Mitchell, Alanna; Tamburro, Steve; Dent, Catherine --- "What's in a name? Is a 'Cabinet' exempt from freedom of information requests?" [2022] PrecedentAULA 19; (2022) 169 Precedent 31

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WHAT’S IN A NAME?

IS A ‘CABINET’ EXEMPT FROM FREEDOM OF INFORMATION REQUESTS?

By Alanna Mitchell, Steve Tamburro and Catherine Dent

This article explores the freedom of information (FOI) implications of the Commonwealth’s attempt to classify National Cabinet documents as exempt from FOI requests. On 5 August 2021, the Administrative Appeals Tribunal (AAT) granted an application by Senator Rex Patrick (Senator Patrick) for access to National Cabinet minutes, determining that certain National Cabinet documents were not Federal Cabinet documents for the purposes of s34 of the Freedom of Information Act 1982 (Cth) (FOI Act) and that the Commonwealth could not apply the Commonwealth–state relations exemption generally to those documents in Patrick and Secretary, Department of Prime Minister and Cabinet (Freedom of Information).^[1] At the time of writing, the Commonwealth is seeking to legislate to overcome this decision and has indicated its intention to appeal.

This article examines the history, purpose and function of the National Cabinet and Commonwealth–state relations exemptions, the nature of the public interest test and the implications of both the AAT’s decision and the Commonwealth’s legislative response. It suggests a pathway for decision-makers to consider exemptions and apply or distinguish the AAT’s reasoning.

The FOI Act is a cornerstone of Australian democracy in that it enshrines the principles of transparency of government. It provides the community with the right to access certain government documents. However, it also establishes categories of exemption from disclosure, including for certain Cabinet documents.^[2]

There are also conditional exemptions from disclosure available under the FOI Act, including where ‘disclosure would, or could reasonably be expected to, cause damage to relations between the Commonwealth and a State’ and where disclosure would ‘be contrary to the public interest’ –- the Commonwealth–state relations exemption.^[3] A ‘conditionally exempt’ document is one to which access must ordinarily be granted, unless it would be contrary to the public interest to do so.^[4]

BACKGROUND

In March 2020, in response to the emerging COVID-19 pandemic, the Council of Australian Governments (COAG) set up the ‘National Cabinet’, comprising the Prime Minister, the premiers of the states, and the chief ministers of the territories. The National Cabinet held meetings on 15 March and 29 May 2020. By 29 May 2020, COAG ceased to exist.

In July 2020, Senator Rex Patrick (Senator Patrick) made two applications to the Department of the Prime Minister and Cabinet (Department) under the FOI Act for access to documents in relation to the National Cabinet. The first application sought all meeting notes of and minutes at the meeting of the National Cabinet on 29 May 2020. The second application sought a range of documents about the National Cabinet’s formation and functions.

The Department refused the first request, relying on the exemption for official records of Cabinet under s34(1)(b) of the FOI Act, on the basis that the National Cabinet was a committee of Cabinet (Cabinet Exemption).^[5] Access to some documents falling within the second request was granted, but was refused for other documents, again under the Cabinet Exemption.^[6] Senator Patrick (the applicant) later appealed to the AAT for review of the decision to refuse him access.

A key issue for the AAT was whether or not the National Cabinet constituted Cabinet for the purposes of the FOI Act. In examining this issue, the AAT explored the history, purpose and function of the FOI Act, and the Cabinet and Commonwealth–state relations exemptions.

Legislative scheme

Section 11 of the FOI Act provides ‘every person a legally enforceable right to obtain access’ to a document of an agency or an official document of a minister, other than a document exempt under Part IV.

