Last week, Senator Rex Patrick challenged the secrecy of Prime Minister Scott Morrison's national cabinet. In the Administrative Appeals Tribunal, parties argued whether the national cabinet belongs to the Westminster tradition, with its expectations of cabinet confidentiality, solidarity and collective responsibility. The controversy cuts to the core of our system of government.
Eventual court decisions could have nationwide implications. For example, energy ministers are due to decide on the future of the National Electricity Market. Without clarity about the status of national cabinet, the NEM reform process is rudderless. This leaves states/parties unable to proceed with their own Renewable Energy Zone policies, putting clean energy investment at risk.
The legal path to this week's hearing started last year. Senator Patrick made freedom of information requests for the minutes, rules and procedures of the first national cabinet meeting. The Commonwealth refused, including on the grounds that the documents are cabinet-in-confidence.
Senator Patrick brought the case because he is concerned that the national cabinet has sidelined parliamentary accountability, public scrutiny and transparency.
The national cabinet of Prime Minister, state premiers and territory chief ministers replaced the Council of Australian Governments that, while not without its problems, at least was expected to release a public record of meetings and was subject to FOI requests.
The Commonwealth argues that the Prime Minister created the national cabinet as a committee of the federal cabinet, and that he determines its procedures and policies - including "cabinet confidentiality".
The counterargument focuses on practice and convention. Traditionally, cabinets are made up of ministers from one polity bound by cabinet solidarity and collective responsibility: they support and vote for cabinet decisions and resign together if the government loses the confidence of parliament. Any cabinet committees are composed of members of the larger cabinet.
National cabinet does not resemble other cabinet committees. The Commonwealth's representative tried to draw a comparison between the national cabinet and Julia Gillard, arguing that before 2010, "convention and practice" was that a female could not be prime minister. Even the judge was sceptical. "There's a first time for everything", after all.
It is not possible for premiers and chief ministers to be bound by national cabinet when they are accountable to their own government executives and ultimately to their own legislatures.
Unlike a female prime minister, a national cabinet as a committee of the federal cabinet is problematic. It is not possible for premiers and chief ministers to be bound by national cabinet when they are accountable to their own government executives and ultimately to their own legislatures. If the Morrison government loses a vote of no confidence, do the premiers all resign? Nor is it clear how members of different parliaments could be prohibited from speaking out about decisions of national cabinet that they disagree with. Are they expected to leave national cabinet and forfeit their state or territory's place in national decision making?
While Senator Patrick's case only directly concerns FOIs, what the courts decide about the formation and status of the national cabinet may have broader ramifications. Until this is settled, the ambiguity causes serious risks for investors and the state governments that have authority over electricity under the constitution.
In 2019, federal and state energy ministers directed the national Energy Security Board to redesign the NEM so that the grid remains reliable as coal power stations retire. Without new rules the grid will become less secure as coal retirements remove sources of electrical inertia and system strength.
Energy law in Australia requires a council of co-equal ministers at its apex, to deliver the NEM redesign and to regulate and coordinate the market nationally. The ministerial meeting is defined in energy law. It makes rules and decides on the governing members of the three energy market bodies: AEMC, AER and AEMO.
The Prime Minister received advice to this effect in October last year. The Review of COAG Councils and Ministerial Forums by Peter Conran, who had been secretary to cabinet under Prime Minister John Howard, found that energy ministers have regulatory functions that are incompatible with a national cabinet structure. Maintaining the Energy Ministers Meeting appears in his first recommendation.
An objective of the national cabinet was to streamline decision-making across the Commonwealth and state jurisdictions, and to eliminate duplication. But in the case of energy it perversely resulted in duplication: COAG Energy Council has been bifurcated into the Energy National Cabinet Reform Committee and the Energy Ministers Meeting, with duties divided awkwardly between them.
Uncertainty in energy policy will harm consumers and emissions reduction efforts. If there are any beneficiaries it will be coal power stations and the big three retailers because, as Australia Institute research shows, slowing down clean energy reform helps incumbents.
The climate crisis demands decarbonisation of electricity this decade. That alone is sufficient cause for the federal government to replace the presidential-style national cabinet committee for energy with its more democratic COAG predecessor. The Prime Minister's national cabinet works counter to Australia's energy interests.
- Bill Browne is senior researcher in the Democracy & Accountability Program at the Australia Institute. @browne90
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