Events in the Government and Opposition in recent days are displaying what are potentially serious flaws in the concept of cabinet governance as we know it.
The specific events are the reports that Kevin Rudd was critical of the new health package, but in particular that both the package and the flood levy were introduced through committees and cabals rather than an open cabinet.
Meanwhile the fracturing in the Liberals has its source in the decision by Tony Abbott to announce a plan to cut aid to Indonesia over the objections of his Foreign Affairs spokesperson (and deputy).
Perceived accepted practice is that both Government and Oppositions make policy decisions collectively (in Cabinet and Shadow Cabinet) and that once made there is a collective solidarity on the decisions made. The practice has always been more real for Government than Opposition, however the passion of modern oppositions (well at least the coalition since 2004) to always want to be a "Government in waiting" has resulted in them needing to pursue an active process of mimicking government.
The practice has not always been as perceived. However, the deviation from perception are increasing. They are increasing for three fundamental reasons. The first two are technology related, the third is a governance question.
The first reason is the way technology has created a "24 hour news" environment. This has stolen from politicians the key ingredient of time - there is a need to respond immediately, or at the very least more quickly than prudent. Tony Abbott went for apparent low hanging fruit on foreign aid because of the perceived need to target savings quickly and was misled by a concerted One Nation e-mail campaign to think the decision would be warmly received.
A similar news cycle factor underlines the decision to keep the gap between a cabinet discussion on the health package (Thursday) and the COAG meeting to discuss it (Sunday) short. To a degree the "leak" suggesting Rudd stormed out of cabinet provided good news cover for the Government - the story was Kevin rather than analysis of the package.
The second reason is the way technology facilitates leaks. Cabinet decisions and discussion used to be the epitome of secrecy. Just how is it that Kevin's behaviour at the meeting is becoming news (unless it really was a clever ploy to distract attention from discussion of the policy). At least in the Whitlam Government this kind of re-litigation occurred in the party room, not the media.
The third reason is that Cabinet as described in the Cabinet Handbook is
a product of convention and practice: it is not mentioned in the Australian Constitution, and its establishment and procedures are not the subject of any legislation. It is for the government of the day, and in particular the Prime Minister, to determine the shape and structure of the Cabinet system and how it is to operate.
The formal process of Government is actually conducted by the Executive Council, the handbook for which
describes the council as;
The Governor-General exercises the executive power of the Commonwealth under section 61 of the Constitution of the Commonwealth of Australia. This power extends to the execution and maintenance of the Constitution and laws of the Commonwealth.
Section 62 of the Constitution establishes the Federal Executive Council to ‘advise the Governor-General in the government of the Commonwealth’.
Members of the Executive Council are chosen, summoned and sworn in by the Governor-General and hold office at the Governor-General’s pleasure. As with most powers of the Governor-General under the Constitution, the power to appoint and dismiss executive councillors is exercised on ministerial advice, in this case the advice of the Prime Minister.
Interestingly all former ministers stay members of the Council, but only current Ministers are summonsed for meetings. The fact that the GG only acts on the advice of the PM is also part of convention not law of any kind. (Interesting constitutional law point, do the conventions have legal standing in the same way as the common law is built?)
The difference between Cabinet and the Executive Council can be seen in the example of making a senior government appointment, such as the Chair of the ACCC. The Cabinet Handbook requires the responsible minister to advise the PM of the proposed appointment, and for one this senior the Cabinet Handbook suggests it would be referred to Cabinet. Cabinet could discuss the recommendation and ask what alternatives had been considered etc. The Cabinet decision (minute) would be sent to the GG in Council. That is where the actual appointment is made, but really no discussion about alternatives can ensue. The most that is likely would be a discussion about process.
The GG in Council is a potentially effective safeguard of due process, it is a potential restraint (but not the only one) on a rogue government.
But it really is time that we decided that the actual process of government be more than just the whim of the PM, that is how cabinet works and who is called to Council meetings.
While at it we should consider whether the default position that all Cabinet discussion remains secret for thirty years (being reduced to twenty) is appropriate or instead consider the New Zealand approach where the default is they become public immediately.
What we have is no longer appropriate and needs to be revised.
Novae Meridianae Demetae Dexter delenda est
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