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COAG Legislation Amendment Bill 2021



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ISSN 1328-8091

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BILLS DIGEST NO. 21, 2021-22 13 OCTOBER 2021

COAG Legislation Amendment Bill 2021 Mary Anne Neilsen Law and Bills Digest Section

Contents

Purpose of the Bill ........................................................... 3

Structure of the Bill ......................................................... 3

Background ..................................................................... 3

National Cabinet and the new federal relations structures .................................................................... 3

Freedom of Information Act 1982: an outline ............ 4 The application of the Freedom of Information Act to COAG ............................................................... 6

Administrative Appeals Tribunal: Patrick and Secretary, Department of the Prime Minister and Cabinet ........................................................................ 6

Committee consideration ................................................ 8

Senate Finance and Public Administration Legislation Committee ................................................ 8

Senate Standing Committee for the Scrutiny of Bills .............................................................................. 8

Policy position of non-government parties/independents...................................................... 8

Australian Labor Party ................................................. 8

Australian Greens ........................................................ 9

Other parties and independents ................................. 9

Senator Rex Patrick ................................................. 9

Senator Jacqui Lambie ........................................... 10

Senator Gerard Rennick ........................................ 10

Position of major interest groups................................... 10

Australian Human Rights Commission ...................... 10 Professor Anne Twomey ........................................... 11

Office of the Australian Information Commissioner ............................................................ 12

Law Council of Australia ............................................ 13

Grata Fund ................................................................. 14

Date introduced: 2 September 2021

House: House of Representatives

Portfolio: Prime Minister

Commencement: Most amendments in Schedules 1-3 commence the day after Royal Assent. A few amendments (described in clause 2) are contingent on the commencement and passage of other legislation.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at October 2021.

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COAG Legislation Amendment Bill 2021 2

Andrew Podger .......................................................... 14

The Accountability Round Table ............................... 15

Department of the Prime Minister and Cabinet ....... 15 Financial implications .................................................... 16

Statement of Compatibility with Human Rights.............. 16

Parliamentary Joint Committee on Human Rights ... 16 Key issues and provisions .............................................. 17

Schedule 3 .................................................................... 17

The Freedom of Information Act and the Cabinet documents exemption .............................................. 17

Comment ............................................................... 18

Committees of National Cabinet ........................... 18

Other amendments to the FOI Act ........................ 19

Comment ............................................................... 19

Application provision affecting the FOI Act amendments ......................................................... 19

Archives Act 1983 ...................................................... 20

Comment ............................................................... 20

Other amendments affecting access to National Cabinet information .................................................. 20

Administrative Decisions (Judicial Review) Act 1977 ......................................................................... 21

Comment ............................................................... 21

Australian Human Rights Commission Act 1986 ..... 21 Public interest certificates ..................................... 22

Comment ............................................................... 22

Auditor-General Act 1997 ....................................... 23

Independent National Security Legislation Monitor Act 2010 .................................................... 23

Comment ............................................................... 24

Parliamentary Joint Committee on Law Enforcement Act 2010 ............................................ 24

Public Interest Disclosure Act 2013 ......................... 25

Other provisions ........................................................... 25

Schedule 1—Amendments of references to COAG Reform Fund .............................................................. 25

Schedule 2—Amendments of references to COAG and Ministerial Council et cetera .............................. 26

Comment ............................................................... 28

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COAG Legislation Amendment Bill 2021 3

Purpose of the Bill The purpose of the COAG Legislation Amendment Bill 2021 (the Bill) is two-fold:

• to amend a range of legislation to update terminology, to reflect the cessation of the Council of Australian Governments (COAG) and the introduction of new federal structures and

• to expand the meaning of Cabinet in several Acts with the purpose of making clear that where Commonwealth legislation has existing provisions to protect from disclosure the deliberations and decisions of the Cabinet and its committees, the same protections apply to the deliberations and decisions of the National Cabinet and its committees.

Structure of the Bill The Bill comprises three Schedules: The purposes of those Schedules are as follows:

• Schedule 1: to update outdated references to COAG Reform Fund where it occurs in legislation with Federation Reform Fund

• Schedule 2: to replace references in legislation to ‘COAG’ with references to the generic concept of a ‘First Ministers’ Council’. In addition, the term Ministerial Council would be redefined and references to specific names of a Council (such as COAG Health Council) would be replaced with the term ‘Ministerial Council’

• Schedule 3: to amend the definition of ‘Cabinet’ in the Freedom of Information Act 1982 (FOI Act) so that documents of the National Cabinet and its committees are subject to the existing Cabinet documents exemption in section 34 of that Act. Schedule 3 also amend numerous other Acts, expanding the meaning of ‘Cabinet’ and providing that where legislation includes provisions to protect from disclosure the deliberations and decisions of the Cabinet and its committees, these provisions apply to the deliberations and decisions of National Cabinet and its committees.

Background

National Cabinet and the new federal relations structures In March 2020 the Prime Minister, the premiers of each state and the chief ministers of the Northern Territory and the Australian Capital Territory agreed to establish the National Cabinet as the most appropriate forum to coordinate and deliver a response to COVID-19 in Australia.1

Prior to the creation of the National Cabinet, the federated decision-making body had been the Council of Australian Governments (COAG). COAG, established in 1992, was the body that facilitated co-operation amongst all levels of government, achieving this through its various and supporting advisory mechanisms.2

On 29 May 2020, the Prime Minister announced that the Premiers, Chief Ministers, and he had agreed that the National Cabinet would replace COAG as the primary forum for intergovernmental relations. It was argued that, 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.3 According to the Prime Minister:

1. S Morrison (Prime Minister), Transcript of press conference with premiers and chief ministers, media release, 13 March 2020. 2. P Conran, Review of COAG councils and ministerial forums: report to National Cabinet, (the Conran Review), Department of the Prime Minister and Cabinet, Canberra, October 2020, pp. 11-13. 3. A Tudge, ‘Second reading speech: COAG Legislation Amendment Bill 2021’, House of Representatives, Debates, (proof),

21 September 2021, p. 3.

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By any measure, the National Cabinet has proven to be a much more effective body for taking decisions in the national interest than the COAG structure.4

On 26 June 2020, it was announced that former Director-General of the Western Australian Department of Premier and Cabinet and former Commonwealth Cabinet Secretary Mr Peter Conran would lead a review of the former COAG Councils and Ministerial Forums (the Conran Review) ‘with a view to rationalise and reset their work’. The review would ‘make recommendations on a streamlined structure, scope and reporting arrangements and on focused regulatory and policy work programs’ and would provide recommendations to National Cabinet by September 2020.5

On 23 October 2020, the National Cabinet accepted the Conran Review’s recommendations that included ‘reducing the number of ministerial forums and ensuring that those that remain are more agile and responsive, with direct responsibility for decision-making resting with Ministers’.6 The new arrangement would include six National Cabinet Reform Committees consisting of the relevant portfolio Minister (rural and regional; skills; infrastructure and transport; population and migration; energy, and health), plus the Council on Federal Financial Relations, consisting of the Treasurers of each jurisdiction.7

Under the new arrangements National Cabinet can establish additional committees as required. The committees may be temporary or ad hoc in nature or standing forums to inform the deliberations of the National Cabinet.8

The National Cabinet has also agreed to the formation of the National Federation Reform Council (NFRC).9 The NFRC is a joint forum for the National Cabinet, the Council on Federal Financial Relations, and the President of the Australian Local Government Association to consider priority national federation issues that fall outside of the National Cabinet’s remit. The NFRC is supported by three taskforces on Women’s Safety, Indigenous Affairs and Veterans’ Wellbeing.10

The Conran Review also recommended that, in recognising the cessation of the former COAG model, the Commonwealth should introduce legislation to the Parliament to amend outdated references to COAG councils and Ministerial Councils.11

The amendments in Schedules 1 and 2 to the Bill seek to implement this recommendation. The amendments are definitional changes to reflect the new federal structures and the cessation of COAG. A brief description is provided below under the heading Provisions.

Freedom of Information Act 1982: an outline The Freedom of Information Act 1982 (FOI Act) provides the legislative basis for accessing information in documents held by Australian Government agencies and Ministers.12 The FOI Act recognises in its objects that information held by government is a national resource and is to be

4. Ibid.

5. S Morrison (Prime Minister), National Cabinet statement, media release, 26 June 2020. 6. S Morrison (Prime Minister), National Cabinet, media release, 23 October 2020. The recommendations are in the Conran Review, op. cit., pp. 5-8. 7. Department of the Prime Minister and Cabinet (PM&C), Submission to Senate Finance and Public Administration Legislation

Committee, Inquiry into the COAG Legislation Amendment Bill 2021 [Provisions], September 2021, p. 1. A diagram of the new Australian Federal Relations Architecture can be found on the PM&C website at: Effective Commonwealth-State relations. 8. PM&C, Submission, op. cit., p. 1. 9. PM&C, Effective Commonwealth-State relations, op. cit. 10. PM&C, Submission, op. cit., p. 1. 11. Ibid., p. 2. 12. This overview of the FOI Act is mainly taken from: Office of the Australian Information Commission (OAIC), Submission to Senate Finance and Public Administration Legislation Committee, Inquiry into the COAG Legislation Amendment Bill 2021 [Provisions], September 2021, pp. 3-6.

