The Department of Prime Minister and Cabinet has been accused of shrouding national cabinet in secrecy and rejecting legal findings that the intergovernmental body is not subject to cabinet-in-confidence exemptions.
Fronting a Senate inquiry looking into the proposed changes designed to stop public transparency of national cabinet details, PM&C was left to defend an onslaught of scrutiny from Labor and crossbench senators over its adamant position on national cabinet being a Commonwealth cabinet committee.
A legal battel lodged by independent Senator Rex Patrick in the Administrative Appeals Tribunal ruled national cabinet was not an official Commonwealth cabinet and could not be subject to the same confidentiality clauses preventing freedom of information requests.
Legal experts who also gave evidence to the inquiry labelled the draft bill as "woolly thinking" which completely undermined the constitution and "crushed" transparency.
Labor Senator Tim Ayres questioned why the department had put forward a submission to the inquiry, which mirrored the debunked claims it made in the AAT court helmed by Justice Richard White.
"The argument put in the department's submissions is essentially the same argument that was put to Justice White," Mr Ayres said.
"Why should the Senate be persuaded by a set of arguments that Justice White rejected entirely?
"I can't understand why the Department's coming back to us with the same argument. The same fiction."
Senator Patrick also blasted the department for not coming to the committee prepared, following a large number of questions taken on notice.
"Its quite disturbing that we're still getting errors," Mr Patrick said.
"It doesn't seem like anyone's come prepared. People are getting facts wrong about simple things that are in the cabinet handbook, which I would anticipate you wouldn't know inside out."
Claims of the Morrison government attempting to keep national cabinet secret coincide with the International Right to Know Day on Tuesday, which call for increased political transparency.
PM&C assistant secretary John Reid said: "The government's view remains that national cabinet was established and intended to be established as a committee of cabinet, as was made clear by the Prime Minister".
Earlier, PM&C secretary Phil Gaetjens was slammed by Labor for being "hubris or cowardice", after failing to appear before inquiry to explain a government push to make key details on national cabinet inaccessible to the public.
Mr Gaetjens failed to attend in person, with three first assistant secretaries slated to appear in his stead, but Mr Ayres said they had never attended national cabinet, and demanded to know why the secretary could not appear that afternoon.
The committee has also heard from a slew of legal experts which warn the proposed legislation change to shroud national cabinet in a shroud of secrecy, is unconstitutional and undermines the pillars of federalism.
"Mr Gaetjens is the only person who has first-hand knowledge of the operations of national cabinet. Indeed, he is a principal architect of the bill that has been put before the Parliament," he said.
"He's led the department and the government to these humiliating defeat in the tribunal.
"This piece of legislation is an effort to ... [put] the black hole of secrecy over Commonwealth state relations that have never been the subject of secrecy before. So it's either cowardice, or hubris."
Senator Ayres said the committee had been provided a letter from the department claiming Mr Gaetjens was travelling and unavailable.
But he claimed, with Prime Minister Scott Morrison having arrived in Australia overnight and much of the committee conducted via videolink, there was no reason Mr Gaetjens could not given evidence this week.
"We either take our role seriously as a committee, reviewing this legislation, or we don't. And Mr. Gaetjens is the principal architect of this. He's also the most partisan department secretary in Australian history," he said.
Independent senator Rex Patrick, who successfully challenged the rule at the Administrative Appeals tribunal, said the ruling criticised the government for relying on hearsay and not the evidence of people who had attended national cabinet.
"This committee risks steering into danger if it doesn't take primary evidence on the purported importance of the national cabinet, from the government's perspective. And I think that we should be hearing from Mr Gaetjens," he said.
University of Sydney law professor Anne Twomey said the proposed legislation to shroud national cabinet in secrecy was "woolly thinking" and undermined federalism and the constitution.
Professor Twomey noted the "frankly bizarre legislation" to accept national cabinet as no more than a Commonwealth committee, would thwart it being an equal intergovernmental body and instead provide a significant power to the Prime Minister and the federal government over states and territories.
"That does have major consequences. It would mean if the Prime Minister decided that he or she did no longer like whoever the relevant premier of Victoria is, they could just appoint someone else to represent Victoria. Maybe even from a different party," Professor Twomey said.
They University of Sydney professor, who was speaking at the committee in a private capacity said the structural inequality between the varying levels of government, meant national issues raised by state and territory governments could be skirted around by the Commonwealth.
"If you have a body that is not a truly intergovernmental body then it is going to be incapable of dealing with issues," Professor Twomey said.
"You end up in circumstances where issues of great importance to the nation as a whole that need cooperation between the Commonwealth and the states are simply not dealt with, if say for internal political reasons, whoever is in charge of the Commonwealth doesn't want to address them."
Premiers and chief ministers were invited by the Senate committee to give evidence about the dealings of national cabinet, however no response has been made.
Independent Senator Rex Patrick said: "How fearless is that? Pretty appalling."
Fiona McLeod SC said the confidentiality clause over the bill "subverts" open government and is "untenable".
Geoffrey Watson SC who also appeared in a private capacity said he was afraid "transparency has been crushed" by the Coalition government.
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