The principle of Cabinet confidentiality

The principle of cabinet confidentiality is deeply engrained in the Westminster system. The traditional British form was once explained to me in this way by a then boss at Treasury. The papers of a Government belong to that Government and cannot be made available to a new Government, This principle provided the base for a very funny episode of Yes Minister in which Jim Hacker conspired with his predecessor in the previous government to force Sir Humphrey as head of Department to reveal not the papers, but the principles embedded in a paper prepared for the previous minister.

Leaving aside the constitutional principles underlying the approach, there are good, practical, reasons for the confidentiality requirement. If an incoming government can trawl through the papers of its predecessors, it will always find things that it can use in the political fight. Then, once it has established that this is okay, it will be exposed in its turn.

The apparent decision by the Commonwealth Attorney General George Brandis to release cabinet papers from the previous administration to the Royal Commission into the abandoned home insulation scheme is without precedent. It is also unnecessary.  The Commission does not need those papers to do its job. It can find out all it needs just by asking people under oath, by seeking other documents.  

Former prime ministers Bob Hawke and Malcolm Fraser have expressed alarm at the Brandis move, saying it will invite payback from future governments and threaten cabinet confidentiality. They are right to be alarmed.

In releasing the documents:

Senator Brandis said the government respected the importance of cabinet confidentiality, but it had decided the documents the Commonwealth would produce for the commission ''will include documents over which a claim for public interest immunity might be made, such as cabinet documents''.

In providing such documents to the commission, Senator Brandis said the government would indicate that it did not waive its right to claim public interest immunity from their contents becoming public.

''Accordingly, should the commission wish to publish any of the cabinet documents … the Commonwealth requests that it be notified so that it can consider whether it is necessary to make submissions in relation to such documents or uses, or whether it should seek protective orders,''

This is actually  a rather important statement. Senator Brandis is establishing a new principle. Cabinet documents can be made available, but the Government reserves the right to oppose publication. However, it is then a matter for the Commission or courts to decide.

Meantime, lawyers representing former prime ministers Kevin Rudd and Julia Gillard and several former cabinet ministers who have been summoned to appear before the commission are believed to be considering legal action that would see the courts decide if cabinet confidentiality should be waived in the public interest.

The principle of cabinet confidentiality is just that, a principle. It exists because, in combination with other things, it makes our system work. I think it unlikely that this Royal Commission will choose to publish cabinet documents, although they may wish to publish excerpts to set a context. That doesn't matter. The new principle has apparently been established.

Be afraid. Be very afraid. In simple terms, it means that the next Government, and there will be one, can choose to hold Royal Commissions into its predecessor's actions on particular matters (refugees come to mind) and provide the most sensitive cabinet documents to support its case. Alternatively, the Commission may demand those documents. As our former PMs said, payback followed by payback. 

Postscript

There is a little more analysis in this ABC News report. In a comment, kvd wrote:  

Abbott tonight: "Can any of you think of a government program which actually killed people?"
Snowy Mountains Scheme, War (anywhere, but specifically) in A'stan, and I'm willing to bet that Sydney's second airport will have a death or three. In other words, just about any government program you might name.

This man is not stupid, so there must be something deeper in his present rhetoric.

I don't know whether or not there is anything deeper in the present rhetoric, but if quoted correctly, that is a monumentally silly rhetorical question from Mr Abbott. Try this story, for example: Scott Morrison admits information he gave on Manus riot was wrong. Can't you see the questions coming up as people trawl back through the records?

There is something badly out of kilter with this Government's judgment and priorities. The really annoying thing from my perspective is that it's distracting from other things that are very important from a policy perspective.

The Commonwealth is now in diabolical trouble largely of its own making. Much of the media reporting is unfailingly negative, with doubts surfacing even in the supportive papers.

I do not pretend to know how all this is playing out in the electorate. The latest opinion polls showed a bounce-back in Government support. I do think that the Government cannot afford many more mistakes at a time when it is trying to soften the electorate to an apparently tough May budget.

Australian elections are won or lost in the middle ground. Compulsory voting reinforces this. While I don't know about public opinion in general, I would be pretty sure that Government support in the middle is starting to erode. This doesn't happen overnight. It takes time.

Opposition leader Bill Shorten must really be counting his blessings. Immediately after the last election, the Labor party was a dispirited mess. Now membership is up, the faithful have been reinvigorated and Mr Shorten really hasn't had to do a thing. It's been done for him!

Strange times.

