Sources familiar with the establishment of the Victorian inquiry believe it may need to access records of discussions that took place at the May 27 national cabinet meeting in order to get a full understanding of state responsibilities for quarantine and what role the Australian Defence Force was to play.
That meeting of national cabinet was where hotel quarantine arrangements were put in place.
A fierce political row erupted this week between Victorian Premier Daniel Andrews and Defence Minister Linda Reynolds over the issue of ADF assistance for the quarantine program across several Melbourne hotels.
Infection control breaches at two Melbourne quarantine hotels have been blamed for the second wave of COVID-19 spreading into the Victorian community in late March through hotel staff and contract security guards.
Cabinet confidentiality provisions at both state and Federal levels protect records of discussions between ministers or documents prepared for cabinet submission from disclosure through Freedom of Information or other forms of inquiry.
The Department of Prime Minister and Cabinet recently invoked those provisions in response to an FOI request from South Australian Senator Rex Patrick for minutes and other information from national cabinet meetings.
Asked about national cabinet confidentiality on Friday, Mr Andrews said: “The absolutely frank answer is, I don’t know what rules would be applied. A national cabinet … is essentially as I understand it … a subcommittee of the federal cabinet in terms of its legal status.
“I need to get some legal advice on that … but those documents are not owned by us … they’re part of a national process. That’ll be something that the chair of national cabinet [Mr Morrison] might have a view on.”
Monash University constitutional law expert Luke Beck said the Commonwealth’s contention that secrecy provisions could be applied to a committee consisting of the Prime Minister and state and territory leaders was “very uncertain”.
Associate Professor Beck said state and territory leaders were accountable to their own parliaments, and he predicted that an attempt to assert cabinet confidentiality over their meetings would likely lead to legal challenges that could go all the way to the High Court.
“Cabinets exist by tradition and convention. The status of this national cabinet is a really interesting and tricky legal question,” he said.
Senator Patrick has foreshadowed a legal challenge to the government’s position on national cabinet and access to information, arguing it does not meet the definition of a properly constituted cabinet.
While he stressed he supported the normal conventions around the confidentiality of policy deliberations by ministers and documents specifically created to inform cabinet, it was a stretch to apply it to national cabinet.
“The PM is trying to expand the umbrella under which secrecy applies. My firm view is that the national cabinet is not a cabinet for the purposes of the FOI Act,” Senator Patrick said.
A spokesman for the Victorian hotel quarantine inquiry said the board of inquiry had the power to provide written notices to demand the production of documents or attendance notice to give evidence as a witness. Any individual or agency planning on not complying with a request must provide a “reasonable excuse” that the public interest in keeping information secret outweighs the public benefit from its disclosure.
Victorian government departments that have been asked to cooperate with the inquiry have engaged independent legal advice from Melbourne’s top tier firms.
If an individual or department claims public interest immunity over documents sought by the inquiry, Judge Coate has the ability to ask the Supreme Court of Victoria to intervene and rule on the admissibility of the material.
Asked if he intended to assert cabinet confidentiality over any Victorian documents, Mr Andrews said he expected Ms Coate to be given all documents she believed necessary.
“She should have the fullest picture of what’s got going on so that she can give us the answers that we all need,” he said
Richard Baker is a multi-award winning investigative reporter for The Age.
Jewel Topsfield is Melbourne Editor of The Age.