Opinion Killing Cabinet confidentiality destroys democracy

Giving cabinet documents to a royal commission creates a precedent that could do long-term harm to our system of government and create a cycle of tit-for-tat inquiries at enormous cost to the taxpayer, writes George Williams. 

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OPINION: A stoush has arisen between Attorney General George Brandis and his Labor counterpart Mark Dreyfus over the release of cabinet documents to the royal commission into the home insulation program. It raises important questions of principle about Australian democracy.

The Abbott government's terms of reference for the royal commission are directed squarely at the internal deliberations of the former Rudd government. The commission must examine matters including "the processes by which the Australian government made decisions about the establishment and implementation" of the home insulation program.

It is no surprise then that the commission has summonsed Rudd and his senior ministers to hand over any documents in their possession relating to the investigation. In the normal course of events, they would refuse to provide documents relating to the workings of cabinet. This is consistent with the Royal Commissions Act, which says that a person can avoid handing over documents if they have a "reasonable excuse" for doing so.

This lasts until the public release of the documents, currently 26 years after their creation, long after the political tensions of the day have faded.

The convention of cabinet secrecy is a central pillar of the Westminster system of government applied in Australia. It is essential that cabinet, the key decision-making forum of government, be a place in which ministers can freely air their differences and debate the full range of policies, laws and actions. This could not occur in the media spotlight. Indeed, without the opportunity for confidential deliberation, it is hard to see how our system of government could function.

The importance of this principle has meant that courts have denied access to documents concerning cabinet deliberations. The High Court has found that access should only be granted in "exceptional circumstances".

It has doubted that this could ever be shown in civil proceedings, and that it might be justified in criminal proceedings only "if withholding the documents would prevent a successful prosecution or impede the conduct of the defence".

It is difficult to see that such "exceptional circumstances" exist here. Without this, former Labor ministers could not be compelled to give the royal commission any cabinet documents.

This position though may be undercut by the Abbott government, which has decided to hand over cabinet documents from Labor's time in office in response to any summons from the royal commission. These would be provided on a confidential basis, with Brandis reserving the right to protect the documents if the commission seeks to reveal them to the public.

Providing these documents to the commission would be regrettable. It would run counter to the strict confidentiality that ought to be accorded to cabinet documents. It would also create a precedent that could do longer term harm to our system of government.

This possibility also raises more general questions about the appropriateness of the royal commission and its terms of reference. Incoming ministers have not as a rule established royal commissions into the actions of their predecessors. It has been accepted that governments are held to account by the people at the ballot box, and here of course Labor has paid for its policy failures through its defeat at the 2013 federal election.

Establishing the commission may bring a short-term benefit to the Abbott government. In the longer term though, the government and our political system may pay a higher price. The creation of this royal commission may give licence to a future Labor administration to establish one or more like inquiries into the affairs of the Abbott government in areas calculated to produce maximum political advantage. It may even do so in a way that again enables access to cabinet papers.

Allegations of corruption or wrongdoing must be investigated, but we do not need a cycle of tit-for-tat inquiries into the decision-making of former governments. This would come at enormous cost to the taxpayer, and introduce a new dynamic of recrimination and retaliation. As former prime minister Malcolm Fraser has said, the introduction of such "payback" into our political system "would ultimately do great damage to Australian democracy".

George Williams is a Professor of Law at UNSW. 

This opinion piece was first published in The Sydney Morning Herald.