They made out that their "National Cabinet" body was just like a government cabinet, but the courts disagreed! The National Cabinet isn't the austere body they've made it out to be.
TRANSCRIPT:
(This transcript is derived from an automated process. The video recording is authoritative.)
Hopefully this will not be a bit too dry and academic, but nevertheless, it is something that people have to be aware of. National Cabinet, why was it formed? What is National Cabinet?
Well, this is the official statement. The primary Australian intergovernmental decision-making forum composed of the Prime Minister and state and territory premiers and chief ministers of the six states and two mainland territories.
Now, why was it formed? Officially, they say it was formed in response to the Covid Pandemic. The reality was it was formed out of panic by a federal government and state governments, which do not know what they were going to do about a pandemic that had been anticipated by public health officials for 30 to 40 years. They knew this was coming, that at some stage there would be a virus that would challenge the existing health systems across the world, and as the world became more interconnected all the time, they knew it would spread rapidly.
National Cabinet was the government's response to that pandemic, but it was because they did not know what to do, that they actually formed National cabinet. Now, they used the term national cabinet. Why? Because the government, Morrison Frydenberg and the Premiers originally thought that that decision making body would be subject to the constraints and restrictions that apply to cabinet. I'll talk later about what is Cabinet, how it has evolved over the centuries, how it is an essential part of the Westin Parliamentary system, but what you had in 2020 was governments panicking, seeking to find something that would enable them to make decisions and subject those decisions to secrecy control and keeping it away from the Australian people. Now, this national cabinet was formed with a lot of bells and whistles. If you remember the media at that time, you had the very serious premieres and the very serious prime minister all meeting together and they were going to solve the problems that the pandemic was posing.
We were going to involve our good comrade den from New Zealand there who was also facing this same problem about the problems of the pandemic that people were actually dying. How sad we're all fated to die one day, some of us earlier than others. Why they panicked? Well, they didn't want death on their watch, did they? Okay. What they did was they sought to say the world is facing a major challenge. It's as though we were in a war situation, a war against this, this virus that was taking the lives of people. It was like war, Australian war cabinet. The great problem was Australia didn't have a war cabinet. Why? Because between 1939 and 1941, the Labour party led by the communist unions in league with the communists from Russia who were allied to the Nazis, refused to join a war cabinet led by Menzies. The Labour party in 1939 to 41 sought power for itself, which had eventually achieved, and we had the greater curtain government formed, which became Australia's war government, but there was never a war cabinet in the context of which there was a war cabinet in the United Kingdom where political divide was put aside for the United Kingdom.
When it's faced an existential threat to its very survival, but rhetorics marvellous publicity is marvellous. We invoke the spirit of Dunkirk and the spirit of the Anzacs by forming our national cabinet. Now, Scott Morrison said that the national cabinet has the status of a cabinet meeting at the federal level, which meant that it was subject to the same confidentiality and freedom of information protections as federal cabinet was subject to. However, the Australian court system said Uhuh, no way in the world, Jose, you have misconstrued completely what cabinet is all about Cabinet. It was not a cabinet committee, it was not cabinet. It was not subject to any of the constraints that are applied to a cabinet. Therefore, all its decision-making was subject to ordinary freedom of information applications and rapidly the media lodged freedom of information applications seeking to find out what federal cabinet was deciding because remember, those marvellous state labour governments were using federal cabinet decisions as an excuse for the introduction of the draconian lockdown regimes that they implemented across Australia.
Now, Jennifer Menzies described national cabinet as in reality being coag by another name though called a cabinet. The national cabinet is technically an intergovernmental forum. The conventions and rules of cabinets such as cabinet solidarity and the secrecy provisions do not apply to the national cabinet. Its powers that which the leaders of all Australian jurisdictions bring to negotiate on behalf of their people and to implement the decisions reached executive federalism as she's called it. In other words, national cabinet did not overcome the fundamental issue that Australia is a federation comprising one federal government, six state governments, two territory governments, each of which is bound by their own constitutional restrictions and each of which can only take action in accordance with the powers that their respective constitutional documents vest in them. In other words, despite all the panic, it was still business and new as usual as it has been in Australia since the 1st of January 1,901.
Whoops, I hit the wrong button there, right? Okay. The big difference between national cabinet and coag was sought to be made on the grounds of secrecy. He tried, unlike coag, where there is a process for making all information available to keep national cabinet's secrecy, basically what it showed was Morrison Frydenberg and their legal advisors did not understand what cabinet was all about. Now, this is the official statement. It's a bit long, but just run through it very quickly. The official statement about what they were trying to set up was to be chaired by the Prime Minister, the Commonwealth and the state and territory governments individually of flexibility to determine the best way to achieve any agreed outcomes made by national cabinet. Representative of local government was of course going to be involved in this decision-making. It's underpinned by a commitment to genuine partnership between the Commonwealth and states and territories on issues of national significance.
