Sports rorts: Coalition blocking release of Phil Gaetjens’ secret report, citing cabinet exemption

The federal government is trying to block the release of Phil Gaetjens’ secret report into the sports rorts affair and Bridget McKenzie by claiming it was prepared mainly for the purposes of cabinet.

Gaetjens, the Department of Prime Minister and Cabinet secretary and Morrison’s former chief of staff, was tasked last year with investigating whether McKenzie had breached ministerial standards in her handling of the “sports rorts” affair.

His report was never published, but a summary found there were “significant shortcomings” in the way McKenzie decided on the grant. But Gaetjens also found that the way the minister’s office approved funds for projects was not unduly influenced by reference to “marginal” or “targeted” electorates.

McKenzie quit cabinet after the Gaetjens report was handed to the prime minister over a failure to disclose membership of a gun club that received money through the grant program.

Multiple parties, including the Guardian, have since applied for the Gaetjens report through freedom of information laws. The government has refused to release the report and the case is now before the information watchdog, the Office of the Australian Information Commissioner.

Submissions from the Department of Prime Minister and Cabinet to the OAIC argue the document is covered by cabinet-in-confidence, exempting it from release through FoI.

The department said in a June 2020 submission to the OAIC, released to applicants this week, that the document was submitted to the governance committee of cabinet, and was brought into existence for the dominant purpose of submission for consideration by the governance committee of cabinet, and is therefore exempt as a document submitted to cabinet.

In a separate September 2020 submission, the department also argued the report was prepared to provide advice to the governance committee of cabinet, and therefore would reveal cabinet deliberations.

Applicants have argued that the prime minister neutralised the department’s deliberation exemption claim when, in a February 2020 press conference, Morrison spoke at length about the report in what they argued “not only officially disclosed the existence of the deliberation, it officially disclosed the conclusions to which the cabinet arrived”.

Morrison said: “Earlier today I convened the governance committee of cabinet to review the findings of [Gaetjens’] report and he reported to us. I then asked the leader of the Nationals and the deputy prime minister to raise the matter contained within that report with Senator McKenzie and she was also briefed by the secretary on the report as well. In that report there are two key issues.”

The prime minister then detailed Gaetjens’ findings, including that he concluded “I do not believe there is a basis for you to find that the minister had breached standards in that respect”.

“He goes on to note, that he did not find evidence that this process was unduly influenced by reference to marginal or targeted electorates … the secretary concludes, ‘I do not believe there is a basis for you to find that the minister had breached standards in that respect’.”

However, the department has argued the exemption still stands because as the department has interpreted the Freedom of Information Act, the prime minister did not disclose the deliberations or decisions in the requested document.

The use of the cabinet exemption has almost tripled in recent years, according to OAIC annual reports.

In 2016-17, it was used in just 67 FoI cases, and accounted for 0.5% of exemptions. It has risen each year and was used 187 times in 2019-20, making up 1% of exemptions used.

Peter Timmins, a lawyer and long-time FoI specialist, said once they were raised, cabinet exemptions were notoriously difficult to challenge.

“It’s really tough, because you don’t have access to anything more than what the department asserts, you’re really boxing with shadows,” he said. “I think there’s a bigger story about the reliance on the cabinet exemption, which seems to have spiralled upwards.”

Timmins said his anecdotal experience was that the cabinet exemption was being used to increasingly block important documents from reaching the public.

“I think there was a long period where merely finding something was exempt wasn’t the end of the game, there was a discretion to be exercised by decision-makers that even if something technically came within the exemption provision, but no harm would result from disclosure, those documents of that kind would be released,” he said.

“We seem a long way away from that sort of idea.”