An arrogant and foolish endeavour
I profoundly disagree with the recommendation of the Committee that the Bill be passed without amendment.
The Government members of the Committee are unsurprisingly politically self-serving but quite foolish in supporting the passage of Schedule 3 of the Bill, which seeks to make the decisions and deliberations of intergovernmental meetings designated by the Prime Minister as ‘National Cabinet’ exempt from disclosure under the Freedom of Information Act 1982 or through the operation of other legislation.
Neither the Minister’s second reading speech nor the explanatory memorandum to the Bill made any reference to the legal proceedings which preceded and caused the Government to introduce the proposed Schedule 3; specifically the recent Administrative Appeals Tribunal of Australia (AAT) decision of His Honour, Justice Richard White in the matter of Patrick and Secretary, Department of Prime Minister and Cabinet (Freedom of Information)  AAT 2719 (5 August 2021).
Significantly the Bill was introduced into the House of Representatives on the same day that the Government indicated that they would not appeal Justice White’s decision.
Having been defeated in the AAT and lacking grounds to pursue an appeal, Schedule 3 is the Prime Minister’s arrogant attempt to overturn that decision in some other way.
His attempt to do so would, if supported by the Senate, go far to undermine the accepted foundations of responsible Cabinet Government and involve a radical expansion of secrecy across the full range of intergovernmental relations in the Federation.
This would be a severe blow against transparency and accountability.
The Committee’s discussions of the submissions made to this inquiry, is highly selective and sanitised.
This is a Bill without a friend. Apart from the submission of the Prime Minister’s own department, all submissions opposed or were highly critical of Schedule 3 to the Bill. This included submissions and evidence given by eminent legal and constitutional authorities.
Professor Anne Twomey condemned the legislation in emphatic terms, accusing the government of trying to legislate things that simply were ‘not true’. She said:
It’s just a mess and it shows disrespect for the people, for the courts, everyone to go around asserting in legislation things that aren’t true. … It’s frankly bizarre legislation. I mean, why would you assert something that’s not true. Why would you say, in legislation, that a cat is a dog or vice versa.
The Australian Human Rights Commission President, Emeritus Professor Rosalind Croucher, expressed concern that the Bill will increase secrecy across 15 different Acts, with the changes to the Freedom of Information Act being of particular concern.
Professor Croucher rightly told the Committee:
Australians should be able to seek information about the nature of the decisions made by their representatives. This is even more important in times of emergency. When governments are provided with extraordinary powers then it can affect the lives and rights of Australians in significant ways.
Professor Croucher went on to warn that the proposed changes to Schedule 3 would involve a ‘permanent change to confidentiality rules over public policy’ and that ‘It’s important that emergency situations do not become a broad justification for unnecessary increases in executive power to the detriment of democracy’.
Mr Geoffrey Watson SC, a highly distinguished barrister who represented me before the AAT in the matter of Patrick and Secretary, Department of Prime Minister and Cabinet, bluntly warned that transparency would be ‘crushed’ by this legislation.
The evidence presented by the senior officers of the Department of the Prime Minister and Cabinet was as flawed and unconvincing as the evidence that the Department presented to Justice White.
Significantly the Secretary of the Department, Mr Philip Gaetjens declined to appear before the Committee.
The three officials sent in his place, Ms Leonie McGregor, First Assistant Secretary, Cabinet Division; Ms Lee Steel, First Assistant Secretary, Intergovernmental Relations and Reform; and Mr John Reid, First Assistant Secretary, Government Division gave a performance utterly unworthy of the Commonwealth Department that sits at the very centre of Australian Government. Institutional decline and politicisation of the top ranks of the public service were all too evident in their evasive and unsatisfactory evidence.
Perhaps most disturbingly the Department made it clear that they had decided to ignore Justice White’s ruling and in answer to questions on notice they confirmed that they are continuing to deny Freedom of Information applications for access to National Cabinet documents on the debunked basis that National Cabinet is a committee of the Commonwealth Cabinet.
This is clearly politically driven obstruction designed to subvert the application of Australia’s FOI law to National Cabinet until either this Bill is passed or until the Federal election is next called.
These officials have conspicuously failed in their duty as apolitical public servants. They should be held to account.
With regard to the Bill, it is my firm view that Schedule 3 of the COAG Legislation Amendment Bill 2021 would implement an unwarranted block to the release of intergovernmental related information under the Freedom of Information Act 1982 and unjustified constraint on the treatment and handling of such information under other legislation.
The proposed changes would further subvert long-accepted principles of responsible Cabinet Government.
All Senators should be fully aware of both the unprecedented nature of what is proposed in Schedule 3 and its potential to have unpredictable consequences of a most undesirable nature.
After all, Coalition Senators would be absolutely screaming abuse of constitutional convention and cabinet precedent if a future Labor Prime Minister exploited the precedent that would be established by this Bill to create his or her own National Cabinet of a radically different membership.
The Government members of the Committee are downright foolish to endorse Schedule 3.
Accordingly, I have tabled a proposed amendment which would remove Schedule 3 from the Bill.
I commend this amendment to the Senate, and if Schedule 3 is not removed from the Bill, I recommend that the Bill be opposed.
That Schedule 3 of the Bill be opposed.
Senator Rex Patrick
Independent Senator for South Australia