Federal Register of Legislation - Australian Government

Primary content

A Bill for an Act to make amendments to deal with the cessation of the Council of Australian Governments and to make amendments relating to the National Cabinet, and for related purposes
Administered by: Prime Minister and Cabinet
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 14 Sep 2021
Introduced HR 02 Sep 2021

2019-2020-2021

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

COAG LEGISLATION AMENDMENT BILL 2021

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by the authority of the Prime Minister and Cabinet, the Hon Scott Morrison MP)


COAG LEGISLATION AMENDMENT BILL 2021

OUTLINE

This Bill would:

  • update outdated references to COAG Reform Fund where it occurs in legislation with Federation Reform Fund (Schedule 1)
  • update outdated references to COAG with First Ministers Council where it occurs in legislation (Schedule 2)
  • retain the term ‘Ministerial Council’, but change its definition where it occurs in legislation to mean a body (however described) that consists of the Minister of the Commonwealth, and the Minister of each State and Territory, who is responsible, or principally responsible, for matters relating to a particular portfolio issue (Schedule 2)

·         make clear that where Commonwealth legislation makes provisions to protect from disclosure the deliberations and decisions of the Cabinet and its committees, these provisions apply to the deliberations and decisions of the committee of cabinet known as the National Cabinet (Schedule 3).

Financial impact statement

The Bill has no financial impact.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

The full statement of compatibility with human rights is attached to this Explanatory Memorandum.


 

COAG LEGISLATION AMENDMENT BILL 2021

NOTES ON CLAUSES

Abbreviations and Acronyms used in this explanatory memorandum

  • AAT means the Administrative Appeals Tribunal
  • ACARA Act means the Australian Curriculum, Assessment and Reporting Authority Act 2008  
  • Acts Interpretation Act means the Acts Interpretation Act 1901
  • Australian Education Act means the Australian Education Act 2013         
  • Australian National Preventive Health Agency Act means the Australian National Preventive Health Agency Act 2010    
  • Biological Control Act means the Biological Control Act 1984        
  • COAG means the former Council of Australian Governments
  • COAG Reform Fund Act means the COAG Reform Fund Act 2008
  • Defence (Road Transport Legislation Exemption) Act means the Defence (Road Transport Legislation Exemption) Act 2006
  • Disability Care Australia Fund Act means the Disability Care Australia Fund Act 2013
  • Emergency Response Fund Act means the Emergency Response Fund Act 2019
  • Federal Financial Relations Act means the Federal Financial Relations Act 2009
  • Fisheries Management Act means the Fisheries Management Act 1991  
  • First Ministers means the collective group of the Prime Minister of Australia, the Premiers of each State, and the Chief Ministers of the Australian Capital Territory and the Northern Territory.
  • FOI Act means the Freedom of Information Act 1982
  • Fuel Indexation (Road Funding) Special Account Act means the Fuel Indexation (Road Funding) Special Account Act 2015
  • Future Drought Fund Act means the Future Drought Fund Act 2019
  • Healthcare Identifiers Act means the Healthcare Identifiers Act 2010        
  • Infrastructure Australia Act means the Infrastructure Australia Act 2008   
  • Marine Safety Act means the Marine Safety (Domestic Commercial Vessel) National Law Act 2012  
  • Medical Research Future Fund Act means the Medical Research Future Fund Act 2015
  • My Health Records Act means the My Health Records Act 2012    
  • National Health Reform Act means the National Health Reform Act 2011
  • National Transport Commission Act means the National Transport Commission Act 2003     
  • National Vocational Education and Training Regulator Act means the National Vocational Education and Training Regulator Act 2011      
  • NDIS Act means the National Disability Insurance Scheme Act 2013         
  • Offshore Petroleum and Greenhouse Gas Storage Act means the Offshore Petroleum and Greenhouse Gas Storage Act 2006         
  • Proceeds of Crime Act means the Proceeds of Crime Act 2002      
  • Social and Community Services Pay Equity Special Account Act means the Social and Community Services Pay Equity Special Account Act 2012   
  • Student Identifiers Act means the Student Identifiers Act 2014       

Clause 1 – Short title

This clause sets out the short title for the Bill upon its enactment by the Parliament– that is the COAG Legislation Amendment Act 2021.

Clause 2 – Commencement

Clause 2 sets out the commencement dates of the sections and Schedules in the Bill upon its enactment.

Both Schedule 1, which deals with replacement of references to the COAG Reform Fund, and Schedule 2, which deals with replacement of references to COAG and Ministerial Council, are to commence the day after this Bill receives the Royal Assent.

The proposed amendments in Schedule 3, Part 1, which deal with amendments relating to the National Cabinet, are to commence the day after this Bill receives the Royal Assent.

The proposed amendments in Schedule 3, Part 2, are contingent on the passage of Bills before the Parliament. These items would commence whatever is the later date for the commencement of Schedule 3 of Part 1 of this Bill and the relevant Bill before the Parliament that is being amended. If the associated Bill before the Parliament is not enacted, then the relevant item in this Bill will not commence at all.

Clause 3 – Schedules

This clause provides that each Act that is specified in a Schedule is amended or repealed as set out in that Schedule, and any other item in a Schedule has effect according to its terms.

 

Schedule 1 – Amendments of references to COAG Reform Fund etc.

Introduction

Schedule 1 updates references relating to the COAG Reform Fund as a result of the cessation of COAG. These are minor changes to replace and refresh outdated terms.

This Schedule will commence on the day after this Act receives the Royal Assent.

The COAG Reform Fund was established under the COAG Reform Fund Act as a mechanism through which the Commonwealth makes grants of financial assistance to the states. The Act specifies that the terms and conditions on which financial assistance is granted are to be set out in written agreements between the Commonwealth and the states.

The title of the COAG Reform Fund requires amending to give effect to the cessation of COAG and the establishment of a new architecture for federal-state relations.

Schedule 1 Part 1 - Amendment of the COAG Reform Fund Act 2008

The purpose of this Part is to amend the COAG Reform Fund Act to replace the outdated term ‘COAG’ with the term ‘Federation’.

COAG Reform Fund Act

Item 1 amends the title of the Act, substituting the reference to COAG with a reference to Federation.

Item 2 amends the short title of the COAG Reform Fund Act so that it would instead read the Federation Reform Fund Act.

