In the first of a three-part series, FOI guru Rex Patrick explains how PM Albanese’s proposed modifications of Freedom of Information laws are a huge secrecy grab, inconsistent with citizen’s rights to participate in democracy and scrutinise their government.
I don’t purport to be a judge, but when assessing new legislation, it’s necessary to read it as if you are. Because it is a court that will be the ultimate adjudicator on whether the government’s claim to refuse access to documents is in accordance with the law.
Cabinet
Cabinet is the central decision-making body of the Executive Government. It only considers important or significant issues affecting the country; new laws, new policies, large projects or commitments. This is an important point that we will come back to later.
Even though Cabinet makes the big decisions, Cabinet not found in our constitution or any Cabinet creating legislation. It’s a creature of convention.
Cabinet therefore has no power. It has to implement its decision through enactment of legislation; or through ratification by the Federal Executive Council (which is mentioned in the constitution) or through powers vested in individual ministers.
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Cabinet confidentiality
Ministers are bound to support the collective decisions of Cabinet and the discussions in Cabinet are absolutely confidential.
Most people would be surprised to find out that Cabinet confidentiality is not for keeping secret the topics Cabinet are talking about. The doctrine of Cabinet confidentiality protects three things only; the solidarity of Cabinet, the collective responsibility of Cabinet and the decisions of Cabinet (until they are announced).
Without cabinet solidarity or collective responsibility, confidence in the Cabinet will be eroded, possibly to a point where the House of Assembly votes ‘no confidence’ in the Government which is then dismissed by the Governor-General using reserve powers.
It’s never been doubted that it’s in the public interest for the deliberations of Cabinet to remain confidential so that its members can exchange different views, even sharply different views, and at the same time maintain the principle of collective responsibility for any decision which may be made. The High Court, in the 1993 case of Commonwealth v Northern Land Council judicially affirmed this.
The flip side is that, in the absence of an attack on collective responsibility or an assault on the bond of cabinet solidarity, there is no basis for applying a Cabinet-in-confidence privilege.
Departmental advice is not Cabinet info
Cabinet confidentiality does not protect ministerial submissions (which contain a department’s or agency’s views, not the minister’s). A cabinet submission may have exactly the same information in it as a ministerial submission but the latter is not protected because it only contains the views of officials.
The explanatory memorandum to Albanese’s FOI Amendment Bill claims to amend “the operation of the Cabinet exemption … to ensure it appropriately protects Cabinet confidentiality and the principle of collective ministerial responsibility (central to the Cabinet system of government)”.
That statement is consistent with the purpose of the Cabinet confidentiality doctrine, but the FOI Amendment Bill goes well beyond that, instead greatly increasing the scope of the Cabinet exemptions to exclude the public’s ability to look at anything even remotely related to the things Cabinet are discussing.
It’s an offensive secrecy grab, as you will see.
Cabinet submissions
The current FOI Act protects documents that have a dominant purpose of submission to Cabinet.
A minister might get a brief from their department and, liking what’s in it, ask that a new document be prepared for submission to Cabinet (either in line with the Department’s view, or different to it). The new document, a Cabinet submission, will normally be prepared on a Cabinet template.
When challenging a claim by government that a document is a Cabinet submission, it’s easy to point out that the document is not on a Cabinet template.
The proposed change would weaken the test change from ‘dominant purpose’ to ‘substantial’ purpose. The Government says that this recognises that “documents may be created for multiple purposes and may disclose sensitive information about Cabinet matters even if they were not created for the ‘dominant purpose’ of Cabinet consideration, or briefing a Minister on a document to be submitted for Cabinet consideration.”
This change will enable a lot more documents to be successfully declared as Cabinet exempt. Not a lot of people appeal bogus claims, but for those that do, this change will make it so much harder for applicants.
The Bill also allows a Minister or their department to “engage an expert to prepare advice or a report, the substantial purpose of which is submission for consideration by the Cabinet.” By its very nature, this expands Cabinet secrecy to cover the views of consultants.
The views put to Cabinet by PWC, Deloitte, or some other consultant, will now be secret for 20 years.
Cabinet briefs
The next change is even better – if you’re a government.
Right now, a Cabinet submission brief is protected; that is a document that references a Cabinet submission, summarises a Cabinet submission and tells the minister what to emphasise and how to deal with dissent from other ministers.
Under the new laws the exemption has changed to prohibit access to any document on a topic that Cabinet might talk about.
If the government is exploring the possibility of, say, banning the use of any vehicle that is not hybrid or electric beyond 2027 (yes, there could be arguments on either side of that proposal) then any brief that went to the minister on that topic could be claimed to be a Cabinet document.
This change will make departmental advice (that we paid for) inaccessible. There can be no challenges, or even support, to that advice. There will be no informed debate on new policy.
Copies and summaries
A document that is a copy or part of a Cabinet document cannot be disclosed.
The proposed laws maintain the current exemption but then expand the secrecy blanket over something that summarises, describes or refers to the contents of a cabinet document.
If a document talks about a new policy, it could be found by a Tribunal or Court to refer to the contents of a Cabinet document. It would be hard to argue that it didn’t noting in a Tribunal or Court the challenger can’t see the cabinet document or the document that purportedly summarises, describes or refers to content in it.
No light to be shone
In 2024 the Full Federal Court found that there was no warrant in the current FOI Act to exempt “information contained in documents that do not on their face reveal the deliberations or decisions of Cabinet to a person who is unaware of what consideration was given to, or decision made, by Cabinet on a particular subject matter.”
Albanese’s having none of that. If it’s atopic being considered by Cabinet, Australians are not to know that it is being considered.
Hiding the facts
The FOI Act has never prevented the disclosure of facts in a Cabinet submission, because facts are not and cannot be the views of a minister.
But that will change under the new laws. Any facts that might give a hint at what Albanese’s new total secrecy club is talking about, will be exempt.
Facts that cabinet consider will require a 20 year wait before the public can see them.
Kim Jong-Un award
Recall at the top of the article it was pointed out that Cabinet is a body that considers important national topics. The effect of the changes described in this article would be to ensure Australians never get to lift the curtain and see what important national topics are being discussed and/or how they are being approached, including at a departmental level.
I fought Scott Morrison on National Cabinet secrecy during the Covid pandemic. I had the fight because it was entirely inappropriate that a political body could make decisions that restricted liberties without democratic participation and scrutiny. I was able to win that fight because Scott Morrison’s secrecy declaration was inconsistent with the law.
Albanese is smarter than Morrison. He’s trying to implement secrecy by changing the law.
The Government has not pointed to an instance where collective responsibility and cabinet solidarity has been undermined by an FOI request. The Courts have repeatedly protected the Cabinet doctrine.
Morrison’s reign as Prime Minister represented a low point for transparency of Government in Australia. Albanese doesn’t want to be outdone, instead shooting for the ‘Kim Jong Un’ award for Government secrecy.\
Rex Patrick is a former Senator for South Australia and, earlier, a submariner in the armed forces. Best known as an anti-corruption and transparency crusader, Rex is also known as the "Transparency Warrior."