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Cabinet confidentiality: privilege, accountability and public interest

It was revealed last week that prime minister Tony Abbott personally authorised the disclosure of the former Labor government’s cabinet papers in response to a summons by the royal commission into the…

The voluntary release of the former Rudd government’s cabinet documents in relation to the home insulation scheme risks undermining cabinet confidentiality, and is a dangerous precedent. AAP/Alan Porritt

It was revealed last week that prime minister Tony Abbott personally authorised the disclosure of the former Labor government’s cabinet papers in response to a summons by the royal commission into the Rudd government’s botched home insulation scheme.

The documents were released on the basis that they will be kept confidential by the royal commissioner, who must seek permission from the government before releasing them publicly.

The release of the documents has been widely debated. Critics of the move, such as constitutional lawyer George Williams, say it is a breach of cabinet confidentiality and undermines the wider public interest objectives cabinet confidentiality exists to protect. Federal attorney-general George Brandis argues that it is a necessary step for the issue to be investigated properly, saying:

It would be hard to see that the royal commissioner can do his job as fully as his terms of reference require him to without having some capacity to inquire into the internal workings of government.

The voluntary release of a former government’s cabinet documents by a new government risks undermining cabinet confidentiality with a detrimental flow on effect of chilling cabinet deliberations. Ministers may be reluctant to air disagreements or reservations for fear they will be used to score political points at a later date.

This risks undermining debate and discussion in cabinet. That would be to the detriment of collective decision-making and would raise the danger of the creation of a prime ministerial dictatorship.

Powers of the royal commission and exemptions

Royal commissions have very strong investigative powers, conferred by statute: the Royal Commissions Act 1902. This allows a royal commission to investigate thoroughly those matters within its terms of reference. This usually has an ultimate objective of achieving better understanding and accountability for catastrophic events or systemic failings in both government and the private sector.

Royal commission powers include the power to order the production of documents from the government. However, the government can claim immunity in response to a request. A person also does not have to comply with a request if there is a “reasonable excuse”.

Public interest immunity extends to documents that reveal the deliberations of cabinet. This is different to the myth that once a document is wheeled into the cabinet room it is exempt from disclosure, although the abuse of the privilege in this way probably occurs in practice.

Cabinet confidentiality and the public interest

The law protects cabinet confidentiality against production of documents to the parliament, in the courts and to inquiries such as royal commissions. Cabinet documents are protected from freedom of information requests under an unconditional exemption.

In response to last week’s events, Australian commentators across the political spectrum have indicated considerable support for the argument that there is a great public interest in protecting these documents. Malcolm Fraser and Bob Hawke, former prime ministers of both persuasions, have come out in defence of the convention.

Cabinet confidentiality, which under the doctrine of collective responsibility to the parliament presents a united public face, ensures that ministers can argue and debate and disagree without the danger of those disagreements being used to destabilise the government.

Should we reconsider cabinet confidentiality?

Some commentators have raised questions about whether the wide legal protection of cabinet confidentiality should be reconsidered. The argument is that in the promotion of greater transparency in government, this class of immunity ought to be removed, with a limited immunity retained for national security purposes.

No doubt, cabinet confidentiality squarely raises the age-old tension between transparency and accountability on one hand and the need for some secrecy to ensure effective governance on the other.

Writer Elle Hardy argues that the Australian people are smart enough to understand that cabinet will sometimes disagree:

The notion that cabinet discussions are sacrosanct is insulting to the public, who appreciate politicians are not of one mind on all issues.

However, recent Australian history has left me unconvinced that the media and the public are beyond scandalising disagreement in cabinet when leaks do occur. For example, the revelations of Julia Gillard’s earlier cabinet positions in relation to paid parental leave and the emissions trading scheme were not treated in the media with measured understanding of the need for disagreement and debate at the cabinet table. These leaks became part of a concerted campaign to undermine her leadership when she first took the prime ministership from Kevin Rudd.

Further, Hardy argues that “details of cabinet discussions are frequently leaked to the media”. This is undoubtedly the case. However, these leaks currently remain a question of rogue members and discipline and not routine government practice.

It is a big step from this state of affairs to a position where an incoming government releases cabinet documents as a matter of accepted practice. The chilling effect would be far greater than the possibility of leaking by a disgruntled cabinet colleague.

Cabinet leaks currently remain a question of rogue members and discipline and not routine government practice. AAP/Lukas Coch

Responsibility to protect cabinet confidentiality

It appears precedents do exist for the release of cabinet documents to royal commissions. The Department of Prime Minister and Cabinet has referred to the release of some cabinet materials to the Clarke Inquiry into the Muhamed Haneef affair and to the Centenary House Royal Commission.