Items 3 – 9 substitute references to COAG with references to Federation.
Schedule 1 Part 2 - Amendments of other Acts

The purpose of this Part is to amend a number of Acts to:

(a) repeal outdated references to the COAG Reform Fund and replace that term with the Federation Reform Fund. That term is in turn defined to mean the Federation Reform Fund established by section 5 of the Federation Reform Act 2008, as it would be renamed upon commencement of items 1 and 2 of Schedule 1 of this Bill; and

(b) in the case of item 24, replace an outdated reference to the COAG Reform Fund Act with a reference to the ‘Federation Reform Fund Act’.

Disability Care Australia Fund Act

Item 10 repeals the outdated definition of the COAG Reform Fund.

Item 11 inserts a definition for the Federation Reform Fund.

Emergency Response Fund Act

Item 12 repeals the outdated definition of the COAG Reform Fund.

Item 13 inserts a definition for the Federation Reform Fund.

Federal Financial Relations Act

Item 14 repeals the outdated definition of the COAG Reform Fund.

Item 15 inserts a definition for the Federation Reform Fund.

Fuel Indexation (Road Funding) Special Account Act

Item 16 repeals the outdated definition of the COAG Reform Fund.

Item 17 inserts a definition for the Federation Reform Fund.

 Future Drought Fund Act

Item 18 repeals the outdated definition of the COAG Reform Fund.

Item 19 inserts an updated definition for the Federation Reform Fund.

Medical Research Future Fund Act

Item 20 repeals the outdated definition of the COAG Reform Fund.

Item 21 inserts a definition for the Federation Reform Fund.

 Offshore Petroleum and Greenhouse Gas Storage Act

Item 22 repeals the outdated definition of the COAG Reform Fund.

Item 23 inserts a definition for the Federation Reform Fund.

Item 24 substitutes the reference to the COAG Reform Fund Act with a reference to Federation Reform Fund Act.

Proceeds of Crime Act

Item 25 repeals the outdated definition of the COAG Reform Fund.

Item 26 inserts a definition for the Federation Reform Fund.


 

Schedule 1 Part 3 – Other bulk amendments

The purpose of this part is to amend the specified Acts to replace outdated references to COAG Reform Fund, wherever occurring, with the term ‘Federation Reform Fund’.

Item 27 outlines that the Bill would amend the specified Acts to replace references to COAG Reform Fund with ‘Federation Reform Fund’ wherever it occurs.

DisabilityCare Australia Fund Act

Items 28-37 omit COAG Reform Fund and replace with Federation Reform Fund wherever it occurs in the Act.

Emergency Response Fund Act

Items 38-48 omit COAG Reform Fund and replace with Federation Reform Fund wherever it occurs in the Act.

Federal Financial Relations Act

Items 49 and 50 omit COAG Reform Fund and replace with Federation Reform Fund wherever it occurs in the Act.

Fuel Indexation (Road Funding) Special Account Act

Items 51-62 omit COAG Reform Fund and replace with Federation Reform Fund wherever it occurs in the Act.

Future Drought Fund Act

Items 63-71 omit COAG Reform Fund and replace with Federation Reform Fund wherever it occurs in the Act.

Medical Research Future Fund Act

Items 72-80 omit COAG Reform Fund and replace with Federation Reform Fund wherever it occurs in the Act.

Offshore Petroleum and Greenhouse Gas Storage Act

Items 81 and 82 omit COAG Reform Fund and replace with Federation Reform Fund wherever it occurs in the Act.

Proceeds of Crime Act

Items 83-88 omit COAG Reform Fund and replace with Federation Reform Fund wherever it occurs in the Act.

 


 

Schedule 1 Part 4 – Contingent amendments

Emergency Response Fund Act 2019

Item 89 Subsections 32(1A) and (1) and 32A(1A) and (1)

This item would amend proposed new subsections 32(1A) and (1) and 32A(1A) and (1) of the Emergency Response Fund Act as proposed to be inserted by items 33 and 36 of Schedule 4 of the Investment Funds Legislation Amendment Bill 2021.

The item would replace references to the COAG Reform Fund with Federation Reform Fund.

Schedule 2 – Amendments of references to COAG and Ministerial Council etc.

 

Introduction

This Schedule deals with the cessation of COAG and changes to the intergovernmental architecture by amending outdated references to COAG and COAG Councils or Ministerial Councils.

The amendments made by this Schedule commence the day after this Act receives the Royal Assent.

The recommendations of the Review of COAG Councils and Ministerial Forums (the Review), led by Mr Peter Conran AM, were agreed by the National Cabinet on 23 October 2020. Recommendation 30 of the Review recommended that the Commonwealth introduce a bill to make amendments to the outdated references to COAG Councils and Ministerial Forums in Commonwealth legislation.

The amendments in this Schedule give effect to the Review’s recommendation.

Schedule 2 Part 1 - Main amendments

The purposes of this Part are as follows.

(a) Replace the outdated term of COAG with the term ‘First Ministers’ Council’, which is defined flexibly to mean a body (however described) that consists only of, or that includes, the Prime Minister, the Premiers of each State and the Chief Ministers of the Australian Capital Territory and Northern Territory. It is intended that this definition encompass any group that currently comprises, or will in future comprise, First Ministers (such as the current National Cabinet) as well as a group that comprises First Ministers and other representatives (such as the current National Federation Reform Council, which is constituted by both First Ministers and Treasurers of the Commonwealth, and each State and Territory, as well as the President of the Australian Local Government Association).

(b) Retain the term ‘Ministerial Council’, but change its definition to mean a body (however described) that consists of the Minister of the Commonwealth, and the Minister of each State and Territory, who is responsible, or principally responsible, for matters relating to a particular portfolio issue. This broad definition is intended to enhance flexibility with any future changes to the title of an intergovernmental ministerial group so legislative changes to update titles are avoided.

(c) Amend specific names of Councils (e.g. COAG Health Council or Australian Transport Council) to the generic Ministerial Council term so that any future title changes to ministerial bodies can be implemented without amending legislation.


 

ACARA Act

Item 1 repeals the outdated definition of Ministerial Council and updates with a definition of Commonwealth, State and Territory Ministers who are responsible, or principally responsible, for education.

Australian Education Act

Item 2 amends the preamble by omitting Council of Australian Governments and Education Council and substituting with First Ministers’ Council and Ministerial Council respectively.

Item 3 inserts the definition of First Ministers’ Council.

Item 4 repeals the outdated definition of Ministerial Council and updates with a definition of Commonwealth, State and Territory Ministers who are responsible, or principally responsible, for education.

