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Cabinet confidential: the dangerous precedent in Abbott’s batts probe

There’s good reason why cabinet documents are kept under wraps. Releasing them to a royal commission is a dangerous precedent, writes governance expert and ACIL Allen executive director Stephen Bartos.

It is one of the fundamental conventions of our Westminster system: when a government changes, all the records of its cabinet discussions are locked away and kept confidential for 30 years. It allows cabinet discussions to be honest and forthright; a government can make decisions and have them recorded with confidence that if it loses an election its opponents will not have access to the papers.

Now a chink has emerged in the conventions.

At a Senate estimates hearing yesterday, the Department of Prime Minister and Cabinet revealed it had handed cabinet papers from the Rudd government to the royal commission into the home insulation scheme. It had done so following “a decision made by the Prime Minister”. It was, according to Labor Senator John Faulkner, a “breach of 113 years of government and cabinet practice and convention”.

The department official was asked if there were precedents. She said “cabinet material” (unspecified) was provided to the Clarke inquiry into the Muhamed Haneef matter (an immigration case) “under very strict conditions”. She also said cabinet documents had been provided to the Centenary House royal commission (from context it appears she was referring to the second of two inquiries into a lease arrangement over a Canberra building).

A government has far more leeway when it comes to its own documents than those of previous governments — giving a new government access to its predecessor’s papers would open up the cabinet process to political mayhem. It would be hard for any government to make good decisions if it felt that after it lost an election its newly elected opponents could trawl through cabinet documents to find embarrassing details to use as political ammunition. Nobody would ever suggest this, and all sides of politics know the merits of the convention.

The present situation is more complex. The royal commission could compel the officials to provide the documents. Royal commissions have enormous powers. They can call anyone to appear and ask for any documents they want. It’s not just past prime ministers — they can even call a serving PM to give evidence (as happened with the Cole inquiry into the AWB grain for oil scandal). So it’s arguable that all the department officials are doing is responding to a request the commission could in any case enforce.

The department has asked the commission to keep the documents confidential, and it passed them on directly rather than showing them to anyone in the present government — both prudent steps. The department also indicated that if the commission intended to disclose the contents of the cabinet documents it would argue against this on public interest grounds.

There is, though, a counter argument that the department could have declined to provide the documents and made the argument on public interest grounds from the start: that is, test the resolve of the royal commission. It might turn out that the commission did not need to see the cabinet documents and could be satisfied with the numerous other papers and minutes provided, or that it could have been persuaded of the public interest merits of keeping cabinet papers locked away. Faulkner pointed out that with the Centenary House commission the department had at first argued strongly against releasing the documents.

That the Prime Minister told his department to hand over the documents should surprise nobody. The royal commission into home insulation appears aimed at finding fault with actions taken by the previous government. Its terms of reference clearly point it in a particular direction. That contrasts with the other royal commission currently underway into institutional responses to child sexual abuse (set up in January 2013), which is a more open-ended inquiry with bipartisan support.

This is an area of judgement with no right or wrong answers. It puts the public servants concerned in a very difficult position. It is hard for them to defy a specific instruction from the PM.

The ultimate test of the merits of this release of cabinet documents will be what the royal commission does with them. If it keeps the contents wholly confidential and makes no reference to them in the report (that is, uses them as background information only) then the Westminster conventions will be safer.

The worrying scenario is if the royal commission report reveals contents of cabinet discussions, either directly or indirectly, on the basis of the cabinet documents provided to it by the PM’s department. If it were to do so it sets a dangerous precedent — opening up the prospect of future newly elected governments establishing royal commissions for the purpose of evading the conventions and having the previous government’s most embarrassing cabinet papers revealed via the back door.

That would be bad for all future governments of whatever political stripe.

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  • 1
    klewso
    Posted Tuesday, 25 February 2014 at 1:23 pm | Permalink

    Labor should cut it’s losses now - eventually (sooner with Abbott:longer with Shorten) they’ll win power and be able to treat this government to the standards they’re defining now.
    Then we can get a look into Iraq, Patricks, AWB, ANP etc too.

    It’s funny how this mob want to demonise the likes of Assange and Snowden - when they get the chance they’ll do much the same thing. For the partisan politics.

  • 2
    klewso
    Posted Tuesday, 25 February 2014 at 1:24 pm | Permalink

    sorry “… AWB, NPA etc…”

  • 3
    Dez Paul
    Posted Tuesday, 25 February 2014 at 1:28 pm | Permalink

    No doubt about it, Abbott’s gone batty over this. How and when, we can’t be sure, but this will definitely turn around and bite him and the LNP one day. What a grub.

  • 4
    Monicas Wicked Stepmother
    Posted Tuesday, 25 February 2014 at 1:34 pm | Permalink

    …they can even call a serving PM to give evidence (as happened with the Cole inquiry into the AWB grain for oil scandal).”

    For those with poor memories, John Howard appeared at the Cole Royal Commission on the Thursday before Easter. The perfect day to make sure any possible bad news sinks without trace…

  • 5
    rhwombat
    Posted Tuesday, 25 February 2014 at 2:02 pm | Permalink

    Abbott’s whole life has been as a faithful attack dog, biting the bums of those on whom he is set by his masters. Befehl ist Befehl. He does not lead. He does not think of consequences. His current master is Murdoch, so Australia is now run by Newscorpse.

  • 6
    Kevin
    Posted Tuesday, 25 February 2014 at 2:09 pm | Permalink

    The Liberals seem drunk on power. Hasty, nasty decisions made to wound their enemies in the short term… As has been said, this decision could end up with the current government shooting itself in the foot.