But two things should be noted before we accept too readily that this most recent release is not in breach of convention.

First, the documents in the recent saga are those of a former cabinet – a former government – that has already been voted out. These documents are usually quarantined from the next government, placed into the archives and not released for 30 years. This is immediately distinguishable from the situation of a government releasing its own documents.

Second, the royal commission itself seems to have been established purely for the purpose of accessing these documents. A number of government and parliamentary inquiries into the home insulation scheme have already been held to determine the causes of its mismanagement and the tragic deaths associated with it.

What differentiates the royal commission from these earlier investigations is its pointed terms of reference to determine what happened around the cabinet table.

One thing is certain: it is not the royal commission’s job to protect the public interest in cabinet confidentiality. It is the government’s responsibility to uphold the convention that cabinet documents are not released.

The move to disclose the documents is a short-sighted failing by the Abbott government, one that threatens to undermine an important privilege with little thought as to its long-term consequences for the public interest.

Join the conversation

43 Comments sorted by

  1. Phil Dolan

    Viticulturist

    Does Abbott think that this won't backfire? It's certainly not rational thinking for the good of the country.

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    1. Rick Sullivan

      Vast and Various

      In reply to Phil Dolan

      And when, Phil, was 'rational thinking for the good of the country' ever criteria for anything Tony Abbott did?

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  2. Robert Smith

    retired

    Oh, so this nasty little bunch of bully boys are going to break with tradition to kick the ALP some more? Presumably this circus is intended to keep peoples minds and eyes of the promises they are breaking.
    Still, if we do have to have cabinet details and documents released can we also have those of the Howard government made public?
    They could start with the "children overboard", "Dubi mercinaries", "Patricks dispute" deal with Chis Corrigan and Howards involvement in the "weapons of mass distruction" lies.

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    1. Nestor Armitage

      Senior Research Fellow

      In reply to Robert Smith

      What about the documents where Gough Whitlam authorised the invasion by Indonesia of East Timor resulting in tens of thousands of deaths - what a great humanitarian.

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    2. Michael Gormly

      Editor at Superkern Design Pty Ltd

      In reply to Nestor Armitage

      Indeed, Nestor Armitage, East Timor is a matter of everlasting shame to this country (still to this day thanks to our greedy oil grab and Senator Brandis' hamfisted ASIS raids). But this has nothing to do with the topic of governments revealing the cabinet documents of previous governments. As the article states, there are good reasons for this convention.

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    3. Rick Sullivan

      Vast and Various

      In reply to Nestor Armitage

      Or that of Little Johnny to send troops looking for non-existent 'weapons of mass destruction'?

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    4. Nestor Armitage

      Senior Research Fellow

      In reply to Rick Sullivan

      I'm glad you mentioned "Little Johnny" I take it you will have no complaints if I mention "that psychopath" Kevin Rudd or the evil "witch" Gillard, wouldn't you.

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    5. Rick Sullivan

      Vast and Various

      In reply to Nestor Armitage

      Wow. 'psycopath', 'evil witch'. You are certainly one of the LNP / Murdoch faithful, eh, Nestor.

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  3. Greg North

    Retired Engineer

    If we are to have Royal Commissions or any enquiries for that matter into various matters of public interest with a view to expecting that what has occurred can be fully revealed even if parliamentary privilege will not see some people held accountable, we do need to have a full disclosure.
    As it was with Labor, there was some belief that Peter Garrett ended up carrying the can for decisions that included others or others not being prepared to act on recommendations.

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  4. Jeff Payne

    PhD in Political Science and Masters in Public Policy

    Perhaps I don't adequately understand the situation but I'm not only worried about the precedent of releasing cabinet documents, rightly an important issues raised clearly by the author, but about this whole precedence. If a new airport is built by a government and a plane crashes into nearby housing, is the government legally responsible? If policies allow for a new mine and the mine collapses is the government legally held responsible?

    This whole episode reveals something about the personality…

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    1. Roger Simpson

      logged in via LinkedIn

      In reply to Jeff Payne

      As with much of the government's agenda this has everything to do with winning the next election. These clowns don't govern they seek to hold power and will be duly assisted by the Murdoch press.

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    2. Robert McDougall

      Small Business Owner

      In reply to Roger Simpson

      they don't need to govern, they only need to hold power in order to introduce the policies of their owners.

