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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update outdated references to COAG Reform Fund where it occurs in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update outdated references to COAG with First Ministers Council where it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.
1
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
2
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.
3
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.
4
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.
5
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.
6
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.
7
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.
8
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.
9
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.
10
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.
11
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.
12
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).
13
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.
14
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.
15
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.
16
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.
17
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.
18
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)
19
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.
20
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).
21
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.
22
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).
23
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).
24
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.
25
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)
26
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.
27
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.
28
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.
29
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.
1
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.
2
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.
3
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]
4