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When the McGowan Labor government refused to reopen Western Australia’s borders in defiance of national cabinet’s planned three-stage exit from lockdown, Scott Morrison likened the new governing body to a bus.
“Not everyone has to get on the bus for the bus to leave the station,” the prime minister told reporters in September.
Morrison’s words were used against him on Wednesday, when independent senator Rex Patrick’s lawyers argued the sentiment proves national cabinet lacks some of the essential features of a cabinet, including collective responsibility and cabinet solidarity.
Patrick is locked in a battle to secure the release of national cabinet documents under freedom of information laws, a landmark case that challenges the status of the body and could have wide-ranging repercussions for other subcommittees of the federal cabinet.
The department of the prime minister and cabinet has rejected release of national cabinet documents, claiming they are confidential and to do so could harm commonwealth-state relations.
In their submissions, the department has asked the Administrative Appeals Tribunal to place “greater weight” on what its witnesses – including the secretary of the department Phil Gaetjens – have said about the features of a cabinet than “judicial observations” from earlier cases.
Patrick’s counsel, Geoffrey Watson, told the tribunal this amounted to arguing it should be “driven” or even “bound” by the opinions of senior public servants rather than precedent cases.
Patrick’s case argues Gaetjens and the first assistant secretary of the cabinet division, Leonie McGregor, can’t be treated as experts under tribunal guidelines because they are not independent. Watson submitted their evidence should be given “virtually no weight” as a result.
Watson described national cabinet as a “radical departure” from the 120-year history of federal cabinet as there was “no evidence whatsoever it has ever been able to be made up of anyone other than cabinet ministers”.
Watson added that it was an “entirely new and novel proposition” that a cabinet could sit at the apex of multiple polities. “It’s preposterous to think a Queensland minister could somehow determine policy for the ACT,” he said.
Justice Richard White noted the department is arguing not that national cabinet is itself the cabinet, but merely a committee of the federal cabinet.
Watson replied that subcommittees of cabinet also comprised only members of the cabinet.
The national cabinet was established by its predecessor, the Council of Australian Governments, he said, not the prime minister, who cannot even determine its membership as this is determined by voters and state parliaments.
Watson quoted extensively from Morrison’s post-national cabinet press conferences – including federal disagreements with the Victorian and Western Australian Covid-19 response – to demonstrate the body did not achieve a uniform policy decision.
He rebutted Gaetjens’ claims that meetings were confidential, by noting the prime minister spoke “openly about the dissension” between leaders, including with the bus metaphor.
Watson rejected claims release of cabinet minutes could harm commonwealth-state relations, arguing the fact that a leader may be “cranky” or “disappointed” does not amount to damage between the jurisdictions. An agreement between the leaders does not “withstand” freedom of information law, he said.
The department’s counsel, Andrew Berger, said national cabinet still operates with collective responsibility even though its rules had changed on 4 September – the day Morrison invoked the bus analogy – giving states freedom to agree to disagree.
Berger accepted that national cabinet had been set up “by the agreement of the prime minister, premiers and chief ministers” but said that was “beside the point” because it only became a committee of federal cabinet on the prime minister’s authority.
The department claims that the makeup of cabinet and its committees is governed by convention, but the only rules are that the prime minister determines its size and membership.
It submitted that it is “entirely appropriate or even necessary” for the prime minister to appoint people other than a federal minister, such as subject matter experts or people from the other side of politics or an independent where there is a need to ensure bipartisan support.
Berger said it had provided evidence from the two most senior public servants responsible for cabinet and it was not possible to provide independent views as the cabinet’s makeup is “uniquely and peculiarly in the experience of the executive”.
Berger said the establishment of a naval shipbuilding enterprise governance committee shows the prime minister can add subcommittees to cabinet, as it is a “flexible” and “mutable” body. But that subcommittee currently comprises only ministers.
“It’s the prime minister’s gift to determine those matters,” he said.
In 2019, Morrison created a policy subcommittee of cabinet with himself as the only member. Labor has labelled that body an “abuse of process” that enables Morrison to call meetings protected by cabinet confidentiality, even if no other cabinet members are present.
In May 2020 Morrison told reporters he had created national cabinet to assist leaders “to come to conclusions and have debates, which produces good decisions that supports essential services”. Asked about transparency concerns, Morrison replied: “I mean, it’s not a spectator sport … What matters is the outcome.”
Berger quoted Morrison on that point, and noted premiers Gladys Berejiklian and Annastacia Palaszczuk had similarly described confidentiality as integral to the national cabinet’s workings.
Watson responded it was not good enough for the commonwealth to say “the body is functioning well, we do not wish to disrupt it”. Justice White reserved his decision.
Source: The Guardian
Keyword: Morrison’s ‘bus’ analogy shows national cabinet meetings are not confidential, tribunal hears | Australian politics