A person may request a document of the agency or an official document of the Minister.^[7] The person making the request (the applicant) can be a legal or natural person.^[8] The applicant does not have to be an Australian incorporated company or citizen, nor would they be excluded because of a conviction.^[9]

The general rule is that the agency or Minister must give the person access to the document requested. The agency or Minister is not required to do this if the document is an ‘exempt document’ such as a Cabinet document.^[10] The general rule is further qualified by conditional exemptions.^[11] A conditionally exempt document is considered so where ‘access to the document at that time would, on balance, be contrary to the public interest.’^[12]

The Cabinet Exemption under the FOI Act protects a document (or any copy or any part of a document) from disclosure if any of the following apply:

1. the document has

(a) been, or is proposed to be, submitted to the Cabinet for its consideration; and

(b) it was brought into existence for the dominant purpose of submission for consideration by the Cabinet; or

2. the document is an official record of Cabinet; or

3. the document was brought into existence for the purpose of briefing a minister on a document to which 1. above applies; or

4. the document is a draft of any of the above-described documents;^[13] or

5. the document contains information the disclosure of which would reveal a Cabinet deliberation or decision, except to the extent the deliberation or decision has been officially disclosed.^[14]

The following are the exceptions to the Cabinet Exemption:

• a document is not exempt because it is attached to a Cabinet document;^[15] or

• a document by which a decision of the Cabinet is officially published is not an exempt document;^[16] or

• information in a Cabinet document is not exempt if the information consists of purely factual material, unless the disclosure of the information would reveal a Cabinet deliberation or decision and the existence of such has not been officially disclosed.^[17]

The word ‘Cabinet’, for the purpose of the Cabinet Exemption, ‘includes a committee of the Cabinet’.^[18]

THE CABINET EXEMPTION

Was the National Cabinet a ‘committee of the Cabinet’?

The Department relied on the Cabinet Exemption to the effect that the documents sought were ‘an official record of the Cabinet’ based on the extended meaning of the term ‘Cabinet’, ‘including a committee of the Cabinet’.^[19]

The AAT, after inspecting the documents, confirmed that the documents are formal minutes of the National Cabinet. As such, if the National Cabinet was a committee of the Cabinet, the documents sought would be ‘an official record’ of the Cabinet. However, the AAT explained:

‘The mere use of the name “National Cabinet” does not, of itself, have the effect of making a group of persons using the name a “committee of the Cabinet”. Nor does the mere labelling of a committee as a “Cabinet committee” have that effect. That term has the meaning with which it is used in the FOI Act and, in order for s 34(1)(b) of that Act to be applicable in the present case, the National Cabinet must come within that statutory meaning.’^[20]

To determine whether the documents were an official record of Cabinet, the AAT looked to the purpose of the FOI Act.

Purpose of the FOI Act

The key purpose of the FOI Act is to promote representative democracy by giving the Australian community a mechanism to access publicly held documents. This general entitlement is qualified. In some circumstances it precludes access to documents that are of an identified class or whose disclosure would be contrary to the public interest.

The exemptions to disclosure enable Cabinet to deliberate and perform its functions. It has long been held that Cabinet documents should be kept confidential even though they are in the public interest. The High Court of Australia in The Commonwealth of Australia v Northern Land Council and Another^[21] stated that the purpose is so ‘members of Cabinet may exchange differing views and at the same time maintain the principle of collective responsibility for any decision which may be made ... collective responsibility could not survive in practical terms if Cabinet deliberations were not kept confidential’.^[22]

In the Second Reading Speech of the Freedom of Information Bill 1981, Minister Viner stated, ‘It is of the essence of Cabinet government that the deliberations of Cabinet and Executive Council should be protected from mandatory disclosure’.^[23]

We turn to look at the reasons underlying these positions.

Function of the Cabinet

The federal Cabinet is a committee of ministers from the party in government. The Prime Minister described the Cabinet, in the 13th and 14th editions of the Cabinet Handbooks, as ‘the primary decision-making body of government’ and as ‘the council of senior minister who are empowered by the Government to take binding decisions on its behalf’.^[24]

An ordinary reading of the term ‘committee of the Cabinet’ is that it refers to a subgroup of the Cabinet, as distinct from an outside group.

The Department provided evidence to the AAT that there have previously been committees of the Cabinet, including the National Security Committee, the Expenditure Review Committee and the Productivity Committee.