Whenever has the Australian political system operated in, its a genuine partnership, never has, never will be. Why? Because the institutional pressures and the political divides that exist in Australia mean that all decisions between commonwealth and state governments involve political decisions, power, responsibility, money, taxes, egos, and we're not going to change that type of government system. In Australia, national cabinets supported by the first secretary's group, you think that it's marvellous. It's the Commonwealth bureaucrats who've provided the services to all the governmental relations First secretaries group. We've got to give ourselves big names, big titles, big promotions, big money. The Commonwealth State relations branch in the Department of Prime Minister and Cabinet is the National Cabinet Secretariat, and I have no doubt that there were a few promotions and a few new jobs created there and a few new careers created agendas were to be set collaboratively.
The reality is, and I can tell you because I've worked in intergovernmental relations from the 1970s onwards, setting an agenda to get ministers from various governments to even agree to meet, to discuss an issue is a major exercise. Agendas are normally only set if the Commonwealth Minister, the Commonwealth Government is prepared to discuss that issue for years through the Standing Committee of Attorneys General, the Ministerial Council on Drug Strategy, the Australian Police Ministers Conference, the Ministerial Council on Corporations and Securities, et cetera, all of which I worked on at various times. Unless the Commonwealth is prepared to even discuss an issue, it will never get on the agenda and frankly, that's the same thing that applies today. If the Commonwealth wants to discuss an issue, it's on the agenda. If the Commonwealth doesn't want to discuss the issue, it just never makes it. Now they have all these procedures which they've set up and it all looks good and it's all very well, and the academics can write their books about it and they'll all do this and everyone will build careers on it.
You've got all these committees working together, developing collaboratively and reflecting in an annual reporting process, et cetera, et cetera. You can read all this. If you want to go on the website and help yourself get the sleep of nighttime, there should be a national cabinet paper. The reality is if an issue is highly political, there will never be a paper. There will only be a written decision and that's the nature of the political process. If things are so sensitive, they're never put on paper, there's only ever decisions made. Now there all these papers are going to be prepared and they're all written and there are races of public servants that are spending their years doing this and writing papers and circulating. They've been arguing about them and it's the way it was. It's the way it is and it's the way it will be in the future.
Agreed meeting outcomes may include not limited to policy announcements, future tasking and agreed public messaging. In other words, it's what you can sell in the media after the decisions are made by national cabinet, that becomes the important issue. Decisions are made always with their eye to the political outcome in the public and there's going to be media statements, note takers, et cetera. It's all there. There's processes for meeting out of session. There's processes for meeting out of when governments are in caretaker mode pending elections. Now notice on confidentiality, this is what they claimed it was going to be. Discussions and documents are considered confidential and should be classified as official sensitive in the Commonwealth system, therefore being protected. The reality is, however, as I said before, the Australian Administrative Appeals Tribunal and the courts have all ruled there is no confidentiality because they're not cabinet materials and here we go.
It goes on and on and on, so what really is the conclusion? You draw on the official statement. The official statement is it's reflective of the political evolution of intergovernmental relations in Australia since federation and that has been a continued attempt by commonwealth governments, politicians, and bureaucrats and remember, the bureaucrats are oftentimes the biggest driving force in intergovernmental relations. The Commonwealth seeks to dominate the Australian states allegedly because living in Canberra, looking out over the whole of the white Australian continent, they're the only ones who know what really is good for the people who live out there In the far-flung states of Australia, it's only someone who can be detached from ordinary life who can look at things and look at 'em in the long term and make long-term plans and make the decisions that overcome the petty parochial politicians of states.
The reality is national cabinet is a rebadging of the institutions that have evolved to systematise intergovernmental relations in Australia. It is a complete misnomer. It is an example of the Goebbels technique. You label something, you keep repeating it, and after a while the community may well believe it to be true and give to that body the same status and standing it gives to ordinary cabinets of governments. I don't think, however, that the Australian people will fall for it. Now, what is cabinet? As I've said, Morrison Frydenberg sought to use the term cabinet to achieve their political objective of streaming, to be in charge of a challenge which hadn't been faced before. Now, Butterworth's concise Australian legal dictionary said, says, a body consisting of ministers of the crown which meets regularly to transact and implement the business of government. The cabinet which you didn't practise is the driving force behind government is not formally recognised in any Australian constitutions. That's reality. Cabinet is merely a political creation. It is not in a constitution. State and federal constitutions only recognise executive power.
