Katy Gallagher (ACT, Australian Labor Party, Shadow Minister for Finance) Share this | Link to this | Hansard source

I present the second interim report of the Select Committee on COVID-19 on public interest immunity claims. I move:

That the consideration of the recommendations made in the report be a business of the Senate order of the day for 15 March 2021.

I indicate to senators that, after the question on this motion is put, I will move a motion to take note of the report to enable other senators to speak.

Question agreed to.

I move:

That the Senate take note of the report.

This report should never have been needed to be written, but the Senate Select Committee on COVID-19 has to update the Senate on how the government, through its inappropriate use of public interest immunity claims, has wilfully obstructed access to information crucial to the committee's inquiry. The Senate must act to reassert its pre-eminent role in holding the executive to account and reject this government's secretive agenda designed to protect the executive. If we fail to stand up for the Senate's power of inquiry, the Senate will become a toothless tiger that gets spoonfed only the information that the government wants to feed it. That is not how our system is meant to operate.

As senators will remember, the COVID-19 committee was established on the 8 April last year to scrutinise the government's response to COVID-19 at a time when it was unclear when the Senate would sit due to the pandemic. At the time, the former leader of the government Senator Cormann said:

We welcome the scrutiny. We do believe there is a need for scrutiny. We understand and appreciate that, in these extraordinary times, the government has been required to make very significant decisions, and

…   …   …

it is appropriate that those judgements that we make are scrutinised and challenged to help us make even better decisions as we go along.

Despite this, the committee finds that, in practice, the government's approach in responding to requests for information has been at best lazy and at worst a deliberate abuse of the public interest immunity process. I say this in the context that not all the information requested by committees should always be released. In fact the committee has accepted two claims of public interest immunity, because it was reasonable to do so. That is why we have in place clear guidance through the 2009 Cormann motion that information can only be withheld from the Senate through a properly made PII claim. Yet we have seen a consistent refusal from the government to provide information to the committee or to follow the process that they insisted on when they were last in opposition.

We have seen public servants, who clearly know the answers to questions, refuse to answer before being reminded of their obligations to the Senate, and then they refer the matter to the minister for consideration. This is where, I think, the government hopes it ends as nothing seems to happen once these claims get referred to ministers. It's fallen to the committee and the committee chair, me, to write to ministers, reminding them about the referral and asking for a response. This process alone has taken months to complete—hardly a shining example of transparency and scrutiny at work.

We have then seen claim after claim of public interest immunity come in, usually without addressing in any satisfactory way the public harm that would be caused by the release of the information being sought. So, for the Senate's information, the information being denied to it includes whether a US law enforcement agency could access data collected by the COVIDSafe app; when the Chief Medical Officer first briefed cabinet and the date on which the national cabinet first agreed to a suppression strategy, not an elimination strategy; the modelling underpinning the government's health response to COVID-19; the economic modelling underpinning the government's response, including on the design of JobKeeper and the rate of JobSeeker; a presentation by the Productivity Commission to national cabinet; when the former minister for aged care, now minister for aged care services, first briefed the cabinet about the pandemic, and if he briefed them at all on the royal commission report or during the outbreak in residential aged care in Victoria; and also the department of social security's advice on the reintroduction of the liquid assets test.

The reasons for withholding this information include a reference to legal professional privilege—a reason the Senate has never accepted as sufficient grounds in and of itself to refuse information to the parliament; claims relying only on general statements about the sanctity of cabinet information, which, again, is not a ground the Senate has accepted to refuse and fails to comply with the Cormann order; claims that providing the information would somehow reveal cabinet deliberations, which are clearly not true because the committee never asked what was discussed. We merely sought information such as the date when things happened or modelling that would assist with the understanding of the government's response. At no stage in any of these claims did ministers address the public harm that could be caused specifically by the release of such information. Causing political harm to a minister or a government is not a legitimate reason to withhold information that the Senate has requested, but it appears to me that this is the government's main motivation.

