Labor, independent and Greens senators have demanded Phil Gaetjens appear at a Senate inquiry hearing into the government’s attempt to keep the national cabinet secret despite a federal court judge ruling it was not a cabinet and therefore not entitled to secrecy.
The secretary of the Department of the Prime Minister and Cabinet was scheduled to appear at the hearing but late on Friday his name was removed from the program and replaced by more junior members of the department.
Committee chair Liberal Senator Claire Chandler said a letter from acting Secretary of the PM&C Stephanie Foster on Friday did not specify why Gaetjens was unable to appear, but inferred it was because he was travelling with the prime minister. Labor Senator Tim Ayres said that was unacceptable.
“Mr Gaetjens is the only person who has first-hand knowledge of the national cabinet,” he said. “Indeed he is a principal architect of the bill that is being put before the Parliament.”
The COAG Legislation Amendment Bill includes provisions that would “protect from disclosure the deliberations and decisions of the cabinet and its committees”.
The provisions would apply to the “deliberations and decisions of the committee of cabinet known as the national cabinet”.
The bill was introduced earlier this month after Federal Court judge Richard White ruled in the Administrative Appeals Tribunal (AAT) that the national cabinet was not a cabinet, despite Prime Minister Scott Morrison’s claims, and therefore not privy to cabinet-in-confidence.
That decision was a victory for crossbench Senator Rex Patrick, who had taken the government to the tribunal after being denied minutes of national cabinet meetings on the basis of cabinet confidentiality. Gaetjens was a respondent in the AAT case that ultimately led to the bill.
“That of itself should be sufficient for Mr Gaetjens appearing at the committee,” Ayres said.
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Ayres demanded the inquiry know the whereabouts of Gaetjens and why he could not attend: “The PM arrived back in Australia late last night. Either Mr Gaetjens is travelling with the PM in which case he’s here quarantining in Canberra and available to appear, or he’s catching a commercial flight back.
“There is absolutely no reason why the committee could not hear evidence from all the witnesses who are scheduled today, and make time for Mr Gaetjens to appear, either this afternoon if he’s in the country or later in the week.
“It’s either cowardice or hubris. I want to know what arrangements we’re going to make to make sure that this secretary gives the evidence that he’s required.”
Greens Senator Larissa Waters said removing Gaetjens from the agenda with little explanation was emblematic of the government’s inability to provide the public with full transparency.
Patrick agreed the committee needed to hear from Gaetjens given the department had failed to provide primary evidence to the AAT about why national cabinet deserved to be kept secret.
Ayres demanded the committee break during the hearing to establish the exact whereabouts of Gaetjens.
“I understand he might not want to appear,” Ayres said. “But we should get to the bottom of this if we want to do our job.”
Accountability groups have been scathing of the bill, telling the inquiry on Monday that it would cloak government decision-making in secrecy.
“This legislation seeks to provide a blanket exemption that would prevent freedom of information requests against any documents related to or prepared for the purposes of national cabinet,” said Oliver Ray, a strategic litigation solicitor at the Grata Fund. “It will see secrecy increase to the detriment of Australia’s democracy.”
The government is due to face the hearing this afternoon.