of the COAG Reform Fund requires amending to give effect to the cessation of COAG and the establishment of a new architecture for
The Federation Reform Fund will continue to be the mechanism through which the Commonwealth makes grants of financial assistance to the states and territories.
Part 1 of Schedule 1 amends the COAG Reform Fund Act to replace the outdated term ‘COAG’ with the term ‘Federation’. Item 1 amends the title of the Act, substituting the reference to COAG with a reference to Federation. Similar amendments would then be made throughout that Act.
Part 2 of Schedule 1 amends several Acts to repeal outdated references to the COAG Reform Fund, to be replaced with a reference to the Federation Reform Fund. Part 2 updates the terminology in the following Acts:
Disability Care Australia Fund Act 2013
Emergency Response Fund Act 2019
Federal Financial Relations Act 2009
Fuel Indexation (Road Funding) Special Account Act 2015
Future Drought Fund Act 2019
Medical Research Future Fund Act 2015
Offshore Petroleum and Greenhouse Gas Storage Act 2006
Proceeds of Crime Act 2002
The third part of Schedule 1 makes bulk amendments to the Acts listed above by replacing outdated references to the COAG Reform Fund, wherever occurring. Item 27 of the bill makes clear that the bill amends the specified Acts to replace references to the COAG Reform Fund wherever it occurs in the specified provisions of the listed Acts, with the term ‘Federation Reform Fund’.
Item 89 at Part 4 makes contingent amendments to the Emergency Response Fund Act 2019, again replacing references to the COAG Reform Fund with the Federation Reform Fund. This amendment is contingent on the successful passage of the Investment Funds Legislation Amendment Bill 2021 which inserts new provisions into the Emergency Response Fund Act 2019.
In order to consolidate and reset the existing structures under COAG, on 26 June 2020 the National Cabinet agreed that the former Commonwealth cabinet secretary, and former Director General of the Western Australian Department of Premier and Cabinet, Mr Peter Conran AM, would lead a review of COAG Councils and Ministerial Forums.
The amendments made by Schedule 2 implement the recommendations of the review by Mr Conran. The recommendations were agreed by the National Cabinet on 23 October 2020, including a recommendation to make amendments to outdated references to COAG Councils and Ministerial Forums in Commonwealth legislation.
This recommendation was made in light of other recommendations which were aimed at:
… reducing the number of ministerial forums, and ensuring those that remain are agile and responsive to emerging national priorities. Ministers are empowered to take direct responsibility for decision-making in their portfolios, and will not report to the National Cabinet or the National Federation Reform Council unless directly tasked.
Reflecting the agreement of National Cabinet, Schedule 2 amends obsolete and outdated references in legislation to COAG, COAG Councils and Ministerial Councils, following the cessation of COAG. The Schedule replaces the term ‘COAG’ with ‘First Ministers’ Council’, and provides transitional provisions ‘for things done by, in relation to, or started and not finished by, COAG’ and its associated bodies, prior to the commencement of the bill’s provisions.
This part of the Schedule replaces the term COAG with the term ‘First Ministers’ Council’. This is defined ‘flexibly’ within the necessary legislation to mean:
… a body (however described) that consists only of, or that includes, the Prime Minister, the Premiers of each State and the Chief Ministers of the Australian Capital Territory and Northern Territory.
The EM makes clear that this definition is intended to ‘encompass any group that currently comprises, or will in future comprise, First Ministers (such as the National Cabinet)’. The definition would also apply to any group which comprises of ‘First Ministers and other representatives (such as the current National Federation Reform Council)’.
Part 1 also amends the definition of ‘Ministerial Council’, to be ‘a body (however described) that consists of the Minister of the Commonwealth, and the Minister of each State and Territory, who is responsible, or principally responsible, for matters relating to a particular portfolio issue’. The EM advises that this:
… broad definition is intended to enhance flexibility with any future changes to the title of an intergovernmental ministerial group so legislative changes to update titles are avoided.