Australian National Preventive Health Agency Act

Item 5 repeals the outdated definition of Ministerial Conference.

Item 6 inserts a definition of Ministerial Council to mean a body (however described) that consists of the Minister of the Commonwealth, and the Minister of each State and Territory, who is responsible, or principally responsible, for matters relating to health.

Items 7-10 substitute references to Conference with references to Council wherever it occurs in the Act.

Biological Control Act

Item 11 repeals the definition of Council and substitutes with an updated definition for Council to mean a body (however described) that consists of the Minister of the Commonwealth, the Minister of each State and Territory and the Minister of New Zealand who is responsible, or principally responsible, for matters relating to agriculture, or a body prescribed by the regulations.

Defence (Road Transport Legislation Exemption) Act

Item 12 repeals the outdated definition of Australian Transport Council.

Item 13 amends the definition of Exemption Framework to remove the historical reference to endorsement by the former Australian Transport Council. This amendment reflects that the Exemption Framework has been updated by the group of responsible Ministers a number of times under a range of names.

Fisheries Management Act

Item 14 repeals the outdated definition of Ministerial Council and updates with a definition of Commonwealth, State and Territory Ministers who are responsible, or principally responsible, for fisheries.

Healthcare Identifiers Act

Item 15 repeals the outdated definition of Ministerial Council and updates with a definition of Commonwealth, State and Territory Ministers who are responsible, or principally responsible, for health.

Infrastructure Australia Act

Item 16 repeals the outdated definition of COAG.

Item 17 provides that the responsible Minister may have regard to any relevant decisions of a body which consists only of, or includes, First Ministers. This replaces the previous reference to relevant decisions of COAG.

Marine Safety (Domestic Commercial Vessel) National Law Act

Item 18 amends the reference to the former COAG Council under the Intergovernmental Agreement for Commercial Vessel Safety Reform, and substitutes with Ministerial Council.

Items 19 and 20 repeal the definitions of COAG and COAG Council.

Item 21 inserts a definition of Ministerial Council to mean a body (however described) that consists of the Minister of the Commonwealth, and the Minister of each State and Territory, who is responsible, or principally responsible, for matters relating to marine safety.

Item 22 repeals the definition of National Standard for Commercial Vessels which refers to a standard adopted by the COAG Council and substitutes with the definition meaning the National Standard for Commercial Vessels developed and maintained by the National Regulator.

Item 23 repeals the definition of Uniform Shipping Laws Code which refers to a code adopted by the COAG Council and substitutes with the definition meaning the Uniform Shipping Laws Code developed and maintained by the National Regulator.

Item 24 omits the reference to COAG and substitutes with Ministerial.

Item 25 repeals subsection 160(3) of the Act as it is a spent provision relating to the first regulations made under subsection (1) (a) of the Act.

My Health Records Act

Item 26 inserts the definition of the Health Chief Executives Forum meaning a body (however described) that consists of the Secretary of the Department and each head (however described of the Health Department of a State or Territory.

Item 27 repeals the outdated definition of Ministerial Council and updates with a definition of Commonwealth, State and Territory Ministers who are responsible, or principally responsible, for health.

Items 28 and 29 remove references to a subcommittee of the Ministerial Council, substituting with references to the Health Chief Executives Forum.

NDIS Act

Item 30 repeals the reference to the historical endorsement of the National Disability Strategy 2010-2020 by COAG, and replaces with a reference to the National Disability Strategy as agreed to by the Commonwealth and each host jurisdiction from time to time.

Item 31 repeals the outdated definition of COAG.

Item 32 replaces the outdated definition of Ministerial Council with a definition of Commonwealth, State and Territory Ministers who are responsible, or principally responsible, for the National Disability Insurance Scheme.

Item 33 repeals the requirement that the Ministerial Council make recommendations to the former COAG, and replaces with a requirement that the Ministerial Council make recommendations to the Minister.

National Health Reform Act

Item 34 repeals the outdated definition of COAG.

Item 35 inserts the definition of First Ministers’ Council to mean a body (however described) that consists only of, or that includes, First Ministers. It also inserts the definition of the Health Chief Executives Forum meaning a body (however described) that consists of the Secretary of the Department and each head (however described of the Health Department of a State or Territory.

Item 36 replaces the term COAG with First Ministers’ Council.

Item 37 repeals the outdated definition of Ministerial Conference.

Item 38 inserts a definition of Ministerial Council to mean a body (however described) that consists of the Minister of the Commonwealth, and the Minister of each State and Territory, who is responsible, or principally responsible, for matters relating to health.

Item 39 repeals the outdated definition of Standing Council on Health.

Item 40 replaces outdated references to the Ministerial Conference and Australian Health Ministers’ Advisory Council, with references to the Ministerial Council and Health Chief Executives Forum respectively.

Items 41-45, 51-52, 61-64 and 66-67 replace references to COAG with references to First Ministers’ Council.

Items 46-49, 53, 56, 58-60, and 68 replace references to Standing Council on Health with references to Ministerial Council.

Items 50 and 65 replace outdated references to the Standing Council on Health and Australian Health Ministers’ Advisory Council, with references to the Ministerial Council and Health Chief Executives Forum respectively.

Item 54 amends the heading of Section 230 from Standing Council on Health to Constitution of Ministerial Council etc.

Item 55 repeals subsection 230(1) of the Act which had defined the Standing Council on Health.

Item 57 omits the reference to this Part and substitutes with Part 5.2, clarifying the application of the subsection in the context of Part 5.2, not Part 5.1 where the subsection appears.

National Transport Commission Act

Items 69, 72-80, 82-83 and 85 replace references to Australian Transport Council with Ministerial Council.

Item 70 repeals the outdated definition of Australian Transport Council.

Item 71 inserts a definition of Ministerial Council to mean a body (however described) that consists of the Minister of the Commonwealth, and the Minister of each State and Territory, who is responsible, or principally responsible, for matters relating to transport.

Item 81 updates the saving provision to remove reference to the Australian Transport Council and refer to the former Ministerial Council.

Item 84 repeals the subsection which defines Ministerial Council for the purposes of section 50, and replaces with a definition for the former Ministerial Council.

NVETR Act

Item 86 amends paragraph a) of the definition of Ministerial Council to mean a body (however described) that consists of the Minister of the Commonwealth, and the Minister of each State and Territory, who is responsible, or principally responsible, for matters relating to training and skills, if there is a body of this description.

