Senator challenges cabinet secrecy.

Scott Morrison is using a special arrangement to keep the workings of his government secret, but independent senator Rex Patrick has launched a challenge to its legality.

The one-man construct allows the prime minister to declare almost any gathering he attends to be a cabinet committee meeting, protecting it from public scrutiny.

A special policy committee the prime minister uses to keep the workings of his government secret is being called into legal question as part of a challenge to the confidential status of national cabinet.

Independent senator Rex Patrick launched the challenge after the Department of the Prime Minister and Cabinet refused two freedom of information requests for access to national cabinet documents.

Appearing before the Administrative Appeals Tribunal (AAT) this week, the Commonwealth argued that national cabinet’s workings must be secret because it is an offshoot of federal cabinet, which is governed by a confidentiality convention.

It argued that deciding how cabinet committees are formed and who joins them is in the prime minister’s “gift” alone.

The national cabinet arrangement relies on the controversial cabinet office policy committee that Morrison created upon becoming prime minister. He is its only permanent member. The one-man construct allows the prime minister to declare almost any gathering he attends to be a cabinet committee meeting, protecting it from public scrutiny.

When the tribunal’s Justice Richard White queried the mechanism purporting to give national cabinet confidential status, the government could provide no information.

“Is there anything else that tells me anything about the cabinet office policy committee?” Justice White asked counsel for the Commonwealth, Andrew Berger, QC, on Wednesday. “I’m not sure there is, Your Honour,” Berger replied.

Last year, Labor’s senate leader, Penny Wong, condemned the one-man committee as “an abuse” of process used to “cover up blatant political decision-making”.

Senator Patrick’s AAT challenge could also have implications for accessing information from other designated cabinet subcommittees and groups advising them.

During the Covid-19 pandemic, the government extended secrecy protections to national cabinet’s primary medical advisory body, the Australian Health Protection Principal Committee (AHPPC), which comprises federal, state and territory chief health and medical officers. It claimed similar protections over advice from the National COVID-19 Commission, established last year.

Senator Patrick sought documents covering national cabinet’s deliberations – particularly those on May 29 last year, when the body was made permanent – as well as the rules governing it.

But the Commonwealth refused because the prime minister had decreed national cabinet to be a version of the cabinet office policy committee.

Representing Senator Patrick at the AAT this week, Geoffrey Watson, SC, suggested simply calling something a cabinet committee did not make it so.

That could be “an attempt to close documents by some use of a label”.

“That thing which we know as cabinet is not changeable just because of the desire of the prime minister of the day,” he said.

Morrison first proposed national cabinet on March 13 last year, as the pandemic unfolded, promising to strip away the bureaucracy of the existing Council of Australian Governments (COAG).

State and territory leaders accepted that this new version – with leaders meeting more often, holding frank discussions and making decisions without advisers – would be more agile.

Announcing national cabinet’s permanency last year, Scott Morrison argued its cabinet status was key to its success.

“That means it operates … under the federal cabinet’s rules and that relates to the security of documents, process, procedure,” he said. “And all of these committees also will operate on that basis as well …”

Patrick’s central legal arguments include that national cabinet can’t be a cabinet committee because it doesn’t behave like one and includes members who are not federal ministers. He argues it does not uphold the principles of cabinet solidarity and collective responsibility – traditional hallmarks of cabinet and its committees.

“There is a very good reason for that,” Geoffrey Watson told the AAT. “The [state and territory] ministers, indeed the prime minister – they have a responsibility to someone else. They do not have a responsibility to the national cabinet … They have a responsibility to their individual executives, to their individual parliaments and to their individual constituents. That’s what we call ‘responsible government’.”

The Commonwealth conceded at the hearing that when national cabinet was established, it was “by agreement” of COAG, not by the prime minister alone.

“But we say although it was a collective decision … the power and authority to do so stemmed from the prime minister and had the prime minister not agreed to do it, it could not have been formed,” Andrew Berger said.

Justice White challenged Morrison’s supremacy in the scenario, suggesting any of the others could have vetoed the move.

“I’m not sure the prime minister could have forced them to attend,” Berger acknowledged.

But White also challenged Watson’s assertion that people who weren’t cabinet ministers could not be made members of cabinet committees.

“What would stop the cabinet from doing that?” he asked.

Berger argued that just because something had not happened before did not mean it never should.

He cited Julia Gillard becoming prime minister, suggesting the lack of a female national leader previously reflected an accepted convention that all prime ministers be men.

“That may not be your best example, I suspect,” Justice White remarked.

Berger offered another – that until

Ken Wyatt had been awarded a ministerial portfolio, there was a convention that Indigenous people were not ministers.

“There’s a first time for everything but that doesn’t necessarily indicate that a convention or practice existed. It was an incident of history that that hadn’t happened, that’s all,” White said, dismissing both examples.

