Law Council of Australia


COAG Legislation Amendment Bill 2021

29 October 2021

The Law Council made a submission to the Senate Finance and Public Administration Legislation Committee inquiry into the COAG Legislation Amendment Bill 2021, presently before the House of Representatives.

Schedule 3 to this Bill proposes to amend key Commonwealth legislation conferring rights of access to information by the public, the Parliament and independent Commonwealth oversight bodies, to expand existing limitations on access for Cabinet-related documents and information to also include the body known as the National Cabinet. The latter body consists of Commonwealth, State and Territory First Ministers, and was established in 2020 via a political agreement of these leaders to replace the former Council of Australian Governments (COAG) as the principal intergovernmental policy forum in Australia.

Among the legislation the Bill proposes to amend in this way is the Freedom of Information Act 1982 (Cth), Archives Act 1983 (Cth), Administrative Decisions (Judicial Review) Act 1977 (Cth), and Ombudsman Act 1976 (Cth).

The Law Council submission shared the concerns raised by many other civil society stakeholders that the Bill proposes to legislatively create a legal fiction, by deeming the National Cabinet to be a Committee of the Federal Cabinet (comprising the Prime Minister and senior portfolio ministers). The Law Council expressed concern that these amendments would operate both individually and cumulatively to weaken transparency and accountability, and that the necessity and proportionality of a wholesale exclusion of National Cabinet-related information had not been established on the information presented to the Parliament.

The Committee’s majority report, representing the views of the Government members, recommended passage of the Bill without amendment. However, the Opposition, Australian Greens and Independent Senator Rex Patrick issued dissenting reports, recommending the omission of Schedule 3, endorsing the submissions of civil society, including the Law Council.

It remains to be seen whether the Bill will proceed to debate in either chamber of the Parliament. In the event that it is called on for debate, it is likely that non-Government members will move amendments to omit Schedule 3. (For example, Senator Rex Patrick has circulated amendments that he intends to move in the Senate.) The Law Council will continue to monitor progress of the Bill and any proposed amendments, and may engage in further public and parliamentary advocacy and engagement as needed.