State and Territory governments have been consulted in relation to consequential amendments to this Act to deal with the cessation of the Council of Australian Governments.

Offshore Petroleum and Greenhouse Gas Storage Act

Item 87 amends the definition of Ministers responsible for mineral and energy resources matters to mean a body (however described) that consists of the Minister of the Commonwealth, the Minister of each State and Territory and the Minister of New Zealand who is responsible, or principally responsible, for matters relating to energy or resources (or both).

Item 88 amends paragraph a) of the definition of Greenhouse Gas Storage Ministerial Council to mean a body (however described) that consists of the Minister of the Commonwealth, and the Minister of each State and Territory, who is responsible, or principally responsible, for matters relating to, the injection of greenhouse gas substances into parts of geological formations; and the permanent storage of greenhouse gas substances in parts of geological formations, if there is a body of this description.

Student Identifiers Act

Item 89 amends paragraph a) of the definition of Ministerial Council to mean a body (however described) that consists of the Minister of the Commonwealth, and the Minister of each State and Territory, who is responsible, or principally responsible, for matters relating to training and skills, if there is a body of this description.


 

Schedule 2 Part 2 – Application, transitional and saving provisions

Item 90 provides definitions for Part 2 of the Amendment Act.

Items 91 and 92 make transitional provisions for things done by, in relation to, or started but not finished by, COAG, prior to commencement of this Act. The items recognise any past decisions of COAG to be valid as if they had been done by the First Ministers’ Council under an amended Act. After commencement of this Act, the First Ministers’ Council may finish doing a thing under an amended Act, should they wish to do so.

Items 93 and 94 make transitional provisions for things done by, in relation to, or started but not finished by, a former Ministerial Council (within the meaning of a particular amended Act), prior to commencement of this Act. The items recognise any past decisions of a former Ministerial Council to be valid as if they had been done by a new Ministerial Council under an amended Act. After commencement of this Act, the new Ministerial Council may finish doing a thing under an amended Act, should they wish to do so.

Items 95 and 96 make transitional provisions for things done by, in relation to, or started but not finished by, the Ministerial Conference (within the meaning of the Australian National Preventive Health Agency Act) prior to commencement of this Act. The items recognise any past decisions of the Ministerial Conference to be valid as if they had been done by the Ministerial Council (within the meaning of the Australian National Preventive Health Agency Act as amended by this Act). After commencement of this Act, the Ministerial Council may finish doing a thing under an amended Act, should they wish to do so.

Items 97 and 98 make transitional provisions for things done by, in relation to, or started but not finished by, the Standing Council on Health (within the meaning of the National Health Reform Act) prior to commencement of this Act. The items recognise any past decisions of the Standing Council on Health to be valid as if they had been done by the Ministerial Council (within the meaning of the National Health Reform Act as amended by this Act). After commencement of this Act, the Ministerial Council may finish doing a thing under an amended Act, should they wish to do so.

Items 99 and 100 make transitional provisions for things done by, in relation to, or started but not finished by, the Council (within the meaning of the National Health Reform Act) prior to the commencement of this Act. The items recognise any past decisions of the Council to be valid as if they had been done by the Ministerial Council (within the meaning of the National Health Reform Act as amended by this Act). After commencement of this Act, the Ministerial Council may finish doing a thing under an amended Act, should they wish to do so.

Items 101 and 102 make transitional provisions for things done by, in relation to, or started but not finished by, the Australian Transport Council (within the meaning of the National Transport Commission Act) prior to commencement of this Act. The items recognise any past decisions of the Australian Transport Council to be valid as if they had been done by the Ministerial Council (within the meaning of the National Transport Commission Act as amended by this Act). After commencement of this Act, the Ministerial Council may finish doing a thing under an amended Act, should they wish to do so.

Item 103 provides flexibility for the Minister to make rules to deal with any transitional matters in relation to this Act that may arise.

 

 


 

Schedule 3 – Amendments relating to the National Cabinet

Schedule 3 Part 1 - Amendments

Introduction

The purpose of the amendments in this Schedule is to make clear that where Commonwealth legislation makes provisions to protect from disclosure the deliberations and decisions of the Cabinet and its committees, these provisions apply to the deliberations and decisions of the National Cabinet.

The National Cabinet comprises the Prime Minister (Chair), the Premiers of each State and the Chief Ministers of the Northern Territory and Australian Capital Territory. It was established by the Prime Minister with the agreement of First Ministers as a committee of the Federal Cabinet.

As noted in the Cabinet Handbook, 14th Edition, published by the Department of the Prime Minister and Cabinet, the National Cabinet does not derogate from the sovereign authority and powers of the Commonwealth or any State or Territory. The National Cabinet can establish committees as required. These committees may be temporary or ad hoc in nature, or standing forums to inform the deliberations of the National Cabinet.

Currently, the following are constituted as a committee of the National Cabinet:

(i)            the Council on Federal Financial Relations, comprising Commonwealth, state and territory Treasurers, which is responsible for managing all Federal-State funding agreements; and

(ii)          National Cabinet Reform Committees, which are chaired by a Commonwealth minister and include their state and territory counterparts and are convened to progress priority issues.

Consistent with the Cabinet and its committees, all proceedings and documentation of the National Cabinet and its committees are confidential. The maintenance of confidentiality is essential to enable full and frank discussions.

The confidentiality of information and decision-making is critical to the effective operations of the National Cabinet, enabling issues to be dealt with quickly, based on advice from experts. The sharing of sensitive data, projections and judgements – which relies on these principles of confidentiality – has been the foundation of effective decision making in the interests of the Australian people.


 

Administrative Appeals Tribunal Act 1975

Item 1 Subsection 3(1)

This item inserts new definitions for ‘Cabinet’ and ‘State Cabinet’ into the Administrative Appeals Tribunal Act 1975 (the AAT Act). The definition of Cabinet expressly provides that Cabinet includes a committee of the Cabinet, including the committee known as the National Cabinet, and a committee of the National Cabinet (however described).

A specific definition for ‘State Cabinet’ is inserted to clarify that a State Cabinet means the Cabinet of a State or a committee of the Cabinet of a State. Subsection 3(1) of the AAT Act defines a ‘State’ to include the Northern Territory and the Australian Capital Territory (ACT). Accordingly, references in the AAT Act to ‘State Cabinet’ will include the Cabinet of the Northern Territory and of the ACT, and any committees of their respective Cabinet. A State Cabinet does not include the National Cabinet and the committees of the National Cabinet, noting the National Cabinet is established as a committee of the Cabinet.