The refusal to provide the committee with key information obstructs the committee in undertaking its scrutiny responsibilities and, frankly, if it wasn't such a flagrant abuse of the PII process, it would be a joke. Why on earth is the government refusing to answer when the Chief Medical Officer first briefed cabinet? Is it because he didn't do it until later into the pandemic? Why is the minister for aged care services refusing to answer when he first briefed the cabinet on the unfolding crisis in residential aged care? Is it because it never happened? Why can't the government front up and explain when they agreed on a suppression strategy for the pandemic? Why can't the Senate have access to presentations given by the Productivity Commission or Treasury to national cabinet?

It seems the staff of state and territory governments are allowed access, but the Australian Senate is not. How can we question decisions if we're denied access to modelling or expert advice that informed those decisions after they were taken? How can we scrutinise the timeliness of the response when the government won't even give us the dates of key decisions or ministerial briefings? The government should respect the role of the Senate and its committee but the government, through an arrogant abuse of public interest immunity, has treated and, unless there are consequences, will continue to treat this place with contempt.

The current approach from the government is not exclusive to the COVID-19 committee either. I see it used by public servants and ministers all the time to hide from scrutiny, particularly during estimates. There are other ways outside the PII claims that the government routinely denies public access to information, rejecting freedom-of-information requests, giving late or evasive answers to questions on notice and refusing to comply with orders for the production of documents. There is no shortage of examples where this government unreasonably denies, usually on political grounds, access to information.

I say to the Senate: as the current generation of senators, we must stand up for the powers and purpose of the Senate. This Senate will outlive all of us, and it falls to us to stand up and protect what is clearly a conscious attempt by a secretive government to whittle away the powers of this Senate, which have been clearly established over decades. We cannot allow the Senate to receive only information that it is politically convenient for the government to provide. To accept the government's approach, as outlined in this report, of withholding key information from public view would erode and undermine the Senate's power of inquiry. As chair of this select committee, I don't want to see that happen, nor will my fellow committee members allow it, neither should any senator in this place. I commend the report to the Senate.

James Paterson (Victoria, Liberal Party) Share this | Link to this | Hansard source

In my capacity as the Deputy Chair the Senate Select Committee on COVID-19, I rise to make a brief contribution in response to that of the Chair of the Senate Select Committee on COVID-19. I have very much enjoyed working with the chair and all members of the committee. It is not uncommon for, and I certainly don't object to, a Senate committee taking issue with the use of public interest immunity claims by governments, but I think it's important to place these particular disputes between the committee and the government over a handful of public interest immunity claims in the wider context of the work of the committee. I think it's important for the record, and government senators have made additional comments in this report, to note that, since the committee was established on, I agree, a bipartisan basis, as Senator Gallagher noted, 39 public hearings have been held; the health department has appeared 10 times before the committee; the Treasury has appeared eight times before the committee; the committee has, as of a few days ago, sent out 2,273 questions on notice both to the government and to other witnesses before the inquiry; government agencies and departments have answered almost 2,000 questions on notice to the committee; and all of this was done in the midst of the most unprecedented global pandemic in our lifetimes and the associated economic crisis. So I think it's a bit unreasonable for the chair to characterise the government as being uncooperative or secretive. It actually shows a high degree of cooperation and a high degree of respect for the Senate. It's not unusual for there to have been a handful of issues of disagreement on PII claims, but let's put that handful—literally a handful—of disagreements between the committee and the government in the context of what is actually an amazing degree of cooperation and bipartisanship, which has been upheld throughout this process.

Carol Brown (Tasmania, Australian Labor Party, Shadow Assistant Minister for Infrastructure and Regional Tourism) Share this | Link to this | Hansard source

Senator Gallagher has indicated that she is seeking leave to continue her remarks on the second interim report of the Senate Select Committee on COVID-19.

Leave granted; debate adjourned.