Documents: Report on Ministerial Standards and Sports Grants - Order for the Production of Documents

10 February 2020

Senator Patrick: The government's public interest immunity is not made out. I would like to assist the chamber in detailing what could properly attach a cabinet-in-confidence label and what could not. There are three things that can be determined as cabinet-in-confidence. One of them is a submission to cabinet—a document that goes into the cabinet that, were it disclosed, would reveal something that was talked about in cabinet. The second thing is the deliberations of cabinet. We accept the principle of collective responsibility. We like the idea that the Prime Minister can have a different view from the Attorney and relevant ministers and that is kept secret because of that collective responsibility. It is important, and I accept that it is important. And the third thing that is entitled to the protection of a cabinet-in-confidence claim is a decision of cabinet—until, of course, the cabinet decides to announce it. So that's what we're dealing with—one of three choices.

Senator Lambie's order for the production of documents relates to a report prepared by the secretary of PM&C outside of the cabinet. It can't be the latter two—it can't be a deliberation of cabinet and it can't be a decision of cabinet—so the best claim that can be made is that it is a submission to cabinet. There are a couple of tests in the law as to whether a document is indeed a cabinet submission. The first of those is: was it submitted to cabinet? And my understanding is that perhaps in this case it was. The second and most important test is what is called the dominant purpose test: for what purpose was the document produced at the time of its birth? You can't simply have a report and then decide at some later stage that you are going to wheel it through cabinet, sprinkle a bit of cabinet fairy dust on it and then have it protected by the doctrine; that is not the case. And whether a document's dominant purpose at birth was as a submission to cabinet is a question of fact.

To inform us in relation to that fact, we have to go to some of the statements made by the Prime Minister when he announced that this document was being formed. He basically stated that he had asked the Department of the Prime Minister and Cabinet for advice in relation to any action in the application of the statement of ministerial standards. The Prime Minister is awaiting the secretary's advice and will continue to follow due process. That's what the Prime Minister indicated. There is nothing in there that says this was for cabinet. I will read from section 109 of the latest version of the Cabinet Handbook to give a feel of how important this dominant purpose is. It says:

If an attachment or supporting document has been brought into existence for the dominant purpose of submission for consideration by the Cabinet, then the attachment or supporting document must clearly state this. This ensures each document is appropriately identified as a Cabinet document and handled in line with the security requirements for Cabinet material.

I would like the government to return to this chamber some evidence—because we're dealing with a question of fact—that this document was intended at birth to be a cabinet submission. That should be very easy. If, indeed, there is no evidence of that then they must table the document.

I've FOIed this. I've been through the FOI process before and I have managed to have released to me documents that were purportedly cabinet documents. I know this space really well. As I said, I have FOIed this document. Won't it be a shame, when I get to the end of the two-years the process is likely to take me, if it's revealed to me that Mr Rex Patrick can get it, under FOI, but the Senate couldn't? We'll see how that pans out.

Even if it is cabinet-in-confidence—and we've already heard some remarks about this—we need to understand that the principles of cabinet confidentiality are not creatures of statute; they are creatures of convention. They are longstanding and respected conventions but they are subservient to our Constitution. As Senator Ayres suggested, and as per his quote from Odgers, the courts, for example, when deciding whether or not someone can subpoena a cabinet document, have to balance up the public's interest in the principles of cabinet versus the public's interest in the administration of justice. It is for the court to decide, not the cabinet. If you want to know the cases, Mr Acting Deputy President, we have Commonwealth of Australia v Northern Land Council, High Court of Australia; we have Sankey v Whitlam, High Court of Australia. These are well-established legal principles from the highest court in this land. I note that Mr Bret Walker SC, who gave a presentation to the Senate about a year ago, made it very clear:

… it is clear that there is no absolute bar against the compulsory disclosure or tender into evidence of even the most core cabinet documents, such as those recording the secret deliberations of its members.

He went on to say:

The High Court has no difficulty with the courts carrying out a balancing process when the administration of justice is the public interest competing against the public interest in cabinet secrecy. It is ridiculous to suppose that the Senate could not carry out a corresponding exercise when the public interest in responsible government through accountability to a parliamentary chamber is involved.

The Constitution makes it very clear there is a high threshold, but we could insist upon it. But we don't know whether it's a cabinet submission. The government makes that claim; we need to see some evidence, particularly in relation to its dominant purpose at birth.

I say to this chamber: this is a multistage process. Senator Lambie has, through the Senate, asked to see this document, asked for it to be tabled. The minister has the right to present a public interest immunity response, but it is for the Senate to decide whether or not to accept it. There are further processes that we can now take to get access to this document. In the end, parliament is supreme. The Senate chamber will win this if it wants to. It will require some courage from the alternative government, who tend to back away from enforcement of these sorts of things. I have no doubt the Greens, Senator Hanson and Senator Lambie will provide support. We can get access to this document, and I'm happy to speak to any senator about the next steps.

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