Judge rejects Scott Morrison’s call on national cabinet privilege
Secret national cabinet documents could soon become accessible, after Rex Patrick won a landmark case against the Morrison government.
Previously secret national cabinet documents could soon become accessible under Freedom of Information laws, after independent senator Rex Patrick won a landmark case against the Morrison government.
In a judgment handed down by a Federal Court judge at the Administration Appeals Tribunal on Thursday, Richard White found in favour of Senator Patrick.
The finding could have major implications for other federal cabinet subcommittees that claim cabinet privilege.
The judgment found national cabinet could in no respect be found to be part of federal cabinet or a sub-committee. Justice White argued that the “fundamental requirement” was for any body seeking the privileges of cabinet to actually “be a committee ‘of’ the cabinet”.
He criticised the establishment of national cabinet, saying Scott Morrison anointing the body as a “committee of the cabinet” for the “purposes of the FOI Act” was an “unsound” premise.
“Nor is there any evidence that the Prime Minister ‘appoints’ persons as members of the national cabinet,” Justice White said.
“Another point of distinction is that unlike other cabinet committees, the national cabinet is not comprised, at least substantially, of ministers of the federal government. It is not even comprised of persons belonging to the same government, let alone the same political party.”
He was also highly critical of the federal government’s case, saying the evidence put forward “did not meet the standard suggested by the authorities”.
Senator Patrick labelled the result “scathing”, saying the judgment demonstrated that Mr Morrison couldn’t just “make things up” to “suit his political interests and convenience”.
It would have significant implications for the Morrison government moving forward, he said.
“This is a magnificent victory for transparency for accountability and for making sure that the Prime Minister operates within the rule of law,” he said.
“We’ve had a ruse, a facade, put in place to prevent Australians from having access to information, to which it was duly entitled ... for Australians to see how the pandemic was to be handled, how the health of the nation was to be properly protected.”
The South Australian senator called on the Prime Minister to “change the way he does business”, saying he had “arrogantly laid out a secrecy blanket over a significant body of government, and he did so unlawfully”.
With the federal government requesting a “stay of orders” for the next 28 days, it could still appeal the decision to a full Federal Court. Senator Patrick said while he didn’t discount the possibility, he noted that the “strong” decision was “very carefully written”.
Bill Browne, a senior researcher in the Australia Institute’s democracy and accountability program, said because national cabinet did not have the “distinctive features” of a cabinet, it did not warrant the “same level of confidentiality”.
“There has been a worrying trend towards government secrecy and lack of transparency in recent years, and this decision hopefully marks a return to openness and accountability,” he said.
“Australian governments could learn from New Zealand, where cabinet papers are proactively released after 30 days.”
A spokesman for Mr Morrison said the government would review the decision.
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