Senator Patrick appealed to the Administrative Appeals Tribunal where the case was heard by a deputy president, Justice Richard White. The PM&C secretary, Phil Gaetjens, was the respondent with a senior officer of the department in support.

In defending its decision to deny Senator Patrick's request, the department persisted in the view that the national cabinet was a committee of the federal cabinet and that its papers therefore attracted a comprehensive exemption from disclosure. Mr Gaetjens added that "I consider the disclosure of any of the national cabinet minutes would undermine the operation of the national cabinet, damage relations between the Commonwealth and the states and be contrary to the public interest." In short, he went the guts and, for better or worse, he came a gutser.

In a scrupulous consideration of the facts, opinion and the law, Justice White shredded Mr Gaetjens's case. While acknowledging the need for a degree of confidentiality for national cabinet deliberations, the judge found that:

Along the way the judge took the trouble embarrassingly to point out PM&C's faulty claims about the operational history of the federal cabinet.

That is to say, in seeking a blanket exemption for all national cabinet documents regardless of their nature and the possible consequences of their disclosure, PM&C fell into a litany of errors and was comprehensively undone.

Undone but not done for, as the government has now introduced a bill, the COAG Legislation Amendment Bill, which essentially would establish in the law the position PM&C unsuccessfully pressed before Justice White. The bill has been referred to the Senate Finance and Public Administration Legislation Committee for investigation and report.

The bill seeks to amend the definition of federal cabinet so that the national cabinet will be, in law, a committee of the federal cabinet. The bill also seeks to amend 17 Acts to close off the possibility of the disclosure of national cabinet documents by the Auditor-General, the Ombudsman, the Administrative Appeals Tribunal and a host of others. In a flourish of rhetorical cliché beyond the bounds of his usual excesses, Minister Alan Tudge in his second reading speech on the bill asserts that it "ushers in a new and exciting era of our federation". In his excited state, Mr Tudge goes on to claim that blanket exemption from disclosure of all national cabinet documents is essential if its discussions are to be "full and frank". In its submission to the Senate committee, PM&C echoes the minister, extravagantly contending that the amendments are "in the interests of all Australians", although many clearly don't see it that way.

Fundamentally, the government has learned nothing and forgotten nothing as a result of proceedings before Justice White. It's made no obvious attempt to protect proceedings of the national cabinet on the basis of the circumstances and needs of that body taking into account the adequacy of existing laws. It wants to impose the blanket restrictions applying to the disclosure of federal cabinet documents to the national cabinet without having the faintest evident regard for the differences between the two in principle and practice, and it wishes to do so by inappropriate and dangerous means. It would seem that in its dudgeon about the thrashing PM&C was given by Justice White, the government has resolved to put him in his place by legislating the case to which he gave a fail grade.

The claims by Minister Tudge and PM&C about the prerequisites for "full and frank discussion" are disingenuous. The disclosure "loophole" the COAG Legislation Amendment Bill seeks to close has quite evidently had no effect on full and frank discussion among members of the national cabinet. Just about every day its members are at one another's throats in public in ways that give fullness and frankness vivid expression. Goodness knows how far the Prime Minister and state and territory leaders are prepared to let themselves go when they're behind closed doors.

In their public statements neither the minister nor the department is prepared fully and frankly to address the reasons why the proceedings of the federal cabinet are given comprehensive protection under the FOI Act. These go to the inter-related desire to maintain collective responsibility and solidarity for cabinet decisions and the need to minimise the risks of trivialising mischief if cabinet documents were to be made available to opposition political parties. These considerations do not apply to the national cabinet.

All papers and records of proceedings for the national cabinet are, of course, made available to the heads of the Commonwealth, state and territory governments and it is inevitable some of them will be used publicly to advance different political positions. Therefore, collective responsibility and solidarity around the workings of the national cabinet are not the same as for the federal cabinet suggesting the need for different rules about the confidentiality of the papers of the national cabinet. Indeed, it may be that existing protections in the FOI Act on Commonwealth-state relations and related matters are adequate in themselves. In being less than full and frank about these considerations, Minister Tudge and PM&C raise suspicions that the unspoken purpose of the bill now before the Parliament is to tighten the stranglehold on accountability so as to minimise the risk of political awkwardness and embarrassment. That would be consistent with the way the government has pushed papers onto cabinet business lists as an excuse for not disclosing them, for example, Mr Gaetjens's report on Minister Bridget McKenzie's administration, roughly speaking, of sports grants.

Professor Anne Twomey from the Sydney University law school, who expertly pulled apart much of the dissimulation on the sports grants program, has made a telling submission to the Senate committee on the COAG Bill. She points out that legislating to define the national cabinet as a committee of federal cabinet denies the self-evident fact that the national cabinet is no such thing - it's like legislating to deem a cat to be a mouse. To do so she says would traduce the power and role of premiers and chief ministers and their standing in the federation. It's to be hoped the Senate - the states' house - is alert to the dangers of these absurdities.

The government's inept, blunderbuss approach before Justice White deserved to fail because it didn't take into account the circumstances of the national cabinet and the ways its proceedings should be given a degree of confidentiality consistent with its needs. It is now trying legislatively to redeem that failure. In submissions to the Senate committee, Professor Twomey and the Law Council of Australia provide a smorgasbord of far better alternatives. The committee would do well to recommend a selection of these in place of the relevant provisions of the current bill so that, as Professor Twomey says, "any requirements for confidentiality are being imposed in the public interest rather than the political interests of governments to avoid accountability and embarrassment resulting from poor management or even corruption."

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