Attorney general says he was unaware documents on home insulation from Labor cabinet had been transferred in January

Cabinet documents from the previous Labor government have been handed over to the royal commission into the home insulation scheme on the orders of the prime minister, Tony Abbott.



The revelation that the documents had been transferred nearly a month ago came to light during Senate estimates committee hearings on Monday. The attorney general, George Brandis, said earlier in the day he was not aware any documents had been handed over.

Brandis attempted to deflect Labor complaints that the decision defied more than a century of tradition surrounding the confidentiality of cabinet discussions. He pointed to a previously undisclosed piece of correspondence, a 31 January letter from the Australian government solicitor asking the royal commission to proceed on the basis documents would be aired publicly “only in the rarest cases”.

In a separate committee hearing, the deputy secretary of the department of the prime minister and cabinet (DPMC), Elizabeth Kelly, confirmed that the cabinet documents were handed over after the department sought advice from the government solicitor.

The committee was told Abbott ordered the documents be given to the royal commission after the legal advice was relayed to him by the department.

“They are for the commission to inspect on a private basis and if they are to be disclosed to anyone outside of commonwealth who hasn’t previously seen them the commonwealth has asked the commission that it be notified and be given the opportunity to make a claim under the public interest immunity privilege for protection of that material from publication,” Kelly said on Monday afternoon.

Kelly said the department “implemented a decision made by the prime minister”.

Kelly guaranteed to the finance and public administration legislation Senate committee that neither Abbott nor anyone in his office had viewed the cabinet documents.

Brandis tabled a letter at the legal and constitutional affairs committee on Monday night showing the government solicitor had handed over cabinet documents to the royal commission on 31 January. He confirmed he had discussed the matter with Abbott, but said he had been unaware of the letter until “a few moments ago”.

The secretary of the attorney general’s department, Roger Wilkins, who had earlier answered questions about the cabinet documents matter, said he “hadn’t seen that letter this morning”.

The letter said the enclosed documents included cabinet submissions, minutes and other documents considered by cabinet; cabinet notebooks which were the handwritten notes on cabinet proceedings; briefings prepared for the prime minister and ministers before cabinet; drafts of cabinet submissions; and other documents that disclosed the deliberations and decisions of cabinet.

The letter said the DPMC, which had custody of the documents, was reviewing other cabinet files and the cabinet notebooks to look for other relevant material to hand over “as soon as it is able to do so”.

The 31 January letter urged the commission to inspect the documents on a private basis for the purpose of assessing their potential relevance, and noted the commission had the power to investigate the matters without the contents necessarily becoming public.

The author of the letter, Kristy Alexander, a senior executive lawyer at the office of the government solicitor, said “particular care” should be taken in handling and storing the documents because they belonged “to a well-recognised class of documents which attracts public interest immunity”.

She said the commonwealth had decided not to withhold production of documents on the basis of a claim of public interest immunity, partly because the commission’s terms of reference emphasised the public interest in the full exploration of the claims of harm caused by the home insulation program.

If the commission intended to disclose the contents of the documents to others, the commonwealth “expects that it will be provided with an opportunity to assert the public interest in preserving the confidentiality of cabinet documents”. The letter said other people, such as former cabinet ministers, “may have an entitlement, and/or wish, to be heard on the question before any final decision is made by the commission”.

“The commonwealth assumes that the commission will proceed on the basis that it is only in the rarest cases that the public interest in disclosure outweighs the public interest in preserving the confidentiality of cabinet documents,” it said.

Asked on ABC Radio on Monday morning whether documents had been handed over, Brandis said: “Not so far as I am aware. This of course is a matter for the royal commissioner … Under the Royal Commissions Act, he has wide powers of summons; he is entitled to ask for any documents that he chooses, and if and when the royal commissioner asks for documents, including cabinet documents, then the commonwealth will consider how the confidentiality of those documents is best protected.”

On Monday night the shadow attorney general, Mark Dreyfus, said Brandis needed to explain his earlier claims that no documents had been handed over. Dreyfus said the public had heard “three different positions from the government on the same day”.

Brandis told Sky News the opposition had confused “the two issues of whether the documents would be supplied and whether the documents would be made public”.

The home insulation scheme was one of the policies devised to stimulate the economy during the global financial crisis and offered rebates for people who installed the installation.

The swiftness with which the program was implemented resulted in many inexperienced and unqualified people taking on the work as demand exploded.

The deaths of four young insulation installers – Matthew Fuller, Rueben Barnes, Marcus Wilson and Mitchell Sweeney – have been linked to the scheme.

The leader of the government in the Senate, Eric Abetz, was representing Abbott in the finance and public administration estimates and argued with Labor senator John Faulkner about whether a precedent had been set.

Faulkner said it was “an open and shut case of breach of literally 113 years of government and cabinet practice and convention”. Abetz argued that cabinet documents had been made available in the inquiry into the treatment of Mohammed Haneef, who was wrongly accused of being a terrorist in 2007.

When Kelly was asked what the consequences would have been of not handing the document over, she replied: “I only know it’s a criminal offence to fail to comply with a summons from the royal commission.”

A total of 4,500 documents, excluding the cabinet documents, had been handed to the royal commission by 7 February. Kelly was unable to say exactly how many cabinet documents were now in possession of the royal commission.

The former prime ministers Kevin Rudd and Julia Gillard, as well as five former Labor ministers, have reportedly been summoned to appear before the royal commission.