ICAC Ruling on Cabinet Documents in Operation Keppel Public Inquiry
Dr Ashley Tsacalos
Partner, Clayton Utz/ Honorary Professor, University of Wollongong
On 18 October 2021, the ICAC resumed its public inquiry pursuant to s 31 of the Independent Commission Against Corruption Act 1988 (NSW) (ICAC Act) in its Operation Keppel investigation.
On 17 October 2021, the Assistant Commissioner, The Hon. Ruth McColl AO SC, handed down a ruling regarding the course that should be taken in the Public Inquiry in relation to Cabinet documents and Cabinet deliberations. The Ruling (para [5]):
"concerns the extent and manner in which Counsel Assisting may examine witnesses and tender documents which are described as Cabinet Deliberations because they record the actual deliberations of Cabinet or a committee of Cabinet and Cabinet Documents, being documents prepared outside Cabinet, such as reports or submissions, for the assistance of Cabinet".
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The Ruling includes a discussion of ICAC's powers and the relevant sections of the ICAC Act as well as the principles applicable to public interest immunity claims, particularly in an investigative context.
The outcome is detailed in paragraph 57 of the Ruling. However, in essence, particular Cabinet Documents could be tendered and would form part of the public record of the Public Inquiry (and be published on ICAC's website) to the extent that they related to decisions by Cabinet (or a committee of Cabinet) concerning the Australian Clay Target Association Inc or the Riverina Conservatorium of Music between 2012 and 2018 (including submissions to Cabinet or a committee of Cabinet as well as advice or speaking notes in relation to any such submissions). The Ruling also states that questions that disclose the contents of Cabinet Documents or the content of Cabinet Deliberations will be permitted only to the extent that they are "reasonably necessary to expose to the public, and make it aware, of evidence relevant to the allegations being investigated in the Public Inquiry" (para [57(c)]).
A link to the Ruling can be found here: Ruling regarding Cabinet documents and deliberations
Independent Strategic Infrastructure Lawyer and ADR Practitioner
3 年I appreciate the need for the deliberations of cabinet to be kept confidential (who said what etc), but once cabinet has reached a decision I think it would be better if the decision made and the factors considered in reaching the decision were made public. NZ publishes official minutes of cabinet meetings that do just this, including the papers prepared for cabinet setting out options and recommendations. Secrecary would be appropriate if disclosure of the decisions would be against the public interest, for example decisions concerning national security, defence, international relations, the financial or property interests of the Commonwealth, the national economy, legal professional privilege and personal privacy and the like. For those who are interested in the origins and rationale for cabinet secrecy, here's a good paper on the topic from our Parliamentary Library: https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BN/0910/CabinetConfidentiality