Report 18

Opinions on Ministerial Notifications

Appendix 1: Cabinet confidentiality

Cabinet confidentiality is a long established principle that aims to protect the deliberations and decisions of Cabinet. The practice of classifying Cabinet information in confidence comes from the Westminster system in the United Kingdom and does not stem from any legislation. It allows Cabinet Ministers to freely debate policies and agency proposals as part of government decision-making.

The classification of information as Cabinet-in-confidence (CIC) is not simple. While it is important that Cabinet information is kept in confidence; the principles of public interest, governmental transparency and parliamentary access to information are also vital.

There is limited guidance available for agencies for determining if information is subject to CIC. The Department of the Premier and Cabinet (DPC) is the Cabinet Secretariat and provides guidance to Western Australian agencies on Cabinet processes. The DPC Cabinet Handbook, designed to assist officers to understand the Cabinet process and prepare papers for submission to Cabinet, says:

The confidentiality of Cabinet documents, discussions and decisions is a long established principle and has been regarded as essential for the maintenance of Cabinet collective responsibility. [1]

and that

…Cabinet records includes Cabinet agendas, submissions, attachments to submissions, comment sheets and decisions. [2]

The DPC Cabinet Handbook does not provide guidance on whether CIC applies to documents prepared to help inform submissions.

The Commonwealth Cabinet Handbook and the New South Wales Department of Premier and Cabinet paper on cabinet conventions contain similar descriptions in their focus on Cabinet minutes, agendas, programmes, submissions and correspondence.

The Western Australian Freedom of Information Act 1992 (FOI Act) details a number of government documents that are exempt from information requests from the public, as they would reveal the deliberations or decisions of an Executive body[3]. The FOI Act also specifies that factual, statistical, scientific or technical information is not exempt unless it would reveal deliberations and decisions of an Executive body[4]. While the FOI Act provides more examples than the DPC Cabinet Handbook, it does this for the purpose of assessing freedom of information requests, which differ in purpose from the opinion required from the Auditor General. It also does not contain a definitive list of documents which may fall under CIC.

While the majority of sources refer to types of documents, it is important to consider each on its merits. Previous advice we have received from the State Solicitor’s Office cites Australian case law which states that the immunity from disclosure of documents which can be considered Cabinet documents is not absolute.

[1] Department of the Premier and Cabinet, Cabinet Handbook 2013, p. 9.

[2] Ibid. page 13.

[3] Schedule 1, s.1.

[4] Ibid. Schedule 1 – 1.(2).

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