This is one of a special series of posts exploring the public law implications of the COVID-19 pandemic. For more information on the Gilbert + Tobin Centre’s work in the area of public law and public health, see here.

BY TAMARA TULICH, BEN REILLY AND SARAH MURRAY

Australia’s newest political institution, the National Cabinet, adds a fresh federal twist to the debate about the eclipse of Parliament and the presidentialisation of Australian politics.

The National Cabinet was formed on 13 March as an intergovernmental forum comprised of the Prime Minister, the Premiers and the Chief Ministers to lead a unified and coordinated response to COVID-19 across the Federation. In responding to COVID-19, the National Cabinet is advised by the National Coordination Mechanism (NCM) on non-health aspects of the pandemic, and the Australian Health Protection Principal Committee (AHPPC) on medical issues related to the pandemic. The AHPPC and the National COVID-19 Commission are reported to have been made committees of the federal Cabinet by the Prime Minister.

On 29 May, the Prime Minister announced that the National Cabinet had agreed to replace the Council of Australian Governments (COAG) with the National Federation Reform Council, the centre of which would be the National Cabinet. COAG has long been seen as being at the mercy of the Commonwealth’s agenda, with the National Cabinet having the potential to be a more deliberative and ‘dynamic’ forum. The Prime Minister’s Media Release explained:

By any measure, National Cabinet has proven to be a much more effective body for taking decisions in the national interest than the COAG structure.

In this post, we argue that this effectiveness bears many of the touted advantages of presidential forms of government, in which the executive is directly elected and forms government separately from the legislature. These include a greater focus on individual leaders rather than their partisan allegiance; more decisive decision-making; cross-party cabinet formation; and the potential to sit above the fray of parliamentary politics. But it also shares the costs: a loss of transparency and, with the federal dimension to the centralisation of coordination in the form of the National Cabinet, the real risk that intergovernmental ‘power-sharing’ will be dominated by ‘coercive’ Commonwealth power.

Personalisation, presidentialisation, power-sharing and the National Cabinet

The National Cabinet appears to have increased some of the underlying trends in many parliamentary democracies towards greater ‘personalisation’ and in some ways ‘presidentialisation’ of politics. These terms refer to processes that have been at work in Australia for some time: an increasing focus on politicians as individuals rather than leaders of a collective executive; a similar focus on the role of the majority leader rather than the Parliament; and, particularly during election campaigns, a relentless media focus on the leaders of the major parties to the exclusion of almost all others.

At the National Cabinet, the Prime Minister, Premiers and Chief Ministers appear as individuals in their role as leaders of their own executives, untethered from their other positions as local members, parliamentarians and leaders of their respective political parties. This effectively elides the underlying reality under our Westminster system of government that their executive positions are all subject to the potentially shifting sands of parliamentary majorities. Parliamentary supremacy and indeed sovereignty remains in form, but in function the National Cabinet resembles a meeting of US governors and the President — each of whom are of course directly elected and thus able to claim their own mandate. In this way, the National Cabinet could be seen as an exemplar of the ‘presidentialisation of Australian politics’ thesis, as an institutional innovation which shifts power further away from Parliament and towards individual leaders.

Another aspect of the National Cabinet is the way it has created a new arena of power-sharing between the major parties in Australia. While multi-party Cabinets along the European model are not unknown in Australia, they have usually entailed one of the major parties including a small number of representatives of minor parties or independents within one Parliament. Occasionally this has involved more formal power-sharing arrangements, as with the Labor-Green governments in Tasmania. But never before, even during wartime, have the two major party groupings that dominate Australian politics – Labor and the Coalition – worked together in a joint executive. The National Cabinet thus resembles the kind of grand coalitions employed during times of crisis or transition in European democracies, or the Advisory War Council which acted as war cabinet in Australia during World War II.

Two key question marks that remain with this ‘big tent’ National Cabinet mechanism are what it means for transparency, and for Commonwealth dominance over sub-national governments.