Postscript 2

A commenter asked "Where does the Archives Act 1983 fit into this"?" It has been a very long time since I had cause to look at this act. I have had a quick browse only, you will find the Act here,

Having browsed the Act, the short answer is that I am not sure. One question might be whether or not the cabinet records in question are classified as a current record or have been transferred to Archives. The legal position appears to be different. A second question lies in the distinction between giving the Commission access to cabinet records (intuitively, that would appear to be legal since the Commission is a Commonwealth creation) and any subsequent publication by the Commission. Would the time limitations on public access set out in the Act impede the Commission?

Senator Brandis' statement would appear to suggest that the Commonwealth can give the Commission access to the records, but that the Commonwealth reserves its position on any publication. Perhaps some more expert reader can better explain the specifically legal issues.

Postscript 3

This is the record of what PM Abbott actually said. Thanks to kvd for the link.  

"QUESTION:

Has the Government handed over Cabinet documents to the pink batts Royal Commission?

PRIME MINISTER:

We've established a Royal Commission because we want to get to the bottom of the most incompetently managed programme in Australia's history. Can any of you think of a government programme that actually killed people? Let's not forget that this programme was so incompetently devised and carried out that it resulted in four deaths, hundreds of house fires, a billion or so was spent putting insulation in and then a billion or so was spent taking insulation out.

An absolute monumental act of ineptitude. Now, it's very important that we get to the bottom of how this happened and why this happened so that we can learn the lessons and make sure that nothing like this ever happens again. What is actually required and who is actually going to be interviewed, will be a matter for the Royal Commissioner. If the Royal Commissioner asks for documents, that's a matter for the Royal Commissioner.

QUESTION:

Do you think that would set a dangerous precedent for the future though, if you did hand over those Cabinet documents?

PRIME MINISTER:

Well, it's not a question of us handing over the Cabinet documents, Royal Commissioners are entitled to ask and to indeed be supplied with documents. Royal Commissioners have very extensive powers to demand documents, to summon and question witnesses. This is a very powerful inquiry and it should do its job.

QUESTION:

There have been calls for a royal commission into the asylum policy. One could argue that that’s a government policy that’s resulted in loss of life.

PRIME MINISTER:

There is an inquiry going on into what’s happened in Manus. We’ve got General Campbell up there at the moment, so that we know exactly what’s happened. The Papua New Guinea authorities will have their own inquiries into what happened. The important thing is that we protect our borders, we implement our policies and we maintain order in these camps and I'm pleased to say that despite a very serious riot, the camp was fully functional the next morning, people were being fed, people were being housed, people were being looked after and our obligations were being discharged."

Postscript 4

Am I the only blogger writing on this? I did a web search across the blogosphere and could not find a single reference beyond this post. Anybody else out there?

Postscript 5

One of the things that I really like about my commentators is the way that they help me carry a story forward. In this case, the key question becomes was the Government asked or did it volunteer? If it volunteered, that's the end of the story. If it was asked, how did it respond?

From this story, the facts appear to be these:

1. The government was asked. The PM approved the release.
2. Neither the Prime Minister nor anyone from his office had seen the documents, which were passed to the Attorney-General's Department to send to the commission. They were part of 4,500 documents supplied over time, including a range of cabinet documents.
3. The cabinet documents were given to the royal commission on the condition they be viewed privately. If the commission wants to make any of the documents public, the Department of Prime Minister and Cabinet has requested it be told in advance so it can apply for a ''public interest immunity'' waiver to block publication.
4. Cabinet documents had previously been provided to two royal commissions, (the Centenary House investigation and the inquiry into the Mohammed Haneef affair), so it wasn't the first time.

If these facts are right, then there are still points to argue, but they are somewhat different points. It leaves me wondering about ministerial advisers. Have they become so wet behind the ears that they can no longer deconstruct an argument and present facts and principles? 

Postscript 6

Thanks to the digging of my commentators, this matter has shifted again. First, however, all this has Ross Gittins quite upset: Under Tony Abbott, political principles reach an all-time low.

Turning now to my commenters, the Hansards to the estimates' discussions on this matter are:

• First, the PM&C discussions
• and now the Attorney General discussions.

These cast a different light again on the discussions. meantime, kvd has been exploring the history of the apparent transmission of cabinet papers on two previous occasion. This raises at least some uncertainties. He also asked for the definition of cabinet papers. I thought I knew, but now it seems that I don't.

All this requires a proper forensic analysis. Maybe next week!