Now again, in learning introduction to the law, fundamental textbooks that all young lawyers use, the most important ministers form what is known as the cabinet that is the most senior ministers look after matters of particular concern and make final decisions on government policies and legislative changes. Remember, cabinet is different from executive government. Executive government consists of the minister, men of the cabinet and the Crown or the Crown's representative In the Commonwealth case, it's the executive council, it's the Governor General who takes advice from the ministers who comprise the Federal Executive Council. That is the real decision making body in law because it combines the powers of the parliament subject to the Constitution and expressed in accordance with the Constitution, together with the executive prerogative powers that the crown of the United Kingdom evolved over a thousand years of experience and which are vested in the crown, that unknown area that is enabled to be used by the executive, by the Queen's representative, the King's representative.
When the system starts to break down as John Kerr was forced to do in the Whitland government, it was a Philip game was forced to do in New South Wales government when Lang was running riot. There. It's an unknown. You can't quantify it, but it's a real, real power and that is the real decision making in all governments that we have now. The Cabinet is an outcome of an evolution of Westminster parliamentary democracy. It dates back to Charles II and it was labelled in that day in the time of Charles II as being a meeting of his Majesty's service. Over the years, as Parliament evolved, it's a concept of representative democracy grew as ministers became ministers of the Crown, but needed to rely for the passage of legislation upon the support that they could gather from the members of Parliament, the two houses of the Westminster system, their system that a cabinet meeting evolved.
In 1961, igenic said that the cabinet is the core of the British constitutional system. It is the supreme directing authority. It integrates what would otherwise be, a heterogeneous collections of authorities exercising a vast variety of functions. It provides unity to the British system of government and indeed that principle was inherited by we in Australia here as we evolved from six separate colonies into a nation with a federal government and state governments. It's not mentioned in any constitution. As I said before, it is a purely political creation. It is created actually by the Prime Minister. The Prime Minister or the premier of the day chooses who they want in their cabinet and they can have a cabinet that is large. They can have a cabinet that is small. They can have a cabinet that is representative of various factions within their political support apparatus. They can actually even have a cabinet comprising and including people who are not members of the Parliament.
It is a political decision making. The person who forms it, the premier is the person who is commissioned by the Crown to form the government and they have commissioned to form the government because they are the person who in the view of the crown or the crown's representative is in the best position to an actual form of government By having sufficient support on the floor of the Parliament cabinet is the body that seeks to guarantee the continuity of our political system. We need stable cabinets for our system to work. If stable cabinets are not there, our political system comes under threat.
There are fundamental principles that must always apply in a cabinet. Cabinet must always be united unless all cabinet ministers agree to support the agreed position, then government will fall apart the collective decision of the cabinet and remember cabinet is a collective decision-making body. Now, cabinets make decisions in a variety of ways. There will be times when a premier will just make a unilateral decision as the decision of cabinet and the ministers either support that decision or they resign as ministers and in my time in government in Queensland here there were a number of premiers who made that very decision. They'd make a decision and the cabinet ministers tugged the flock to the lion and kept their jobs and lovely lucrative income. There are times of course, when cabinet will go through it almighty process the gestation of an elephant to make a decision. There will be papers, there will be discussions, there will be committees, there will be special inquiries, et cetera before a decision is actually made, but once that decision is made, all ministers must be united. Secondly, all decisions and discussions and cabinet are confidential. It is a fundamental breach of the role of a minister to indicate what the discussions in cabinet are about and certainly if there is any dissension with the collective view of cabinet, then that person must go as a minister.
How do they prove that? Well, ultimately they've got to prove it on the floor of Parliament because all ministers must vote in accordance with the decisions of the government, the decisions as announced by the premier, the decisions that result in legislation being put before the Parliament. Now this is the Queensland Government Handbook Cabinet Handbook there and it reflects this principles collective responsibility of ministers for government decisions require collective adherence to all government decisions made in cabinet. Cabinet. Decisions reflect collective deliberation and a binding on cabinet ministers as government policy. Consultation is an essential element of the cabinet process except where a premier decides he or she's making the decision and the rest of you better bloody jump to attention and do what I want you to do. The deliberations of Cabinet and Cabinet Committees shall be conducted in a secure and confidential environment and ongoing confidentiality of cabinet and related records shall be maintained unless documents are released with cabinets express authority.
We're going to go through an interesting experiment here in Queensland in the next few weeks with the Cold Drake integrity reforms under the Cold Drake integrity reforms. Cabinet decisions which are normally the subject of a 30 year rule before they are released to the public are going to be released within two or three weeks of their decision. Now that as I understand is going to include all the documentation that supports that cabinet decision. It's going to make life very, very difficult because what it will do, it will give the vested interest groups whose interests might be adversely affected by a cabinet decision. Trade unions, mining companies, the rural lobby, et cetera. They'll be examining that documentation with a great degree of interest. Once it is in the public, I can foresee that the lawyers are going to be called upon to consider whether or not given the documentation and given the decision that has been made, there may be opportunities for the lawyers that will make application to the courts to intervene to challenge decisions of the cabinet.