What is in a name? A transparency deficit

One of the quirks of the National Cabinet is that it is called a ‘cabinet’, and is formed under the purview of the Australian Government’s Cabinet Handbook. A ‘cabinet’, as exists at the national and sub-national levels, is the primary decision-making organ of executive government: a council of senior ministers who drive policy development and make decisions related to policy and legislative proposals, expenditure etc. Cabinet is a product of convention, and governed by two important aspects of the convention of responsible government: cabinet confidentiality and cabinet solidarity. Cabinet documents and deliberations are confidential and exempt from freedom of information (FOI) requests, safeguarding robust discussion within Cabinet. Cabinet solidarity means that all members of Cabinet publicly support Cabinet decisions, even if they were not present during deliberations or did not support the decision. Cabinet is then held to account through collective cabinet responsibility to the Parliament of which cabinet members are part. As an intergovernmental, not inter-parliamentary, body, members of the National Cabinet are not collectively responsible to one Parliament, but individually responsible to nine separate Parliaments. It cannot therefore be held to account by collective cabinet responsibility to the Parliament, or beholden to cabinet solidarity. Despite this, in a Whole-of-Government Submission (dated 12 May 2020) to the Senate Select Committee on COVID-19, the Department of Prime Minister and Cabinet reported that:

By the agreement of all members, the National Cabinet is constituted as a Cabinet Office Policy Committee and operated according to longstanding conventions of Cabinet government, including the guiding principles of collective responsibility and solidarity. In his capacity as Chair, the Prime Minister provides frequent public updates on National Cabinet decisions where appropriate. The Commonwealth and state and territory governments individually remain responsible for the implementation of decisions arising from the National Cabinet.

Perhaps the only convention of responsible government that has been claimed is that concerning strict rules of cabinet confidentiality. Indeed, the Morrison Government has asserted that cabinet confidentiality applies to all documents of the National Cabinet and, by extension, the AHPPC. The AHPPC, it is worth recalling, is a body chaired by the Australian Chief Medical Officer, and comprised of the Chief Health Officers of each state and territory, and relevant departmental officials. However the exact nature of AHPPC documents is unclear, as the following exchange, during a hearing of the Senate Select Committee on COVID-19 on 29 September illustrates:

Dr Murphy: No, only some of them are cabinet-in-confidence—only those since the formation of national cabinet. Any AHPPC minutes before that formation are not cabinet-in-confidence.

Senator PATRICK: You would be aware that the definition of a ‘cabinet’ in conventions that are well established is a meeting of ministers. So I am just very curious why you think that for some reason a meeting of doctors can be a subcommittee of cabinet. Can you explain that to me.

Dr Murphy: It was a decision of national cabinet to adopt AHPPC as a subcommittee of national cabinet. That conferred on it that status as a cabinet subcommittee, because it was a decision of first ministers.

Senator PATRICK: Can you see that even prime ministers can’t make decisions that create a secrecy that is not supported by convention? Cabinet meetings are meetings of ministers, not doctors.

Dr Murphy: I understand your frustration—

What follows from the classification of National Cabinet and AHPPC documents as cabinet documents is that they are exempt documents under s 34 of the Freedom of Information Act 1982 (Cth) and do not need to be disclosed in response to FOI requests (albeit that exempt documents may nonetheless be released in certain circumstances). COAG documents were not so exempt from FOI rules.

This has provoked South Australian Senator Rex Patrick to make two FOI requests in relation to National Cabinet documents (for minutes of the National Cabinet’s inaugural meeting, and information relating to its rules and procedures), as well as an FOI request for AHPPC documents.

In relation to the AHPPC documents, on 29 September Senator Patrick tweeted that “The Assistant Secretary that processed my #FOI says the AHPPC minutes I requested are only exempt because their release could cause damage to Commonwealth-State relations (s47B)”.  The use of s 47B, as opposed to the Cabinet documents exception to FOI in s 34, gave rise to further interesting exchanges between Senator Patrick and Dr Murphy in the hearing of the Senate Select Committee on COVID-19 on 29 September as to the status of AHPPC documents.