The Cabinet Handbook describes Cabinet committees as ‘usually established around either a subject area, such as national security, or around a general function of government, such as expenditure.’^[25] It notes, further, that ‘[t]emporary or ad-hoc Cabinet committees may also be established by the Prime Minister to carry out particular tasks.’^[26]

The AAT found that the term ‘committee of the Cabinet’ encompassed:

‘a group of persons derived from the Cabinet and performing a function for, or on behalf of, the Cabinet or a group having such a connection or association with the Cabinet that the group can be said to belong to the Cabinet. A group which is not “of” the Cabinet will not be a committee of the Cabinet.’^[27]

Establishment of the National Cabinet

The AAT addressed the absence of primary evidence from the Department on the establishment of the National Cabinet. The AAT noted the pandemic was the impetus for the establishment and that it appeared the decision to establish it was made at the COAG meeting on 13 March 2020.^[28]

The AAT found that the Department’s evidence on this issue did not meet the standard suggested by the cases involving claims of public interest immunity, which the AAT considered analogous to a claim for exemption from the FOI Act, quoting, by way of example, State of Victoria v Brazel:^[29]

‘The claim for immunity must be articulated with rigour and precision, and supported by evidence demonstrating the currency and sensitivity of the information, so as to constitute a compelling case for secrecy. Anything less will be unlikely to suffice.’^[30]

Although the Prime Minister was the chair of COAG, neither the Prime Minister nor the Federal Cabinet established the National Cabinet. The AAT found that ‘a collective decision of COAG on 13 March 2020’ established the National Cabinet.^[31]

Composition of the National Cabinet

The National Cabinet comprises the Prime Minister, the premiers of each state and the two chief ministers of the territories. Of the nine persons who make up the National Cabinet, only one is also a member of the Cabinet: the Prime Minister. The Prime Minister acts as the convenor of the National Cabinet. Save for the Prime Minister, the premiers and chief ministers are not members of the federal government.

There was said to be no evidence that the Prime Minister appointed persons to be members of the National Cabinet; rather, they were members by virtue of the positions they hold. There was no discretion as to whom could be appointed. This key characteristic differentiated the National Cabinet from committees of the Cabinet.

Relationship between the Cabinet and National Cabinet

The relationship between the Cabinet and the National Cabinet was an important consideration for the AAT. The AAT held that there was no evidence to suggest the National Cabinet’s role was to assist the Cabinet during the period when National Cabinet meetings were being held.

The AAT pointed to the Prime Minister’s statements that emphasised the publicly announced decisions of the National Cabinet were not decisions of the Cabinet. For example, at a press conference after a meeting of the National Cabinet, the Prime Minister said:

‘I want to stress, these are decisions that are being taken by the State and Territory Premiers and Chief Ministers with myself as the Prime Minister who convenes the National Cabinet, these are not decisions being made by the Federal Cabinet’.^[32]

Given the decisions were made independently, this implied that the Cabinet was not responsible for the National Cabinet's decisions.^[33]

Comparing the two Cabinets

The AAT made the following observations based on the evidence before it:

1. The Prime Minister ‘does not determine the shape, structure and operation’^[34] of the National Cabinet, nor delegate or entrust any particular function to it.

2. The National Cabinet does not draw power from the Cabinet.

3. The National Cabinet’s decisions:

(a) are not decisions of the Cabinet;

(b) do not have effect as being decisions of the Cabinet; and

(c) cannot be altered by the Cabinet.

4. The Cabinet does not have the ultimate power over the National Cabinet.

5. Even without endorsement by the Cabinet, decisions of the National Cabinet can be acted upon by the states and territories.

6. The Cabinet did not appear to be briefed on National Cabinet decisions.

7. Membership of the National Cabinet is not the responsibility of the Prime Minister.

8. The National Cabinet addressed matters that the federal Government had no responsibility or legislative authority over.