Instead, the judge offered some assistance, providing his own examples of

MPS who had been invited to join the South Australian cabinet from outside the governing party. Geoffrey Watson responded that all were still members of the same parliament, not members of other parliaments or unelected people.

Key among the issues is whether a cabinet, or cabinet committee, can also include members who weren’t elected MPS from the same parliament and ruling party.

The Commonwealth argued that the core principle governing national cabinet was solidarity.

“We say at no stage has the national cabinet acted in a way that is inconsistent with the principles of solidarity and collective responsibility,” Berger said.

Watson pointed to the prime minister repeatedly indicating members of national cabinet had differing views and served separate constituencies.

He particularly noted Morrison’s September 4 declaration last year that national cabinet had abandoned consensus, after Western Australia and Queensland refused to agree to his proposal that hotspot restrictions should replace border closures.

“Not everyone has to get on the bus for the bus to leave the station,” Morrison had said. “But it is important the bus leaves the station, and we all agree on that.”

The Commonwealth’s case relies heavily on what Berger described as the superior expertise of PM&C secretary Phil Gaetjens and departmental assistant secretary Leonie Mcgregor.

Both provided affidavits and Berger urged Justice White to give “significant weight” to their “expert” testimony.

Andrew Berger argued their expertise on the inner workings of cabinet was “unique” contemporary knowledge. Watson countered the judge should give greatest weight to case law – of which he said there was plenty on the nature of cabinet operations, despite cabinet’s existence being governed by convention and not laid down in law.

The idea of a cabinet – as opposed to a full ministry – does not appear in the constitution. Its only legislative mentions are in acts governing information management, including the Freedom of Information Act and the Archives Act.

Geoffrey Watson said the expert witnesses were not independent as the tribunal’s own guidelines recommended. Indeed, Gaetjens was actually the respondent.

Justice White noted the guidelines were a guide, not “a statute”, but said when parties presented expert evidence “one would expect them ordinarily to comply with those guidelines”.

That expertise was dented by an embarrassing concession: part of Leonie Mcgregor’s sworn evidence – which Gaetjens had endorsed – was factually incorrect.

Mcgregor cited a historical precedent for non-cabinet ministers joining cabinet committees – wartime Labor prime minister John Curtin’s appointment of the Country Party’s Earle Page to his war cabinet in 1942. The same year, state premiers were also invited to attend a war cabinet meeting.

But in a forensic demolition, Patrick’s adviser Dr Philip Dorling provided affidavits detailing extensive archival searches revealing Page was not a member of the war cabinet at all. Rather, he had been appointed to an advisory council of different – and lesser – status.

In that capacity, he had been invited to a war cabinet meeting but had not been a member. Likewise, the premiers had effectively been visitors.

When Geoffrey Watson highlighted the error, Andrew Berger conceded Mcgregor’s affidavit should be changed. The assertion that Page had been “appointed a member of ” the war cabinet was struck out and replaced with him having been “asked to attend”.

In a late addition to its arguments, the Commonwealth also insisted that releasing the documents could seriously harm intergovernmental relations.

He said national cabinet’s secrecy provided “a forum for candid discussions”.

“Your Honour, you can infer that if they weren’t confidential, they wouldn’t work as effectively,” he said.

Berger insisted the whole class of documents should attract blanket protection – everything that goes before or comes from national cabinet – and the test should not be applied case by case. Watson disagreed.

The Commonwealth also confirmed the terms of reference governing national cabinet’s operations could be “central” to the judge’s decision on whether it deserves cabinet status and documents should be withheld. But in an absurdist twist, it initially opposed releasing the terms – even to the judge – because they are contained in the blocked documents.

The judge demanded the relevant documents be delivered to him, sealed, in case he needed to read them. It appeared likely he would.

Justice White indicated he might consider the terms of reference as being in a different category to the other documents. But Berger insisted they, too, must be protected, as “the first card in the deck, the foundation stone”.

“If that were not confidential, what else might not be?” he asked. “Any pulling of the thread, depending on what thread is pulled, will have differing degrees of harm.”

After the hearing, Rex Patrick described national cabinet as “a last-minute idea dealt with at short notice, without its implementation or consequences being properly considered”.

“That’s apparent when looking back at the various media statements, the cobbling together of a new cabinet handbook and the evidence before the AAT,” he told The Saturday Paper.

Patrick said the legislated right to access information on intergovernmental communication had existed in Australia for almost 40 years, “subject only to a test of public harm”.

“Last year, Prime Minister Morrison took that right away,” he said. “He did not ask the parliament to change the law.”

Patrick said he was in a fight for transparency and responsible government. “And I’m in a fight to stop a prime minister unilaterally taking away a right that was given to me and all Australians, by the parliament.”

Whether Justice White agrees will be clear soon. He reserved his judgement and promised a quick decision.