Item 2 Paragraphs 28(2)(b) and 36(1)(b)

The proposed amendments to these paragraphs would omit a reference to ‘a Committee of the Cabinet’ as a consequence of inserting a definition of Cabinet into subsection 3(1) of the AAT Act (item 1 refers). This new definition of ‘Cabinet’ in subsection 3(1) includes a reference to ‘a committee of the Cabinet’.

The effect of items 1 and 2 is to make clear that existing powers to issue public interest certificates to prevent disclosure of deliberations or decisions of the Cabinet or its committees includes deliberations or decisions of the National Cabinet and its committees.

Item 3 Paragraph 36B(1)(a)

The proposed amendment to this paragraph would omit a reference to ‘Cabinet, or of a Committee of the Cabinet, of the State’ and substitute that reference with ‘State Cabinet’. This item is consequential to item 1 which inserts a definition for ‘State Cabinet’ in subsection 3(1) of the AAT Act.

Item 4 Paragraph 39B(2)(b)

The proposed amendment to this paragraph would omit a reference to ‘a Committee of the Cabinet’ as a consequence of inserting a definition of ‘Cabinet’ into subsection 3(1) of the AAT Act (item 1 refers).

The effect of items 1 and 4 is to make clear that an existing power of the Commonwealth ASIO Minister to issue a public interest certificate to prevent disclosure of deliberations or decisions of the Cabinet or its committees includes deliberations or decisions of the National Cabinet and its committees.


 

Administrative Decisions (Judicial Review) Act 1977

Item 5 Paragraph 14(1)(b)

The effect of this item is to make clear that an existing power to issue a public interest certificate under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) to prevent disclosure of deliberations or decisions of the Cabinet or its committees includes deliberations and decisions of the National Cabinet and its committees.

In the case of paragraph 14(1)(b) of the ADJR Act, the Attorney-General may issue a certificate that disclosure of such Cabinet and National Cabinet information would be contrary to the public interest. In general terms, the effect of the certificate is that a person who is required to give a statement of reasons for their decision in accordance with section 13 of the ADJR Act, is not required to include in the reasons the information that is subject to the certificate.

Archives Act 1983

Item 6 Subsection 3(1) (definition of Cabinet notebook)

The purpose of this item is to replace the existing definition of ‘Cabinet notebook’ in subsection 3(1) of the Archives Act to make clear that this term includes a committee of the Cabinet, including the committee known as the National Cabinet, and a committee of the National Cabinet (however described).

Under section 22A of the Archives Act, a Cabinet notebook that is created after 1990 is in the ‘open access period’ within the meaning of that Act, 30 years after the year it is created.

Auditor-General Act 1997

Item 7 Paragraph 37(2)(b)

The effect of this item is to make clear that an existing power of the Attorney-General to issue a public interest certificate to prevent disclosure of deliberations or decisions of the Cabinet or its committees includes deliberations and decisions of the National Cabinet and its committees.

In the case of paragraph 37(2)(b) of the Auditor-General Act, if the Auditor-General forms the opinion that disclosure of such Cabinet or National Cabinet information would be contrary to the public interest, or if the Attorney-General issues a  certificate to the Auditor-General  that disclosure of such information would be contrary to the public interest, then the Auditor-General cannot include the information that is subject to the certificate in a public version of a report by the Auditor-General.

Australian Crime Commission Act 2002

Item 8 Paragraph 36L(2)(c)

This item would amend section 36L of the Australian Crime Commission Act 2002 (to be inserted by Schedule 2 of the Transport Security Amendment (Serious Crime) Act 2021).

Proposed new section 36L relevantly provides that if the Minister certifies disclosure of information or documents would be contrary to the public interest because it would involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet, a person must still produce the information or documents to the AAT, but the AAT must do all things necessary to ensure the information is not disclosed to any person other than a member of the AAT.

The amendment to proposed new 36L in item 8 makes clear that the Minister’s power to certify captures information or documents that would disclose deliberations or decisions of the Cabinet, including the committee of the Cabinet known as the National Cabinet and the committees of the National Cabinet. The proposed amendment also preserves the proposed application of new section 36L to deliberations or decisions of the Executive Council.

Australian Human Rights Commission Act 1986

Item 9 Subsection 3(1)

This item inserts new definitions for ‘Cabinet’ and ‘State Cabinet’ into the Australian Human Rights Commission Act. The definition of Cabinet expressly provides that Cabinet includes a committee of the Cabinet, including the committee known as the National Cabinet, and a committee of the National Cabinet (however described).

A specific definition for ‘State Cabinet’ is inserted to clarify that a State Cabinet means the Cabinet of a State or a committee of the Cabinet of a State. Subsection 3(1) of the AHRC Act defines a ‘State’ to include the ACT and Northern Territory. Accordingly, references in the AHRC Act to ‘State Cabinet’ will include the Cabinet of the ACT and of the Northern Territory, and any committees of their respective Cabinet. A State Cabinet does not include the National Cabinet and the committees of the National Cabinet, noting the National Cabinet is established as a committee of the federal Cabinet.

Item 10 Paragraph 14(5)(c)

Under subsection 14(3) of the Australian Human Rights Commission Act, the Australian Human Rights Commission has the power to make a direction that any evidence given to the Commission or the contents of any document produced to the Commission, must not be published, or can only be published in accordance with the direction.

For the purposes of deciding whether or not to give a direction, subsection 14(5) lists a number of grounds that the Commission is required to have regard to, including the need to prevent the disclosure of deliberations or decisions of the Cabinet, or of a committee of the Cabinet, of the Commonwealth or of a State.

The proposed amendment to paragraph 14(5)(c) would replace that ground as a consequence of inserting the definitions for ‘Cabinet’ and ‘State Cabinet’ into subsection 3(1) of the Australian Human Rights Commission Act (item 9 refers).


 

Item 11 Paragraph 24(1)(c)

The proposed amendment to this paragraph would omit a reference to ‘or of a Committee of the Cabinet’ as a consequence of inserting the definition of ‘Cabinet’ into subsection 3(1) of the Australian Human Rights Commission Act (item 9 refers).