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  5. Michael Gormly

    Editor at Superkern Design Pty Ltd

    It was not a "botched home insulation scheme". Phrases like that are just lazy writing based on LNP/Murdoch spin. According to commenter Terry Reynolds on this site yesterday:

    "-There were 1,210,000 installations in just eighteen months with $1.5 billion injected into the economy at the bottom end.
    -That meant 1,210,000 households, or about 15% of all Australian dwellings, mainly occupied by lower income earners got a $1,200 free kick to have warmer homes in winter, cooler homes in summer…

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    1. Nestor Armitage

      Senior Research Fellow

      In reply to Michael Gormly

      "had a 2000% safer record than normal"

      I'm sure the bereaved families take consolation from that thought.

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    2. Michael Gormly

      Editor at Superkern Design Pty Ltd

      In reply to Nestor Armitage

      Nestor Armitage, of course it is little or no comfort to the bereaved but, by the standard implicit in your argument, nothing can ever be attempted that might lead to injury and death. Governments build roads, do they not? People die on them. Should there be a Royal Commission into that? I won't even mention the deaths on the Harbour Bridge, the Snowy River Scheme, or for that matter in air crashes. Zero casualty rates from very large operations are just not realistic. The fact remains that if the "botched" insulation scheme had a far better than average safety record, there are no valid grounds for this politically motivated Commission. And another thing: Do the contractors directly responsible for the fatal installations bear no responsibility? Or the state governments under whose regulatory regime they took place?

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    3. Rick Sullivan

      Vast and Various

      In reply to Nestor Armitage

      I always wondered how come the LNP was so successful at getting the blame laid at the feet of the Labor government, rather than the dodgy contractors. Until, that is, I realised it's the way the Murdoch 'government' wanted it portrayed. And how successful they were.

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    4. Nestor Armitage

      Senior Research Fellow

      In reply to Rick Sullivan

      Well it was the jazz singer who mentioned to Rudd all the safety problems. But he was over-ruled. He insisted that all OH & S problems be ignored. No state government or territory requires 'pink batt' installers to have a licence, not should they. Next you'll insist carpet layers need a builders licence or phone installers.

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    5. Julie Thomas

      craftworker

      In reply to Nestor Armitage

      Nestor why do you not hold the employers responsible? Surely it would have been just common sense in at least one of the cases I have read about for the employer to have ensured that the power was turned off? How hard can it be for a boss to think of these basic safety procedures?

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    6. Michael Gormly

      Editor at Superkern Design Pty Ltd

      In reply to Nestor Armitage

      Nestor I think you mean Peter Garrett who was hardly a jazz singer (nor was he, many have argued, even a singer). I believe he did raise concerns with the otherwise obsessive Mr Rudd and no doubt the scheme, like every scheme, was not perfect. This however is not grounds for a Royal Commission especially given that the casualty rate ended up being far below average. Remember, we were in the beginnings of a major global crisis and quick action was essential. I think it was one of the very few occasions where Rudd showed actual leadership and did something.

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    7. Bruce Noake

      Retired Technician

      In reply to Nestor Armitage

      As a recently retired telephone technician I can assure Nestor that a licence is in fact required to install telephones, breaches when detected attract a sizeable fine, also in NSW and I believe in the other states much of the work carried out by building trades does require a licence.

      While it is tragic that these young men were not provided a safe working environment by their employers to lay the blame at the feet of the Labour Government of the day is pure and simply another attempt by the…

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  6. Nestor Armitage

    Senior Research Fellow

    But it's OK for The Guardian and #theirABC to release Cabinet documents ????

    Go figure !!!!!!

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    1. Robert McDougall

      Small Business Owner

      In reply to Nestor Armitage

      the thing you have probably missed is that neither the Guardian or the ABC are the Government of the day.

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    2. Michael Gormly

      Editor at Superkern Design Pty Ltd

      In reply to Nestor Armitage

      Nestor, are you serious? There is a big difference between a newspaper publishing leaked documents in the public interest, and a government entrusted with them but using them to score political points.

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    3. Michael Gormly

      Editor at Superkern Design Pty Ltd

      In reply to Nestor Armitage

      Nestor, is the opposite of 'leftard' 'retard'? Sorry, I'm confused. Or is it just another cheap shot?

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    4. Robert McDougall

      Small Business Owner

      In reply to Nestor Armitage

      Leftards? neither the guardian or the abc are THE GOVERNMENT, that is the difference my dear. being a senior research fellow, i am surprised you are not able to identify that simple point of difference.

