Saturday, February 22, 2014

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:

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!

31 comments:

Anonymous said...

Totally agree with this analysis. The present government seems intent upon real revolution in the way government operates? It is dismaying to this particular conservative that 'my side' of politics would breach this long standing, very sensible, protocol. And then there's the issue of ministerial responsibility aka Sen Fiona Nash who I believe should stand aside, or be made to.

Anyway, as you say, I expect we can look forward to the early release of cabinet papers on things such as the AWB scandal, and 'children overboard' etc. as soon as the pendulum swings again.

kvd

Anonymous said...

And just who is going to trust the potential selectivity of just what is released from any government - this or the next?

kvd

Legal Eagle said...

And I agree with this analysis. What is going on, it's crazy. The news at the moment is very depressing.

Anonymous said...

Where does the Archives Act 1983 fit into this

Anonymous said...

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.

kvd

Jim Belshaw said...

Anon asked: "Where does the Archives Act 1983 fit into this"? The short answer is I don't know. It's a long time since I read it! Must check.

kvd, that is a monumentally silly comment from Mr Abbott for the reasons you point out. And I do wonder about that deeper thing.

It is depressing, LE.

Anonymous said...

Regarding your proviso "if quoted correctly" the following is a link to the transcript of a press conference in Tasmania - see the specific quote towards the bottom:

https://www.pm.gov.au/media/2014-02-22/joint-press-conference-will-hodgman-mp-hobart-0

And I should add that the 'pink batts scheme' should most certainly be reviewed to hopefully set some ground rules for a more competent administration of any future such scheme. There are any number of appropriate review mechanisms available for this, but a Royal Commission is just ridiculous political gamesmanship.

kvd

Jim Belshaw said...

Good morning kvd and my thanks. I have brought the excerpt from the PM's press conference up in the main post. If Legal Eagle is still following the thread, I wonder if she has time to clarify the legal issues?

Evan said...

I find it very odd and very worrying that so few are writing about this.

I don't think Tony thinks ahead. He just fights and destroys. E.g. setting new lows in opposition; the relationship with Indonesia.

And he is our PM!

Anonymous said...

Jim, I don't know what search you did, but I did one on "cabinet confidentiality" and came up with a couple:

http://www.ozpolitic.com/forum/YaBB.pl?num=1392980724/29

- which seems like the usual hornets' nest of lefty diatribe, but does include the interesting comment that this is aimed as much at his present cabinet members, to control dissent?

But the most interesting reference is this one - an old LavaPro post:

http://larvatusprodeo.net/archives/2013/04/richard-denniss-on-evidence-based-policy-and-cabinet-transparency/

- NZ rocks again! I wish I had Fin Review access so I could read the full article being referred to.

And on the throw away line of Abbott's Bob Ellis has his usual ascerbic take, much in line with my own immediate response - which is a worry :)

http://www.ellistabletalk.com/2014/02/22/the-rapid-decline-into-insanity-of-tony-abbott-the-symptoms-1/

kvd

Anonymous said...

"ascerbic" Must somehow get that spelling out of my mind!

kvd

Anonymous said...

People mocked me when I told them that the Coalition was so self-entitled that they have no respect for democratic process and the rule of law. And now we see fascism well and truly unleashed.

Jim Belshaw said...

kvd, I need to check those links.

Anon, I hope that you are not right, but there is a pattern at federal level, in WA, Queensland and NSW. I am not sure that I would call it fascism unleashed. I would agree re democratic process and the rule of law.

All Governments have a tendency to believe that they are right and to invoke the national interest if challenged. The problem is that a government in the democratic tradition has to discipline itself. This means not doing things, accepting conventions. That's the rub. Once you break this, then it becomes very difficult to redress.

I suspect our political views are different. I am a traditional Country Party/National Party supporter. I know the Party's history and for that reason hold it to a higher standard. I feel let down.

Anonymous said...

The failure of this Government to learn from the past beggars belief. I had been disappointed with Labor's cynicism and short term views, but the present mob leave them for dead.

For interest's sake, Possum Comitatus did a rigorous statistical analysis (for free)on whether the batts program had been a disaster. He found improved safety, fewer fires per house etc etc. "Under the insulation program, even though the number of total fires increased by 2.3 times, the number of installations increased by 18.7 times compared to what happened before the program. As a result, under the program the industry experienced 1 fire per every 6158 odd installs – or 0.16 fires per 1000 installs."

It will be interesting to see if the Royal Commission calls on that evidence. The real worry, of course, is that the Government has given itself permission to read past Cabinet papers and decide WHICH to release.

In view of Morrison's embarrassing backdown ("Oh, yes, the asylum seeker who was killed was killed inside our facility..."), Labor will probably have a field day when it eventually comes back.

Anonymous said...

The failure of this Government to learn from the past beggars belief. I had been disappointed with Labor's cynicism and short term views, but the present mob leave them for dead.