In relation to the National Cabinet documents, Senator Patrick’s FOI requests were refused. Senator Patrick sought review by the Office of the Information Commissioner. In late September, it appears from media reporting that the Information Commissioner exercised her discretion under s 54W(b) not to undertake a review because the Commissioner was satisfied that ‘the interests of the administration of this Act make it desirable that the IC reviewable decision be considered by the Tribunal’. On 28 September, Senator Rex Patrick applied to the Freedom of Information Division of the Administrative Appeals Tribunal to have the matter heard. The outcome of that hearing will have significant ramifications for the workings of the National Cabinet.

The landscape for Commonwealth dominance?

The National Cabinet, formed in the shadow of a severe global pandemic affecting every aspect of life, but crucially aspects traditionally managed by the states – public health, schools, intrastate travel and entry – has given the states a unique level of bargaining power during the crisis. This has played out on a number of occasions, such as where the Commonwealth Government was pushing to have schools open, set a date for the opening of borders or increase caps on hotel quarantine numbers, only to face opposition by one or more of the states. While a compromise was ultimately reached on the cap requiring greater Commonwealth support and a longer lead time, the WA Premier Mark McGowan initially complained about what he described as the ‘ambush’ attempt by the Commonwealth Government to force an increase in international arrivals. The Prime Minister has sought to soften areas of conflict by claiming that, ‘[f]rom time to time we disagree on this and that, when we get into the room we sort it out’.

The question that remains is in what areas the Commonwealth has the power to ‘force’ the states’ hand in how they respond to the crisis (in relation to the territories the position is much clearer pursuant to s 122 of the Commonwealth Constitution). For example, the quarantine power in s 51(ix) of the Constitution supports legislative measures to force shutdowns and movement restrictions (such as the Biosecurity Act 2015 (Cth)) and this legislative power, coupled with the defence power in s 51(vi) and even the nationhood power (s 61 and s 51(xxxix)), could be exercised to put in place more lenient restrictions to override the states’ laws pursuant to s 109 of the Constitution. But the challenges are two-fold. First, at what point would Commonwealth pandemic controls begin to impair the ability of the states to function as governments (Austin v Commonwealth (2003); Clarke v Commissioner of Taxation (2009))? Secondly, even if the Commonwealth has the power to control the states’ response, there is a real question as to whether it would be willing to take the political risk of dictating the emergency response and then also taking political responsibility for any potential COVID-19 flare-up. The Ruby Princess debacle highlighted the inevitable finger pointing that follows any perceived failings in governmental response.  But in areas like schooling where there has been a perceived lower risk of COVID-19 infection, Commonwealth buttonholing was the most stark with the threat of funding withdrawals hanging over schools that did not respond to the Commonwealth’s demands. Ultimately, it is the Commonwealth’s fiscal dominance in the Federation which has increasingly been its constitutional wildcard.

Concluding thoughts

The strengths of the National Cabinet – personalisation, bipartisanship, coordinated leadership, and decisiveness – are uniquely suited to the exigencies of an emergency of the unprecedented scale of COVID-19. Bearing many of the characteristics of a more ‘presidential’ political model, these strengths harness many of the touted advantages of the ‘presidentialisation’ of politics – greater focus on individual leaders; more decisive decision-making; cross-party cabinet formation; and the potential to sit above the fray of parliamentary politics. However, the National Cabinet also evinces associated costs. Emerging concerns are how the newly formed intergovernmental body can address a potential transparency deficit and the seeming inexorability of Commonwealth dominance.

The experience of the apocalyptic 2019-2020 summer bushfires demonstrated the fault-lines inherent within a disjointed federal compact. What remains to be seen is whether the National Cabinet model can be sustained beyond the climate of emergency. And whether, if and when a COVID-19 vaccine is found, the National Cabinet can emerge from the experiences of 2020 a stronger and more viable federal solution and one able overcome the teething problems plaguing it.

Tamara Tulich is a Senior Lecturer at UWA Law School.

Ben Reilly is a Professor of Political Science and International Relations at the University of Western Australia.

Sarah Murray is a Professor at UWA Law School.

Suggested citation: Tamara Tulich, Ben Reilly and Sarah Murray, ‘The National Cabinet: Presidentialised Politics, Power-sharing and a Deficit in Transparency on AUSPUBLAW (23 October 2020) <https://auspublaw.org/2020/10/the-national-cabinet-presidentialised-politics-power-sharing-and-a-deficit-in-transparency>