The effect of items 9 and 11 is to make clear that the existing power of the Attorney-General to issue a public interest certificate to prevent disclosure of deliberations or decisions of the Cabinet or its committees includes deliberations or decisions of the National Cabinet and its committees, so that neither the Commission nor any other person acting for, or on behalf of, the Commission could require that information to be disclosed.

Item 12 Subsection 24(1A)

This item makes a minor amendment to subsection 24(1A) that is consequential to item 9 which inserts a new definition for ‘State Cabinet’. The proposed amendment is not intended to change the substance of subsection 24(1A).

Foreign Acquisitions and Takeovers Act 1975

Item 13 Paragraph 130H(2)(b)

The effect of this item is to make clear that an existing power of the Treasurer to issue a public interest certificate to prevent disclosure of deliberations or decisions of the Cabinet or its committees includes deliberations or decisions of the National Cabinet and its committees. The proposed amendment would preserve existing application to the deliberations or decisions of the Executive Council.

In the case of paragraph 130H(2)(b) of the Foreign Acquisitions and Takeovers Act, in general terms, where the Treasurer issues a public interest certificate over such Cabinet and National Cabinet information, a person must still produce the information or documents to the AAT, but the AAT must do all things necessary to ensure the information is not disclosed to any person other than a member of the AAT.

Freedom of Information Act 1982

Item 14 Subsection 4(1) (definition of Cabinet)

The existing definition of ‘Cabinet’ in the Freedom of Information Act specifies that the Cabinet includes a committee of the Cabinet. The purpose of the proposed amendment is to make clear that the National Cabinet is a committee of the Cabinet, and that a committee of the National Cabinet, however described, is also included in the definition of Cabinet. 

The amendment will have application to the existing exemption in section 34 of the Freedom of Information Act for Cabinet documents.


 

Item 15 Subparagraph 34(1)(a)(i)

Section 34 of the FOI Act provides that Cabinet documents are exempt documents for the purposes of the FOI Act. The purpose of the Cabinet exemption is to protect the confidentiality of Cabinet processes.

This item is consequential to item 14 and recognises that the Cabinet exemption in section 34 should apply where a Minister of a State submits, or proposes to submit, a document to the National Cabinet or to a Committee of the National Cabinet for its consideration. Subsection 4(1) of the FOI Act defines ‘State’ to include the ACT and Northern Territory. Accordingly, this item also applies to documents that are submitted, or proposed to be submitted to National Cabinet or a committee of the National Cabinet, by a relevant Minister of the ACT or Northern Territory. In practice, while a Minister of a State or Territory may submit a document to the National Cabinet or a Committee of the National Cabinet, they would not submit a document directly to the federal Cabinet.

Item 16 Paragraph 34(1)(c)

 

This item is consequential to item 14 and recognises that the Cabinet exemption in section 34 should apply to documents that are brought into existence for the dominant purpose of briefing a Minister of the Commonwealth or a Minister of a State on documents that are considered, or proposed to be considered, by the National Cabinet or a committee of the National Cabinet, or on documents that were brought into existence for the dominant purpose of submission for consideration by the National Cabinet or a committee of the National Cabinet. The provision would continue to have application to briefings brought into existence for the dominant purpose of briefing a Commonwealth Minister for federal Cabinet.

Independent National Security Legislation Monitor Act 2010

Item 17 Section 4

This item inserts new definitions for ‘Cabinet’ and ‘State Cabinet’ into the Independent National Security Legislation Monitor Act. The definition of Cabinet expressly provides that Cabinet includes a committee of the Cabinet, including the committee known as the National Cabinet, and a committee of the National Cabinet (however described).

A specific definition for State Cabinet is inserted to clarify that a State Cabinet means the Cabinet of a State or a committee of the Cabinet of a State. A State Cabinet does not include the National Cabinet and the committees of the National Cabinet, noting the National Cabinet is established as a committee of the federal Cabinet.

Item 18 Subparagraphs 29(3)(d)(i) and (e)(i)

The proposed amendments would replace subparagraphs 29(3)(d)(i) and (e)(i) of the Independent National Security Legislation Monitor Act as a consequence of inserting new definitions of ‘Cabinet’ and ‘State Cabinet’ into section 4 of that Act (item 17 refers).

The effect of items 17 and 18 is to make clear that an existing power for the Independent National Security Legislation Monitor to prepare for the Attorney-General a version of the Annual Report that does not contain certain sensitive information, including information obtained from a document prepared for a meeting of the Cabinet or its committees, or that would disclose the deliberations or decisions of the Cabinet or its committees, also covers information of that kind in the context of the National Cabinet and its committees. These items are intended to preserve the existing application to a State Cabinet.

Law Enforcement Integrity Commissioner Act 2006

Item 19 Subsection 5(1)

This item inserts new definitions for ‘Cabinet’ and ‘State Cabinet’ into the Law Enforcement Integrity Commissioner Act. The definition of Cabinet expressly provides that Cabinet includes a committee of the Cabinet, including the committee known as the National Cabinet, and a committee of the National Cabinet (however described).

A specific definition for State Cabinet is inserted to clarify that a State Cabinet means the Cabinet of a State or a committee of the Cabinet of a State. A State Cabinet does not include the National Cabinet and the committees of the National Cabinet, noting the National Cabinet is established as a committee of the Commonwealth Cabinet.

Item 20 Subsection 5(1) (subparagraph (b)(i) of the definition of sensitive information)

The proposed amendment to the definition of sensitive information is consequential to inserting new definitions for Cabinet and State Cabinet in subsection 5(1) of the Law Enforcement Integrity Commissioner Act (item 19 refers).

This item makes clear that information disclosing the deliberations or decisions of the National Cabinet and its committees is sensitive information for the purposes of this Act. The Act enables the Integrity Commissioner to exclude sensitive information for certain purposes, including from reports prepared by the Integrity Commissioner, such as a report of a completed investigation of a corruption issue (subsection 55(5) of the Law Enforcement Integrity Commissioner Act refers).

Item 21 Subparagraph 149(2)(b)(ii)

The effect of item 21 is to make clear that the existing power of the Attorney-General under section 149 of the Law Enforcement Integrity Commissioner Act to issue a public interest certificate to prevent disclosure of deliberations or decisions of the Cabinet or its committees includes deliberations or decisions of the National Cabinet and its Committees.

A section 149 certificate can have application in a number of contexts, including for example in the context of a report of a completed investigation of a corruption issue (subsection 55(5) refers).