For interest's sake, Possum Comitatus did a rigorous statistical analysis (for free)on whether the batts program had been a disaster. He found improved safety, fewer fires per house etc etc. "Under the insulation program, even though the number of total fires increased by 2.3 times, the number of installations increased by 18.7 times compared to what happened before the program. As a result, under the program the industry experienced 1 fire per every 6158 odd installs – or 0.16 fires per 1000 installs."

It will be interesting to see if the Royal Commission calls on that evidence. The real worry, of course, is that the Government has given itself permission to read past Cabinet papers and decide WHICH to release.

In view of Morrison's embarrassing backdown ("Oh, yes, the asylum seeker who was killed was killed inside our facility..."), Labor will probably have a field day when it eventually comes back.

Anonymous said...

Other Government programmes that killed people?

Tony just isnt looking far enough back or hard enough - which is surprising because he has done a deal of fond reminiscing about the good old Howard Govt days. But apparently the memory is very selective.

The Iraq war comes to mind. But that was bipartisan so no political mileage to be made or wedging possible.

Dicarding cabinet confidentiality doesnt sound like a calm methodical and adult decision - rather an opportunistic and short term one. Immediately gratifying but ultimately may be quite destructive.

I suppose Labor's knowledge of what was said and done is a protection from any selective and biased release of information that is favourable to Abbott's agenda.

If one side trashes a principle/convention in the pursuit of their agenda to discredit the other, IMO the latter gets permission do so also in order to protect themselves and ensure the public record is correct.

Anonymous said...

The deaths and fires involved in the Home Insulation scheme were not the problem; the inept administration and the payment process was.

Never mind - I see now that Labor is joining in with the farce we presently call government by demanding a review of the Commission of Audit. In other words, a review of a review...

kvd

Jim Belshaw said...

I had forgotten that Possum Comitatus piece, anon.One of the ambiguities in my mind is that I am unclear on a key fact: did the Government offer or the Commission ask? I think its quite an important distinction.

In regard to the second comment, tit for tat is a key worry.

kvd, I agree with your first point. On the second, I would be happier if there was more substance in opposition responses. Reviews into reviews, indeed.

Anonymous said...

Hi Jim, re your tit for tat is a worry and I agree.

My comment about the other side getting permission to breach the convention was in the context of the current flouting that is being contemplated.

So (former and current) Labor Minister's to defend themselves may have to also flout the cabinet confidentiality over this issue.

I was not suggesting that it should be open slather for revenge when next in Govt. They should resist the temptation to do that although it will be hard to be bigger than the political imperatives that get in the way of such morality.

As to who asked for the info. I read that the Govt was responding to an RC summons to produce the info (in Senate committee questioning yesterday of Brandis I think)and that it was within the PM's discretion whether to comply and he has.

However it would be naive to think that these things cannot be "arranged" while publicly an appropriate separation and independence of action by the RC is maintained - by a word in the ear of a sympathetic person at the RC for eg "psst what about summoning the cabinet papers". That may be unnecessary, as given the political motivation behind the RC, it was likely behind the Govt's thinking that cabinet papers would be called and relevant viz the terms of reference.

Jim Belshaw said...

Anon, one of the things that I really like about comments on this blog is the way they refine, sometimes challenge my own thinking.

In these things, the path is sometimes the important thing. I will bring the Senate estimates stuff (news reports, I haven't checked Hansard) up in the main post. There are still issues, but I wonder why the Government followed the non-path that it did. Maybe its a case of the political advisers (this happened with Mr Rudd) being so wet behind the ears that they lacked the history and experience to manage the issue.

Anonymous said...

The Haneef investigation was not a Royal Commission - it was a judicial inquiry.

And also it is not really clear if 'Cabinet documents' were made available either to that inquiry or to the Centenary House RC - of which there seems to have been two.

I mention this not to be pedantic, but more to ask just where is the line drawn at which point access to Cabinet documents will not be made available?

kvd

Jim Belshaw said...

Again, helpful clarifications, kvd. I am rushing to prepare for work.More later.

Anonymous said...

There were two RCs into the Centenary House leasing - the “Morling Report” and the “Hunt Report”

I cannot find the words “cabinet” or “minister” mentioned anywhere in the first report – the Morling Report.

This is perhaps confirmed by the following extract from page 109 (Section 9.4) of second Royal Commission (Hunt) report:

When interviewed by Commissioner Morling for the first time on 21 June 1994, Mr Coleman was asked to provide the 1994 Inquiry with details of other leases in which there had been escalation clauses.
30
He attended a public hearing of that Inquiry on 4 August to give evidence.
31
There is no indication in the transcript that he had provided the information Commissioner Morling sought by that date. However, among the material the Department of the Prime Minister and Cabinet produced to the present Inquiry as the record of the 1994 Inquiry was a bundle of papers with a handwritten cover sheet stating, “The attached documents were
provided to the Inquiry by Mr Malcolm Coleman”.
32
One document in the bundle is the formal answer to the Senate. Another is the Property Group’s escalator summary, marked “Confidential”.
33
The bundle was not marked as an exhibit, and there is no indication that any part of it was tendered in the 1994 Inquiry.
Commissioner Morling did not refer to the documents in the bundle in his Report.