  • 7
    Iskandar
    Posted Tuesday, 25 February 2014 at 2:18 pm | Permalink

    The RC is obviously just a political show trial of the ALP govt. Only the blinkered won’t see the real culprits were those small business people who spring from the woodwork whenever there is a honeypot of government cash for the licking up. Those contractors who switch overnight from bricklayers to installation installers and operate under no supervision and little or no concern for their employees or a safe working environment. However this latest LNP show trial plays out I hope the commissioners are politically independent and will consider, and present, the bigger picture.

  • 8
    Inscrutable
    Posted Tuesday, 25 February 2014 at 3:02 pm | Permalink

    Can’t wait to see the future Royal Commission into Operation Sovereign Borders and the management of relations with Indonesia!

  • 9
    AR
    Posted Tuesday, 25 February 2014 at 3:31 pm | Permalink

    The current government’s behaviour is a good indication of how banal and reactive (we knew they were ‘reactionary’)they are - no thought for the morrow, addicted to the 3 wrod soundbite and to hell with the consequences - such as having to implement ‘bop the sotats’, ‘witch the ditch’ & ‘tax the axe’.

  • 10
    mikeb
    Posted Tuesday, 25 February 2014 at 3:33 pm | Permalink

    Surely the Abbott Govt would not be so foolish as to open this can of worms. Can an outgoing Govt shred documentation they might find embarassing? Imagine the PS v politician tug-of-war over governance of official archives.

  • 11
    thelorikeet
    Posted Tuesday, 25 February 2014 at 3:43 pm | Permalink

    There is a third scenario that is not mentioned in the article: to go about things the right way: that is, to consult the Opposition about the documents that went to Cabinet when it was the party of government.

    How can it hurt Abbott to do the right thing, the right way? It would only enhance him as PM. But no. The short-term political opportunism that marked Abbott in Opposition persists into government and the body politic is the worse for it.

  • 12
    BSA Bob
    Posted Tuesday, 25 February 2014 at 4:17 pm | Permalink

    A balanced article & therefore sadly out of tune with current events. Abbott doesn’t care about all this precedent stuff.
    Monica’s right about Howard. The ABC (those were the days!) described his appearance as “pure theatre” as I recall.

  • 13
    klewso
    Posted Tuesday, 25 February 2014 at 4:22 pm | Permalink

    Maybe they think that if they throw enough mud they can win the next election by more than a nose?

  • 14
    Popeye
    Posted Tuesday, 25 February 2014 at 4:39 pm | Permalink

    A chink? More like a great gaping hole.

  • 15
    Observation
    Posted Tuesday, 25 February 2014 at 6:06 pm | Permalink

    Its the same old crap from Abbott. Even when he is running the country he looks to hobble productive work in the cabinet. He now wants to weaken future governments power to discuss, debate and process policy to move us forward.

    Weaken the government, empower big business and let them make the decisions for us all, after all they know best right?! Abbott is out of control and he will keep accelerating until the coming train wreck stops him.

  • 16
    Itsarort
    Posted Tuesday, 25 February 2014 at 6:24 pm | Permalink

    I can’t wait ‘till Labor cracks open the confidential documents on SIEV X, the children overboard, oil for wheat scandal, etc, etc, etc…

  • 17
    klewso
    Posted Tuesday, 25 February 2014 at 7:41 pm | Permalink

    I’m not too sure Abbott is happiest as when he’s beating someone?

  • 18
    Bo Gainsbourg
    Posted Tuesday, 25 February 2014 at 11:18 pm | Permalink

    The New Zealand system has allowed access to cabinet documents via FOI subject only to a public interest test Doesn’t seem to have prevented anyone from governing over there? I agree the pink batts inquiry is a political stunt, and it is hopelessly politically compromised already….but still cabinet confidentiality quite possibly should not be the holy cow it seems to have become. And we might be all better off as a result.

  • 19
    klewso
    Posted Wednesday, 26 February 2014 at 1:03 am | Permalink

    As politicians are always telling us when they’re passing harsher laws - “Don’t do anything wrong and you won’t have anything to worry about”.

  • 20
    JMNO
    Posted Wednesday, 26 February 2014 at 10:23 am | Permalink

    I seem to recall that a Crikey blogger - possum or larvatus - did an analysis of accidents in the home insulation industry and discovered that the proportion of accidents was much higher under the scheme(s) in place before Rudd’s scheme than it was under Rudd’s scheme. Perhaps that blogger needs to dust if off and send it to the Royal Commission

  • 21
    klewso
    Posted Wednesday, 26 February 2014 at 11:20 am | Permalink

    I don’t know that Abbott’s terms of reference for this political Witch-hunt Royal Commission would allow that sort of admission?

  • 22
    frey
    Posted Wednesday, 26 February 2014 at 1:00 pm | Permalink

    JMNO/Klewso:

    I think these were the articles referenced:

    http://blogs.crikey.com.au/pollytics/2010/02/24/did-the-insulation-program-actually-reduce-fire-risk/

    http://blogs.crikey.com.au/pollytics/2011/04/24/the-csiro-gets-hip-to-debunking-media-hysteria/

    As for the ToR, the first point in the ToR is about how risk was identified, assessed and managed.

    This should be made open enough to discuss the existing environment and how there was an existing high level risk of fatality/fire - i.e. how else can you determine the likelihood or severity of an event without understanding the existing environment, and about how any existing controls (or lack of them)impact on these events?

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