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managed for public purposes. As the Office of the Australian Information Commission (OAIC) states:

Comprehensive coverage of agencies and ministers under the FOI Act supports a key object of the FOI Act, which is to increase scrutiny, discussion, comment and review of government activities.13

Consistent with the objects of the FOI Act, the starting point for an agency or minister dealing with a freedom of information (FOI) request is that the applicant has a right to obtain the requested material.14

However, the FOI Act includes a number of exemptions and conditional exemptions to that right of access, balancing the objective of providing access to government information with legitimate claims for protection.

Where a document is an exempt document15 access to the document is not required to be given. Examples of exemptions include:

• documents affecting national security, defence or international relations (section 33)

• Cabinet documents (section 34)

• documents affecting enforcement of law and protection of public safety (section 37)

• documents to which secrecy provisions of enactments apply (section 38)

• documents subject to legal professional privilege (section 42)

• documents containing material obtained in confidence (section 45).

Where a document is a conditionally exempt document,16 access to the document is required to be given unless it would be contrary to the public interest. Examples of conditional exemptions include:

• Commonwealth-State relations (section 47B)

• deliberative processes (section 47C)

• financial or property interests of the Commonwealth (section 47D)

• certain operations of agencies (section 47E)

• personal privacy (section 47F)

• business (section 47G)

• research (section 47H)

• the economy (section 47J).

The application of conditional exemptions requires the agency or Minister to consider whether disclosing a document would be contrary to the public interest. Factors favouring access to the document in the public interest include whether access would promote the objects of the Act, inform debate on a matter of public importance, promote effective oversight of public expenditure, or allow a person access to their own personal information.17

13. Ibid., p. 3. 14. Freedom of Information Act 1982 (FOI Act), section 11. 15. Ibid., Part IV, Division 2 (exemptions) and paragraph (b) or (c) of the definition of exempt document in subsection 4(1). 16. Ibid., Part IV, Division 3 (public interest conditional exemptions). 17. Ibid., subsection 11B(3).

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Irrelevant factors include that access to the document would result in embarrassment to the Commonwealth Government or cause a loss of confidence in the Commonwealth Government.18

The application of the Freedom of Information Act to COAG The former Council of Australian Governments (COAG) and its committees were not subject to a specific exemption in the FOI Act. However, in some cases, agencies have applied existing exemptions and conditional exemptions in the FOI Act to exempt COAG documents from disclosure.19

The most relevant of those conditional exemptions is section 47B which grants a conditional exemption to documents the disclosure of which could reasonably be expected to cause damage to relations between the Commonwealth and a State or would divulge communications made in confidence on behalf of a State or the Commonwealth. Another relevant conditional exemption is section 47C, documents containing deliberative matters. Deliberative matter is content that is or relates to either:

• an opinion, advice or recommendation that has been obtained, prepared or recorded or

• a consultation or deliberation that has taken place, in the course of, or for the purposes of, a deliberative process of the government, an agency or minister.20

The current position is therefore that some inter-governmental material is protected, if it would not be in the public interest to release it, but not all such material is exempt from public disclosure.

The Australian Human Rights Commission states that COAG materials were accessible via FOI requests.21 In its submission to the Senate Committee inquiry into the Bill the Commission further states:

The COAG Handbook included requirements that key decisions and outcomes were made available publicly within one week of a meeting, along with the publication of core work where required. COAG members could comment openly on COAG decisions, as long as they made clear that their commentary was representing the view of COAG or of individual COAG members.22 [footnotes removed]

Administrative Appeals Tribunal: Patrick and Secretary, Department of the Prime Minister and Cabinet The amendments in Schedule 3 follow a ruling in the Administrative Appeals Tribunal (AAT) on 5 August 2021 in the matter of Patrick and Secretary, Department of Prime Minister and Cabinet23 (Patrick). That ruling overturned a decision by the Department of the Prime Minister and Cabinet (PM&C) to refuse access under the FOI Act to certain National Cabinet documents. The AAT held

18. Ibid., subsection 11B(4). 19. See: Humane Society International Inc. and Department of the Environment [2016] AICmr 57 (1 September 2016), where former Acting Information Commissioner Pilgrim found that documents relating to bilateral discussions agreed to by COAG were conditionally exempt under s 47B(a) and giving access to the documents at that time would be contrary to the public

interest, as they were obtained in confidence in the course of ongoing discussions and related to ongoing bilateral discussions prior to disclosure to NSW officials (in: OAIC, Submission, op. cit., p. 4, footnote 7). 20. FOI Act, subsection 47C(1)). 21. Australian Human Rights Commission (AHRC), Submission to Senate Finance and Public Administration Legislation Committee, Inquiry into the COAG Legislation Amendment Bill 2021 [Provisions], 13 September 2021, p. 1. The source of this statement is footnoted as: Department of Prime Minister and Cabinet, Handbook for COAG council secretariats: A best practice guide (November 2019) p. 20. 22. Ibid. 23. Patrick and Secretary, Department of Prime Minister and Cabinet [2021] AATA 2719 (5 August 2021).

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that the documents were not exempt under the Cabinet exemption in section 34 or the Commonwealth-State relations conditional exemption in section 47B of the FOI Act.24

The case in the AAT was brought by Senator Rex Patrick following denial of his FOI requests relating to National Cabinet meeting minutes and procedures. The OAIC referred Senator Patrick’s appeal to the AAT. PM&C had rejected Senator Patrick’s FOI requests on the basis that the documents were official records of the federal Cabinet, and were therefore exempt under the FOI Act. The Government’s position was that that National Cabinet information is confidential in the same way as Cabinet information under longstanding and well-established conventions of Cabinet.25

Justice Richard White (a Judge of the Federal Court of Australia, sitting as a Deputy Presidential member of the AAT) held that, on the basis of the evidence before the Tribunal, the entity known as the National Cabinet did not, in fact, constitute a committee of the Commonwealth Cabinet for the purpose of the ‘Cabinet documents exemption’ in section 34 of the FOI Act. His Honour said:

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.26

His Honour considered that a ‘committee of the Cabinet’ means a subgroup of the Cabinet and the Cabinet must, amongst other things, be comprised of Ministers who, according to the Constitution, must be Members of Parliament within three months of their appointment.27 An example of such a committee may be those groups that relate to particular subject areas, such as national security or expenditure.28 Importantly, the committee must not only consist mostly of persons from the Cabinet, but also should be performing functions for or on behalf of the Cabinet - essentially a connection is required where the group can be said to belong to the Cabinet.29

Justice White also rejected PM&C’s argument that the National Cabinet was a Cabinet committee because the Prime Minister had established it as such. He said:

This seemed tantamount to a submission that any committee may be a ‘committee of the Cabinet’ for the purposes of the FOI Act merely because the Prime Minister of the day has purported to establish it as such. This premise is unsound.30

In any case, His Honour also concluded that neither the Prime Minister nor the Federal Cabinet created the National Cabinet. It was instead established by resolution of COAG on 13 March 2020.31

The AAT decision also rejected the alternative claims by PM&C that particular documents of the National Cabinet (being minutes of specific meetings) were conditionally exempt under section 47B of the FOI Act. White J held that the Commonwealth had failed to discharge its legal onus to establish that disclosure would be reasonably likely to cause harm to Commonwealth-State relations. Specifically, White J held that the opinion evidence of Commonwealth officials about

24. Ibid., paragraph 276. 25. Ibid., paragraphs 1-11 (under the subheading ‘Introduction’). 26. Ibid., paragraph 41. 27. Ibid., paragraphs 56, 59 and 60. Section 64 of the Constitution. 28. Ibid., paragraph 61 (citing an iteration of the Cabinet Handbook). 29. Ibid., paragraphs 64-65. 30. Ibid., paragraph 68. 31. Ibid., paragraphs 80, 87.

