Well, well, well. Senate crossbencher Rex Patrick won his case in the Administrative Appeals Tribunal. Patrick was seeking the records and minutes related to the meetings of the so-called National Cabinet, a body that the PM invented at the start of the pandemic. Patrick’s Freedom of Information requests were being denied under one of the allowed grounds, namely that what the Senator wanted amounted to an ‘official record of a committee of cabinet’. The judge said ‘no’ to the government’s defence of Cabinet confidentiality. Why? Because the so-called National Cabinet was in fact not a subcommittee of the federal Cabinet. And the Prime Minister could not establish it as such by imperial fiat. (I paraphrase you understand, but do so in keeping with the spirit of the PM’s defence.) In my view, Justice White was plainly correct. No one had ever heard of this ‘National Cabinet’ before the PM and his advisors conjured it up out of thin air, Harry Potter-like, with a wave of the Diagon Alley wand.
Just to remind readers, this newfangled monstrosity called the ‘National Cabinet’ is shorthand for meetings of, and decisions by, the Prime Minister and all state and territory premiers. It exists nowhere in our actual written Constitution. In my view, as one of the most committed competitive federalism exponents across all of Australian legal academia today, this invented body does nothing to fix our badly broken federalist model. Any fix needs to start with the states having the income tax power the Constitution originally gave them (but the High Court effectively took away some 50 years later), thereby making them fiscally responsible for their own stupid decisions. You know, like locking down their own citizens for half a year without having to pay any fiscal costs for doing so, the rest of the country bailing them out under our world’s worst vertical fiscal imbalance federalism model which daily has proved its total dysfunctionality throughout this pandemic. No, in fact this prime ministerial innovation has done the seemingly impossible and made our version of federalism even worse. Incroyable!
But I digress. Let’s speculate on why Mr Morrison and his bureaucrats (and odds are the premiers too) are so keen to keep secret these minutes and documents. It could, of course, just be the usual bureaucratic resistance to transparency. Now if you’re too cynical to buy that – and my Lord if the performance of the political class these past 16 months hasn’t made you cynical then change your name immediately to ‘Pollyanna’ – then you, like me, will be assuming there are some politically damaging (though perhaps at the same time also bluntly true) statements or arguments that were made in these meetings. Of course if there were, then the PM will no doubt appeal this decision aiming to tie things up in the courts at least until after the next election. Better yet, ScoMo will move to legislate to keep the minutes and proceedings of this brainchild of his secret. Yet that will only happen if Mr Albanese and Labor allow Mr Morrison to pass that sort of ‘keep this all secret’ retrospective legislation. So how cynical are you dear reader? If you’re top of the class you’ll be thinking to yourself that Albo may well want to help protect the Labor premiers and so will help ScoMo legislate to keep all these National Cabinet minutes secret. Politicians looking after their own, and all that. Do I hear ‘they haven’t even taken a pay cut throughout this pandemic’ anyone?
But leave that aside and ask yourself a different question. Why did Mr Morrison want to establish this newfangled body? If you happen to have a guitar handy, and can do a half-decent rendition of ‘Kumbaya’ while holding hands in a circle with your dozen closest friends, all singing along (and no, I’m not breaching copyright by describing the depths to which some Anglican church services have sunk), then you’ll say the PM did it to better govern the country during this pandemic. Say that with a straight face and you should move to LA and look for acting work. It is plain to all and sundry that this body does no such thing and it was plain before it was created, or waved into existence after a particularly big night at the Leaky Cauldron. Some of us in the pages of this fine publication said as much at the time.
Another possible rationale was that the PM had done his focus group testing (otherwise he would not have made a decision at all) and reckoned that it was a good idea to spread around the responsibility. ‘It wasn’t just me, Your Honour, we all agreed to do this.’ In other words, maybe he figured this National Cabinet would buy him some political cover, Mr Morrison not being the bravest of politicians. (‘Could anyone have put that last point more kindly?’ I ask myself.) If that was his thinking he badly miscalculated. The premiers have played him for a mug from day one. They get all the political credit for ‘keeping us safe’ with their despotic, heavy-handed lockdowns while Josh and the PM keep ponying up the moolah and taking their marching orders from the states. How many readers know that ‘quarantine’ is one of the explicit heads of powers of the Commonwealth government? The top judges in cases like Tasmanian Dam and WorkChoices bend over backwards to allow the Commonwealth to takeover just about any area of legislative competence going but when there is one explicitly right there – the power to make laws regarding quarantines – our current PM pusillanimously hands it over to the states. How’s that gone for him?
Last speculation. What if the whole National Cabinet boondoggle was Mr Morrison’s scheme to sideline his own Cabinet, the real one with Mr Dutton, Mr Taylor and Mr Frydenberg? Let’s face it. The real Cabinet has in fact been totally sidelined throughout this pandemic. They get to play a human rubber stamp, agreeing to whatever the PM and premiers decide. The Prime Minister has in part created a sort of presidential role for himself in a Westminster system, transferring the constraints on him from his Cabinet colleagues to the premiers. Bad call? Yes. But was it his original intention? More to the point, why is that no one ever steps down from Cabinet in this country on principle? Ministers do in Britain. And in Canada. Here, you can be sidelined near on completely but as long as your chauffeur is still picking you up and the pay keeps going up (only small businesses are bankrupted here) no one stands on principle. That’s what happens when timid, careerist politicians who have next to no other saleable skills get to the top of the greasy political pole. No one would mistake any of them for a Churchill, Thatcher, Hawke or Reagan. Sigh.
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