A recent decision of the Administrative Appeals Tribunal (AAT) will be welcomed by those in the energy industry seeking clarity on the nation’s changeable climate change and energy policy. The decision of Patrick and Secretary, Department of Prime Minister and Cabinet (Freedom of Information)  AATA 271 (Patrick Decision) upheld a claim by Senator Rex Patrick to access certain National Cabinet documents under Freedom of Information (FOI) legislation.
What is National Cabinet?
The Prime Minister, along with the other State and Territory Ministers, established the National Cabinet on 13 March 2020 amidst the COVID-19 pandemic. In May 2020, the Prime Minister announced the abolition of the previous peak intergovernmental body – the Council of Australian Governments (COAG), saying:
“COAG is no more. It will be replaced by a completely new system and that new system is focused on the success that has been yielded by the operation of the National Cabinet.”
Thus, National Cabinet has effectively replaced COAG as the vehicle under which federal, State and Territory Ministers manage issues of national significance that fall outside of federal legislative power.
How is National Cabinet different from COAG?
In practice, this new system is not so different to the old system. Relevant ministers still meet regularly to discuss national issues related to their respective portfolios. However, for example – while State and Territory Energy Ministers previously convened as the COAG Energy Council, they are now known as the Energy National Cabinet Reform Committee (ENCRC), one of several ‘Ministerial Cabinet sub-committees’.
However, one major difference has been National Cabinet claiming it is bound by traditional cabinet confidentiality rules (on the basis that it is a sub-committee of Federal Cabinet), meaning the public would not be able to access documents produced for the dominant purpose of National Cabinet through FOI requests.
Under the COAG system there was a general expectation that documents be made public and those documents could also be accessed through FOI requests. The new lack of transparency was a blow to energy businesses seeking clarity on how decisions about national energy policy were made.
The Patrick Decision
In the Patrick Decision, the AAT affirmed the general principles surrounding the confidentiality of Cabinet documents, citing with approval, The Commonwealth of Australia v Northern Land Council  HCA 24; (1993) 176 CLR 604, at 615-6:
“[I]t has never been doubted that it is in the public interest that the deliberations of Cabinet should remain confidential in order that the members of Cabinet may exchange differing views and at the same time maintain the principle of collective responsibility for any decision which may be made … The mere threat of disclosure is likely to be sufficient to impede those deliberations by muting a free and vigorous exchange of views or by encouraging lengthy discourse engaged in with an eye to subsequent public scrutiny.”
However, the AAT rightly observed that merely calling a body a “National Cabinet” does not make that body a sub-committee of the Federal Cabinet. The AAT went on to reject the Prime Minister’s submission that the relevant documents should be afforded the protections for cabinet documents pursuant to 34(1) of the Freedom of Information Act 1982 (Cth), on the basis that National Cabinet is not truly a sub-committee of Federal Cabinet.
While many factors weighed in the AAT’s decision, the Tribunal acknowledged that there was force in the component of Mr Patrick’s submission grounded in the principles of the Westminster convention of responsible government. Mr Patrick successfully argued that National Cabinet is not a ‘cabinet’ in the traditional sense because the Premiers and Chief Ministers are not accountable to the Federal Parliament, rather they are responsible to the parliaments of their own States or Territories.
What does this mean for the Energy Industry?
If the decision stands (it should, as the reasoning seems sound), then the deliberations of the National Cabinet in respect of energy policy, or the minutes of Energy Ministers’ Meetings will not be exempt from production under the “cabinet exemption” section of the FOI regime.
Decisions from COAG meetings were previously made public through meeting communiques released on the conclusion of the meeting. It is hoped that this decision will result in similar publications by the ENCRC resuming. However, if such transparency is not forthcoming, stakeholders can be consoled by the fact that they will at least have good prospects of a successful FOI request.