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apprehended harm arising from disclosure was not persuasive, because it comprised generalised and abstract claims of impediments to full and free discussion at National Cabinet meetings. It was held that such claims could not reasonably be sustained from the actual contents of the documents under review in that case, being minutes of particular National Cabinet meetings, which were independently inspected by White J during the proceedings.32

On 2 September 2021, the day of introduction of the Bill into Parliament, PM&C indicated it would not appeal the AAT’s decision, and in compliance with the decision, the Department provided the documents in issue to the FOI applicant, Senator Rex Patrick.33

Neither the Minister’s Second Reading Speech nor the Explanatory Memorandum mention the Patrick case. However, PM&C, in its submission to the Senate Committee inquiry into the Bill, does refer to the Patrick case, asserting in particular that the AAT decision ‘is not considered to have precedential force beyond the facts and documents before it’.34 The submission further argues:

The Government’s position has always been that National Cabinet information is confidential in the same way as Cabinet information under longstanding and well established conventions of Cabinet. Consistent with that original intention, the Bill confirms that position by proposing amendment to the definition of ‘Cabinet’ in the FOI Act to expressly provide that the Federal Cabinet includes a committee known as the National Cabinet and any committee of the National Cabinet.35

Committee consideration

Senate Finance and Public Administration Legislation Committee The Bill has been referred to the Senate Finance and Public Administration Legislation Committee for inquiry and report by 14 October 2021 (Senate Committee inquiry into the Bill). Details of the inquiry are at the inquiry webpage. Submissions are discussed below under headings, Position of major interest groups and Key issues and provisions.36

Senate Standing Committee for the Scrutiny of Bills At the date of writing, the Committee had not reported on the Bill.

Policy position of non-government parties/independents

Australian Labor Party The Shadow Attorney-General Mark Dreyfus has criticised the Bill, seeing it as an attempt by the Government to overturn the AAT’s decision in the Patrick case and to exclude National Cabinet meetings from FOI disclosure. He states:

Just weeks after he was humiliated by a Federal Court Judge over his delusional and arrogant attempt to make meetings of First Ministers exempt from public scrutiny by calling it “National Cabinet”, Mr Morrison is now trying to get the Parliament to overturn the umpire’s ruling.

[…]

32. Ibid., paragraphs 268, 275-276 (full reasoning at paragraphs 245-274). Quoted in: Law Council of Australia, Submission to Senate Finance and Public Administration Legislation Committee, Inquiry into the COAG Legislation Amendment Bill 2021 [Provisions], 22 September 2021, p. 12.

33. PM&C, Submission, op. cit., p. 5. 34. Ibid. 35. Ibid. 36. Senate Finance and Public Administration Legislation Committee, ‘Submissions’, Inquiry homepage.

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Now, after having his tricky marketing ploy to rebadge COAG as “National Cabinet” overturned in the AAT Mr Morrison has introduced legislation to try to hide his meetings with Premiers and Chief Ministers from Freedom of Information requests.

This is a Government addicted to secrecy.

[…]

At a time when record amounts of taxpayers’ funds are being spent responding to the pandemic, the Australian people have every right to be kept informed about what is being done in their name.37

Australian Greens The Australian Greens are critical of the Bill noting that it seeks to overrule the AAT ruling that National Cabinet was not subject to Cabinet secrecy provisions or exempted from FOI laws. Senator Larissa Waters has stated:

Rather than accept that more transparency was required, the government has introduced the COAG Legislation Amendment Bill to overrule the court’s decision. This government wants to keep its deliberations secret and prevent proper scrutiny of its abysmal vaccination rollout, its shambles of a national quarantine program, and its pandering to fossil fuel donors.

[…]

The PM’s war on transparency and accountability has to end.38

Australian Greens leader Adam Bandt has said:

The Prime Minister is addicted to secrecy. Attempts to shut down decision-makers' transparency set a worrying precedent.

The pandemic is the biggest policy challenge that the government has taken on this decade. It should be possible to interrogate the decision-making process that has seen the government introduce unprecedented restrictions on our lives.

People need to be able to know the justification behind these important restrictions.39

Other parties and independents

Senator Rex Patrick Senator Rex Patrick has condemned the Bill and the Government’s intention to overrule the AAT decision stating:

Scott Morrison is clearly a sore loser, but more importantly he’s still trying to stifle public scrutiny of ‘National Cabinet’ decision making as well as many other dealings of Federal, state and territory governments.40

Senator Patrick in his press release also notes the broad impact of the Bill to prevent disclosure of National Cabinet documents in all circumstances:

37. M Dreyfus (Shadow Attorney-General), Morrison tries to cover up his National Cabinet humiliation, media release, 2 September 2021. 38. L Waters (Senator), PM dodging accountability with new National Cabinet secrecy laws, media release, 2 September 2021. 39. Ibid. 40. R Patrick (Senator), Scott Morrison and National Cabinet secrets: a sore loser, obsessed with secrecy, media release,

2 September 2021.

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The Bill further provides for the issuing of conclusive certificates by Ministers to prevent the disclosure of ‘National Cabinet’ records in Administrative Appeals Tribunal hearings and to keep records of ‘National Cabinet’ secret in the deepest and darkest vaults of the National Archives.41

Senator Patrick has circulated amendments to the Bill aimed at removing the provisions that relate to National Cabinet confidentiality.42

Senator Jacqui Lambie It is reported that Senator Jacqui Lambie opposes the Bill. Crikey, in quoting the Senator, states:

“Scott Morrison reckons he can pass a bill that says down is up and up is down,” Lambie said. “But he knows what we all know: national cabinet is not a committee of cabinet. It doesn’t matter what fancy language his department uses, or the legal garble they chuck in a bill. The public knows when we’re being played. We aren’t going to change the law just because it’s inconvenient to the PM’s people”.43

Senator Gerard Rennick It is reported that Liberal Senator Gerard Rennick will cross the floor and vote against the Bill. The Guardian reports that the Senator is opposed to ‘secrecy at the best of times’ and also questions how National Cabinet was initially established, noting it was done without first consulting the Coalition Party room. According to the Guardian, Senator Rennick argues that National Cabinet decisions regarding ‘destruction of livelihoods, denying kids their education, keeping families apart, all this quarantining … all those meetings need to be completely transparent’.44

At the time of writing the views of other parties and independents are not known.

Position of major interest groups The Senate Committee inquiry into the Bill received 13 written submissions, the majority expressing concern about the amendments in Schedule 3 that propose to classify the National Cabinet as a committee of the Commonwealth Cabinet and classify its deliberations, decisions and documents as being subject to Cabinet confidentiality. Most submissions argue that the entirety of Schedule 3 should be deleted. A selection of views is provided here with further detail under the heading Key issues and provisions.

Australian Human Rights Commission The Australian Human Rights Commission notes that the National Cabinet is the replacement for COAG and is not a Cabinet body. Therefore, in its view, the use of the term ‘cabinet’ is misleading and ‘obfuscates the nature of the body’. The National Cabinet, rather than being a committee of Cabinet, is ‘an intergovernmental forum, made up of representatives of jurisdictions with sovereign powers, and the Prime Minister is the only member accountable to Federal Parliament’.45

The Commission is concerned that bringing the National Cabinet under the remit of Cabinet secrecy rules will reduce transparency and accountability. It may also implicate the right to

41. Ibid. 42. Independent proposed amendments to the COAG Legislation Amendment Bill 2021. 43. G Wilkins, ‘Jacqui Lambie rubbishes National Cabinet secrecy bill and vows to vote it down’, Crikey (online), 29 September 2021, p. 1.

44. P Karp, ‘Government's bill to keep National Cabinet discussion secret may fail as Liberal senator says he will vote against it’, The Guardian (online), 29 September 2021. 45. AHRC, Submission, op. cit., pp. 1-2.

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freedom of expression by unnecessarily restricting the open communication of information to, and by, the public.46

The Commission submits that Schedule 3 should not be enacted arguing:

Australians should be able to be informed about the nature of the decisions made by their representatives, especially in times of emergency where governments enact extraordinary measures that affect their lives and rights in significant ways.

COVID-19 has instigated potentially transformational changes to government operations in Australia. It is important to ensure that Executive power is not unnecessarily or permanently expanded through related administrative efficiency measures, as this would have negative implications for democratic principles and the rule of law.47

Professor Anne Twomey Anne Twomey, Professor of Constitutional Law, University of Sydney, has concerns with the amendments in the Bill that propose to classify the National Cabinet as a committee of the Commonwealth Cabinet and classify its deliberations, decisions and documents as being subject to Cabinet confidentiality. She argues strongly that there are problems with these amendments:

First, they defy the self-evident facts. Second, they undermine the federal system. Third, they undermine the constitutional principle of responsible government. Fourth, they reduce governmental accountability and transparency. 48

In Professor Twomey’s view, asserting that National Cabinet is a committee of the Commonwealth Cabinet when ‘plainly it is not’ could have two outcomes.