 

Migration Act 1958

Item 22 Subsection 5(1)

This item inserts a new definition for ‘Cabinet’ into the Migration Act. The definition of Cabinet expressly provides that Cabinet includes a committee of the Cabinet, including the committee known as the National Cabinet, and a committee of the National Cabinet (however described).

Item 23 Subsection 5(1) (subparagraph (a)(ii) of the definition of non-disclosable information)

The proposed amendment to this subparagraph would omit a reference to ‘or of a Committee of the Cabinet’ from the definition of ‘non-disclosable information’ as a consequence of inserting a definition of ‘Cabinet’ into subsection 5(1) of the Migration Act (item 22 refers).

This item makes clear that information disclosing the deliberations or decisions of the National Cabinet and its committees is non-disclosable information for the purposes of this Act. The Migration Act provides that non-disclosable information is not to be disclosed for certain purposes. For example, in section 57 of the Migration Act, the Minister is required to give to a visa applicant particulars of certain information that the Minister considers, amongst other considerations, would be the reason or part of the reason for refusing to grant a visa. However, the Minister is not required to give particulars of non-disclosable information under section 57.

Item 24 Paragraphs 375(b), 437(b) and 473GA(1)(b)

The proposed amendments to these paragraphs would omit a reference to ‘or of a Committee of the Cabinet’ as a consequence of inserting a definition of Cabinet into subsection 5(1) of the Migration Act (item 22 refers).

These paragraphs currently provide that the Secretary is not to give information or documents to the AAT if the Minister certifies that the disclosure of the information or any matter contained in the document would be contrary to the public interest including because it would involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet.

The effect of items 22 and 24 is to make clear that disclosure of deliberations or decisions of the Cabinet, includes the committee of the Cabinet known as the National Cabinet and the committees of the National Cabinet.

Ombudsman Act 1976

Item 25 Paragraph 9(3)(c)

The effect of this item is to make clear that the existing power of the Attorney-General under section 9 of the Ombudsman Act to issue a public interest certificate to the Ombudsman to prevent the Ombudsman from requiring a person to provide information (or answer questions or produce documents or records) relating to deliberations or decisions of the Cabinet or its committees, includes deliberations or decisions of the National Cabinet and its committees.

Parliamentary Joint Committee on Law Enforcement Act 2010

Item 26 Section 3 (subparagraph (b)(i) of the definition of sensitive information)

The proposed amendment to the definition of sensitive information makes clear that information disclosing the deliberations or decisions of the National Cabinet and its committees is sensitive information for the purposes of the Parliamentary Joint Committee on Law Enforcement Act.

The Act enables the Chief Executive Officer of the Australian Crime Commission and the Commissioner of the Australian Federal Police not to comply with requests for information by the Parliamentary Joint Committee on Law Enforcement if that official is satisfied that the information requested is sensitive information (see subsections 8(2) and 9(2) of the Parliamentary Joint Committee on Law Enforcement Act).

Privacy Act 1988

Item 27 Subsection 6(1)

This item inserts new definitions for ‘Cabinet’ and ‘State Cabinet’ into subsection 6(1) of the Privacy Act. The definition of Cabinet expressly provides that Cabinet includes a committee of the Cabinet, including the committee known as the National Cabinet, and a committee of the National Cabinet (however described).

A specific definition for ‘State Cabinet’ is inserted to clarify that a State Cabinet means the Cabinet of a State or a committee of the Cabinet of a State. Subsection 6(1) of the Privacy Act defines a ‘State’ to include the ACT and the Northern Territory. Accordingly, references in the Privacy Act to ‘State Cabinet’ will include the Cabinet of the ACT and of the Northern Territory, and any committees of their respective Cabinet. A State Cabinet does not include the National Cabinet and the committees of the National Cabinet, noting the National Cabinet is established as a committee of the federal Cabinet

Item 28 Paragraph 33(2)(c)

The proposed amendment to this paragraph would replace a reference to ‘the Cabinet, or of a Committee of the Cabinet, of the Commonwealth or of a State’ as a consequence of inserting new definitions of ‘Cabinet’ and ‘State Cabinet’ into subsection 6(1) of the Privacy Act (item 27 refers).

The effect of items 27 and 28 is to make clear that the existing power for the Australian Information Commissioner to omit sensitive information from certain reports, including to prevent the disclosure of deliberations or decisions of the Cabinet, or of a committee of the Cabinet, also covers deliberations or decisions of National Cabinet and its committees. These items are intended to preserve the existing application to a State Cabinet.

Item 29 Paragraph 70(1)(c)

The proposed amendment to this paragraph would omit a reference to ‘or of a Committee of the Cabinet’ as a consequence of inserting a definition of ‘Cabinet’ into subsection 6(1) of the Privacy Act (item 27 refers).

Section 70 of the Privacy Act allows the Attorney-General to furnish a public interest certificate to the Australian Information Commissioner certifying that the provision of certain information (including in answer to a question or to produce documents or records) would be contrary to the public interest. The public interest certificate would prevent the Commissioner from requiring a person to give information covered by the certificate.

The effect of items 27 and 29 is to make clear that the existing power to issue a public interest certificate on the basis that it would involve disclosure of deliberations or decisions of the Cabinet or its committees, includes deliberations and decisions of the National Cabinet and its committees.

Public Interest Disclosure Act 2013

 

Item 30 Section 8 (paragraph (b) of the definition of Cabinet information)

This item amends the definition of ‘Cabinet information’ in the Public Interest Disclosure Act to expressly provide that Cabinet information includes a deliberation or decision of the Cabinet, a committee of the Cabinet, including the committee known as the National Cabinet, and a committee of the National Cabinet (however described).

Subsection 26(3) of the Public Interest Disclosure Act requires a public official to consider a range of factors when determining whether to make an ‘external disclosure’ of alleged wrongdoing. The effect of this item is to make clear that when considering the principle that Cabinet information should remain confidential unless already lawfully publicly available (paragraph 26(3)(b)), ‘Cabinet information’ is taken to include information of the National Cabinet and its committees. 


 

Schedule 3 Part 2 – Contingent amendments

Australian Citizenship Act 2007

Item 31 Paragraph 52G(b)

This item would amend new section 52G of the Australian Citizenship Act as proposed to be inserted by item 5 of Schedule 2 of the Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Bill 2020.

Proposed new section 52G relevantly provides that the Secretary is not to provide certain information or documents to the AAT if the Minister certifies that disclosure would be contrary to the public interest including because it would involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet.

