Rex Patrick will challenge cabinet-in-confidence rules capturing national cabinet, AHPPC

Scott Morrison’s bid to keep national cabinet discussions and deliberations of Australia’s chief medical officers secret is set to be challenged in court.

Scott Morrison in the House of Representatives at Parliament House, Canberra, on Tuesday. Picture: Sam Mooy

Scott Morrison’s bid to keep national cabinet discussions and deliberations of Australia’s chief medical officers secret is set to be challenged in court, amid claims the Prime Minister is “abusing” longstanding cabinet conventions.

Independent South Australian senator Rex Patrick has initiated legal proceedings by appealing to Information Commissioner Angelene Falk after two FOI requests for minutes of national cabinet’s first meeting and information relating to its rules and procedures were knocked back.

The Prime Minister’s department said the records were exempt from an FOI because they were “an official record of the cabinet”.

Mr Morrison has made national cabinet, the Australian Health Protection Principal Committee — comprised of the commonwealth and state chief medical officers — and the National COVID-19 Commission committees of cabinet, meaning their deliberations, papers and outcomes are considered cabinet-in-confidence.

The Department of Health has also refused to outline any high-level decisions around domestic border closures by the AHPPC, citing the cabinet-in-confidence provision.

“Cabinet confidentiality protects the deliberations of ministers, it was never designed to protect the deliberations of doctors,” Senator Patrick told The Australian.

“Accountability is crucial to a system of responsible government. What the Prime Minister is attempting to do here is veil all intergovernmental discussions under a banner of confidentiality and that doesn’t make for good governance. It’s an abuse of the cabinet convention.”

If Senator Patrick’s review of the FOI decisions are unsuccessful, he has vowed to take the matter to the Administrative Appeals Tribunal and then the Federal Court.

University of Sydney constitutional law expert Anne Twomey said there was an inconsistency between what the word “cabinet” had always meant — a body comprised of ministers who were responsible to one parliament and government — and how it was being used by Mr Morrison now.

She said describing the AHPPC and national cabinet as cabinet committees was “completely inappropriate” because they were groups that included political leaders and doctors from federal and state governments.

“While the government may want to label something ‘cabinet’ or a ‘cabinet committee’, a court would not necessarily accept just because you gave it a label that’s what it really is for the purposes of legislation,” Professor Twomey said.

“There are transparency issues that will arise if the government persists in making any controversial advisers a committee of the cabinet. It’s always been the case that reports that have been prepared for the purposes of advising cabinet have been regarded as falling within cabinet confidentiality. That doesn’t mean the person writing the report is a committee of the cabinet.”

Asked why national cabinet, the AHPPC and NCC should be classified as cabinet committees, Mr Morrison’s office pointed to remarks he made in late May in which he said discussions between the federal and state governments were “not a spectator sport”.

“In the same reason that in state cabinets and federal cabinets they work together under cabinet rules to come to conclusions and have debates, which produces good decisions that supports essential services and this is just the same process,” Mr Morrison said.

The cabinet handbook states the prime minister may establish temporary or ad hoc cabinet committees to carry out particular tasks.

Opposition legal affairs spokesman Mark Dreyfus said it was “absurd” for the Morrison government to extend cabinet secrecy to “all of their deliberations around COVID-19”.

“This is yet another expansion of secrecy and less accountability from a government that loathes scrutiny,” he said.