First, it may be recognised that this is no more than a convenient lie for the purpose of attracting complete confidentiality, thus bringing the Parliament and the law into disrepute. Second, it might be interpreted as having the effect of changing the nature, status, composition and powers of the National Cabinet so that it ceases to be an intergovernmental body and becomes no more than a committee that is controlled by the Commonwealth Cabinet and the Prime Minister. This would undermine both its utility and the federal system.49

In terms of the Bill’s impact on the federal system, Professor Twomey argues that National Cabinet is, like its predecessor COAG, a key element in Australia’s federal architecture and it should fulfil that role.50 Therefore, asserting that National Cabinet is a committee of the Commonwealth Cabinet dependent on that one jurisdiction for its power, is inconsistent with the equality of status of the members of National Cabinet, the retention of sovereign power of the states and ‘would seriously undermine the federal system’ as a whole.51

Professor Twomey acknowledges there may be good reasons for keeping the discussions of National Cabinet and its committees such as the Australian Health Protection Committee confidential during a major crisis, such as a pandemic, but argues this could be achieved in more legitimate and accountable ways. She states:

46. Ibid., p. 2. 47. Ibid. 48. A Twomey, Submission to Senate Finance and Public Administration Legislation Committee, Inquiry into the COAG Legislation Amendment Bill 2021 [Provisions], 21 September 2021, p. 2.

49. Ibid., p. 2. 50. Ibid., pp. 2-3. 51. Ibid., p. 3.

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Secrecy is sometimes both legitimate and necessary. But one needs also to be confident that any requirements of confidentiality are being imposed in the public interest rather than in the political interests of governments to avoid accountability and embarrassment resulting from poor management or even corrupt behaviour.

If one were genuinely seeking to protect the deliberations, documents and records of National Cabinet and its committees for legitimate reasons, then one would add an additional sub-section to s 47B of the FOI Act, so that they were conditionally exempt and were not released if, on balance, it was contrary to the public interest to do so. One might well ask why the records of the National Cabinet and its committees should be kept confidential if the public interest does not warrant their protection?52

Office of the Australian Information Commissioner The OAIC’s submission is made with the concurrence of state and territory information commissioners and ombudsmen.

The OAIC notes that the purpose of the Cabinet exemption in section 34 of the FOI Act is ‘to protect the confidentiality of the Cabinet process and to ensure that the principle of collective ministerial responsibility, fundamental to the Cabinet system, is not undermined’. It submits that the proposed amendments to the FOI Act extend the Cabinet exemption to a ‘different construct’ which does not adhere to those principles and conventions.53 It also observes that the amendment would extend the existing Cabinet exemption beyond the National Cabinet to its various committees, and that this is ‘a significant extension of the exemption which would result in a corresponding reduction in the public’s right to access information held by governments’.54

The OAIC also questions the Bill’s Statement of Compatibility of Human Rights arguing it does not make out a proper case for limiting rights to seek, receive and impart information, which are protected by Article 19(2) of the International Covenant on Civil and Political Rights. It states:

[…] noting the existing exemptions and conditional exemptions already contained in the FOI Act, the case is not made as to how the impact on information access rights is necessary, reasonable and proportionate.55

Further, based on its own regulatory experience, the OAIC suggests:

… the extension of the existing exemption to National Cabinet may give rise to practical difficulties in its application, such as evidentiary issues regarding the extent to which the existence of the deliberation or decision has been officially disclosed (s 34(3)) by the independent membership of the National Cabinet across all Australian jurisdictions. Similarly, the question of whether and when a document has been ‘officially published’ (s 34(5)) where there are a number of autonomous and independent leaders making up the National Cabinet may also give rise to uncertainty in the application of the provision.56

The OAIC submission concludes arguing:

[…] the existing provisions in the FOI Act provide an adequate framework to balance the need, in appropriate circumstances, to maintain the confidentiality of opinions, advice, recommendations and deliberations that occur as part of government decision making - including by National Cabinet - with the public’s interest in and right to access government-held information.

If - contrary to our submission - Parliament considers that a non-conditional exemption for documents relating to National Cabinet and its committees is necessary, we suggest a separate provision is

52. Ibid., p. 5. 53. OAIC, Submission, op. cit., p. 7. 54. Ibid. 55. Ibid., pp. 7-8. 56. Ibid., p. 8.

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COAG Legislation Amendment Bill 2021 13

considered that overcomes the issues raised in this submission in relation to the application of s 34 to National Cabinet and includes a legislative requirement to publish specific National Cabinet documents in a timely way.57

Law Council of Australia The Law Council does not support the proposed amendments to section 34 of the FOI Act in relation to National Cabinet documents, or the effective replication of this approach in other Commonwealth information-disclosure laws proposed to be amended by Schedule 3. Its submission provides two reasons for this, namely:

• the absence of meaningful justification for applying an absolute exemption based on the status rather than substance of information

• there are already adequate conditional exemptions from disclosure under the FOI Act, which apply subject to ‘both a statutory harm-based threshold and a structured public interest test’.58

The submission further argues:

The Law Council is concerned that the proposed expansion of the Cabinet documents exemption has the potential to significantly weaken transparency and accountability by undermining one of the key objects of the FOI Act, as set out in subsection 3(2). That is, to ‘promote Australia’s representative democracy’ by contributing to increasing public participation in Government processes and increasing scrutiny, discussion, comment and review of the Government’s activities.

Accordingly—and given the reliance that is evidently being placed on the National Cabinet to make decisions about matters of critical importance to the lives and livelihoods of all Australians in the context of the current COVID-19 pandemic—any reduction of the existing, legally enforceable rights of public access to information should not be undertaken lightly.59

The Law Council, like other submitters, notes the substantial policy shift which would curtail the scope of existing rights to access official information - rights which are expressly protected by Article 19(2) of the International Covenant on Civil and Political Rights as a component of the right to freedom of expression. It argues that such a curtailment must be treated carefully:

Accordingly, the necessity and proportionality of any such reduction of these existing rights must be established convincingly, through the presentation of compelling and specific evidence of the actual harm to the national interest that has been sustained, or is reasonably likely to be sustained, if the existing right of access was not curtailed in the manner proposed by the Bill.

The Law Council is concerned that the extrinsic materials to the Bill offer only a brief explanation of the proposal to apply a far-reaching limitation upon a legal right to access information. The Explanatory Memorandum, at page 17, essentially states that, because the proposed amendments would legislatively deem the National Cabinet to be a Committee of the Commonwealth Cabinet, it follows that the same requirements for absolute confidentiality apply to all proceedings and documents of the National Cabinet, as this absolute degree of confidentiality is ‘essential to enable full and frank discussions’ of all matters of business placed before it.60

The Law Council is also concerned that the extrinsic materials to the Bill provide no explanation as to why alternative proposals have not been pursued (such as the conditional exemptions in sections 47B and 47C) which would have been less restrictive on the right to seek and access

57. Ibid., p. 9. 58. Law Council of Australia, Submission to Senate Finance and Public Administration Legislation Committee, Inquiry into the COAG Legislation Amendment Bill 2021 [Provisions], 22 September 2021, pp. 7-8. 59. Ibid., p. 8. 60. Ibid., pp. 8-9.

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COAG Legislation Amendment Bill 2021 14

official information than an ‘absolute, status-based exemption’ for all National Cabinet-related documents.61

The Law Council in supporting arguments also refers to historical precedent, noting:

[it] is not aware of FOI legislation ever having contained an absolute exemption in favour of the former COAG or the multitude of Ministerial Councils such as former Standing Committee of Attorneys-General, or Ministerial Council on Police and Emergency Management, all of which have taken many highly significant policy and operational decisions on sensitive matters of national importance, and would inevitably have involved extensive ‘full and frank’ discussions between leaders’.62

The Law Council submission also considers at some length the decision in the Patrick case, noting that the reasons of White J set out why National Cabinet did not, in fact, possess the requisite characteristics to be a committee of the Commonwealth Cabinet.63 It the Law Council’s view that decision was based on evidence about the nature, composition and operations of the body known as the ‘National Cabinet’ and:

That finding should not be overridden via the legislative creation of a legal fiction, which would be the effect of Schedule 3 to the Bill, if it is passed.64

Grata Fund Grata Fund, a partner of the University of New South Wales Sydney Law School, focuses on the amendments affecting the FOI Act. It submits that the amendments are ‘inconsistent with democratic principles of good governance and accountability’ and argues that they are ‘an attempt to evade the public accountability Australia’s FOI system was designed to provide’.65 It argues that the existing provisions of the FOI Act already provide sufficient scope to withhold documents that ought not be subject to FOI requests, including on the grounds of national security, the protection of public safety, and where they affect Commonwealth-state relations.66 The submission states:

