It was revealed last week that prime minister Tony Abbott personally authorised the disclosure of the former Labor government’s cabinet papers in response to a summons by the royal commission into the Rudd government’s botched home insulation scheme.

The documents were released on the basis that they will be kept confidential by the royal commissioner, who must seek permission from the government before releasing them publicly.

The release of the documents has been widely debated. Critics of the move, such as constitutional lawyer George Williams, say it is a breach of cabinet confidentiality and undermines the wider public interest objectives cabinet confidentiality exists to protect. Federal attorney-general George Brandis argues that it is a necessary step for the issue to be investigated properly, saying:

It would be hard to see that the royal commissioner can do his job as fully as his terms of reference require him to without having some capacity to inquire into the internal workings of government.

The voluntary release of a former government’s cabinet documents by a new government risks undermining cabinet confidentiality with a detrimental flow on effect of chilling cabinet deliberations. Ministers may be reluctant to air disagreements or reservations for fear they will be used to score political points at a later date.

This risks undermining debate and discussion in cabinet. That would be to the detriment of collective decision-making and would raise the danger of the creation of a prime ministerial dictatorship.

Powers of the royal commission and exemptions

Royal commissions have very strong investigative powers, conferred by statute: the Royal Commissions Act 1902. This allows a royal commission to investigate thoroughly those matters within its terms of reference. This usually has an ultimate objective of achieving better understanding and accountability for catastrophic events or systemic failings in both government and the private sector.

Royal commission powers include the power to order the production of documents from the government. However, the government can claim immunity in response to a request. A person also does not have to comply with a request if there is a “reasonable excuse”.

Public interest immunity extends to documents that reveal the deliberations of cabinet. This is different to the myth that once a document is wheeled into the cabinet room it is exempt from disclosure, although the abuse of the privilege in this way probably occurs in practice.

Cabinet confidentiality and the public interest

The law protects cabinet confidentiality against production of documents to the parliament, in the courts and to inquiries such as royal commissions. Cabinet documents are protected from freedom of information requests under an unconditional exemption.

In response to last week’s events, Australian commentators across the political spectrum have indicated considerable support for the argument that there is a great public interest in protecting these documents. Malcolm Fraser and Bob Hawke, former prime ministers of both persuasions, have come out in defence of the convention.

Cabinet confidentiality, which under the doctrine of collective responsibility to the parliament presents a united public face, ensures that ministers can argue and debate and disagree without the danger of those disagreements being used to destabilise the government.

Should we reconsider cabinet confidentiality?

Some commentators have raised questions about whether the wide legal protection of cabinet confidentiality should be reconsidered. The argument is that in the promotion of greater transparency in government, this class of immunity ought to be removed, with a limited immunity retained for national security purposes.

No doubt, cabinet confidentiality squarely raises the age-old tension between transparency and accountability on one hand and the need for some secrecy to ensure effective governance on the other.

Writer Elle Hardy argues that the Australian people are smart enough to understand that cabinet will sometimes disagree:

The notion that cabinet discussions are sacrosanct is insulting to the public, who appreciate politicians are not of one mind on all issues.

However, recent Australian history has left me unconvinced that the media and the public are beyond scandalising disagreement in cabinet when leaks do occur. For example, the revelations of Julia Gillard’s earlier cabinet positions in relation to paid parental leave and the emissions trading scheme were not treated in the media with measured understanding of the need for disagreement and debate at the cabinet table. These leaks became part of a concerted campaign to undermine her leadership when she first took the prime ministership from Kevin Rudd.

Further, Hardy argues that “details of cabinet discussions are frequently leaked to the media”. This is undoubtedly the case. However, these leaks currently remain a question of rogue members and discipline and not routine government practice.

It is a big step from this state of affairs to a position where an incoming government releases cabinet documents as a matter of accepted practice. The chilling effect would be far greater than the possibility of leaking by a disgruntled cabinet colleague.

AAP/Lukas Coch

Responsibility to protect cabinet confidentiality

It appears precedents do exist for the release of cabinet documents to royal commissions. The Department of Prime Minister and Cabinet has referred to the release of some cabinet materials to the Clarke Inquiry into the Muhamed Haneef affair and to the Centenary House Royal Commission.

But two things should be noted before we accept too readily that this most recent release is not in breach of convention.

First, the documents in the recent saga are those of a former cabinet – a former government – that has already been voted out. These documents are usually quarantined from the next government, placed into the archives and not released for 30 years. This is immediately distinguishable from the situation of a government releasing its own documents.

Second, the royal commission itself seems to have been established purely for the purpose of accessing these documents. A number of government and parliamentary inquiries into the home insulation scheme have already been held to determine the causes of its mismanagement and the tragic deaths associated with it.

What differentiates the royal commission from these earlier investigations is its pointed terms of reference to determine what happened around the cabinet table.

One thing is certain: it is not the royal commission’s job to protect the public interest in cabinet confidentiality. It is the government’s responsibility to uphold the convention that cabinet documents are not released.

The move to disclose the documents is a short-sighted failing by the Abbott government, one that threatens to undermine an important privilege with little thought as to its long-term consequences for the public interest.