(Image: Tom Red/Private Media)

A legal showdown this week could unravel a key part of the Morrison government’s secrecy regime, allowing Australians to finally view deliberations inside national cabinet and the now defunct National COVID-19 Commission.

Independent Senator Rex Patrick is challenging the notion that the national cabinet is a cabinet and entitled to cabinet confidentiality rules. If he is successful, the government will have to release deliberations, papers and outcomes from the national cabinet if requested under freedom of information.

The case is set to be heard before Federal Court judge Richard White in the Administrative Appeals Tribunal tomorrow.

‘Arrogant and unilateral’

Secrecy has been one of the defining features of the Morrison government, especially during the COVID crisis when some of the most important deliberations have occurred between Commonwealth, state and territory leaders behind closed doors.

But Patrick says this is an abuse of cabinet confidentiality, which he believes can only legally apply to cabinet ministers appointed by the prime minister.

“The PM arrogantly and unilaterally declared the national cabinet to have a secrecy blanket over it,” Patrick told Crikey.

“But that is not appropriate in a system of responsible government where people are entitled to see on what grounds leaders are making decisions.”

The government is expected to argue that without cabinet confidentiality, chief medical officers and premiers would not be able to speak their minds. It has reportedly enlisted a senior barrister, Andrew Berger QC, to fight the case.

‘Transparency shield’

The Morrison government’s sweeping use of cabinet confidentiality applies to deliberations inside the Australian Health Protection Principal Committee, which is made up of the Commonwealth and state chief medical officers.

It has also been used to obscure deliberations between its hand-picked group of business leaders at the COVID-19 commission, led by former Fortescue Metals boss Nev Power.

An interim report by the Senate select committee on the government’s response to the pandemic was scathing, saying it was wilfully obstructing access to information.

The government has also used cabinet confidentiality to block FOIs seeking key instructions Morrison issued to ministers, prompting criticism it was using cabinet “as a transparency shield”.

The removal of cabinet confidentiality over the national cabinet would open a Pandora’s box of government information ripe for FOI requests. Some of the most sensitive discussions between state and federal leaders in the national cabinet could be laid bare.

Crikey, which has highlighted the national cabinet’s questionable use of secrecy, would seek access to some of the following information:

  • Discussions around vaccine supplies and any health modelling of different COVID infection scenarios
  • The legal advice given to the attorney-general regarding the COVIDSafe app
  • Whether the aged care minister briefed cabinet on the interim report of the royal commission into aged care
  • Discussions around the closure of domestic borders and the Commonwealth’s responsibilities for building quarantine facilities
  • Discussions around preventing and managing aged care outbreaks, including the date on which the minister for aged care first briefed cabinet in relation to COVID-19
  • What advice was given to government by the department of social services regarding the reintroduction of the liquid assets test for certain Centrelink payments.

We’ll keep you posted.