3. Legislative framework and Cabinet operations

  1. It is important to note that issues raised as part of the Review involve two distinct matters. The first relates to transfer of documents by PM&C to the NAA under section 27 of the Archives Act. The second relates to the public release of Cabinet records by the NAA as set out in section 31 of the Archives Act.

Legislative framework

Transfer of Commonwealth records to the National Archives of Australia

  1. Section 27 of the Archives Act requires that the person responsible for the custody of a Commonwealth record must transfer the record to the care of the NAA in accordance with arrangements approved by the NAA.
  2. Successive versions of the Cabinet Handbook have provided that Cabinet records are held on behalf of the relevant Government of the day in the care and control of the Secretary of PM&C.
  3. Section 27 of the Archives Act applies to Commonwealth records that are in the custody of a Commonwealth institution other than the NAA, and have been determined under section 3C of the Archives Act, to be part of archival resources of the Commonwealth. The records must be transferred:
    1. if the record ceases to be a current Commonwealth record—as soon as practicable after this event; and
    2. in any other event, within 15 years of the record coming into existence.
  4. Section 3C of the Archives Act provides that the Director-General may, in writing, determine that a specified Commonwealth record or other material is part of the archival resources of the Commonwealth. A determination under this section may be set out in the same document as that which gives permission or approval to dispose of or destroy Commonwealth records as set out by section 24 of the Archives Act.

Records Disposal Schedule No. S.492

  1. On 2 February 1988, the Acting Director-General of the NAA issued Records Disposal Schedule No. S.492 (the Schedule). The Schedule, issued with agreement of PM&C, authorises the disposal of records controlled by the Cabinet Office (now Cabinet Division). The Review was advised that in practice the Schedule required PM&C to treat records in the following way:
    1. cabinet records, original agenda, background papers, decisions, memoranda, minutes and submissions and reference copy for public access—retain permanently and transfer no later than when required for the NAA’s annual Cabinet release project; and
    2. draft Cabinet document records (containing draft submission and memoranda for coordination comment)—destroy six months after Cabinet decision is taken, provided that all papers contained in these records which show any important aspects in the development of a submission have been removed to Cabinet records containing the final submission.
  2. The Schedule is expressed to remain operative for 10 years or until amended, cancelled or superseded. The Review was advised that the NAA has sought to update records authorities with PM&C on a number of occasions – 1998/1999, 2001/2002, 2009/2010, 2011/2012 and 2016/2017. However, the Schedule has not been replaced and the NAA and PM&C proceed on the basis that it remains operative. On this basis, the NAA has been managing the periodic transfer of Cabinet records as part of the archival resources of the Commonwealth as an exception, nominated within the National Transfer Policy.

Application of the transfer obligations of Cabinet records

  1. The Review notes that while PM&C and the NAA have acted in accordance with the Schedule, Cabinet records have not technically been determined to be part of the archival resources of the Commonwealth under section 3C of the Archives Act. Amendments to the Archives Act, under the Archives Amendment Act 2008, introduced a mechanism for the Director-General to make a determination for the purposes of section 3C that Commonwealth records of national significance or public interest form part of the archival resources of the Commonwealth and so (subject to any exceptions) are required to be transferred to the NAA.  
  2. No section 3C determination has been made, or has been deemed to have been made, by the Director-General with respect to Cabinet records. As a result, Cabinet records are not presently technically subject to the transfer requirements under section 27 of the Archives Act.
  3. To support future transfer processes, the Review was advised that, since 2020 the NAA and PM&C have been developing a new records authority that will establish a section 3C determination, clarifying that Cabinet records are subject to transfer requirements under the Archives Act as part of the archival resources of the Commonwealth.
  4. The Review considers that the new records authority should be completed as a matter of urgency, as it was, and is, self-evident that Cabinet records, which are at the heart of the nation’s historical record, are ‘part of the archival resources of the Commonwealth’.12

