(Image: AAP/Mick Tsikas)

If Scott Morrison was trying to use the pandemic as a cover to increase government secrecy, it’s starting to blow up in his face.

Staff from the prime minister’s department copped an absolute roasting in a Senate inquiry yesterday over a proposed bill that would shield national cabinet from scrutiny and exempt it from freedom of information laws. This is despite it being found to not be a cabinet under constitutional law, and therefore not entitled to cabinet confidentiality. 

Legal experts blasted the proposal as an affront to democracy, with constitutional law professor Anne Twomey saying the government was trying to legislate something that was simply not true.

“It’s frankly bizarre legislation,” she said. “I mean, why would you assert something that’s not true? Why would you say, in legislation, that a cat is a dog or vice versa?”

Dr Jacoba Brasch QC, president of the Law Council of Australia, went further, asking on RN Breakfast whether it would mean Annabel Crabb’s cooking show Kitchen Cabinet should be kept secret, given it had the word “cabinet” in it.

The drama is entirely of Morrison’s making and it is having quite the Streisand effect. Far from keeping government documents under wraps, it’s drawing more attention to his obsession with secrecy and the extreme lengths he is willing to go to to keep the public in the dark.

The government’s war on national cabinet started innocently enough as an attempt to rebrand the Council of Australian Governments (COAG) at the beginning of the pandemic. But the word cabinet has a specific meaning under Australian constitutional law, and it certainly doesn’t mean a gathering of premiers from all political parties. 

A Federal Court judge has ruled that that’s the case. But instead of changing the name, Morrison introduced legislation to override the decision. 

PM&C staff fumbled yesterday as they tried to explain how the legislation would work given Justice Richard White had ruled in the Administrative Appeals Tribunal (AAT) that the national cabinet was not a cabinet, and not entitled to cabinet confidentiality.

It was made worse when the very architect of the bill, and the only member of the PM’s department who actually attends every national cabinet meeting, secretary of the Department of Prime Minister and Cabinet Phil Gaetjens did not show up to the inquiry, despite earlier being listed on the program. 

Far-reaching consequences

Legal experts say Morrison’s attempt to keep national cabinet shrouded in secrecy could have serious implications for democracy, especially if it means a government can just rename any body a “cabinet” and make it privy to cabinet-in-confidence. 

Brasch says the bill, if passed, would set a dangerous precedent: “What if we had all the health ministers around the state, or all the education ministers around the country, suddenly being deemed as a national cabinet?”

Australian Human Rights Commission president Professor emeritus Rosalind Croucher says the bill was an attempt to use the COVID crisis as an excuse to limit scrutiny over government.

“It’s important that emergency situations do not become a broad justification for unnecessary increases in executive power to the detriment of democracy,” she said.

The move has also come at great expense to the taxpayer. The government has spent untold sums on lawyers to fight the challenge in the AAT brought on by crossbench Senator Rex Patrick.

The bill is symptomatic of a government intent on using the pandemic as cover to bolster powers to keep matters of the public interest secret, as well as create powers to curtail transparency. But so far the blowback may indicate it has finally gone too far.