- by Eileen Whitehead
- The Guardian
- Issue #1975
A recent ruling by Justice Richard White in the Administrative Appeals Tribunal (AAT), has confirmed that all working documents for the meetings of federal, state, and territory leaders are made accessible under freedom of information law.
Since its creation in 2019, Prime Minister Scott Morrison, has used the Cabinet Office Policy Committee (COPC) of which he is the only permanent member, to make sure there is cabinet confidentiality over anything he wishes to shield from public view. It’s just a case of him declaring certain deliberations need “cabinet secrecy.”
With this ruling, his special one-man cabinet committee will be unable to conceal government decisions from public view. This has been brought about by independent Senator Rex Patrick after the PM’s department rejected two freedom of information (FOI) requests last year. Patrick had wanted to view minutes of one national cabinet meeting along with documents describing its establishment from another meeting. He was told they had the status of federal cabinet documents, which were protected for at least twenty years. This was followed, at the Tribunal, with the department alleging that the release of said documents could “damage federal/state relations”! Justice White saw no reason for this, commenting on the lack of the usually required detail actually included in the minutes.
The Tribunal also found that a Prime Minister could not determine “what a cabinet committee is,” and White wrote that “this premise is unsound […]. A committee does not become a committee of the cabinet for the purposes of the FOI Act merely by giving it that name.”
In other words, this would appear to be a Scott Morrison “construct” in order to create secrecy in his government’s actions. This has been initiated in other instances, such as meetings on naval shipbuilding, JobKeeper payments, energy policy and – had Justice White not passed this ruling – would have covered the yet-to-be-published Energy Security Board’s changes to the national electricity market.
A former Victorian Court of Appeals judge, Stephen Charles, commented how significant this judgement is “in terms of the very deep attempts this Prime Minister and this government are making to shroud their deliberations in secrecy as much as they can.” Patrick has also suggested that former Attorney-General, Christian Porter, should be held accountable for endorsing such an unlawful construct.
The Department of the Prime Minister hasn’t come out of this fiasco too well either, with Sydney University law professor, Anne Twomey, calling the department “disorganised, shambolic and disrespectful of the legal process.” She added, “In days gone by, the department was full of extremely competent people – the traditional mandarins, but look what’s coming out of it now.”
Australians should be extremely concerned by this government’s unethical behaviour which pervades everything it does. While it wants to get away with its own unprincipled behaviour, it continues to ramp up new powers for the Australian Federal Police and the Australian Criminal Intelligence Commission: powers that have inadequate safeguards in place for scrutinising their use. Even ASIO’s director-general, Dennis Richardson, has told the government that currently the powers available to the AFP, ACI, and ASIO are more than adequate.
Last December, Peter Dutton (then Home Affairs Minister) supported the Surveillance Legislation Amendment (Identity & Disrupt) Bill using the excuse of serious criminal online activity. These new powers would enable these agencies to seek three new kinds of warrants to be used before a suspected offence occurs: Data disruption warrant; Network activity warrant; Account takeover warrant – all allowing targeting of lawyers and journalists. But Human Rights lawyer, Kieran Pender, sees such powers “going beyond what is necessary and proportionate.” He stressed how any increase in government surveillance needs comprehensive safeguards in order to protect our democracy and human rights.
Meanwhile, Machiavelli continues to have his cake and eat it. Not for much longer, I hope.