Placing a body as politically and economically significant as the National Cabinet entirely beyond the scope of Australia’s FOI system is a clear overreach and poses a threat to good governance and democratic accountability.67

Andrew Podger Andrew Podger, former Commonwealth senior public servant and currently Honorary Professor of Public Administration, Australian National University, sees serious dangers in the wording in the Bill that would include National Cabinet as a form of Cabinet.68

He notes there are two key attributes of a Cabinet, namely the decision-makers are Ministers and authorised as such by the Parliament to whom the Ministers are accountable; and the Cabinet Ministers accept ‘collective responsibility’ for the decisions made. Professor Podger, therefore, argues:

61. Ibid., p. 9. 62. Ibid. 63. Ibid., p. 14. 64. Ibid., p. 14. 65. Grata Fund, Submission to Senate Finance and Public Administration Legislation Committee, Inquiry into the COAG Legislation

Amendment Bill 2021 [Provisions], 20 September 2021, p. 5. 66. Ibid., p. 8. 67. Ibid. 68. A Podger, Submission to Senate Finance and Public Administration Legislation Committee, Inquiry into the COAG Legislation

Amendment Bill 2021 [Provisions], September 2021, p. 1.

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COAG Legislation Amendment Bill 2021 15

The notion that a forum of ministers from separate and different governments accountable to their own respective parliaments and voters can constitute a ‘cabinet’ runs afoul of these essential characteristics. As is already apparent, calling Australia’s heads-of-government meeting the ‘National Cabinet’ rather than COAG does not constrain any of the members representing its own sovereign government from departing from the decisions made. They are accountable not to National Cabinet, nor to the prime minister’s parliament, but to their own parliaments.69

Professor Podger also has concerns that the use of the term ‘National Cabinet’ suggests a further substantial shift to ‘executive federalism’ reducing the role of parliaments in their oversight of their executives.70 He also submits that the ongoing use of the term will be misleading:

Replacing the title ‘COAG’ with ‘National Cabinet’ may have served an immediate political objective to convey to the public the urgency and combined effort that the Prime Minister and Premiers/Chief Ministers attached to addressing the COVID 19 crisis. However, it serves no ongoing substantial purpose: on the contrary, it misrepresents some of the fundamentals of Australia’s federal arrangements.71

In relation to FOI, Professor Podger agrees that there is a public interest case for confidentiality surrounding intergovernmental deliberations, but that a case for a blanket exemption from FOI access is not clear. He observes that much of the material before National Cabinet may already be confidential because of its preparation for Commonwealth (and State) Cabinets while other material (such as recent modelling about COVID-19 infections, hospitalisations and deaths) may fail a public interest test for exemption from public access. Professor Podger submits that a blanket exemption would, therefore, seem inappropriate.72

The Accountability Round Table The Accountability Round Table73 (ART) has several concerns with the Bill and its impact on accountability and transparency. In evidence to the Senate Committee Fiona McLeod, Chair of ART, summarised its concerns, stating:

The first is that this is an inappropriate model. There are serious constitutional and legal doubts as to the validity of equating national cabinet, by whatever name, with federal cabinet. The legislative intention to clothe this intergovernmental coordinated meeting with cabinet confidentiality, in our submission, is untenable. The second is our concerns with the objective of the bill. The bill subverts responsible government accountability and transparency and the government's own commitment to the Open Government Partnership. And the third is that, despite the assertion of the explanatory memorandum and the Prime Minister and Cabinet in their submission, there is no evidence the current carefully framed FOI exemptions are inadequate to the task of exempting appropriate matters from disclosure.74

Department of the Prime Minister and Cabinet The Department of the Prime Minister and Cabinet (PM&C) submission justifies the expanded definition of Cabinet to include National Cabinet, arguing:

This flows from a foundational operational rule of the National Cabinet, as established by the Prime Minister, and subsequently agreed by State and Territory First Ministers, that the National Cabinet is a

69. Ibid., p. 2. 70. Ibid. 71. Ibid. 72. Ibid., p. 3. 73. The Accountability Round Table (AR) is a non-partisan group concerned with standards of accountability, transparency and

democratic practice in governments across Australia (see: ART, ‘The Accountability Round Table’, ART website, n.d.). 74. Fiona McLeod (Chair, ART), Evidence to Senate Finance and Public Administration Legislation Committee, Inquiry into the COAG Legislation Amendment Bill 2021 [Provisions], 27 September 2021, p. 8.

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COAG Legislation Amendment Bill 2021 16

committee of the Commonwealth Cabinet. As such, its operations and its conventions are the same in respect to the Commonwealth Cabinet.75

The PM&C submission further points to a supporting joint statement by members of the National Cabinet on 17 September 2021, in which all leaders agreed that:

[…] National Cabinet had strengthened relationships between governments by facilitating regular discussions in the national interest, founded on the same principles of trust, confidence and collaboration which underpin State, Territory and Commonwealth cabinets.76

The PM&C submission states that the main justification for maintaining confidentiality over National Cabinet information and discussions is that confidentiality is critical to its effective operation and that it reflects the close relationship that National Cabinet has to the Federal Cabinet. It states:

Federal Cabinet has close oversight of issues to be considered by, and outcomes of, the National Cabinet. Federal Cabinet and its committees are briefed in advance on issues which are proposed for the National Cabinet. While it remains a matter for States and Territories how they manage information informing or endorsed by National Cabinet, the Department understands that State and Territory governments intend to have similar arrangements and relationships between their Cabinets and the National Cabinet, given the well accepted principle that National Cabinet does not derogate from State or Territory sovereign authority.

Maintaining the confidentiality of National Cabinet information is an essential part of maintaining the protection of Federal Cabinet information. The application of cabinet conventions over National Cabinet information supports full and frank discussions between leaders with a view to ensuring robust decisions in the interests of all Australians.

This does not mean there is no transparency of National Cabinet decisions. After each National Cabinet meeting the Prime Minister, as Chair of the National Cabinet, issues a statement summarising the outcomes of the decisions made.77

Financial implications The Explanatory Memorandum states that the Bill has no financial impact.78

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.79

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights (PJCHR) made no comment in relation to the Bill. The PJCHR makes no comment when a Bill does not engage, or only marginally engages, human rights; promotes human rights; and/or permissibly limits human rights.80

75. PM&C, Submission, op. cit., p. 4. 76. Ibid. The Joint Statement from the Prime Minister, Premiers and Chief Ministers is attached to the PM&C submission at pp. 6- 7. 77. Ibid., p. 4. 78. Explanatory Memorandum, COAG Legislation Amendment Bill 2021, p. 1. 79. The Statement of Compatibility with Human Rights can be found as an attachment to the Explanatory Memorandum to the

Bill.

80. Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, 11, 2021, 16 September 2021, p. 60.

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Key issues and provisions

Schedule 3

The Freedom of Information Act and the Cabinet documents exemption As already noted, section 34 of the FOI Act provides a Cabinet documents exemption to FOI. It is one of the non-conditional exemptions described above, and therefore consideration of the public interest is not a factor in decision-making about the release of documents. The exemption is broad. Subsection 34(1) provides a document is an exempt document if:

(a) both of the following are satisfied:

(i) it has been submitted to the Cabinet for its consideration, or is or was proposed by a Minister to be so submitted;

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

(b) it is an official record of the Cabinet; or

(c) it was brought into existence for the dominant purpose of briefing a Minister on a document to which paragraph (a) applies; or

(d) it is a draft of a document to which paragraph (a), (b) or (c) applies.

As many submitters to the Committee note, the justification for giving absolute confidentiality to Cabinet documents is that it underpins principles of responsible government and is necessary to ensure the government remains collectively responsible to Parliament for its decisions.

The OAIC explains:

The purpose of s 34 of the FOI Act is to protect the confidentiality of the Cabinet process and to ensure that the principle of collective ministerial responsibility, fundamental to the Cabinet system, is not undermined.

The proper implementation of strong, accepted conventions around confidentiality and collective responsibility is also dependent on a commitment to the operational values of consultation, confidentiality, respect for the primacy of Cabinet decisions and ministerial responsibility. Those principles and conventions underpin the policy basis for the existing Cabinet confidentiality exemption in the FOI Act.81

Definition of Cabinet

Cabinet is currently defined in section 4(1) of the FOI Act as:

Cabinet includes a committee of the Cabinet.

Item 14 repeals this definition and substitutes:

Cabinet includes:

(a) a committee of the Cabinet (including the committees known as the National Cabinet)

81. OAIC, Submission, op. cit., p. 7.

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(b) a committee (however described) of the National Cabinet.

