National Cabinet Unlocked: AAT issues Freedom of Information ruling

A recent decision aims to lift the lid on National Cabinet meetings, concluding that the National Cabinet is not a committee of the federal Cabinet and minutes of its meetings and similar do not fall within the Cabinet documents exemption under the Freedom of Information Act 1982 (FOI Act).

Background

In March 2020, the Prime Minister, State Premiers and Territory Chief Ministers formed the National Cabinet to co-ordinate Commonwealth, State and Territory government responses to the COVID-19 pandemic. Since its inception, the primary issue on the National Cabinet agenda has been the public health response to the pandemic. However, now that the National Cabinet has officially replaced the Council of Australian Governments (COAG), its mandate has been extended to rural and regional Australia, skills, energy, infrastructure and transport, as well as population and migration.

At the time of its formation, Prime Minister Scott Morrison announced that the National Cabinet had the same status as the federal Cabinet, the implication being that National Cabinet documents would enjoy the same exemption from disclosure under the FOI Act as federal Cabinet documents.

This proposition was tested in a recent appeal to the Australian Administrative Tribunal (AAT) regarding the Department of the Prime Minister and Cabinet’s (PM&C) decision to refuse South Australian Senator Rex Patrick’s application to access certain National Cabinet documents.

FOI Act: Exemptions from disclosure

By ensuring that the Australian community may access information held by the federal government, the FOI Act aims to assist in increasing scrutiny, discussion, comment and review of the government’s activities. Although this is an overall aim of the FOI Act, there are a number of unconditional and conditional exemptions to disclosure provided for different public policy reasons.

These exemptions include one for Cabinet documents. Section 34 operates to provide an exemption primarily for any document (including drafts):

• created for the dominant purpose of being submitted to Cabinet, where the document is either so submitted or is or was proposed to be submitted;
• which is an official record of Cabinet; or
• created for the dominant purpose of briefing a Minister on a Cabinet submission or proposed submission.

“Cabinet” is defined in the FOI Act to include a committee of the Cabinet.

A document may also be conditionally exempt from disclosure under the FOI Act if it could reasonably be expected to cause damage to relations between the Commonwealth and a State (section 47B of the FOI Act). As this is a conditional exemption only, the exemption will only apply if, in addition, it would be contrary to the public interest to release the document.

The FOI application

In July 2020, Senator Patrick submitted two FOI requests to PM&C for meeting notes and minutes of a May 2020 National Cabinet meeting and a range of documents related to the formation and functioning of the National Cabinet.

The documents relevant to the requests were the minutes of the May 2020 National Cabinet meeting, the minutes of the first National Cabinet meeting held in March 2020 and the Cabinet Handbook.

PM&C allowed access to the Cabinet Handbook but refused access to each of the meeting minutes on the basis that they are official documents of the National Cabinet, which is appropriately characterised as a committee of the Cabinet, meaning the documents were exempt by virtue of section 34. Senator Patrick sought a review of PM&C’s decision which was heard by the AAT.

The AAT decision

At the AAT hearing, in addition to arguing that the documents were exempt under section 34, PM&C argued the documents should be exempt under section 47B of the FOI Act. This argument was not advanced with reference to the specific content of any individual document but rather with respect to the class of documents as a whole. PM&C submitted that the production of the documents would “affect the full and frank nature of discussions held by members of the National Cabinet and thus neuter its effectiveness”.^[1] In addition, it argued it would be contrary to the public interest to release the documents.

Tribunal member Justice White rejected both of PM&C’s grounds and granted access to the documents for the reasons outlined below.

Ground 1: Cabinet documents exemption

Following extensive consideration of a wide range of factual matters as to how the National Cabinet was constituted, its role and its operation, Justice White found that the National Cabinet was not a committee of the Cabinet.

