Cabinet confidentiality – can "leakers" be prosecuted

Cabinet has leaked again. Over the weekend the media were provided with a detailed account of confidential Cabinet discussions on whether the Minister for Immigration should be given the power to revoke the citizenship of suspected terrorists who have sole Australian citizenship. Regardless of your personal views on whether the Minister for Immigration should have this significant discretionary power and whether it is legal under international law to effectively make a person stateless, the information was obtained by the media from a Cabinet informant. This was a significant breach of Cabinet confidentiality. Cabinet confidentiality is an important principle of responsible government. If the “leaky” Cabinet member was discovered, is there any recourse available? Before I consider the question of whether the perpetrator can be punished, it is useful to quickly revise the basics of Cabinet confidentiality.

Who is in the Cabinet?

The Cabinet is not a Constitutional body, and is in fact not mentioned in the Constitution at all. The Constitution vests executive power in the Governor-General (s61) which includes the power to appoint Ministers. In practice, under the principles of responsible government, the Governor-General acts on the advice of the Prime Minister in making the Ministerial appointments. The Cabinet is made up of the Prime Minister plus senior Ministers appointed to Cabinet by the Prime Minister. The current Cabinet consists of:

1.       Prime Minister                                              Tony Abbott

2.       Deputy Prime Minister                                  Warren Truss

3.       Minister for Foreign Affairs                           Julie Bishop

4.       Minister for Employment                               Eric Abetz

5.       Attorney-General                                          George Brandis

6.       Treasurer                                                      Joe Hockey

7.       Minister for Agriculture                                 Barnaby Joyce

8.       Minister for Education                                   Christopher Pyne

9.       Minister for Indigenous Affairs                       Nigel Scullion

10.   Minister for Social Services                           Scott Morrison

11.   Minister for Communications                         Malcolm Turnbull

12.   Minister for Health and Sport                        Sussan Ley

13.   Minister for Small Business                           Bruce Billson

14.   Minister for Trade and Investment                 Andrew Robb

15.   Minister for Defence                                     Kevin Andrews

16.   Minister for Environment                              Greg Hunt

17.   Minister for Immigration                                Peter Dutton

18.   Minister for Finance                                      Mathias Cormann

The Cabinet Ministers are known as senior Ministers, and meet on a weekly basis. There are many other more junior Ministers who are not part of Cabinet.

The Federal Executive Council you have never heard of

While the Constitution doesn’t provide for the Cabinet, it does provide for a Federal Executive Council. Section 62 of the Constitution provides that “ there shall be a Federal Executive Council to advise the Governor‑General in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor‑General and sworn as Executive Councillors, and shall hold office during his pleasure”. There are two important things to note about the Executive Council:

1.       The Executive Council and Cabinet are not the same. Cabinet is constituted by senior Ministers as the Prime Minister sees fit. In contrast, the Constitution dictates in section 64 that all Ministers “shall be members of the Federal Executive Council”.

2.       The Executive Council is treated as a mere formality. The real discussion and decision making happens in the Cabinet.

What is Cabinet confidentiality?

Cabinet confidentiality is a principle of responsible government that Cabinet discussions and papers will remain confidential. As the innermost workings of the executive are undertaken in Cabinet discussions, this confidentiality is meant to foster robust debate. All possibilities can be considered by Cabinet, as Ministers do not have to worry about the media reporting on a particular unpopular stance they took in Cabinet discussion. After engaging in robust debate, Cabinet can emerge with a unified decision to present to the public. A related concept is Cabinet collective responsibility, where all Cabinet members must publically support Cabinet decisions, even if they disagreed with the decision in Cabinet discussions or privately disagree with the decision. The collective responsibility extends to voting in parliament, where Ministers must vote in accordance with the Cabinet decision.

Is Cabinet confidentiality a common law concept?

No. It is a component of responsible government.

Is Cabinet confidentiality a statutory concept?

Cabinet confidentiality is a concept of responsible government, and is not found in statute. However, there are a number of statutory provisions that assist to reinforce the importance of and protect cabinet confidentiality, including freedom of information legislation which at both the Commonwealth and state levels provides that Cabinet documents are protected for 30 years from FOI requests.

Is Cabinet confidentiality in the Constitution?

Responsible government, of which Cabinet confidentiality is part, is one of the four great Constitutional principles of representative government, federalism, the separation of powers and responsible government. Responsible government is made up of a series of conventions. Responsible government is not enshrined explicitly in the Constitution.

High Court dicta suggest some conventions of responsible government have been implied into the Constitution. In particular:

1.       The convention that government is responsible to parliament can be inferred from sections 53, 57, 62 and 64;

2.       The convention that the Governor-General is to act only on advice is inferred from sections 62 and 64.

Cabinet confidentiality could not be said to have reached implied Constitutional status. Therefore, the status of Cabinet confidentiality remains that of a convention of responsible government.

What action can be taken against a Minister who breaches Cabinet confidentiality?

As discussed above, Cabinet confidentiality is not a common law, statutory or constitutional law concept. The essential problem with many conventions is that the boundaries are uncertain, and it is questionable whether a convention of responsible government is enforceable by courts. A court is likely to point to the separation of judicial and executive power and see a misuse of responsible government as an executive or political problem not appropriate for courts to consider. No judicial action can be taken against a leaky Cabinet Minister purely on the basis that the information was leaked and Cabinet confidentiality was breached.

Responsible government has conventions that deal with “leakers”

The principles of responsible government cover what should happen when Cabinet confidentiality is breached. If a Cabinet member breaches Cabinet confidentiality, convention is that they should immediately resign from their Cabinet and Ministerial position. Similarly, if a Minister is unable to publically support the Cabinet decision and wishes to openly object the decision, convention is that they must resign from Cabinet and their Ministerial position. The convention of resignation has existed in the Westminster System of responsible government for hundreds of years. Where a Minister fails to resign, the Prime Minister is supposed to step in and strip the “leaker” of their Ministerial portfolio.

In recent years, politicians do not appear to be taking the convention of resignation seriously. The “leaker” who fed the media information on Cabinet discussions of revoking the Australian citizenship of suspected terrorists should resign. If the Prime Minister discovers who leaked the information, the perpetrator should be stripped of their Ministerial portfolio. It is cowardly to anonymously feed the media. Responsible government provides Cabinet Ministers with two choices:

Choice 1: Engage in robust Cabinet debate. Maintain Cabinet confidentiality. Publically support Cabinet decisions.

Choice 2: Publically oppose Cabinet decision and resign.

Cabinet officials should not have a third choice of anonymously and cowardly feeding confidential Cabinet information to the media. The gradual erosion of Cabinet confidentiality should be taken seriously. Responsible government is a pinnacle of Australia’s Constitutional system. It looks like some Cabinet politicians need a refresher course.