Schedule 3 makes amendments to a range of other Acts that also define or use the term ‘Cabinet’ to reflect this new and expanded definition.

Comment The new definition of Cabinet in item 14 is significant. By effectively deeming National Cabinet and its committees to be a Committee of the Commonwealth Cabinet, National Cabinet documents will be exempt documents for the purpose of the FOI Act. As the Law Council notes, this total exemption in section 34 would apply very broadly including to proposals of individual Ministers to place matters on an agenda of the National Cabinet (even if the matter ultimately never proceeds), to briefings of Ministers on submissions and proposed submissions, and to drafts of all these documents. This, it argues ‘is a much wider, and potentially indeterminate, class of documents than the specific, official meeting minutes that were the subject of the access request under review in Patrick’.82

The Law Council, like many submitters, sees these amendments as extending the current Cabinet confidentiality exemption in section 34 to a different construct which does not adhere to the Cabinet principles and conventions of collective responsibility and responsible government described above.

Professor Twomey also argues that, while Cabinet confidentiality is justified ‘in order to maintain collective responsibility to Parliament for the decisions made by the Cabinet formed from that Parliament’, National Cabinet does not operate according to those principles. She states:

The National Cabinet is not collectively responsible to the Commonwealth Parliament. Each of its leaders is responsible individually to a separate legislature. Accordingly, the justification of maintaining ‘collective ministerial responsibility’ does not apply and this basis for ‘Cabinet confidentiality’ therefore cannot justify a departure from the ordinary requirements of accountability to Parliament.

Each leader must be responsible to his or her own Parliament for their actions, including in the inter-governmental sphere, and this continues to require a degree of transparency.83

Committees of National Cabinet A number of submitters found the extension of Cabinet confidentiality to committees of National Cabinet particularly concerning, noting that membership of these committees is not restricted to Ministers or even elected Members of Parliament. As Professor Twomey states:

[…] the extension of ‘cabinet confidentiality’ to the ‘committees of the National Cabinet’, such as the Australian Health Protection Principal Committee (‘AHPPC’) and the National COVID-19 Coordination Commission, is particularly problematic. None of the members of these bodies are Ministers or even elected Members of Parliament. How can such bodies be regarded as subject to the cabinet confidentiality that derives from collective ministerial responsibility when their members are not ministers and they are not collectively or even individually responsible to any Parliament? This creates an avenue, which could be easily exploited in the future, to cover any body and its work with an impenetrable veil of secrecy, without any concomitant democratic responsibility.84

The Law Council also has concerns, stating that the extension of the exemption to Committees of National Cabinet seems unwarranted. It argues:

82. Law Council, Submission, op. cit., p. 7. 83. Twomey, Submission, op. cit., p. 4. 84. Ibid.

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COAG Legislation Amendment Bill 2021 19

That language seems likely to include specialist working groups (of for example, public health experts or lawyers) whose discussions may be purely technical. Documents pertaining to those working groups may be of immense value to the public—for example, in consideration and debate about preparations for the next pandemic—and the case for a blanket exemption from disclosure seems weak. Revelation of the advice given to political leaders may be awkward or embarrassing for them, but since the enactment of FOI legislation that has not been regarded as a legitimate basis for preventing disclosure.85

Other amendments to the FOI Act Item 15 amends subparagraph 34(1)(a)(i) of the FOI Act so that the Cabinet exemption applies to documents submitted, or proposed to be submitted, by a Minister (including a Minister of a State),86 to the National Cabinet

Item 16 amends paragraph 34(1)(c) of the FOI Act so that the Cabinet exemption applies to documents that are brought into existence for the dominant purpose of briefing a Minister, (including a minister of a State), on a document submitted or proposed to be submitted to the National Cabinet.

Comment These amendments in items 15 and 16 are aimed at ensuring that all documents and deliberations of National Cabinet and its various committees will be exempt from FOI.

Professor Twomey was asked during the Senate Committee inquiry hearings on 27 September 2021 to take on notice a question about the effect of references to State Cabinet that are made in Schedule 3 to see whether they would potentially be unconstitutional or would undermine the federal system. In relation to these FOI amendments (items 15 and 16), Professor Twomey noted that, while these were substantive amendments which will reduce the transparency of National Cabinet, she does not think that they interfere in any way with the States. She submits:

The only substantive changes directly relevant to the States are in the Freedom of Information Act. The proposed amendments to s 34 would extend the application of a conclusive exemption to National Cabinet documents, including documents submitted (or proposed to be submitted) to the National Cabinet by a State Minister and documents brought into existence for the dominant purpose of briefing a State Minister on a National Cabinet document. While these proposed amendments would expand the scope of s 34 in a way that reduces transparency concerning the National Cabinet, I do not think that they would interfere in any way with the States.87

Application provision affecting the FOI Act amendments Item 33 is an application provision affecting the amendments to the FOI Act. It provides that the amendments will apply

• in relation to requests for access to a document made on or after commencement and

• in relation to requests for access to a document made, but not finally determined before commencement.

The Government considers that a request is not ‘finally determined’ unless all rights of review or appeal have expired or have been exhausted.88

85. Law Council, Submission, op. cit., p. 12. 86. ‘State’ is defined at subsection 4(1) of the FOI Act to include the Australian Capital Territory and the Northern Territory. 87. A Twomey, Answers to Questions on Notice, Senate Finance and Public Administration Legislation Committee, Inquiry into the COAG Legislation Amendment Bill 2021 [Provisions], 27 September 2021, received 28 September 2021.

88. PM&C, Submission, op. cit., p. 5.

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Some submitters questioned the retrospective application of this provision, the Grata Fund for example submitting it is:

[…] a clear attempt to prevent public scrutiny of government decision-making during the COVID-19 pandemic, despite the fact that COAG would not have enjoyed those same privileges.89

Archives Act 1983 Under the Archives Act 1983, the National Archives of Australia is responsible for providing that all Commonwealth records, other than exempt records, are to be made available to the public when they are in the open access period.90 Under the Act most Commonwealth records other than Cabinet notebooks are in the open access period 20 years after they came into existence.91 Cabinet notebooks created after 1990 are not in the open access period until 30 years after they came into existence.92

Cabinet notebook is currently defined in subsection 3(1) to mean:

… a notebook or other like record that contains notes of discussions or deliberations taking place in a meeting of the Cabinet or of a committee of the Cabinet, being notes made in the course of those discussions or deliberations by, or under the authority of, the Secretary to the Cabinet.

Item 6 amends this definition with the effect that a ‘committee of the Cabinet’ will include ‘National Cabinet and a committee of the National Cabinet (however described)’.

The effect of this amendment will be that notebooks and any records containing notes of discussions or deliberations of National Cabinet and its various committees will not be accessible for 30 years.

Comment Several submitters to the Senate Committee inquiry into the Bill questioned the rationale for this amendment. Professor Twomey says ‘locking up’ National Cabinet notebooks for 30 years appears far from necessary93 and the Law Council agrees, noting that there is no apparent reason for this ‘status-based exclusion from the open-access period’ which will ‘lock-down’ historical access to these documents.94

Other amendments affecting access to National Cabinet information Apart from the amendments to the FOI Act and the Archives Act, Schedule 3 contains amendments to 13 other Acts.95 The purpose of these amendments is to limit access to documents and deliberations of National Cabinet and its various committees in legislation dealing with, amongst other things: the information gathering powers and public reports of independent oversight agencies; the statutory right of affected individuals to obtain written reasons for administrative decisions which adversely affect them; and the protection of public officials against reprisals for making public interest disclosures of suspected wrongdoing.

In relation to these amendments Professor Twomey suggests that, while the documents coming from the National Cabinet may most likely be peripheral or irrelevant in these legislative schemes,

89. Grata Fund, Submission, op. cit., p. 7. 90. Archives Act 1983, section 31. 91. Archives Act, subsection 3(7). 92. Ibid., subsection 22A(1). 93. Twomey, Submission, op. cit., p. 5. 94. Law Council, Submission, op. cit., p. 11. 95. It also includes amendments to an additional two Acts contingent on the passage of legislation.

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the amendments do raise a question as to whether these limitations are really required and genuinely in the public interest.96

The Law Council is concerned about the combined effect of these amendments stating:

when operating collectively, the measures in Schedule 3 would shut down the key legally enforceable avenues for public disclosure of the proceedings and decisions of National Cabinet, and thereby make transparency reliant on the beneficial exercise of ad hoc executive discretion in favour of disclosure.97

This section of the Bills Digest selectively describes some of these amendments. For further information the reader is referred to the Explanatory Memorandum.