Item 31 makes clear that disclosure of deliberations or decisions of the Cabinet, includes the committee of the Cabinet known as the National Cabinet and the committees of the National Cabinet.

 

Data Availability and Transparency Act 2021


Item 32 Paragraph 106(3)(c)

Proposed paragraph 106(3)(c) of the Data Availability and Transparency Bill 2020, read with subsection 106(2), relevantly provides that if the Attorney-General certifies disclosure of information or documents would be contrary to the public interest because it would involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet, the National Data Commissioner must not require a person to provide that information or document.

Item 32 makes clear that disclosure of deliberations or decisions of the Cabinet, includes the committee of the Cabinet known as the National Cabinet and the committees of the National Cabinet.

 


 

Schedule 3 Part 3 – Application provision

Item 33 application provision

Sub-item 33(1) provides for the amendments proposed to the Freedom of Information Act, made by Part 1 of Schedule 3, to apply (a) in relation to requests for access to a document made on or after commencement of this item, and (b) in relation to requests for access to a document made, but not finally determined, before that commencement.

Sub-item 33(2) provides that for the purposes of paragraph (1)(b) of sub-item 33(1), a request for access to a document has not been finally determined unless all rights of review or appeal in relation the request have expired or have been exhausted.

 

 


STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011

COAG LEGISLATION AMENDMENT BILL 2021

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

This Bill would:

  • update outdated references to COAG Reform Fund where it occurs in legislation with Federation Reform Fund (Schedule 1)
  • update outdated references to COAG with First Ministers Council where it occurs in legislation (Schedule 2)
  • retain the term ‘Ministerial Council’, but insert a flexible definition where it occurs in legislation to accommodate future changes to titles to these bodies, namely to mean a body (however described) that consists of the Minister of the Commonwealth, and the Minister of each State and Territory, who is responsible, or principally responsible, for matters relating to a specified portfolio issue (Schedule 2), and

·         make clear that where Commonwealth legislation has existing provisions to protect from disclosure the deliberations and decisions of the Cabinet and its committees, these provisions apply to the deliberations or decisions of the National Cabinet or its committees (Schedule 3).

The amendments in Schedules 1 and 2:

  • make amendments to the title of the COAG Reform Fund where it occurs throughout legislation
  • make amendments to outdated references to COAG and Ministerial Councils as a result of the cessation of COAG and its substructures

The amendments in Schedules 1 and 2 are machinery or technical in nature and do not affect the rights or obligations of any person. 

The amendments in Schedule 3 deal with confidential information of the National Cabinet and its committees. The purpose of the amendments is to confirm that where Commonwealth legislation has existing provisions to protect from disclosure the deliberations or decisions of the Cabinet and its committees, these provisions apply to the deliberations or decisions of the National Cabinet and its committees.

The National Cabinet comprises the Prime Minister (Chair), the Premiers of each State and the Chief Ministers of the Northern Territory and Australian Capital Territory. It was established by the Prime Minister with the agreement of First Ministers as a committee of the Cabinet.

As noted in the Cabinet Handbook, 14th Edition, published by the Department of the Prime Minister and Cabinet, the National Cabinet can establish committees as required. These Committees may be temporary or ad hoc in nature, or standing forums to inform the deliberations of the National Cabinet.

Consistent with the Cabinet and its committees, all proceedings and documentation of the National Cabinet and its committees are confidential. The maintenance of confidentiality is essential to enable full and frank discussions.

Human rights implications

This Bill engages the right to freedom of expression in Article 19(2) of the International Covenant on Civil and Political Rights (ICCPR), in so far as that article includes freedom to seek, receive and impart information. 

Freedom of Expression

Article 19 of the ICCPR provides that:

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order, or of public health or morals.

Schedule 3 of the Bill amends a number of existing provisions in Commonwealth legislation that are directed to keeping the decisions or deliberations of the Cabinet and its committees confidential. For example, a number of statutes permit a designated Minister to issue a certificate on grounds that disclosure of information would be contrary to the public interest because it would disclose deliberations or decisions of the Cabinet and its committees, as well as other specific grounds (a public interest certificate). Generally, the effect of a public interest certificate is to prevent or limit disclosure or publication of the information or documents covered by the certificate.

The purpose of the proposed amendments to public interest certificate provisions referenced in Schedule 3 (for example items 1-3 which relates in part to a power of the Attorney‑General to issue a public interest certificate where a person is required to produce information to the Administrative Appeals Tribunal) is to make clear that Cabinet information includes confidential information of the National Cabinet and its committees.

That is also the purpose of other proposed amendments in Schedule 3 not related to a public interest certificate, for example, item 14 of Schedule 3 which proposes an amendment to the definition of ‘Cabinet’ in the Freedom of Information Act 1982 (the FOI Act). This would make clear that confidential documents of the National Cabinet and its committees are subject to the existing Cabinet documents exemption in section 34 of the FOI Act.

To the extent that Schedule 3 of the Bill is amending existing provisions which are designed to protect confidential deliberations or decisions of the Cabinet from disclosure, those provisions limit the right to seek, receive and impart information in Article 19(2). However, the limitations placed on Article 19(2) are permissible in that they meet the requirements of Article 19(3), as they will be provided by law and are necessary for the protection of public order. As recognised by the Cabinet convention of collective responsibility, there is a public interest in keeping Cabinet information confidential. As noted in the Cabinet Handbook 14th Edition, published by the Department of the Prime Minister and Cabinet:

28. Effective Cabinet confidentiality requires the protection of Cabinet deliberations not only at the time an issue was current but also in the future. Ministers in successive Governments have relied on the convention that their views, either written or spoken will remain confidential well into the future. It is only with the confidence in this convention that ministers can enjoy freedom to explore all policy options without the need to temper their comments or views.

The National Cabinet is established as a committee of the federal Cabinet, so that its members, First Ministers of all jurisdictions, can contest policy matters in a confidential setting, and through full and frank disclosure achieve strong decisions. The same is applicable for ministerial representatives on committees of the National Cabinet.

Conclusion

The Bill is compatible with human rights; to the extent Article 19(2) of the ICCPR is limited by the Bill, the restriction is permissible under Article 19(3) of the ICCPR, as the amendments are provided by law and are necessary for the protection of public order, namely in order to maintain the confidentiality of the deliberations or decisions of the National Cabinet and its committees.

 

 [Circulated by the authority of the Prime Minister, the Hon Scott Morrison MP]