In a similar manner, Part 1 also amends the specific names of Ministerial Councils (for example, the COAG Health Council) to a generic Ministerial Council term, meaning any future title changes will not require legislative amendment.
Part 1, at Items 1 to 89, makes necessary amendments to terminology in the following Commonwealth legislation:
Australian Curriculum, Assessment and Reporting Authority Act 2008
Australian Education Act 2013
Australian National Preventive Health Agency Act 2010
Biological Control Act 1984
Defence (Road Transport Legislation Exemption) Act 2006
Fisheries Management Act 1991
Healthcare Identifiers Act 2010
Infrastructure Australia Act 2008
Marine Safety (Domestic Commercial Vessel) National Law 2012
My Health Records Act 2021
National Disability Insurance Scheme Act 2013
National Health Reform Act 2011
National Transport Commission Act 2003
National Vocational Education and Training Regulator Act 2011
Offshore Petroleum and Greenhouse Gas Storage Act 2006
Student Identification Act 2014
Item 35 inserts section 5 into the National Health Reform Act 2011, which defines the First Ministers’ Council. It also defines the Health Chief Executives Forum as ‘a body (however described) that consists of the Secretary; and each head (however described) of the Health Department of a State or Territory’.
PM&C advised the committee that updates to delegated legislation, such as regulations which include references to COAG or a COAG Council, would be made following passage of the bill.
Part 2 of Schedule 2 contains application, transitional and saving provisions. With regard to COAG and the Acts amended by Part 1 of Schedule 2 (listed above), Item 91 provides for a continuation of the work of COAG to the First Ministers’ Council, stating that:
Anything done by, or in relation to, COAG under, or for the purposes of, a particular amended Act before the commencement time has effect after that time as if the thing had been done by, or in relation to, the First Ministers’ Council under, or for the purpose of, that particular amended Act.
Likewise, Item 92 applies to amended Acts for those things started but not yet finished by COAG at the time it was abolished. The provision makes clear that the First Ministers’ Council may finish doing the thing that COAG started, prior to the above Acts being amended (if it wishes to do so).
As the bill’s EM explains:
The items recognise any past decisions of COAG to be valid as if they had been done by the First Ministers’ Council under an amended Act. After commencement of this Act, the First Ministers’ Council may finish doing a thing under an amended Act, (should they wish to do so).
Similar transitional provisions in Part 2 ensure the continuation of the work and decisions of former Ministerial Councils, as well as Ministerial Conferences, the Standing Council on Health, and the Australian Transport Council—which will all become Ministerial Councils within the meaning of the relevant legislation as amended by the bill.
Item 103 contains provisions which allow the Minister to make rules, by legislative instrument, to deal with any transitional matters which may arise in relation to the amendments or repeals made by the bill.
Schedule 3 presents legislative amendments which are required to confirm the confidential nature of the proceedings of the National Cabinet, as a committee of Cabinet. The Schedule’s provisions clarify that existing legislation which prevents the disclosure of deliberations and decisions of the Cabinet and its committees also applies to the deliberations and decisions of the National Cabinet, and any committees of the National Cabinet.
Part 1 of Schedule 3 makes amendments to several Acts, to make clear that references to ‘Cabinet’ in Commonwealth legislation includes a committee of the Cabinet, including ‘the committee known as the National Cabinet’.
Items 1 to 4 of the Schedule amend the Administrative Appeals Tribunal Act 1975 (AAT Act), to expressly provide that Cabinet includes the committee known as the National Cabinet. Item 1 also includes a provision to make clear that a ‘State Cabinet’ means the Cabinet of a state or a committee of the Cabinet of a state. The EM makes clear that a state Cabinet does not include the National Cabinet or the committees of the National Cabinet.
