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5 November 2021

Independent Senator Rex Patrick today condemned the action of the Department of the Prime Minister and Cabinet (PM&C) for continuing to deny Freedom of Information access to National Cabinet documents in defiance of Federal Court Justice Richard White’s Administrative Appeals Tribunal (AAT) decision in Patrick and Secretary, Department of Prime Minister and Cabinet (Freedom of Information) [2021] AATA 2719

“It’s an absolute disgrace that Scott Morrison’s bureaucrats are very deliberately obstructing the operation of Australia’s freedom of information law by refusing to accept Justice White’s determination that National Cabinet is not a Committee of the Federal Cabinet and that its documents can’t be subject to a blanket exemption from public access,” Senator Patrick said. 

“Prime Minister Morrison is obsessed with secrecy. He was caught acting outside the law when he tried to claim Cabinet secrecy in relation to the operation of National Cabinet. He then introduced legislation into the Parliament in an effort to overturn Justice White’s ruling, but that’s going nowhere, having been comprehensively trashed by leading constitutional lawyers and transparency experts.”

“Now he’s got his Department engaging in disgraceful obstruction and interference in an effort to prevent the further release of National Cabinet documents before the election.” 

"It is conduct that is inconsistent with the respect between members of the legislature, executive and judiciary that has developed over centuries," said Senator Patrick. "The Prime Minister is further dismantling long established conventions associated with our responsible system of government for short term political gain."

In his landmark ruling of 5 August 2021, Justice White stated, inter alia, “Having addressed several matters bearing on the question of whether the National Cabinet is a committee of the Cabinet, I have then sought to consider their collective effect. In my view, taken together they point persuasively against the National Cabinet being a committee of the Cabinet within the meaning of the statutory expression”.

In a recent decision the PM&C officer in charge of National Cabinet Affairs, acting Assistant Secretary Angie McKenzie, has informed an FOI applicant that despite Justice White’s ruling, the Department remains of the view that “National Cabinet is a committee of the Cabinet for the purposes of the FOI Act, and therefore National Cabinet documents are exempt from disclosure under s 34 of the FOI Act.”

Senator Patrick said: “I find a PM&C official seeking on spurious grounds to overrule a decision made by a Justice of the Federal Court on the meaning of a statutory expression quite alarming.”

“This is politically driven obstruction that reflects very badly on PM&C officials who are supposed to uphold the highest standards of professionalism and impartiality. This latest action by PM&C raises grave concerns about the increasing politicisation of this agency under its current Secretary, Philip Gaetjens.” 

“There are more than 50 FOI requests currently before PM&C that relate to National Cabinet documents, all of which are likely to be decided in contradiction to Justice White's decision. Accordingly, I have written to the Information Commissioner urging that the Commissioner issue guidelines requiring agencies comply with Justice White’s very clear and definitive ruling.” 

“It is a requirement that in section 9A of the FOI Act that an agency must have regard to the Information Commissioner’s guidelines, and it is now imperative that relevant elements of Patrick be included in the guideline.”

“Politicised decision making cannot be allowed to destroy our freedom of information system.” 

“I am also expecting an imminent decision from PM&C in relation to one of my own requests for National Cabinet minutes. This decision is due on 12 November 2021.”

“I expect that I will receive a similar claim by the Department that all National Cabinet records are exempt from FOI release.”

“If this proves to be the case, I will refer the decision to the Information Commissioner for review with a request that the matter be referred to the Federal Court under section 55H of the FOI so that a judicial determination can be made in respect to whether the National Cabinet is a committee of cabinet for the purpose of the FOI act.”

“It looks like another big FOI legal fight lies ahead. I’m up for the challenge.”

Relevant documents can be found here.