Wednesday, 17 March 2021
COVID-19 Select Committee; Order for the Production of Documents
For the information of the Senate, I table information from the Chair of the Select Committee on COVID-19, Senator Gallagher, regarding seven recommendations made by the committee in its second interim report.
In addressing those recommendations and the correspondence that I have just tabled, at the outset I would like to restate some of the remarks made by Senators Paterson and Davey in their additional comments to the second interim report. It is important to note that the Senate Select Committee on COVID-19 was appropriately established with bipartisan support on 8 April 2020, notably under the broadest possible terms of reference and with a tenure that effectively ensures it does not expire until the end of this term of parliament. That is the wish of the committee. It is beyond doubt that both government and opposition parties acknowledge and respect the important role parliamentary oversight plays in our Westminster system of government, as reflected by the establishment of this committee during the most extraordinary of times.
To date, the committee has held over 40 public hearings, published over 500 submissions by interested organisations and individuals and published over 700 associated documents. It is noteworthy that, in a time of health and economic crisis, officials from the Department of Health have appropriately appeared before the committee in public hearings no fewer than 10 times, and officials from the Department of the Treasury have appeared before the committee in public hearings no fewer than eight times, to answer questions on how they and the government have responded to the dual health and economic crises.
The committee has received nearly 2,000 answers to questions on notice throughout this period, overwhelmingly from government departments—a remarkable demonstration of cooperation and transparency, especially when considering they did so while managing the day-to-day fight against a once-in-a-generation global pandemic and associated economic crisis. They did so in addition to the work of those departments responding also to other estimates questions on notice and other parliamentary questions on notice, which appear to have been no less frequent during that time. The relatively few disagreements between the committee and the government about a small number of public interest immunity claims should be viewed in light of the overall significant cooperation and information sharing undertaken.
In relation to the specific claims of public interest immunity, as noted in my correspondence to the chair of the committee, Senator Gallagher, the government maintains the public interest immunity claims advanced in the initial responses to the committee's requests. The government holds the strong view that the documents and information sought would or could reasonably be expected to disclose the deliberations of the cabinet or a committee of the cabinet. Along with national security, this is the most longstanding and fundamental ground of a public interest immunity claim. As is well recognised in the Westminster system, it is in the public interest to preserve the confidentiality of cabinet deliberations to ensure the best possible decisions are made following thorough consideration and informed discussion of relevant proposals within cabinet. It is not in the public interest to disclose information about the cabinet's deliberations, as it may impact in the future upon government's ability to receive confidential information and to make appropriately informed decisions impacting upon the Australian community. In keeping with this longstanding practice, information about the operation and business of the cabinet and its committees—including when a matter went to the cabinet, who attended and what form of submission was provided—could potentially reveal the deliberations of the cabinet, which remain confidential for the reasons I've outlined.
In relation to the request for legal advice, while I note that the Senate has not accepted legal professional privilege as a public interest immunity, it has been the longstanding practice of successive Australian governments not to disclose privileged legal advice. This practice has previously been outlined by the Hon. Gareth Evans QC, in 1995:
Nor is it the practice or has it been the practice over the years for any government to make available legal advice from its legal advisers made in the course of the normal decision making process of government, for good practical reasons associated with good government and also as a matter of fundamental principle.
That was from former senator Gareth Evans on 28 August 1995.
The Hon. Philip Ruddock stated on 29 March 2004:
It is not the practice of the Attorney to comment on matters of legal advice to the Government. Any advice given, if it is given, is given to the Government.
Former senator the Hon. Joe Ludwig, on 26 May 2011, put the position as follows:
To the extent that we are now going to go to the content of the advice, can I say that it has been a longstanding practice of both this government and successive governments not to disclose the content of advice.
The government maintains, consistent with the positions put by ministers of previous governments of both Labor and coalition persuasion, that it is not in the public interest to depart from this established position.
It is integral that privileged legal advice provided to the Commonwealth remains confidential. Access by government to such confidential advice is, in practical terms, essential to the development of sound Commonwealth policy and robust lawmaking. The specific harm that the doctrine of legal professional privilege seeks to prevent is the harm to the administration of justice that would result from the disclosure of confidential interactions between lawyer and client. Both the High Court of Australia and the Federal Court of Australia have confirmed that legal professional privilege promotes the public interest by enhancing the administration of justice, facilitating freedom of consultation and encouraging full and frank disclosure between clients and their advisers. I thank the Senate for the opportunity to respond to and comment on the matters in the tabled letter to Senator Gallagher.