16 August 2021

The Freedom of Information Act 1982 (FOI Act) is one of the marvels of administrative law. It is based on the simple proposition that everyone has a right to obtain access to documents held by a government agency or a Minister.

Of course, that right is heavily caveated. Governments profess to be transparent, without being completely transparent. There are classes of documents that are exempted from disclosure, either totally or conditionally. It should come as no surprise, given the long-lived tradition of Cabinet deliberations being steeped in secrecy, that documents arising from Federal Cabinet meetings are generally exempt from disclosure.

However, a recent decision of the Administrative Appeals Tribunal (AAT) questions when documents will be ‘cabinet’ documents.

When is ‘Cabinet’ not Cabinet…

The decision focuses on documents held by the ‘National Cabinet’. This body, established in March 2020 to coordinate effective responses to the coronavirus pandemic, is comprised of the State Premiers, Territory Chief Ministers, and the Prime Minister. The Prime Minister’s intention was that the National Cabinet be considered a sub-committee of Federal Cabinet, in which case it may have been assumed that any documents relating to its functions would be exempt from FOI.

And, indeed, that was the status quo until the judgement in Patrick and Secretary, Department of Prime Minister and Cabinet (Freedom of Information) [2021] AATA 2719 was handed down by the Honourable Justice White earlier this month.

The judgement, well worth reading for anyone interested in what Cabinet is and does, concludes that National Cabinet could not be considered part of Cabinet because it does not have intrinsic characteristics of that body, such as collective responsibility. Critically, His Honour concludes that:

…the mere use of the name national cabinet does not, of itself, have the effect of making a group of persons using the name a committee of the Cabinet. Nor does the mere labelling of a committee as a Cabinet committee have that effect.

Hence, National Cabinet is not Cabinet, and so its documents are not automatically exempted under the FOI Act.

…when it is ajar

The case illustrates the necessity to approach the FOI Act with a nuanced understanding of the law and the willingness to stick to your position. Senator Rex Patrick’s initial applications were knocked back by the Secretary of the Department of the Prime Minister and Cabinet. He then applied to the Information Commissioner for review of that decision, who referred the matter on to the AAT. The AAT’s judgement is well-considered, detailed and ultimately validated the initial applications.

However, this may not be the end of the paper trail. The Secretary has the right to appeal the decision to the Federal Court of Australia, and the Federal Government’s track record on national security suggests that the AAT will not have the last word. In the meantime, now is the time to go looking in the back of the cabinet for that long-lost letter you have been missing all these years.