—Renato Saeger Magalhaes Costa, The University of Queensland
Secrecy is widely believed to be the antithesis of democratic values. As a general rule, the electorate should always know what the government is doing, how decisions are made, and why a such-and-such course of action has been taken. Many institutions exist to disclose relevant information to the people and enable them to hold the executive to account. Think of institutions like Parliamentary Question Time, Freedom of Information Acts, the Ombudsman, and merits review of administrative decisions.
Nonetheless, some degree of secrecy can also uphold democratic values. Witness protection schemes, national security and anti-terrorist actions, and the confidentiality of cabinet meetings and documents shield those involved in such decision-making processes from external pressure and influence. Secrecy can help guarantee the effectiveness of government measures and secure a truth-telling process aimed at achieving the best legal and political outcomes in a particular situation. To a certain extent, secrecy can enhance democracy.
In past weeks, Australia has been in turmoil over the secret appointment of the former Prime Minister, Scott Morrison, to ministry positions associated with five government departments. It has been recently revealed that in April 2021, the then Prime Minister recommended the Governor-General of the Commonwealth that he be appointed to administer the Department for Industry, Science, Energy and Resources. The Governor-General, following the advice of the Prime Minister and in accordance with the conventions of responsible government, appointed Mr Morrison to this position. It was later found that, between March 2020 and May 2021, Mr Morrison was also appointed to four other departments. All in secret. When these appointments became public in July 2022, questions started to be asked about them. The current Prime Minister of Australia, Mr Anthony Albanese, said he would find legal advice on the legality of his predecessor’s secret appointments. One such advice came from the Solicitor-General of the Commonwealth, who said that Mr Morrison’s secret appointments ‘fundamentally undermined’ the principle of responsible government.
The main controversy has concerned the secrecy of the ministerial appointments. Having more than one Minister administering a single department is not illegal in Australia. Thus, the Governor-General, following the advice of the Prime Minister and swearing in Mr Morrison to the respective departments, has not been found to have acted improperly. It is the lack of publicity that has triggered most of the concern.
Mr Morrison justified the appointments saying they were a ‘safeguard’ in a ‘very unprecedented time’. The excuse does not stick. He has not used the powers in such situations related to the coronavirus Pandemic (in fact, he did not use them at all, except to override a particular decision of another Minister on a subject not remotely related to the Pandemic). But even if multiple appointments were warranted, this does not justify the secrecy in which the appointments were shrouded.
The secrecy undermines one of the pillars of the Commonwealth of Australia Constitution inherited from the long-standing tradition of the British common law: responsible government. According to the principle of responsible government, the Governor-General of the Commonwealth must always follow the advice of the Prime Minister and other responsible Ministers. Ministers are members of Parliament elected by the people of the Commonwealth and are accountable to Parliament (and, ultimately, to the electorate). One of the implications of the principle of responsible government is that Ministers, the heads of the departments of State, are individually responsible for the decisions, actions, and omissions of their respective departments. If a Minister is the head of a department, the convention demands that that Minister respond on behalf of the department. Secrecy undermines the individual responsibility of Ministers. Secret Ministers cannot be held to account by Parliament. And unaccountability does not sit well in a democratic society.
The current Prime Minister, Mr Albanese, has been praised for defending these democratic values by exposing his predecessor’s secret appointments. However, Mr Albanese must remember that he cannot be the bastion of responsible government by keeping secrets himself.
In 2020, the LNP Government transformed a previously bureaucratic intergovernmental organ called COAG (the Council of Australian Governments) into what has become known as the National Cabinet. The National Cabinet was created to coordinate national responses to the coronavirus Pandemic. It was formed by the government leaders of the States, Territories, and the Commonwealth. Even after the change of government in May 2022, the new ALP Government has kept this body alive and operative.
The National Cabinet is an irresponsible executive body with secrets of its own. Calling it a ‘cabinet’ is misleading. The National Cabinet is not a real cabinet in the traditional Westminster sense. It does not answer to a Legislature. The convention of cabinet solidarity does not apply to it. However, it has claimed that its documents and deliberations have the same status as cabinet documents so far as their secrecy is concerned. Although the National Cabinet is not responsible to any Parliament, and although it is not a cabinet, it operates in an atmosphere of secrecy. And Mr Albanese does not seem to be bothered by this.
When asked about the ambiguity of criticising Mr Morrison’s secret appointments and not disclosing the documents of the National Cabinet to the public during, Mr Albanese summarily dismissed the question. His avoidance of the issue comes as little surprise. He knows it is a contradiction in terms to rail against the secrecy of Mr Morrison’s appointments and, at the same time, maintain the confidentiality of the National Cabinet documents.
Secrecy is only justified in limited and specific circumstances. Ministerial appointments and the deliberations of the so-called National Cabinet are not exceptions to established principles of governmental openness and responsibility. Secret ministerial appointments prevent Parliaments from holding Ministers to account. Because the National Cabinet is not responsible to any particular Parliament, it should not consider itself entitled to the privileges of secrecy. Shrouding government decisions in unwarranted secrecy does not enhance democracy. Rather, it undermines it. If the current Prime Minister is going to make a stand against the erosion of responsible government in Australia, he should do so consistently. It’s easier to point at the speck in someone else’s eyes without realising there’s a log in your own.
Suggested citation: Renato Saeger Magalhaes Costa, The Speck in The Prime Minister’s Eyes: Secrecy and Responsible Government in Australia, Int’l J. Const. L. Blog, Sept. 29, 2022, at: http://www.iconnectblog.com/2022/09/the-speck-in-the-prime-ministers-eyes-secrecy-and-responsible-government-in-australia/