The room where it happens

Earlier this year, public housing resident Barry Berih took the Victorian Government to court over a Cabinet decision to redevelop 44 public housing towers.

In his legal challenge, Mr Berih argued that Cabinet did not have the power to make the housing policy decision.

He also claimed Cabinet was a public authority, meaning its discussions and decisions around the housing redevelopment should be answerable to the public.

Justice Melinda Richards dismissed the legal challenge, stating Victoria’s housing legislation does not preclude Cabinet from making high-level policy decisions about public housing stock.

However, the judge paused on the question of whether Cabinet can be considered a public authority.

'If a minister is a designated public authority… why on earth would the collective body of ministers that sits at the apex of executive government not be a public authority,' she remarked in an earlier hearing for the case.

Cabinet is defined as the primary decision-making body for policy, administration and legislation in Victoria, chaired by the Premier and attended by government ministers.

Yet it is not established by legislation or mentioned in the Constitution Act of Victoria 1975, and does not have a governable set of rules or powers that can be tried in a court of law. 

Instead, the body is defined in the Cabinet Handbook as a 'process from the Westminster tradition', the United Kingdom system of government Australia’s parliamentary system is based on.

William Partlett, an Associate Professor in public law at the University of Melbourne, said as an inherited process Cabinet largely functions through unwritten customs and conventions.

'It’s a group that has existed for hundreds of years in the Westminster system and has developed gradually and incrementally over time, through conventions such as the principle of responsible government, to hopefully be accountable and responsible to parliament.'

One of these unwritten conventions is confidentiality, stated in the Cabinet Handbook to protect the 'robust deliberation' within the Cabinet room.

Dr Partlett said this convention allows ministers to have discussions without fear of sanction from public bodies such as the courts or media.

'Think of Cabinet confidentiality as comparable to parliamentary privilege,' he said. 'On the floor of parliament you are not subject to defamation law to allow for a free and open discussion, and the idea is similar with Cabinet.'

Former Labor minister Wade Noonan said Cabinet is akin to a board or committee whose core function is to deliberate, discuss and determine policies and issues of the day.

He said confidentiality is critical to presenting party unity and allowing ministers to speak on difficult or sensitive issues without fear of being curtailed. 

'As minister for police and corrections, I had some terribly sensitive issues that I was dealing with which involved significant trauma in the community, where I needed to speak really freely and honestly with my colleagues about the consequences of not taking a particular course of action,' he said.

Wendy Lovell, the current Deputy President of the Legislative Council and a previous Cabinet minister, agreed with the need for confidentiality and described Cabinet as a body where 'the decisions that actually affect the entire Victorian community' are made.

She said Cabinets help create good process in governance by providing a space for party room discussion and consensus, rather than the 'chaos that would be created by trying to decide everything on the floor of parliament'.

However, as an internally regulated structure, Dr Partlett said there is a delicate balance between allowing for this Cabinet flexibility and ensuring it acts in the public’s interest.

This balance has recently been put to the test in the parliament.

In April, members of the Legislative Council considered a motion to suspend the Leader of the Government for non-compliance with a series of motions requesting access to Cabinet documents.

The power, known as 'production of documents', allows members of the Legislative Council to order Cabinet documents be handed over to the parliament.

Governments must respond to the order, by either handing over the documents or claiming the documents need to be kept confidential, known as executive privilege, which must then be confirmed by an independent legal arbiter.

The suspension motion was led by Liberal MP David Davis who said the motion was due to the government’s 'chronic failure' to release Cabinet documents, stating the 'slowness and the obfuscation' of the government was 'not acceptable'.

He cited multiple outstanding documents, including the same Cabinet housing deliberations requested by Mr Berih in his legal challenge.

In response to the motion, Labor MP Ryan Batchelor defended delays in responding due to the 'complexity and volume' of the requests. He noted the government’s compliance with past document orders after 'deliberations of the Cabinet' and 'executive privilege' concerns had been passed.

The motion was voted down on 14 May.

Dr Partlett said the Victorian Government’s refusal to hand over documents was a 'bipartisan' problem. He said successive Victorian governments have cited executive privilege for Cabinet documents but failed to produce them for independent review.

'Both parties have forgotten where the power, the key institution is, in our form of government, it's parliament,' said Dr Partlett, 'and that includes the upper house which should have the power when it votes on motion to get documents.' 

'The executive is responsible to parliament,' he said.

From their time in the parliament, both Mr Noonan and Ms Lovell expressed support for the Cabinet model but raised ways of further improving public access to the body.

For Ms Lovell, greater oversight for Cabinet decisions means strengthening access to information from the Cabinet.

'I think the Freedom of Information laws in Victoria probably need to be strengthened a little bit to enable people to get information,' she said.

Currently, members of parliament or the community can request access to government documents under FOI laws. If refused, the request can then be referred to the Office of the Victorian Information Commissioner, who deals with the public sector’s use of personal data, for an independent review.

However, Ms Lovell says the government does not always like the OVIC ruling and can challenge FOI requests in the Victorian Civil and Administrative Tribunal.

She said her own experience, seeking information on a proposed hospital redevelopment, had been delayed by the government.

'I've had a recent case of this where I FOI'd a document, the government frustrated it at every opportunity under the act, every 45 days they would say you know, "can you redefine this" and then the 45 days starts again.’

The request was escalated to the Victorian Civil and Administrative Tribunal, where she had to organise legal representation at an out-of-pocket cost to her.

She also said she was waiting on documents relating to the proposed redevelopment of an Albury Wodonga health clinic, requested as part of the Legislative Council’s production of documents order.

A simple change suggested by Wade Noonan was to shorten the release time for Cabinet documents.  

'Deliberations and documents considered by Cabinet are held long enough where it just becomes interesting history when it's released,' he said.

'Whereas if you were to release documents in a more timely way, it would be more meaningful from the community's point of view, it might mean that there are greater lessons to be learned rather than those Cabinet considerations and documents just being a record of history.'

He also suggested governments could invest more in community cabinets, where ministers would go out to speak with individuals representing the interests of their communities throughout the election cycle to create a direct dialogue between electors and decision-makers.

'It's arguably something that the more you withdraw from in terms of engagement with your community and particularly at the Cabinet level the more susceptible you are in terms of losing touch,' he said, adding that 'one of the first lessons you learned as a member of parliament certainly in the Cabinet is that there's no room for hubris.'

On the question of whether Cabinet was a public authority Mr Noonan delivered a clear distinction.

Public authorities, he said, are the 'functional arm[s]' of government created to enact handed-down decisions from the Cabinet.

'We've got a hospital building authority. We've got an equivalent in the transport infrastructure space,' he said, 'the [public] authority is essentially charged with the responsibility of delivering on a government decision.'

He noted that while Cabinet is not always accessible to the public, it’s outcomes and decisions are.

'Ultimately the function of our democracy is reliant on a parliament working well, a Cabinet working well, and when it doesn’t, we have a history in this country of electors switching their votes and changing the government,' he said.