Exemptions to transfer

  1. Section 29 of the Archives Act allows the responsible Minister,13 or a Commonwealth institution with the agreement of the Director‑General of the NAA, to determine that a Commonwealth record, or class of Commonwealth records, is not required to be transferred to the NAA, or can only be accessed by the NAA on specified conditions. The determination has effect for a specified period and may be revoked by the Commonwealth institution or responsible Minister at any time.
  2. During the course of the Review, the NAA identified correspondence, dated 11 December 1984, from Sir Geoffrey Yeend AC CBE, Secretary of PM&C (1978 – 1986) to Brian Cox, Director-General of the NAA (1984 – 1989) which sought agreement to determine, under section 29(1)(a) of the Archives Act, “that Cabinet records are not required to be transferred to the custody of Archives before they are due for public release”. The then Secretary provided assurance that the Cabinet Office would “ensure that records are transferred to the Archives in advance of their release date”. This arrangement was agreed to by Mr Cox on 19 December 1984. These letters form the basis of the existing arrangement in place where PM&C transfers Cabinet records three years prior to the commencement of the public release period as opposed to five years prior as set out in section 27 of the Archives Act.

Records in open access period to be publicly available

  1. Section 31 of the Archives Act requires the NAA, subject to access examination, to make Commonwealth records that are in the open access period, and in the care of the NAA, a Commonwealth institution or another person, available for public access. For the purposes of a record that came into existence after 2000, the open access period is 1 January in the year that is 21 years after the creation year.14 For Cabinet notebooks,15 the open access period is 1 January in the year that is 31 years after the creation year.
    • The annual proactive public release process conducted by the NAA is an administrative process and is not required under legislation. It is a NAA initiative that commenced in the 1980s.
  2. If a record has not been transferred to the NAA (for instance, as a result of a section 29 determination) and the record is in the open access period, the Archives Act requires departments and agencies to make arrangements that enable the NAA to make the record publicly available.16
  3. Under section 31, the NAA may withhold a Commonwealth record or class of records from public access for a reasonable time pending examination to identify exempt records. Under section 33, the Archives Act exempts certain information from public release, including but not limited to, information that could reasonably be expected to cause damage to security, defence or international relations.17

Cabinet

  1. Cabinet is the primary decision-making body of government whose shape, structure and operation is determined by the Prime Minister of the day.18 The Secretary of PM&C is the custodian of Cabinet records.19
  2. A Cabinet is an administrative arrangement for government decision-making. A broad range of Commonwealth legislation refers to the federal Cabinet and Cabinet Committees, mainly for the purposes of prescribing status of documents or information regarding particular actions or decisions, for instance the Freedom of Information Act 1982 (Cth). However, there is no exhaustive statutory definition of ‘Cabinet’ or the role or membership of the Cabinet or its committees.
  3. The principles and rules of Cabinet, and Cabinet Committees, are set out in the relevant Cabinet Handbook, as approved by the Prime Minister of the day.
  4. During the Review, we spoke to former Prime Minister, the Hon John Howard OM AC SSI (1996‑2007) who established the NSC in 1996. Mr Howard confirmed the NSC was always intended to be a decision‑making body, with the possibility of a matter being referred to a meeting of the full Cabinet if considered appropriate.  
  5. Cabinet Handbooks note that the NSC is a decision-making body as distinct to the majority of Cabinet Committees which are committees of recommendation.20

Footnotes

  1. Archives Act 1983 (Cth) ss 3(2).↩
  2. In relation to a Commonwealth record, the responsible Minister is the Minister whose ministerial responsibilities relate most closely to the record.↩
  3. Archives Act 1983 (Cth) s 3.↩
  4. A Cabinet notebook is a document that contains notes of discussions or deliberations taking place in a meeting of the Cabinet or of a committee of the Cabinet.↩
  5. Archives Act 1983 (Cth) s 31(2).↩
  6. For a complete list of exemptions, see: Archives Act 1983 (Cth) section 33.↩
  7. See eg; Department of the Prime Minister and Cabinet, Cabinet Handbook (13th ed, 2019) [2]; Department of the Prime Minister and Cabinet, Cabinet Handbook (15th ed, 2022) [3].↩
  8. Department of the Prime Minister and Cabinet, Cabinet Handbook (15th ed, 2022) [110].↩
  9. The 5th Edition of the Cabinet Handbook was in force from 2000. The 13th Edition of the Cabinet Handbook was in force from 2020. Both noted the decision-making role of the NSC.↩