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  7. Peter Banks

    retired Civil Engineer

    This Royal Commission is just one more nail that Abbott is trying to hammer into a Labor coffin. There is no intent to 'get at the truth'; there is every intent to paint Labor in as bad colours as possible.

    As said elsewhere, the Coalition have no plan, not even intent possibly, for governing in the country's best interest; they only have plans to hold power at all costs (to everyone else) and the future be damned.

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    1. Robert McDougall

      Small Business Owner

      In reply to Peter Banks

      so essentially it is a case of "look, we have nothing, so our strategy is to make our opposites look as bad as possible"

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    2. Rick Sullivan

      Vast and Various

      In reply to Robert McDougall

      And to have ALL the media on side, not just the Murdoch press, hence the attack on the only unbiased outlet - the ABC.

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  8. Nigel Stanley

    retired

    The author uses the word 'chilling' a number of times but what is most chilling in her argument is the statement: 'That would ... raise the danger of the creation of a prime ministerial dictatorship.'

    I see Mr. Abbott heading in the direction of dictatorship and if that is his goal then once he has successfully used a royal commission in this way to destroy the previous opposition government he will continue to do so until it becomes almost impossible to dislodge him or his successor. And why this obsession with the batts?

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    1. Robert McDougall

      Small Business Owner

      In reply to Nigel Stanley

      we already have a prime ministerial dicatorship, it is in the PM's Office and her name is Peta.

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  9. Don Matthews

    Retired

    Looking forward to " Stop the boats " Royal Commission.

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    1. Sebastian Poeckes

      Retired

      In reply to Don Matthews

      Oh yes! Just wait for the wheel to inevitably turn! An incoming Labor government will use this as a precedent for getting into whatever closets contain the LNP's skeletons . Manus Is? Another stuff-up that hasn't emerged yet? Rest assured, once the dogs of war are released, there's no calling them back.

      Just another example of Australian politics in a race to the bottom.

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  10. Robert McDougall

    Small Business Owner

    i've said it before and i'll say it again, the only transparent thing about the Abbott government is thier contempt for the Autralian People.

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  11. David Pearn

    Follower

    You realy have to wonder about this 'mob' or am I missing something.

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  12. Rick Sullivan

    Vast and Various

    Let's hope the voting public remember this for what it is: nothing but a politically-motivated attack. This LNP government is nothing but a pack of nasty brats led by a clueless pawn.

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  13. Stephen Nicholson
    Stephen Nicholson is a Friend of The Conversation.

    Town Planner

    This article has inspired a fresh insight explaining the decision.

    Great leaders surround themselves with capable people who have differing perspectives - the robust discussions help weed out defective decisions.

    Tony Abbott surrounds himself with like-minded people, e.g. school and uni mates. Maybe he knows his limits, maybe not. But he struggles with handling alternative ideas.

    If Cabinet papers can be made available earlier than before, who wants to be on record as disagreeing with…

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    1. Phil Dolan

      Viticulturist

      In reply to Stephen Nicholson

      'who wants to be on record as disagreeing with the direction of the PM? This action will intimidate members of Cabinet to go along with whatever Tony wants.'

      Good point. He is very calculating.

      Be in charge. Stay in charge. Wipe out opposition.

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    2. Rick Sullivan

      Vast and Various

      In reply to Phil Dolan

      'Be in charge. Stay in charge. Wipe out opposition'. Who said that? Idi Amin? He'd fit right in with 'this mob'.

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  14. Charles Lawson

    Law academic

    We have a current example of almost contemporary Cabinet documents being made available to an inquiry in Queensland where the change of government brought an inquiry into the Heiner documents and the Cabinet decision to destroy documents to avoid an inconvenient legal proceedings. The insight from the Cabinet documents has been informative and insightful with the follow-on proceedings challenging a lot of our assumptions about how decisions gets made and who actually is responsible for making those decisions. Sadly a blanket Cabinet confidentiality shuts out the refreshing sunlight of openness that has so massively improved government decision making with the now no longer "New Administrative Law" of the 1980s (FOI, reasoned decisions, tribunals, and so on). Secrecy has a place, it's just no clear that Cabinet should still get that blanket privilege despite the undoubted political convenience of such confidentiality.

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  15. Kevin Conway

    Retired

    Spoke to a builder. He told me that 11 people have died in electrical accidents installing insulation since the end of the scheme. Will Tony Abbott require the Royal Commission to look into those deaths. He is releasing the documents because people are talking about one-term Tony. Thay feel he is heading over a cliff at a fast rate of knots and he simply is trying to spread odure to avoid it.

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