Andrew Barr has questioned the need for a federal bill protecting national cabinet secrecy and accused the prime minister’s office of extensive briefing of media about its deliberations.
On Wednesday the Australian Capital Territory chief minister described the bill as “possibly a solution looking for a problem” and said Scott Morrison’s office appears to brief media “ahead of every meeting”.
The comments call into question a statement released by national cabinet on Friday asserting that its members believe that without secrecy the intergovernmental body’s effectiveness would be undermined.
Earlier in September the Morrison government introduced a bill to apply cabinet secrecy to national cabinet documents despite a ruling in the Administrative Appeals Tribunal that it is not a cabinet or a committee of the federal cabinet.
The Australian Human Rights Commission has warned extending cabinet secrecy to the intergovernmental body would permanently reduce transparency, exempting it from freedom of information laws unlike its predecessor, the Council of Australia Governments.
Asked if he believed deliberations should be secret, Barr told reporters in Canberra on Wednesday “the prime minister’s office backgrounds the media ahead of every meeting”.
“I read about what’s going to be coming forward to national cabinet in the Australian and the Financial Review pretty regularly in advance of even seeing agenda papers,” he said.
“I understand the agenda is freely circulated among the federal press gallery. And the morning of the meeting you can be pretty well certain what’s going to be talked about is out there publicly.”
Barr said he had “made a habit about talking about things from this podium”, as have other state and territory leaders.
In its statement on Friday, the national cabinet asserted that disclosure of its documents and deliberations would “undermine the trust between the commonwealth and the states and territories and would prevent full and frank discussions that achieve the best outcomes for the Australian public”.
It said if national cabinet members agreed it will continue to release public statements after meetings articulating its decisions.
Barr said he had pushed for a communique to be released after each national cabinet meeting with decisions taken, adding it was “entirely appropriate” to ask questions of how they were reached.
Barr said he accepted that matters discussed over several meetings “do require confidentiality”.
“What I would say is that given you’ve got nine different governments sitting around that table of all different flavours of political philosophy with variety of world views, there’s not much that’s gone on in national cabinet that hasn’t been extensively discussed in the media, often before media and all the prepositioning that goes on.
“To be frank there’s not that many things there that would be considered so secretive as to not be able to be freely discussed – so the legislation [is] possibly a solution looking for a problem.”
In its submission to an inquiry examining the bill, the department of the prime minister and cabinet said it will amend 15 acts to tighten confidentiality, including archiving national cabinet documents for 30 years.
The bill will also allow a minister to issue a public interest certificate to prevent the disclosure of deliberations or decisions of the cabinet or its committees.
The department said it was a “foundational operational rule of the national cabinet” that it was a committee of the commonwealth cabinet.
The department noted that federal, state and territory cabinets consider the inputs into national cabinet and decisions endorsed by it, because “national cabinet does not derogate from state or territory sovereign authority”.
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It noted independent senator Rex Patrick’s win in the AAT, but said justice Richard White’s finding that the commonwealth had not demonstrated national cabinet was a committee of the commonwealth cabinet was “not considered to have precedential force beyond the facts and documents before it”.
The department noted the bill will apply to FOI requests that have not been “finally determined”, meaning existing requests may be processed under the old rules.
In its submission the Grata Fund said the bill is “an attempt to evade the public accountability Australia’s FOI system was designed to provide”.
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It noted national cabinet secrecy would extend to all its subcommittees, shrouding intergovernmental discussions on health, housing, taxation, energy and migration in secrecy.
The Accountability Round Table submitted there were “serious constitutional and legal doubts” around deeming national cabinet to be a committee of the commonwealth cabinet, arguing it lacked conventional features including the need for unanimous decision making.