Schwirtlich, Anne-Marie --- "Showcasing Cabinet" [1998] ALRCRefJl 15; (1998) 72 Australian Law Reform Commission Reform Journal 67

• Reform Issue 72 Autumn 1998
• This article appeared on pages 67 – 69 of the original journal.
• By Anne-Marie Schwirtlich*

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Reform Issue 72 Autumn 1998
This article appeared on pages 67 – 69 of the original journal.

Showcasing Cabinet

By Anne-Marie Schwirtlich*

Headlines in the press on the first few days of each calendar year tell of Cabinet secrets just released, of

confidences now revealed and wrangles exposed. This year was no different. The headlines on January 1 exclaimed along the lines of ‘30-year-old files revive mystery’, ‘Holt briefcase reveals internal feud but no clue to disappearance’, ‘Holt Cabinet divided on race relations’ and ‘A riddle solved after 30 years’.

These media flashbacks to the disappearance of former Australian Prime Minister Harold Holt while swimming off Victoria’s Mornington Peninsula on December 17, 1967 and other events of that year are a direct result of the access provisions of the Archives Act 1983. The Archives Act requires the release of Commonwealth records for public access once they are 30 years of age, unless there is a clear reason for exempting them. Exemptions from access can only be imposed if the records or information fall within certain categories specified in the legislation.

Each year, the National Archives of Australia (NAA), formerly Australian Archives, makes available the Cabinet records of 30 years ago. The records of Cabinet represent the top tier of the system of Commonwealth government recordkeeping. They consist of the submissions put to Cabinet for consideration and the decisions resulting from this deliberation. Cabinet considers matters across the range of ministerial responsibility. In 1967, some of the key issues considered by Cabinet included Australian commitments to Vietnam, the suitability of US troops being allowed to visit Australia for rest and recreation leave, sterling devaluation, the use of VIP aircraft, the Voyager affair, non-European migration and constitutional development in Papua New Guinea.

To assist members of the media to understand and use the Cabinet records, they are made available under embargoed conditions from the beginning of December. A media briefing is conducted to launch the embargoed period.

Why are Cabinet records important?

Cabinet records are showcased in this way for several reasons. They document the issues considered by the most senior level of government and thus are an extremely significant component of our public record. They also distil a year in a very useable fashion. In addition, they allow the NAA, on an annual basis, to provide Australians with an opportunity to reflect on the centrality of archives because Cabinet records are a convenient package of evidence of the Commonwealth government’s thinking. The records can augment our knowledge and understanding and assist us to appreciate the threads that run through national debate.

Two important elements in the national debate common to both 1967 and 1997 were the discussions about the responsibilities of the Commonwealth to Indigenous people in terms of its capacity to make laws and Australia’s role as an international citizen in respect of its role as a territorial administrator in Bougainville. Articles with titles like ‘Documents show PM is wrong over native title’ and ‘New blow to PM on Wik’, written as a result of the latest Cabinet papers’ release, clearly make the point that events 30 years ago and the public record illuminating them can be relevant and assist us in understanding the issues before us today.

What can be dangerous, for archivists, readers and analysts alike, is any facile assumption that the motivations, assumptions, circumstances and context prevailing 30 years ago apply today. Clumsy use of any evidence is unhelpful at best. Ian Hancock writing in The Australian on the use of the 1967 Cabinet records said “... politicians and media commentators who visit history should understand that the past is another country, not easily manipulated to suit contemporary causes.” (The Australian, 5 January 1998, p.11)

Reforming access arrangements

The Australian Law Reform Commission has almost concluded its reference reviewing the Archives Act. This comprehensive review includes scrutiny of, and public consultation about, the access regime.

A recurring question, raised each year, when the Cabinet records are released is ‘why do we wait 30 years?’ This year The Sydney Morning Herald, in an article headed ‘Cabinet secrets kept too long, says report’, referred to the Commission’s recommendation that Cabinet notebooks be eligible for public access 30 years after creation instead of the existing 50 years. The Herald has argued that 30 years is too long to withhold any records of Cabinet. This year Jack Waterford, editor of The Canberra Times, said: “Thirty years is a long time (I have always thought 20 would be long enough) ...” (The Canberra Times, 3 January 1998, Panorama, p. 2)

Cabinet records are essential evidence and the decision about when they should be made accessible requires a careful balancing of rights and responsibilities. Proponents of earlier release of records argue the public’s right to know and the obligations of those serving the public to be accountable. They say that withholding the records for 30 years erodes the public’s capacity to hold decision makers accountable at the time, or soon after, the decisions are taken. It might also be argued that releasing Cabinet records earlier would make it easier to appreciate their context and circumstances because the issues would be current and the people involved would be familiar.

The case against amending the legislation to provide for earlier release rests on the proposition that effective decision making, following the assessment of full and frank advice and whatever advocacy has been brought to bear, requires a degree of shelter in the form of 30 years. This argument contends that 30 years is not so long that the protagonists are unaware that the records will be available within their lifetime and that their actions will be subject to scrutiny. It should be said that those arguing against releasing records before they reach 30 years of age accept the figure as a sensible compromise and do not argue for a longer period of exemption.

The Commission’s draft recommendations paper recommended that the open period should continue to commence at 30 years. Although accepting the weight of argument in favour of retaining 30 years, the Commission has noted that this should be seen as a fall back position and that release before 30 years should be encouraged. It would be true to say that the ‘30 year rule’ has largely been interpreted as an injunction to not release records until that time has elapsed, rather than as a relatively conservative guideline to protect records at the sensitive end of the spectrum. The Commission’s exhortation to see 30 years as a safety net guaranteeing access in the expectation that earlier access will be the norm provides the NAA with the opportunity to work with agencies in developing guidelines and strategies for identifying records suitable for early release.

The Commission’s draft recommendations propose that Cabinet notebooks also become publicly available at 30 rather than 50 years. The notebooks record the flow of debate and the key points made. The formal decisions of Cabinet, crafted from the contents of the notebooks, may be described as anodyne as they record the final agreed position to which all participants are bound. The notebooks record the disagreements, the volatility and the rancour and, depending on the style of the note taker, should provide a far more dramatic picture of the workings of successive Cabinets. This is a significant draft recommendation. If implemented it will remove an important inconsistency in the access regime. However, given the research value of the records to which it will apply, symmetry is not its only attraction.

Conclusion

The guarantee of public access to the public record is a fundamental right. The affirmation of this right by the Commission and its commitment to extending the reach of access provisions is a crucial element of the Commission’s draft recommendations paper which benefits all Australians.

* Anne-Marie Schwirtlich is National Director, Access and Information Services at the National Archives of Australia.