The newly-formed national cabinet may become a permanent fixture of Australian politics, Prime Minister Scott Morrison announced last week, as he praised the cabinet’s speedy response to the COVID-19 crisis.
Made up of state and territory premiers and chief ministers, the national cabinet is essentially the Council Of Australian Governments (COAG) with two key differences: the national cabinet meets far more frequently and documents remain secret for up to 30 years.
While the national cabinet has been praised for cutting through bureaucracy and red tape, experts have expressed concerns the cabinet hinders Australia’s democratic process — especially with no sitting parliament to scrutinise its decisions.
What is the national cabinet?
The national cabinet was formed on March 13 during a COAG meeting to coordinate and deliver a consistent national response to COVID-19.
Griffith University principal research fellow Jennifer Menzies told Inq she believes the national cabinet was invented for “rhetorical purposes”: “It got people to understand everyone was working together in the national interest.”
While COAG meets two to four times a year, the national cabinet convenes weekly. It has the final say on COVID-19 health, social and economic policies, based on advice provided by committees (including the Australian Health Protection Principal Committee (AHPPC)).
This is the second time the cabinet has formed (the first being in World War II), but the first time it’s consisted of non-federal MPs.
What happens in the cabinet, stays in the cabinet
The national cabinet has been made a subcommittee of the federal cabinet, Anne Twomey, former solicitor and professor of constitutional law at the University of Sydney told Inq.
One reason for doing this, she said, is to keep the information presented during cabinet meetings secret.
“[The cabinet can] avoid applications made under the Freedom of Information Act (FOI) to get access to material, for the purpose of maintaining secrecy,” she said.
The Department of the Prime Minister and Cabinet confirmed the rules of the cabinet handbook apply to the national cabinet, which states cabinet documents are the property of the government — not of the minister or department who wrote them.
This means documents stay secret for 20 to 30 years after the cabinet meets. While FOI applications can be lodged for some documents, cabinet records and notebooks are exempt.
Importantly, conflicts of interest declared in cabinet committee meetings are recorded by the cabinet notetakers, making them secret too.
COAG is nowhere near as secretive, Law Council of Australia president Pauline Wright told Inq. “The traditional legal conventions of cabinet secrecy and solidarity do not appear to apply to COAG,” she said.
Instead, she said, COAG members likely agreed on what should and shouldn’t be made public.
“For example, the deliberations of COAG are not recognised as a type of ‘class claim’ for public interest immunity, and there are no established exceptions in FOI legislation that specifically recognises COAG,” she said.
The national cabinet creates a democratic deficit
Liberal and Labor representatives are the only parties at the table. With parliament suspended, other parties aren’t able to ask questions and scrutinize decisions the cabinet makes.
Menzies said this created a “democratic deficit”:
“We need to return to accountability mechanisms,” she said. “The government needs to find some way to make sure the opposition is included to feed views into the national cabinet.”
Wright agreed: “One present difficulty is that parliamentary sittings in most jurisdictions have been suspended … while the national cabinet continues to meet. This reduces, but does not remove, the ability for members of the parliament of each polity to scrutinise decisions.”
Instead of being able to raise issues in parliament, Greens senator Rachel Siewart told Inq she now relies on the media and calling ministers directly to have issues considered at the national cabinet.
“We use whatever sources we can to feed information into the decision-making process, but it’s not the same as if we were involved in the process,” she said.
During World War II, the Advisory War Council was formed to advise on defence and war matters. It was made up of government and opposition MPs.
A Senate select committee on COVID-19 has been established, made up of seven members including Liberal Senator James Paterson as deputy chair, and senators from Labor, the Greens, the Nationals and independent Jacqui Lambie. It will be chaired by Labor Senator Katy Gallagher.
But scrutiny is a long way off — a final report isn’t expected until the end of June in 2022.
Rules as clear as mud
There has been no public communication around what rules do and don’t apply to the national cabinet. Several representatives from Greens and Labor contacted by Inq had no idea which rules were applicable, while both Menzies and Twomey expressed frustration at the lack of information.
“The difficulty is we don’t really know how this all works,” Twomey said.
Unlike other federal cabinets, premiers on the national cabinet are there to represent their state, not the federal government. This creates discrepancies around how the national cabinet rules are applied.
The Department of the Prime Minister and Cabinet confirmed the usual solidarity and collective ministerial responsibility provisions of cabinet apply: these usually mean that no matter how controversial a decision is, the cabinet members publicly support all government decisions. If they don’t agree with a cabinet decision, they have to resign from cabinet.
Given each minister is there representing a sovereign state, it’s unclear how this would be enforced — and already, it hasn’t been the case: NSW Premier Gladys Berejiklian and Victoria Premier Daniel Andrews went against the national cabinet and shut schools earlier than the federal government advised.
“A premier can’t resign because they don’t agree, that doesn’t make sense,” Twomey said.
The Department of the Prime Minister and Cabinet confirmed all documents presented to the cabinet remain secret. As the previous national cabinet was disbanded in 1945, FOI legislation — enacted in the ‘80s — remains “untested and undetermined”, Wright said.
The Department of the Prime Minister and Cabinet didn’t respond to Inq’s questions around these discrepancies.
The national cabinet is not just COAG by another name: currently, its weekly decisions cannot be challenged in parliament. Documents remain secret. And, until national cabinet rules are clarified (or established), we have no idea exactly how the national cabinet will function.
Re the comment about the (presumably federal) government needing “to find some way to make sure that the opposition is included to feed views into the national cabinet”. Problem is there are nine oppositions: one federal and eight state and territory; hard to see the case for including only the federal opposition.
“Shrouded in secrecy”? Ya reckon? …. Under Scotty From Marketing framing what we get to see and hear about what happens in there?
…. Then again, maybe “Phil-in” Gaetjens could investigate any “irregularities” again?
While there may be some merit in something like this, the ScoMo suggestion is no more than a thought bubble, rancid at that.
But the idea that federal govt has changed as a result is highly probable and intriguing. We do need less governing, and my erstwhile thoughts that the state level had to go have been replaced by the idea that the Feds are the useless arm of government here.
Federal govt could be wound right back, just defence, tax and foreign affairs perhaps, and a very thin overarching Treasury whose sole aim would be to distribute funds to the states, based on a real formula around population with components to prop up regions (population and land area? WA might like that)
Customs, trade, so many other areas could be managed at the state level.
Our move towards federal govt being the be all and end all on pretty much everything sees us get the worst of all worlds.
No need to say that the AFP should be the first group disbanded.
Reportedly this National Cabinet is informed by a National Covid Commission chaired by Mr Neville Power.
Mr Power was asked a question on QANDA concerning the health risk of holding refugees in motels and detention centres where social isolation and protection against infection was impossible to achieve.
It was clear from his answer that he had no knowledge or idea of the problem, understandable as his background is as a mining executive. Refugee conditions would not be top of mind for him.
My concern is that there is no mechanism to inform this powerful group as to a potential major health risk- there is no email, no secretariat no one to who one can send information.
Closed information loops benefit no one except a government which does not want to know
What next? The cone of silence? If it’s not Dutton trying to pull his secret squirrel crap to give his department more powers. It’s the Morrison government trying to take it away for what ever reason?
This is why we need a Federal corruption commission to hold the ones we put into power who think their untouchable accountable for their actions.
And if ever there was a time for one it is now. If not for the sports retort saga? Then It’s the Cash leak and how that was handled? Or should I say, not handled?