Paragraph 28(2) of the AAT Act allows the Attorney-General to certify in writing that disclosure of certain information should not occur, if it would be contrary to the public interest ‘by reason that it would involve the disclosure of deliberations of the Cabinet or of a Committee of the Cabinet’ (a public interest certificate).
Similar provisions exist at paragraphs 39B(2)(b) of the AAT Act in relation to written certifications from the Commonwealth ASIO Minister, and at paragraph 37(2)(b) of the Auditor-General Act 1997, which are amended by the bill to reflect the revised definitions.
Items 2, 4, 7 and 25 of Schedule 3 would insert the new definition of Cabinet into the AAT Act, the Auditor-General Act 1997 and the Ombudsman Act 1976 respectively to ‘make clear that existing powers to issue public interest certificates to prevent disclosure of deliberations or decisions of Cabinet’ extends to the National Cabinet and its committees.
Similar to Items 2 and 4, Item 5 would make amendments to paragraph 14(1)(b) of the Administrative Decisions (Judicial Review) Act 1977, to provide that if the Attorney-General issues a public interest certificate to prevent the disclosure of Cabinet matters, this includes the deliberations and decisions of the National Cabinet and its committees.
Amendments to the Archives Act 1983, at Item 6, are required to replace the existing definition of the ‘Cabinet notebook’ to include a Cabinet committee, ‘including the committee known as the National Cabinet, and a committee of the National Cabinet (however described)’. This reflects the fact that Cabinet notebooks enter the ‘open access period’ 30 years after the year it was created.
Item 8 would amend paragraph 36L(2)(c) of the Australian Crime Commission Act 2002, as follows:
… if the Minister certifies disclosure of information or documents would be contrary to the public interest because it would involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet, a person must still produce the information or documents to the AAT, but the AAT must do all things necessary to ensure the information is not disclosed to any person other than a member of the AAT.
The amendment … makes clear that the Minister’s power to certify captures information or documents that would disclose deliberations or decisions of the Cabinet, including the committee of the Cabinet known as the National Cabinet and the committees of the National Cabinet. The proposed amendment also preserves the proposed application of new section 36L to deliberations or decisions of the Executive Council.
Amendments to subsection 3(1) of the Australian Human Rights Commission Act 1986 (at Item 9) insert new definitions of ‘Cabinet’ and ’State Cabinet’ to reflect the creation of National Cabinet. The ‘State Cabinet’ definition clarifies that this means a Cabinet, or Cabinet committee, of a state (including the ACT and NT as defined by that Act). Item 10 ensures that when the Australian Human Rights Commission is considering whether or not evidence to it can be disclosed, that preventing the disclosure of deliberations or decisions of Cabinet includes the National Cabinet.
Items 27 to 29 make equivalent amendments regarding Cabinet, National Cabinet and State Cabinet to section 6 of the Privacy Act 1988, and to paragraph 33(2)(c) to make clear the Australian Information Commissioner has the power to omit sensitive information from certain reports, to prevent the disclosure of Cabinet and National Cabinet matters. The Attorney-General retains the right to issue a public interest certificate to the Australian Information Commissioner.
Amendments to paragraph 130H(2)(b) of the Foreign Acquisitions and Takeovers Act 1975 are similar to other provisions in the bill (like those for the AAT Act), preserving the right of the Treasurer to issue a public interest certificate to prevent disclosure of the deliberations or decisions of Cabinet, including the National Cabinet and its committees. The EM advises that the ‘proposed amendment would preserve existing application to the deliberations or decisions of the Executive Council’.
Similar amendments (at Items 17 and 18) to the Independent National Security Legislation Monitor Act 2010 would amend the necessary Cabinet definitions, and ensure that the Independent National Security Legislation Monitor would not develop an annual report for the Auditor-General which includes information or documents of the Cabinet or National Cabinet.
While updating the relevant definitions, amendments to the Migration Act 1958 also make clear that ‘information disclosing the deliberations or decisions of the National Cabinet and its committees is non-disclosable information’ for the purposes of the Migration Act (at Item 23).