I suspect Cal Drake doesn't know the potential consequences of his integrity reform and it's going to be very good for my profession. The legal profession. Lots and lots of lovely work is coming our way. Anyway, cabinet processes are established by the premier to ensure that all ministers are bound by the same rules and by high standards of probity cabinet. Collectively and ministers individually are responsible and accountable to the crown, the parliament, and ultimately electorate. That's all the good theory. It's the theory that we try to apply to force politicians to behave in an appropriate manner, but there are of course many of them who never do so. Now, one of the other issues that's cabinet. That's what a cabinet is. That's what Morrison was trying to garner and use to meet the challenge of covid. Those principles of confidentiality unanimity, all the Australian governments are going to make a collective decision and they're all going to do exactly the same thing in exactly the same way for exactly the same reasons, and they're not going to talk about it. They're just going to make the decision. Pigs might fly. The reality is that we were formed in 1900. One is a federation. We've got specific powers in the Commonwealth Constitution for the Commonwealth Parliament, the colonial parliaments have all the powers of the Parliament from Westminster and subject to those powers vested in the Commonwealth Parliament. All of those parliaments evolved in the same way. Westminster House, you've got cabinets controlling those governments and those parliaments. Now from 1900, we've gone through a whole variety of options on intergovernmental relations.
We've got to accept the reality power in Australia is by and large divided between commonwealth and state parliaments. There are relatively few areas that are exclusively in the control of one Parliament. Defence is one issue that's in control of one parliament but the commonwealth, but by and large, most decisions by government require action by state and commonwealth parliaments. Now, the Commonwealth Constitution, I'm sorry, I'm getting the wind up here. I will hurry up. In the Commonwealth constitution, they actually created a mechanism to deal with the intergovernmental issue, problems in relation to trade. That was the Interstate Commission never worked. Why has it never worked? Because no parliament, state or commonwealth has ever agreed to allow it to work effectively and cover issues of trade, which are all of which the politicians wanted to do. Oops, I keep hitting that wrong button. Now, we've had the loan council, premier's conference, ministerial meetings, councils of Australian government, all of which are mechanisms that have evolved over the decades. Has national cabinet succeeded? My view, it hasn't. It's been a failure. This failure is shown by the failure of governments state and commonwealth to have an arm's length independent royal Commission. Look at how the Australian governments react to and met the challenge that the covid epidemic posed. As I said, governments and health advisors knew this was coming 30, 40 years. They've been planning allegedly to meet a pandemic.
None of them are prepared to examine how well they did. Why? Because it would show that Australia was like most of the world, an absolute disaster in the way in which it handled Covid. Politicians used covid for their own political purposes. Pache McGowan Andrews created the climate of fear in the Australian society and all achieved electoral reelection with significant majorities. Because of that fear, they created the fear in the community. We're all going to die and only your government can save you from death and go reelect us. All those decisions, there were all decisions that were arrived at through national cabinet, but did they follow the national cabinet decisions? No. Each of them went their own way and did their own thing to help their own particular political outcome. The reality is the fundamental labour liberal divide, the fight for political power makes always this predominant over suggestion that the Australian governments could ever form a common interest. Remember, as I said, we never even formed a war cabinet in 19 39, 41, even when the Japs were wrong, bombing Australia, we didn't have a war cabinet. We had a labour government. The trade unions and the Labour Party were totally opposed to any concept of unanimity. Even in a case where there was a real threat to the existence of Australia as a nation. National cabinet in my view, is basically a sal to the egos of the Prime Minister and the Premiers.
It's a proof of lack of leadership by Morrison and also by all the state premiers. It's an attempt to dominate the states. It's nothing new. It's what the commonwealth has been doing for years. It suffers from the same problem that will always be there. Power is divided in the Australian federation and governments which reflect power will only work together when it is in their own particular political interest. I've yet to met a politician who's prepared to say, I will make a decision and I will implement it even though it's going to hurt me politically. That's just not the political breed that exists in Australia today. The only way we're only going to ever come that is move to a unitary system of government. Now, are we ever going to get that way? Nothing short of revolution will ever achieve that. Why? Because remember to change our constitution with the majority of states, majority of people, and frankly, given the track record with constitutional referenda, the chances of ever succeeding on something that's fundamental as the national interest is just not going to occur. Very quick run through. I'm happy to take any questions. Jewel.
Jewel (Convenor): We'll do q and a after
Kevin Martin: Scott's. Okay? Alright. Okay. Well thank you all ladies and gentlemen.