9. A focus of the National Cabinet was co-ordinating an approach to address COVID-19.^[35]

The AAT accepted the applicant’s submission that the National Cabinet was not guided by the principles of collective responsibility and solidarity because the premiers and chief ministers were not accountable to the Australian Parliament. The AAT asserted that the National Cabinet was likely to have agreed its deliberations should be confidential; however, the AAT did not consider this a strong indicator of the National Cabinet being a committee of the Cabinet.

Ultimately, the AAT found that the National Cabinet was not a committee of the Cabinet.

We turn now to conditionally exempt documents under the public interest, including the Commonwealth–state relations exemptions.

PUBLIC INTEREST CONDITIONAL EXEMPTIONS

The FOI Act prescribes that an agency must give a person access to a conditionally exempt document, unless access to the document at that time would, on balance, be contrary to the public interest under s47B. Specifically, s47B(a) provides for an exemption in circumstances where the disclosure of the document ‘would, or could reasonably be expected to, cause damage to relations between the Commonwealth and a State’. The Department relied on this subsection as an additional basis for exemption of the documents.

The Department did not rely upon s47B as a basis to refuse access to the documents in its original decision. The s47B exemption was raised for the first time in affidavits filed in the proceeding.

In determining this issue, the AAT had to place itself in the position of the primary decision-maker and, in its reasoning, contemplate whether granting access to documents would be contrary to the public interest, as assessed at the time that access would occur. The AAT also considered whether a class claim was available to the National Cabinet documents, finding the statutory criterion to be whether it ‘would have, or be reasonably expected to have, the relevant adverse effect.’^[36]

The AAT conducted its assessment of the effect of disclosure of the minutes of National Cabinet meetings that were held on 15 March 2020 and 29 May 2020.

The 29 May 2020 minutes were said not to follow the style and form of minutes of meetings typically seen. That is, the minutes did not have headings, record participants or apologies, adopt previous minutes, record motions and consideration, or contain reference to proposals raised and discussed. At most, it recorded some outcomes in short form. Further, the Prime Minister made public statements disclosing the formal agreements and resolutions reached by the National Cabinet in that meeting.

As the AAT explained in its reasons, it took into account that the minutes did not disclose the contributions of individual participants, or the debates or considerations behind the agreements or resolutions. It found that:

‘there is no reason to suppose that any participant in the National Cabinet, acting rationally, would feel some inhibition in his or her contributions to the debate at the National Cabinet by reason of the formal disclosure of the minutes of 29 May 2020’.^[37]

In respect of the 15 March 2020 minutes, the AAT stated, ‘[t]he same conclusion may be reached even more confidently’.^[38] This was due to the minutes not disclosing the participants, or any motions, proposals, individual contributions, objections or discussion of the Terms of Reference.^[39]

THE DECISION AND ITS IMPLICATIONS

The AAT concluded that the minutes were not conditionally exempt documents nor, as discussed above, exempt documents, on the basis that the respondent failed to discharge the onus of establishing that the decision-maker was justified. The AAT ordered Senator Patrick be granted access to the documents sought.

The Department sought a stay of the decision pending an appeal to the Federal Court of Australia. However, the reasons provided by the AAT do not disclose whether this was granted, as the AAT indicated parties had not made submissions with respect to the application, though afforded an opportunity to do so.^[40]

The key findings of the AAT are that:

• the National Cabinet was not a committee of the Cabinet, and its documents are therefore not protected by the same exemption provisions as are Cabinet documents; and

• reliance on the public interest conditional exemption for Commonwealth–state relations is applied sparingly.

COMMONWEALTH LEGISLATIVE RESPONSE

One of the federal Government’s responses to this case was to propose the COAG Legislation Amendment Bill 2021. The Explanatory Memorandum to the Bill clearly indicates that a purpose of the Bill is to:

‘make clear that where Commonwealth legislation makes provisions to protect from disclosure the deliberations and decisions of the Cabinet and its committees, these provisions apply to the deliberations and decisions of the committee of cabinet known as the National Cabinet (Schedule 3).’^[41]

In conceptualising how the National Cabinet will operate and how it is deserving of the stringent protections applicable to Cabinet documents, COAG provides some reference point. In this regard, Minister Tudge in his Second Reading of the Bill stated that the National Cabinet:

‘... is working as a true federated decision-making body leading the national response to the pandemic. Many crucial decisions have been collectively made though the National Cabinet to both control the spread of COVID-19 and keep essential services operational ...