Subsection 5(1) and subparagraph 149(2)(b)(ii) of the Law Enforcement Integrity Commissioner Act 2006 are amended by Items 19 to 21, to insert the new definitions of Cabinet and State Cabinet (as detailed earlier in this section). The EM notes that because of the bill’s amendments, information disclosing the deliberations and decisions of National Cabinet is sensitive information for the purpose of the Act. The Integrity Commissioner can exclude such information from its reports and the Attorney-General can issue a public interest certificate over the same information.
The definition of sensitive information is also clarified by amendments to section 3 of the Parliamentary Joint Committee on Law Enforcement Act 2010, at Item 26, which enables the Australian Crime Commission and Australian Federal Police to ‘not comply with requests for information by the Parliamentary Joint Committee on Law Enforcement’, if doing so would disclose sensitive information (such as the deliberations and decisions of National Cabinet).
Freedom of information and public interest disclosure
The bill, at Item 14, will amend the definition of ‘Cabinet’ in subsection 4(1) of the Freedom of Information Act 1982 (FOI Act), to make clear that National Cabinet is a committee of the Cabinet and that ‘a committee of the National Cabinet, however described, is also included in the definition of Cabinet’. This maintains the existing exemption in section 34 of the FOI Act for Cabinet documents. The EM further explains that the exemption at section 34 should apply where a State Minister submits, or proposes to submit, a document to National Cabinet (or one of its committees) for consideration.
Further amendments to paragraph 34(1)(c) of the FOI Act clarify that the Cabinet exemption should apply to:
… documents that are brought into existence for the dominant purpose of briefing a Minister of the Commonwealth or a Minister of a State on documents that are considered, or proposed to be considered, by the National Cabinet or a committee of the National Cabinet, or on documents that were brought into existence for the dominant purpose of submission for consideration by the National Cabinet or a committee of the National Cabinet. The provision would continue to have application to briefings brought into existence for the dominant purpose of briefing a Commonwealth Minister for federal Cabinet.
The bill, at Item 30, would also amend section 8 of the Public Interest Disclosure Act 2013 (PID Act) to expressly provide that Cabinet information includes a deliberation or decision of Cabinet or its committees, including National Cabinet and any National Cabinet committees, however described. The EM explains that the PID Act requires:
… a public official to consider a range of factors when determining whether to make an ‘external disclosure’ of alleged wrongdoing. The effect of this item is to make clear that when considering the principle that Cabinet information should remain confidential unless already lawfully publicly available (paragraph 26(3)(b) [of the PID Act]), ‘Cabinet information’ is taken to include information of the National Cabinet and its committees.
Part 2 of Schedule 3 makes contingent amendments to the Australian Citizenship Act 2007, to provide that the relevant Secretary is not to provide ‘certain information or documents to the AAT if the Minister certifies that disclosure would be contrary to the public interest including because it would involve the disclosure of deliberations or decisions of the Cabinet, National Cabinet or their committees’.
Similar amendments to the Data Availability and Transparency Bill 2020 provide that if the Attorney-General issues a public interest certificate to prevent the disclosure of Cabinet matters, this includes the deliberations and decisions of the National Cabinet and its committees and the National Data Commissioner must not require a person to provide that information or document.
Part 3 of the Schedule, at Item 33, outlines application provisions in relation to the bill’s amendments to section 33 of the FOI Act, and the status of requests when the bill is enacted. The application provisions state that:
… the amendments proposed to the Freedom of Information Act, made by Part 1 of Schedule 3, to apply (a) in relation to requests for access to a document made on or after commencement of this item, and (b) in relation to requests for access to a document made, but not finally determined, before that commencement.
Sub-item 33(2) provides that for the purposes of paragraph (1)(b) of sub-item 33(1), a request for access to a document has not been finally determined unless all rights of review or appeal in relation [to] the request have expired or have been exhausted.