Administrative Decisions (Judicial Review) Act 1977 Under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) federal courts have power to review Australian Government decisions of an administrative nature, to determine whether they have been made according to law.

Of relevance to the Bill the ADJR Act includes provisions that prevent the disclosure of information or documents relating to Cabinet. In particular under paragraph 14(1)(b), the Attorney-General may issue a certificate stating that disclosure of certain information or documents may be contrary to the public interest by reason of involving the disclosure of deliberations or decisions of the Cabinet or a Committee of the Cabinet. In general terms, the effect of the certificate is that a person who is required to give a statement of reasons for their decision in accordance with section 13 of the ADJR Act is not required to include in the reasons the information that is subject to the certificate.

Item 5 amends paragraph 14(1)(b), the effect being that the existing power to issue a public interest certificate under the ADJR Act to prevent disclosure of deliberations or decisions of the Cabinet or its committees will be expanded so that a public interest certificate could be issued to prevent disclosure of deliberations and decisions of the National Cabinet and its committees.

Comment Schedule 3 also includes amendments to the Administrative Appeals Tribunal Act 1975 (AAT Act) similar to the ADJR Act amendments (see items 1-4). The AAT Act provides another avenue for seeking review of Government decisions. Like the amendments to the ADJR Act, the effect of items 1-4 is to limit the statutory right of affected individuals to obtain written reasons for administrative decisions affecting them, so as to exclude all National Cabinet information from those statements of reasons.

Australian Human Rights Commission Act 1986 The Australian Human Rights Commission Act 1986 (AHRC Act) establishes the Australian Human Rights Commission (Commission), its principal purpose being to investigate and conciliate discrimination and human rights complaints.

Of relevance to the Bill, the Act includes provisions preventing the disclosure of information or documents relating to Cabinet. In particular under subsection 14(3), the Commission has the power to make a direction that any evidence given to the Commission, or the contents of any document produced to the Commission, must not be published, or can only be published in accordance with the direction. For the purposes of deciding whether to give a direction,

96. Twomey, Submission, op. cit., pp. 5-6. 97. Law Council, Submission, op. cit., p. 10.

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subsection 14(5) lists a number of grounds that the Commission is required to have regard to, including the need to prevent the disclosure of deliberations or decisions of the Cabinet, or of a committee of the Cabinet, of the Commonwealth or of a State. Item 10 amends paragraph 14(5)(c) so that the ground would be the disclosure of deliberations or decisions of the Cabinet or State Cabinet.

Connected to this amendment, item 9 inserts new definitions of Cabinet and State Cabinet into subsection 3(1). Cabinet is defined to include:

• a committee of the Cabinet (including the committee known as the National Cabinet) and

• a committee (however described) of the National Cabinet.

State Cabinet is defined as the Cabinet of a State or a committee of the Cabinet of a State.98

The combined effect of items 9 and 10 is that the Commission will be able to issue directions stopping the disclosure of evidence or documents on the grounds of needing to prevent the disclosure of decisions and deliberations of the National Cabinet or any of its committees. The amendments do not change the Commission’s discretion to issue such a direction or not.

Public interest certificates Under section 24 of the AHRC Act, disclosure of information is also prevented by the use of public interest certificates. Relevantly, under paragraph 24(1)(c), the Attorney-General may issue certificates to the Commission certifying that the giving of information would be contrary to the public interest by reason that it would involve the disclosure of deliberations or decisions of the Cabinet or of a Committee of the Cabinet.

Item 11 amends paragraph 24(1)(c) to omit a reference to ‘or of a Committee of the Cabinet’. The amendment is a consequence of inserting the new definition of ‘Cabinet’ into subsection 3(1) (item 9 above). The combined effect of items 9 and 11 is to provide that the existing power of the Attorney-General to issue a public interest certificate to prevent disclosure of deliberations or decisions of the Cabinet or its committees includes deliberations or decisions of the National Cabinet and its committees. Issuing such a certificate means that neither the Commission nor any other person acting for, or on behalf of, the Commission could require that information to be disclosed.

Comment The Bill proposes similar amendments affecting the issuing of public interest certificates in the Ombudsman Act 1976 and Law Enforcement Integrity Commissioner Act 2006. The Law Council expresses concern about these amendments affecting independent Commonwealth oversight bodies arguing:

[they] would be exposed to the Attorney-General potentially issuing ‘public interest certificates’ which would override those agencies information gathering powers in relation to any National Cabinet information specified in those certificates.99

The Law Council also notes its long-standing reservation about the existence of these statutory non-disclosure certification regimes in their current form arguing:

they are unacceptable impediments to the independence of statutory oversight bodies to obtain the necessary information to perform their statutory functions of inquiring into the actions of executive

98. A state Cabinet would include a Cabinet of the ACT and Northern Territory (Australian Human Rights Commission Act 1986 subsection 3(1)). 99. Law Council, Submission, op. cit., p. 10.

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government. The expansion of the grounds on which those certificates may be issued, at the pleasure of an individual Minister, would exacerbate those already significant concerns.100

Auditor-General Act 1997 The Auditor-General Act 1997 establishes the position of Auditor-General for Australia, who is an officer of the Parliament with responsibility under the Act for auditing Commonwealth entities and reporting these audits to Parliament.101

Part 5 of the Act sets out the information gathering powers of the Auditor-General in the performance of its audit functions and includes secrecy provisions. Section 37 places limits on the use and disclosure of certain information. In relation to Cabinet, it provides that the Auditor-General must not include information in a public report in certain circumstances including where:

• the Auditor-General is of the opinion that disclosure of the information would be contrary to the public interest for reasons that it would involve the disclosure of deliberations or decisions of the Cabinet or of a Committee of the Cabinet or

• the Attorney-General has issued a certificate to the Auditor-General stating that, in their opinion, disclosure of the information would be contrary to the public interest in that it would involve the disclosure of deliberations or decisions of the Cabinet or of a Committee of the Cabinet.

Item 7 repeals and replaces paragraph 37(2)(b) to include references to National Cabinet and its committees. The effect would be:

• that the Auditor-General must not include in public reports information that would involve disclosure of deliberations or decisions of National Cabinet and its committees, if the Auditor-General is of the opinion that disclosure of the information would be contrary to the public interest and

• to extend the existing power of the Attorney-General to issue a public interest certificate to include a certificate to prevent disclosure of deliberations and decisions of the National Cabinet and its committees.

Independent National Security Legislation Monitor Act 2010 The Independent National Security Legislation Monitor Act 2010 (INSLM Act) provides for the appointment of the Independent National Security Legislation Monitor (INSLM). The INSLM independently reviews the operation, effectiveness and implications of national security and counter-terrorism laws; and considers whether the laws contain appropriate protections for individual rights, remain proportionate to terrorism or national security threats, and remain necessary.102 In conducting reviews the INSLM has access to all relevant material, regardless of national security classification, can compel answers to questions, and holds public and private hearings.103

Under section 29 of the Act the INSLM must prepare and give to the Attorney-General an annual report to be tabled in Parliament. If the INSLM considers the annual report contains certain sensitive information a version of the report, excluding that information (referred to as a declassified report), must also be given to the Attorney. Information that must not be included in the de-classified report includes information:

100. Ibid. 101. Auditor-General Act 1997, sections 7 and 8. 102. Independent National Security Legislation Monitor Act 2010, section 5 and 6. 103. Independent National Security Legislation Monitor, About the INSLM, INSLM website, n.d.

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• obtained from a document prepared for a meeting of the Cabinet or its committees (for both Commonwealth and state) (subparagraph 29(3)(d)(i)) or

• that would disclose the deliberations or decisions of the Cabinet or its committees (for both Commonwealth and state) (subparagraph 29(3)(e)(i)).

Item 17 inserts new definitions for Cabinet and State Cabinet into section 4. The definition of Cabinet is expanded so that Cabinet includes a committee of the Cabinet, including the committee known as the National Cabinet and a committee of the National Cabinet (however described). A State Cabinet means the Cabinet of a State or a committee of the Cabinet of a State.

Item 18 amends subparagraphs 29(3)(d)(i) and (e)(i) reflecting these new definitions.

The combined effect of items 17 and 18 is that INSLM de-classified reports must not include information obtained from a meeting of National Cabinet and its committees or information that would disclose the deliberations or decisions of National Cabinet and its committees.

