The Morrison government’s claim that national cabinet deliberations are exempt from freedom of information laws will be challenged in the Administrative Appeals Tribunal, setting up a test over the new body’s immunity from scrutiny.
The Australian Conservation Foundation (ACF) will file a case with the tribunal as it seeks to access information on at least 15 environmental approvals “fast-tracked” by the federal environment minister, Sussan Ley, a task so far stymied by the government’s insistence the documents fall under traditional cabinet rules.
The prime minister, Scott Morrison, has insisted national cabinet deliberations are treated the same as those in the federal cabinet, which are kept confidential and not subject to freedom of information legislation.
The national cabinet comprises federal, state and territory leaders. It was established in early 2020 in response to the coronavirus pandemic and replaced the Council of Australian Governments, which was not bound by cabinet confidentiality rules.
The ACF had previously sought legal advice over the exemption and was told it remained unclear – given the national cabinet is made up of leaders from other jurisdictions, not just the federal sphere. The work of the Covid commission looking at Australia’s economic recovery has also been declared to fall under traditional cabinet rules, despite receiving advice from business and industry leaders.
The ACF’s legal opinion, released last year, stated: “Although the prime minister has indicated that national cabinet documents cannot be obtained under the FOI Act, there is some doubt as to this proposition and it is yet to be tested by the courts.
“Some documents may not be exempted from disclosure. In the circumstances, legislative amendments may need to be considered to address this uncertainty.”
With all other avenues to access the documents closed, the ACF is now heading to the Administrative Appeals Tribunal, with Geoffrey Watson SC leading the case. It will also challenge the government’s use of the “deliberative material’ exemption that requires a public interest test.
A spokesman for the environment minister said: “All requests are complied with in accordance with the provisions of the FOI Act.”
Given the national cabinet is a relatively new creation, the ACF wants to test whether it is actually protected by traditional non-disclosure cabinet rules.
“This is just the beginning of a range of cases government ministers and departments can expect if they continue to ignore their legal and democratic responsibility to the community enshrined in the FOI Act,” said Isabelle Reinecke, the executive director at Grata Fund.
“Since launching the Grata FOI Project, we have received inquiries for support across a range of areas. Those attempting to circumvent FOI law should consider themselves on notice.”
The documents the ACF is fighting for relate to 15 commercial projects which were fast-tracked by the minister with the aim of aiding post-Covid economic recovery. They included the Narrabri gas field project.
Democracy campaigner at the ACF, Jolene Elberth, said people had a right to know how the government made its environmental decisions.
“These documents could reveal discussions between minister Ley and the prime pinister’s office about how 15 projects were given priority treatment over others and the basis of their approvals,” Elberth said.
The Morrison government’s expansion of cabinet confidentiality to government decision making processes during the pandemic has concerned the opposition, crossbenchers and civil society groups. Independent senator Rex Patrick has signalled his own intent to test the bounds of the national cabinet.
The second interim report from parliament’s bipartisan Covid committee criticised the government for its “secrecy” with requests for information and documents withheld by the government under “public interest immunity” claims.
That process is expected to be scrutinised in upcoming Senate estimate hearings.
This article was amended on 9 March. The original version incorrectly described Rex Patrick as belonging to the Centre Alliance, he is an independent senator.