(my bolding of two sections)

kvd

Anonymous said...

Jim, sorry for the layout of the pdf cut and paste above.

What I was trying to show is the context of the present throwaway line that PM&C has provided "cabinet papers" to past inquiries - and I do not believe the above extract indicates that such was the case for either of the two Centenary House RCs.

I will see if I can turn up anything from the Haneef affair which might back up the claim yesterday (noted by Anon above) that this was nothing new.

kvd

Anonymous said...

On Haneef, the Clarke inquiry made publicly available states that it consists of two volumes, the second of which is confidential.

While there is mention of witnesses from PM&C (and indeed the PM himself) and their statements, these are not on view in the public report.

Given the nature of the matter I do not find this strange or unsettling - but it is also now true that we must simply take as truth that "cabinet papers" were actually submitted to that inquiry.

In short, there does not appear to be any publicly available substantiation of the present claim that "cabinet papers have been made available to past inquiries".

kvd

Jim Belshaw said...

Thanks, kvd. The senate estimates transcript makes interesting reading - http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;db=COMMITTEES;id=committees%2Festimate%2Fca59d171-e730-4559-8c86-8d8475fb35f1%2F0006;query=Id%3A%22committees%2Festimate%2Fca59d171-e730-4559-8c86-8d8475fb35f1%2F0000%22

Anonymous said...

Jim,
thanks for the link in your 1.34pm post, to the Finance & Pub Affairs Committ.
The matter was also raised on 24 Feb in the Legal and Constitutional Affairs Legislation Committee, which is where Brandis participates, as I referred to in my earlier post 11.28am on 25 Feb.
Hansard for one segment of that Committ's hearings at: http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;adv=yes;orderBy=customrank;page=2;query=Dataset%3AcomSen,estimate%20Dataset_Phrase%3A%22estimate%22;rec=0;resCount=Default

There are various points during that Committee's hearings on 24 Feb at which the RC and cabinet confidentiality is discussed. Some of the times of relevant evidence noted in the politics live segment of the SMH for 24 Feb , here http://www.smh.com.au/federal-politics/the-pulse-live/politics-live-february-24-2014-20140224-33b4v.html
Search Brandis or and it is easier to find the time references for the interesting bits in the Committee hearings.

Not sure that anyone would want to trawl through all these but for completeness. Read a few of them but I have a life!

Anonymous said...

Agree completely with Anon that 'having a life' is more important, however:

1) as a layman I think it important to define just what is understood by "cabinet documents" - and as a layman I would offer the following vague definition:

"cabinet documents" refers to records of discussions and decisions (minutes, memos, opinions however broadcast or conveyed) between members of cabinet, and includes any advices provided to any member of cabinet for the purpose of such discussion, if referenced or relied upon by any member of the cabinet for those deliberations.

2) By all means argue the innocence of the above - but in doing so, please provide an alternate definition.

3) While I very much admire the fortitude of "Ms Kelly" in answering as best she could Senator Faulkner's questioning, I believe the reference to the release to past RC's was erroneous and misleading - not suggesting deliberately so, but quite simply wrong, and most certainly misleading, given the "oh well - it's been done before, so that's sort of ok" reaction of the press, and possibly Jim himself.

So, what exactly is meant by "cabinet documents"? And who has actual proof that the release of same has ever happened before - if my layman's definition is anywhere near correct?

kvd

Jim Belshaw said...

Thank you anon for the extra material. I will try to get a life, but this has become interesting stuff.

kvd, my thanks for your continued digging. There is now a very interesting piece of forensic analysis required here to refocus the questions. Maybe some one will do it. If not, I will try next week.

Anonymous said...

Found this discussion paper which (sort of, if you squint a bit) basically reflects my earlier attempt at definition of what are 'cabinet documents':

http://www.aph.gov.au/binaries/library/pubs/bn/pol/cabinetconfidentiality.pdf

kvd

Jim Belshaw said...

Sorry for the delay in responding, kvd. I have been away. I was trying to work ut in my own mind where you drew the line. For example, I used the Cabinet-in-Confidence tag where I was drafting comments for inclusion in the coordination comments of a cabinet submission or in advice to my Minister on cabinet submissions. All these would go onto the normal file, as did advice to my Minister on preparation of Cabinets subs. I advice, I would often quote cabinet docs. So there is a lot around that would allow people to infer what was in the Cabinet docs themselves.