Cabinet government was undermined in recent years, as the Prime Minister acknowledges. Although this is central to our constitutional system, the cabinet is not mentioned in the Constitution, only the Executive Council. Nor indeed is the office of prime minister.
It was an indication of the desperation of the republican movement in 1999 that these absences were used as a criticism of what was dismissed as a “horse and buggy” constitution.
But as we have pointed out here, the Constitution was never intended to be a constitutional primer. It was a compact between the people of the States to form our indissoluble Federal Commonwealth under the Crown.
The Constitution assumes the continuation of the Westminster system, which is underpinned by the requirements in the Constitution concerning proposed laws appropriating revenue or moneys, or imposing taxation.
The cabinet, consisting of the senior ministers of the Crown, is collectively responsible for the conduct of the government.
The constitutional principle is that if the government loses the confidence of the House of Representatives it must resign.
Now our Australian cabinets are different from the US Cabinet. Our cabinet effectively governs, while the United States cabinet is advisory. There the executive power is vested in one person, the President.
The President is responsible to no one, not even Congress.
No matter how he poorly he performs, the President cannot be removed unless he is found guilty of a crime in a trial before the Senate on articles of impeachment approved by the House.
The Australian system is more subtle. While the executive power of the Commonwealth is vested in the Queen and exercisable by the Governor-General, he or she is advised by the Federal Executive Council.
Important decisions are thus made in the cabinet, and given legal effect by the Governor-General acting on the advice of the Executive Council. (It would be a mistake to think the Governor-General is a rubber stamp –but that is another issue.)
Until the Rudd government, it was understood that cabinet submissions and related material generally had to go to the cabinet office in time for them to be circulated to everyone at least 10 days before the meeting.
“The advantages of such an arrangement are obvious,” declared Christopher Pearson in “Cabinet found governing a puzzle,” The Weekend Australian 3-4 July, 2010.
“There is far more effective scrutiny of contentious matters and plenty of time for ministers to confer with colleagues about anything problematical and to iron out problems before a measure is formally debated, or to ensure delay for further consideration.”
“Everyone has a chance to reflect on the implications of submissions for their own department and for the government's overall priorities.”
…Cabinet government under Kevin Rudd…
Christopher Pearson cites a “memorable” piece on the inner workings of the Rudd government. This was by Laura Tingle in The Australian Financial Review where she said :
"When ministers arrive for federal cabinet meetings, they find a folder waiting in their spots which they can look at but not take out of the room. Inside are decisions already taken by the cabinet's expenditure review committee and the ultimate power in the Rudd government, the Strategic Priorities and Budget Committee (SPBC)."
The SPBC was the “kitchen cabinet”, “camarilla”, “gang of four” or “politburo “ made up of Kevin Rudd, his deputy Julia Gillard, Treasurer Wayne Swan and Finance Minister Lindsay Tanner.
The initial justification for this was the GFC, the Global Financial Crisis, and an alleged need for urgent action.
… cabinet avoidance or evasion …
But it became a habit.
Christopher Pearson says it extended to health and hospitals policy, changes to the home insulation program, the national schools curriculum, the Henry tax review, the emissions trading scheme negotiations with Malcolm Turnbull, the dumping of the ETS and, last but not least, the replaced resource super-profits tax on mining.
According to Laura Tingle, "Ministers are expected to endorse the decisions without discussion, and usually they do. Most are flat out trying to determine whether decisions have an impact on their own portfolio, while attending to what is being discussed in cabinet."
One minister told her: "I really prefer if I'm down the list [of business to be discussed]. It gives me time to have a look at the submission."
She makes it clear the minister was talking about submissions that he'd been given, sight unseen, to present to cabinet.
Christopher Pearson says that issuing papers to be read at the last minute — even as they're being considered — and not allowing their removal from the room is a crude tactic to prevent leaks. Its one certain outcome, he says, is dumbing down debate.
…if PM Rudd had applied the 10 day rule…
Christopher Pearson argues that if the 10-day rule been in operation, “it's unlikely the ETS would have been abandoned so abruptly — even if the eventual outcome was to delay it — and the resource rent tax certainly would have been stress-tested before it was announced.”
“Proper cabinet process would have saved Environment Minister Peter Garrett from the embarrassment of first learning the ETS had been dropped from reports in newspapers.”
“Resources Minister Martin Ferguson would have known about the resource super-profits tax in advance rather than finding out about it from the electronic media.”
“Simon Crean, at that time trade minister, would not have been in a position where he had to ask Department of Foreign Affairs and Trade officials to "improve their links with other departments" so there were fewer surprises about developments Rudd wasn't telling him about.”
Christopher Pearson says that for nearly two years “most of this government's cabinet ministers have been accepting collective responsibility for a range of decisions in which they had little or no say.”
He says that they allowed this is to their discredit. But, he says, a “different order of complicity attaches to Rudd's deputy and nemesis,” Julia Gillard.
…PM promises to restore cabinet government…
All sides agree that government by the "gang of four" or "politburo" was inimical to good government and contrary to sound constitutional practice.
The Prime Minister, Julia Gillard, has promised to restore cabinet government. She says the government had "lost its way".
The first major decision of the government was to abandon the super profits tax and replace it with minerals resource rent tax.
The government press release began:
“Today the Gillard Government is proud to announce a breakthrough agreement on improved resource tax arrangements that addresses the concerns of the resource industry.”
This was approved by the Prime Minister, the Treasurer and Minister Ferguson on the government side and three major foreign investors. Another politburo?
It was not stated to be subject to cabinet approval.
Plus ça change, plus c'est la meme chose.
That is, "The more things change, the more things stay the same."