Wednesday, 17 March 2021
COVID-19 Select Committee; Order for the Production of Documents
That the Senate take note of the statements made by the Minister for Finance (Senator Birmingham), the Minister for Families and Social Services (Senator Ruston), the Minister for Employment, Skills, Small and Family Business (Senator Cash) and the Minister for Sport and Minister for Senior Australians and Aged Care Services (Senator Colbeck) in relation to the Senate Select Committee on COVID-19 and the public interest immunity claims.
The Senate has just witnessed four ministers come into the chamber and give the proverbial finger to non-executive members of this place. That's what just happened. Make no mistake. There were a lot of words expressed by the Leader of the Government in the Senate, but they were a lot of words to try to justify the unjustifiable.
Let me be clear: the Senate committee have worked well and have worked hard—Senator Birmingham made those points—but have been thorough as well. Public servants refused to provide information and hoped that we would just forget about it, but we didn't. We wrote to those heads of department and said, 'You took this on notice and you haven't replied.' They then referred it to ministers and eventually, often months later, we got a response from ministers with the lazy use of the public interest immunity claim. Often they did not even specify the nature of the harm that would be caused to the public by providing that information to the committee. Most of them didn't even abide by the Cormann motion of 2009 that clearly sets out the way for public servants and ministers to work through that process.
We then considered the claims. On two of them we agreed with the government. On the others we didn't. We brought that to this chamber and we won the vote. Every non-government senator in this place considered the matter, as we are required to do. As Harry Evans specified in his note in 2005, when that matter arises in a committee it should be brought back and reported to the Senate. That is what we did. The Senate voted to order the government to provide that information or, in the absence of doing that, to make a statement outlining exactly why they aren't going to provide that information, and I'll come to that.
I want people to understand this because there's a broader principle here. Yes, we are after the information. We are after information that I didn't even think would ever be refused by the government, such as the date the cabinet first got briefed about the pandemic. That's pretty relevant to the work that the COVID committee was set up to do, which is to monitor the government's response to the COVID-19 pandemic. When did you first get briefed? When did the Chief Medical Officer first provide information to the cabinet? The minister for aged care had a COVID crisis. COVID was raging through the aged-care facilities that he was responsible for and hundreds of people were dying. When did he first brief the cabinet? Was it in May, June or July? We didn't ask what he briefed the cabinet with, but when he briefed it. We didn't ask about cabinet deliberations. We never sought information that related to ongoing discussions within cabinet. We accept that. But dates? Come on!
How are we meant to fulfil our job? We find the government in this position after, in a very stubborn way, they took the decision not to provide it. We won an order for the production of documents, some six months after the questions were asked, and you're still saying they relate to cabinet deliberations. It's ridiculous. The information sought is not unreasonable. It should've been provided at the time. For example, we asked for the date on which the AHPPC—a body that the government often tosses around as being the most important body that's been assisting them with the pandemic—first briefed the Minister for Health and Ageing. When did they first go to cabinet? When did they brief the national cabinet? The Productivity Commission chair gave a presentation to national cabinet, so it's gone to all of those governments. 'Could we have a copy of the presentation, please?' 'No. Top secret. Not allowed to have it.' Other governments are allowed to have it, and what they do with it is up to them. They've all got the presentation, but we're not allowed the PowerPoint. It's ridiculous. We asked for some of the information about the economic support packages, the information that went into determining that that was the package. We didn't ask, 'What were the options before you made the decisions about the package?' but we asked, 'What were the expectations for what that package would deliver?' 'No, not allowed any of that information.'
Our terms of reference are very simple: to monitor the Australian government's response to the COVID-19 pandemic. All of these questions relate to the health and economic response to the COVID-19 pandemic. Yes, we have got a lot of information out of the Public Service. Sometimes it's been painful, but we have got it. Sometimes it's clear they don't want to answer, probably because they're worried about whether they'll get in trouble or not. But we persist and we tell them, 'You're not allowed to say nothing or refuse to answer.' We explain that to them. But that is part of their job. Senator Birmingham says, 'Well, they've come to all these hearings and they've provided all this information.' Yes, because they're accountable to this chamber as well as working for executive government. It's not an option; it's part of their job to support the work of Senate committees. They may not see it that way and, under this government, I think their interaction with Senate committees has changed a little. But it is part of their job. They do not have an option about whether or not they want to participate. So, yes, I appreciate the fact that they have come before the committee. But I don't think it's out of charity or that we should feel honoured that they've come, and I've explained to them before that it is part of their job.
When I read the advice of the great Harry Evans, he is clear in his note about the grounds for claiming public interest immunity and what the Senate has accepted as being legitimate or potentially acceptable grounds, which are listed. He also goes to those grounds that haven't been accepted by the Senate as reasons to withhold information, and they include advice to government. Quite often we ask witnesses about whether they've provided advice. They might not want to answer even that question. They say: 'It's advice to government. You can't have it.' No, the Senate has never accepted that. Legal professional privilege: the Senate has never accepted that. Cabinet-in-confidence: the Senate has never accepted that. They are all reasons that this government is using to withhold this information. The Senate has never accepted that. We have accepted that, if it would disclose information that relates to the deliberations of cabinet, that is a reason to withhold information, and we are not trying to change that. But just because you've stamped 'cabinet-in-confidence' on it or it might have been walked through on a trolley along with the sandwiches and cups of tea—in a COVID-safe way, of course—that does not mean that that information should be withheld from the Senate.
Senator Birmingham has a very polite style, but what he has done today is to say to every non-executive member of this place, 'Whatever you ask for and on whatever terms you ask for it, we are the ones who decide and we have decided that the Senate is not having it.' So, whilst they're trying to get through the IR bill and do deals with crossbench members, think about this. They're trying to be nice to you on the one hand, but you said the other day that you wanted this information and they have come in here and said, 'Bad luck.' That's what they've said.
That's what this government is known for: secrecy, doublespeak and withholding information when it's politically inconvenient to release it. That is what this is about. So maybe we won't get this information, even though the committee wants it and the Senate has actually asked the government to provide it. But the principle here is that we don't accept the lazy approach and the misuse of the public interest immunity claims process. We don't accept it; the Senate should not accept it. We do think this information should be provided and that this is a principle that the Senate should stay firm on, because if we let this one through, what next, Senators? I think anything becomes possible then. If we don't stand up and push back on this today and have some consequence for this, what next?