Justice White’s reasoning may be summarised as follows:

• The mere fact that the Prime Minister had purported to establish the National Cabinet as a committee of the Cabinet was not sufficient to characterise it as such, more is needed and the characterisation of the National Cabinet required close examination.
• The Cabinet documents exemption exists in the FOI Act to enable Cabinet members to frankly discuss their views at Cabinet meetings, without fear of subsequent public disclosure, and to preserve the principle of collective responsibility. This should be taken into consideration when the scope of the Cabinet committee definition is considered.
• For the purposes of the FOI Act, a committee of the Cabinet should be seen to refer to a “group of persons derived from the Cabinet and performing a function for, or on behalf of the Cabinet”.^[2] Both of the elements highlighted in this extract must be present.
• Although it is reasonable that a Cabinet committee may include some members who are not Ministers or members of the federal Parliament, it would be expected that membership would be at least substantially comprised, if not of Cabinet members, at least of members of the federal Parliament. Further, it would be expected that the Prime Minister of the day would have a degree of discretion in establishing the composition of a Cabinet committee in order for the committee to be derived from the Cabinet.
• This criteria is not satisfied here. The Prime Minister is the only federal Cabinet member who is also a member of National Cabinet. The remaining membership of the National Cabinet is determined solely by reference to the positions the members hold within State and Territory governments.
• Looking at the second element, the National Cabinet does not perform a function for, or on behalf of the Cabinet as it does not assist the federal Cabinet in its decision making processes. In this regard, the Prime Minister has stated its role is in fact to coordinate actions between the States and Territories. The Prime Minister’s public statements have also indicated that federal Cabinet has no responsibility for any of the decisions of the National Cabinet.

Justice White also took into consideration other more minor matters, such as the manner in which National Cabinet was established (by agreement between the Commonwealth and the States and Territories, not by a decision of the federal Cabinet) as well as the manner of its operation (which was not consistent with the manner in which other federal Cabinet committees operate).

Ground 2: Commonwealth and State relations exemption

While Justice White did not rule out the prospect of some documents of the National Cabinet qualifying for the conditional exemption, he determined that PM&C could not simply assert that National Cabinet documents, as a class, could reasonably be expected to damage relations between the Commonwealth and a State. Rather, the prospect of damage to Commonwealth-State relations was required to be assessed with reference to the specific content of each document and to the significance of the disclosure.

Considering the specific contents of the meeting minutes, Justice White determined that the National Cabinet minutes would not reveal any negotiations or discussions related to the development of co-ordinated policies. In particular, since the relevant minutes of the National Cabinet meetings only recorded the formal outcomes of discussions and deliberations, rather than the discussions or deliberations themselves, their production could not reasonably be expected to discourage the frank and candid exchange of information in future meetings.

Justice White found additional support for his conclusion that there would be unlikely to be any damage to Commonwealth/State relationships in the fact that the outcomes recorded by the meeting minutes were, in many cases, announced publicly by the Prime Minister shortly after the National Cabinet meeting.

What implications does the decision have?

In an effort to extend the Cabinet documents exemption to the National Cabinet, in early September 2021 the federal government introduced the COAG Legislation Amendment Bill 2021 (Bill) in the House of Representatives. The Bill, if passed, would amend the definition of “Cabinet” in the FOI Act to expressly include the National Cabinet and any subcommittees of the National Cabinet. This will include the National Cabinet Reform Committees established to develop policy proposals in relation to the National Cabinet portfolios. The Bill would apply to all FOI applications not finally determined by the commencement of the legislation.

In a broader sense, the AAT decision is reflective of recent greater scrutiny of FOI decision-making. Members of the cross-bench, the media and public interest groups alike are increasingly challenging the use of FOI exemptions, seeking a more robust enforcement of the FOI Act. In fact, the 2019 “Right to Know” campaign co-ordinated by Australia’s major media organisations notably called for legislative reform in light of delays and a perceived over-reliance on broad exemptions to refuse access to documents requested under the FOI Act.

There is also support for clarification of the scope of the exemptions contained in the FOI Act from within the APS itself. The Office of the Australian Information Commissioner, which would have ordinarily have assessed Senator Patrick’s FOI appeal before it was considered by the AAT, referred the case to the AAT on the basis that it would be in the public interest for the administration of the FOI Act for the decision to be determined by the Tribunal.

Increasing scrutiny as to the scope of FOI exemptions makes it clear that Commonwealth agencies should be conscious of the need to ensure robust reasons support decisions not to release documents under the FOI Act.

Authors: Angela Flannery & Clare Giugni

^[1] Patrick and Secretary, Department of the Prime Minister and Cabinet (Freedom of Information) [2021] AATA 2719 (5 August 2021) at paragraph 246.
^[2] At paragraph [64].

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

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