In contrast to the National Cabinet’s agility and decisiveness, COAG and its related bodies were burdened by red tape and bureaucracy which made them inefficient in taking decisions and slow to advance reform.’ ^[42]

Senator Patrick has opposed the proposed National Cabinet confidentiality provisions in the Bill.

To answer the first question, ‘what’s in a name?’, it appears there is not very much. The National Cabinet was found by the AAT not to be a Cabinet, notwithstanding its name.

Alanna Mitchell, Steve Tamburro and Catherine Dent are colleagues at the Victorian Government Solicitor’s Office.

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^[1] [2021] AATA 2719 (Patrick and DPMC).

^[2] Freedom of Information Act 1982 (Cth) (FOI Act), s34.

^[3] Ibid, s47B.

^[4] Ibid.

^[5] Patrick and DPMC, above note 1, [6].

^[6] Ibid, [7].

^[7] Ibid, ss11A(1)(a)–(b), 15(2).

^[8] Re Morris and Australian Federal Police, AAT, 7 April 1995, unreported.

^[9] See, respectively, Re Lordsvale Finance Ltd and Department of Treasury [1985] AATA 174, Re Chandra and Minister for Immigration and Ethnic Affairs [1984] AATA 437; (1984) 6 ALN N257; Re Ward and Secretary, Department of Industry and Commerce (1983) 8 ALD 324.

^[10] FOI Act, above note 2, ss11A(4), 34.

^[11] Ibid, s11A(4)–(6).

^[12] Ibid, s11A(5).

^[13] Ibid, s34(1)(a)–(d).

^[14] Ibid, s34(3).

^[15] Ibid, s34(4).

^[16] Ibid, s34(5).

^[17] Ibid, s34(6).

^[18] Ibid, s4(1).

^[19] Patrick and DPMC, above note 1, [36].

^[20] Patrick and DPMC, above note 1, [41].

^[21] The Commonwealth of Australia v Northern Land Council and Another [1993] HCA 24.

^[22] Patrick and DPMC, above note 1, [45], quoting The Commonwealth of Australia v Northern Land Council and Another [1993] HCA 24, [6].

^[23] Patrick and DPMC, [46], quoting Minister Viner Second Reading Speech on 18 August 1981.

^[24] Ibid, [57], quoting the 13th and 14th editions of Department of the Prime Minister and Cabinet, Cabinet Handbook, issued on 28 August 2019 and 16 October 2020 (collectively referred to as Cabinet Handbooks).

^[25] Ibid, [61], quoting Cabinet Handbooks, [4].

^[26] Cabinet Handbooks, [4].

^[27] Patrick and DPMC, above note 1, [64].

^[28] Ibid, [71].

^[29] (2008) VSCA 37.

^[30] Ibid, [68], cited in Patrick and DPMC, [84]–[86], also quoting Jaffarie v Director-General of Security (2014) FCAFC 102, [26].

^[31] Patrick and DPMC, [87].

^[32] Ibid, [134]–[135], quoting the Prime Minister’s statement given at a press conference on 24 March 2020.

^[33] Ibid, [135].

^[34] Ibid, [149(a)].

^[35] Ibid, [149(k)].

^[36] Ibid, [239].

^[37] Ibid, [267].

^[38] Ibid, [269].

^[39] Ibid, [270].

^[40] Ibid, [278].

^[41] Commonwealth, Parliamentary Debates, House of Representatives, 2 September 2021, 9214 (Minister Alan Tudge).

^[42] Parliament of Australia, COAG Legislation Amendment Bill 2021, Explanatory Memorandum, 1.