Comment These measures plus the amendments affecting the Auditor-General were criticised by the Law Council on the basis that they would ‘limit the ability of the Parliament to inform itself about important matters, for the purpose of discharging its Constitutional function of holding the executive government to scrutiny and account, consistent with the doctrine of responsible government’.104

Parliamentary Joint Committee on Law Enforcement Act 2010 The Parliamentary Joint Committee on Law Enforcement (PJCLE) is established under the Parliamentary Joint Committee on Law Enforcement Act 2010 (PJCLE Act). Under section 7 of the Act, the functions of the PJCLE include to monitor and to review the performance by the Australian Criminal Intelligence Commission (ACIC) and the Australian Federal Police (AFP) and to report to Parliament on these matters.

Subsection 8(1) of the PJCLE Act places obligations on the Chief Executive Officer of the ACIC to provide information regarding ACIC operations as requested by the PJCLE and to inform the PJCLE on the performance of the ACIC’s function. Under subsection 8(2) the CEO is not obliged to comply with such requests where satisfied that the information requested is sensitive information and the public interest that would be served by giving the information to the Committee is outweighed by the prejudicial consequences that might result from giving the information. Subsections 9(1) and 9(2) replicate these obligations with regard to the AFP Commissioner.

Sensitive information is defined to include, amongst other things, information that would disclose:

Deliberations or decisions of the Cabinet or of a Committee of the Cabinet, of the Commonwealth or a State (subparagraph (b)(i) of the definition of sensitive information in section 3).

Item 26 repeals subparagraph (b)(i) of the definition of sensitive information and substitutes:

(i) deliberations or decisions of the Cabinet, a committee of the Cabinet (including the committee known as the National Cabinet) or a committee (however described) of the National Cabinet; or

(ia) deliberations or decisions of the Cabinet, or a committee of the Cabinet, of a State […]

The effect of this amendment is that information disclosing the deliberations or decisions of the National Cabinet and its committees is also sensitive information for the purposes of the

104. Law Council, Submission, op. cit., p. 10.

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PJCLE Act. This would mean that, under subsections 8(2) and 9(2) respectively, the ACIC CEO and AFP Commissioner would not be required to disclose deliberations or decisions of the National Cabinet and its committees to the PJCLE.

Public Interest Disclosure Act 2013 The Public Interest Disclosure Act 2013 provides a scheme for the investigation of alleged wrongdoing in the Commonwealth public sector and provides protective mechanisms for current or former officials who make public interest disclosures under the regime.

In addition to internal disclosures of alleged wrongdoing, it is possible to make a disclosure externally (such as to the media or a Member of Parliament) providing certain conditions apply. Of relevance, subsection 26(3) of the Act requires a public official to consider a range of factors when determining whether to make an ‘external disclosure’ of alleged wrongdoing. One of those factors is:

if any of the information disclosed in the disclosure is Cabinet information—the principle that Cabinet information should remain confidential unless it is already lawfully publicly available (paragraph 26(3)(b)).

Cabinet information is defined in section 8 as:

(a) information contained in a document that is an exempt document under section 34 of the Freedom of Information Act 1982; or

(b) information the disclosure of which would involve the disclosure of any deliberation, or decision, of the Cabinet or a committee of the Cabinet.

Item 30 repeals and replaces paragraph (b) of this definition to provide that Cabinet information includes a deliberation or decision of the Cabinet, a committee of the Cabinet, including the committee known as the National Cabinet, and a committee of the National Cabinet (however described).

The practical effect of this amendment would be to limit the ability of individual public officials to make external public interest disclosures of information that is ‘National Cabinet information’.

Other provisions Schedules 1 and 2 propose terminology changes in numerous Acts to support the new federal architecture as established since the abolition of COAG.

Schedule 1—Amendments of references to COAG Reform Fund The COAG Reform Fund was established under the COAG Reform Fund Act 2008 as a mechanism through which the Commonwealth makes financial assistance grants to the states and territories. The Act specifies that the terms and conditions on which financial assistance is granted are to be set out in written agreements between the Commonwealth and the states and territories.105

While COAG has ceased to exist and the architecture of federal-state relations has been remodelled, the operation of the COAG Reform Fund has not been affected by these changes.

Schedule 1 does not make substantive amendments but rather makes name changes so that the ‘COAG Reform Fund’ as it appears in legislation will instead be referred to as the ‘Federation Reform Fund’.

105. COAG Reform Fund Act 2008, subsection 7(2).

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Part 1 amends the COAG Reform Fund Act so that:

• the title of the Act is to be ‘An Act to establish the Federation Reform Fund, and for other purposes’ (item 1)

• the short title of the Act is to be the ‘Federation Reform Fund Act’ (item 2)

• all other references to COAG are replaced with references to Federation (items 3 to 9).

Parts 2 and 3 of Schedule 1 make similar amendments to other legislation that refers to the COAG Reform Fund.

For example, the DisabilityCare Australia Fund Act 2013 includes provisions that provide for the transfer of funds via the COAG Reform Fund to the states and territories reimbursing them for expenditure.106 That Act includes a definition of COAG Reform Fund meaning ‘the COAG Reform Fund established by section 5 of the COAG Reform Fund Act 2008’.107 Item 10 repeals this definition and item 11 inserts a new definition:

Federation Reform Fund means the Federation Reform Fund established by section 5 of the Federation Reform Fund Act 2008.

Items 27 to 37 will further replace all other references to ‘COAG’ in that Act with the word ‘Federation’.

Schedule 2—Amendments of references to COAG and Ministerial Council et cetera A range of Commonwealth legislation includes provisions to do with intergovernmental relationships. These include references to COAG and its various bodies.

Schedule 2 would replace references in this legislation to ‘COAG’ with references to the generic concept of a ‘First Ministers’ Council’. That term is defined to mean:

a body (however described) that consists only of, or that includes, the following:

(a) the Prime Minister;

(b) the Premiers of each State;

(c) the Chief Ministers of the Australian Capital Territory and Northern Territory.

The Government considers this proposed definition to be flexible enough to not only cover National Cabinet, but also future groups, as well as groups that may include other members, such as state and territory Treasurers.108

Schedule 2 would also replace references to specific names of a Council (such as the COAG Health Council or Australian Transport Council) with a generic term of ‘Ministerial Council’. The current definition of Ministerial Council is to be repealed and the following definition substituted:

Ministerial Council means a body (however described) that consists of the Minister of the Commonwealth, and the Minister of each State and Territory, who is responsible, or principally responsible, for matters relating to [a particular portfolio issue].

Existing references to ‘Ministerial Council’ would be amended to that effect.

The amendments to the Australian Education Act 2013 provide an example of how these amendments would work.

106. See simplified outline at section 3 of the DisabilityCare Australia Fund Act 2013. 107. DisabilityCare Australia Fund Act 2013, section 4. 108. Explanatory Memorandum, COAG Legislation Amendment Bill 2021, p. 9.

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The Preamble of the Act provides, amongst other things:

In its role as a national policy leader, the Australian Government will work collaboratively with States and Territories to achieve agreed national objectives and priorities for schools through the Council of Australian Governments and the Education Council.

Item 2 will amend this provision so that it reads:

In its role as a national policy leader, the Australian Government will work collaboratively with States and Territories to achieve agreed national objectives and priorities for schools through the First Ministers’ Council and the Ministerial Council.

Item 3 inserts the following definition into section 6:

First Ministers’ Council means a body (however described) that consists only of, or that includes, the following:

(a) the Prime Minister;

(b) the Premiers of each State;

(c) the Chief Ministers of the Australian Capital Territory and Northern Territory.

Ministerial Council is currently defined in section 6 as:

Ministerial Council means the Council of Commonwealth, State and Territory Ministers, as it exists from time to time, with responsibility for school education.

Item 4 repeals this definition and substitutes:

Ministerial Council means a body (however described) that consists of the Minister of the Commonwealth, and the Minister of each State and Territory, who is responsible, or principally responsible, for matters relating to school education.

There are also amendments that provide more flexible definitions of other inter-governmental forums. For example, in relation to the My Health Records Act 2012, item 26 inserts the definition of the Health Chief Executives Forum into the Act to mean:

[…] a body (however described) that consists of:

(a) the Secretary of the Department and

(b) each head (however described) of the Health Department of a State or Territory.

Item 27 repeals the outdated definition of Ministerial Council and updates it with a definition of Commonwealth, State and Territory Ministers who are responsible, or principally responsible, for health.

Items 28 and 29 remove references to a subcommittee of the Ministerial Council, substituting with references to the Health Chief Executives Forum.

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Comment The Government explains that this drafting approach is ‘intended to more flexibly support future title changes to intergovernmental bodies of this kind without need for legislative amendments’.109

Submitters to the Senate Committee inquiry into the Bill generally saw these amendments as technical, and non-controversial.110

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109. PM&C, Submission, op. cit., p. 3. 110. For example, Law Council, Submission, op. cit., p. 5.