Senate debates

Monday, 15 March 2021


COVID-19 Select Committee; Report

7:18 pm

Photo of Katy GallagherKaty Gallagher (ACT, Australian Labor Party, Shadow Minister for Finance) Share this | | Hansard source

I move:

That the Senate endorses the findings of the Select Committee on COVID-19 that it does not accept the public interest immunity claims made by various ministers as detailed in the committee's second interim report, and adopts the recommendations of the report.

As foreshadowed in my contribution when the select committee's second interim report was tabled at the end of the last sitting period, today I'm calling upon the Senate and my fellow senators to stand up and perform one of the most vital and constitutionally important functions we are called on to do—that is, that the Senate meaningfully assert its unique powers and pre-eminent role in holding the executive to account and, in doing so, reject the Morrison government's inappropriate misuse of public interest immunity claims.

The government has repeatedly invoked PII claims without satisfactorily addressing the public harm that would be caused, and this has been a consistent and dismaying occurrence through the course of the Select Committee on COVID-19's inquiry. Let's be clear about what this means: as outlined in the committee's second interim report, the invoking of the PII claims by numerous departments, agencies and their responsible ministers constitutes a wilful obstruction of access to information that is unquestionably critical to the committee's scrutiny work.

The obstruction not only undermines the committee's special role in scrutinising government at a time when many of the parliament's most powerful scrutiny mechanisms were not able to operate as designed but also is a direct assault by the executive on the Senate's explicit powers and purpose. The Senate was deliberately endowed with expansive powers of inquiry, including those that allow the Senate to order information from ministers. Equally, the Senate recognises that executive government holds information which ought not be disclosed and that there are clear and established practices which enable government, for instance, to make a substantiated claim of public interest immunity. It must be noted that the committee, through its work over the past year, has recognised this important caveat on the Senate's powers and has considered and granted two claims of public interest immunity because it was reasonable to do so and the claims met the test that has been created by this chamber. However, the government's repeated misuse of public interest immunity claims to withhold information diminishes the select committee and, in doing so, it ultimately also diminishes and erodes the Senate's unique function of oversight and scrutiny.

As I said last month, we as senators and as custodians of the institution of the Senate, which will endure long after we have all departed, must respond to this challenge presented by executive government. As I've also said, we cannot allow the Senate to receive only the information that is politically convenient for the government to provide when they want to provide it. Otherwise, we'll continue to see cynical and deliberate attempts by this government to delay or deny access to information that is fully within the purview of the Senate's power to access. But this does require all of us in this chamber who don't sit on the government's benches to work together to demonstrate that the power of the Senate as a whole, its collective resolve, is to protect its role and ensure that one of its most important responsibilities, in terms of scrutiny, accountability and transparency and the power to require documents from the executive, from ministers, is protected.

We've had a series of questions for which we have been seeking answers from the government, along with information and documents, and I should say that we start usually by asking for that information to be provided through the committee. If it's not provided through the committee then the committee of course allows for questions to be taken on notice. What happens then is that, unless the committee secretariat chases up those questions, they're often not answered; they just hope that the question goes away. It's meant the committee has had to write to the department, initially, reminding them of the questions that were asked and seeking the documents. Then the department refers it to the minister, as is appropriate, and the committee waits for the minister to reply, often in a letter seeking to protect information. The committee may have asked, for example: what was the date that the Chief Medical Officer first briefed the cabinet about the COVID-19 pandemic? It doesn't seem to be highly controversial or information that must be kept secret. The letter will come back, often months later, basically saying, 'Cabinet-in-confidence means we cannot provide this information.' It's an abuse of the Cormann motion, which very clearly sets out the process for claiming public interest immunity and the process for demonstrating the harm that providing that information would cause to the public. So there are different aspects to the public interest immunity process that need to be answered.

Quite often the response we get from the government through the ministers is lazy, uses a reason that doesn't meet the test set out and passed by this chamber in the Cormann motion and doesn't provide any explanation for the harm that might be caused by the provision of that information to this chamber. There are seven public interest immunity claims that we have brought back to the Senate chamber. We have sought to resolve this through the normal process, through the committee, by asking questions and questions on notice and going through the process. We find ourselves now with the responsibility to report back to this chamber the way the government does, when it chooses to do—and on unusual issues, like when the chief medical officer first briefed the cabinet. For the life of me I cannot understand why that has become one of the biggest secrets in the land during the COVID-19 pandemic, but evidently it is. I didn't think we'd have to go down this path, because I thought the question would be answered, to be honest. It was only when it was consistently refused to be answered that we had to go through this process.

We've also asked for legal advice around the Attorney-General's Department receiving information around the interaction of the privacy amendment bill with the COVIDSafe app and the United States' Clarifying Lawful Overseas Use of Data Act. In answering that, the Attorney-General not only failed to provide the document but also said, 'We're not going to provide it, because we never do.' Again, that is not following the Cormann motion; that is not providing evidence or any explanation about the public harm that might be caused by the provision of that information. At that time, when that information was sought, we were talking about basically implementing an app that helped provide location data on individuals in the middle of a pandemic. It was urgent, and we supported the rollout of the app, but there were also some significant questions around how it interacted with legislation and how people's privacy was protected. So there were genuine reasons the Senate committee should have been provided that information or with some answer rather than no answer.

There were other examples. I think with the minister for health it was around the economic modelling of the COVID response. I remind people that this committee was set up with the agreement of the government. The government agreed to the establishment of this committee as a way of providing accountability, scrutiny and transparency to the most urgent government response this country has probably seen post the war. We had billions of dollars flowing out the door. We're going to have a trillion dollars of debt racked up by the time we finish this. Whilst Labor accepted the need to spend money and supported the emergency response, in fully understanding the decisions the government took—including why some people were left out of the economic packages and others weren't—and understanding the information that underpinned those decisions, once those decisions were taken we weren't wanting to go back and see why the government made those decisions; we were wanting to understand the impact of those economic packages once the government had made those decisions. But again we were told, 'It's cabinet-in-confidence; we're not going to provide that information.'

The terms of reference for this committee are to monitor and scrutinise the Australian government's response to the COVID-19 pandemic, and any other related matters. So this falls squarely within the terms of reference, and the economic and health response has been the predominant focus of this committee. Seeking information about the modelling that underpinned those decisions in terms of the economic response was, we thought, important.

On another one the government rejected: we called the Productivity Commission chair, Mr Brennan, to the committee. He came to provide evidence, and it was very useful. In the course of his evidence he mentioned he'd given a presentation to the national cabinet. We asked for a copy of the presentation he provided. Presumably it's good enough to provide to state and territory governments, but it's not allowed to be provided to the Senate so it can understand what the Productivity Commission's view of the COVID-19 pandemic and the response to it is. Again, I didn't think that was too controversial. We put in a request for that to be provided, it was referred to the Treasurer and they denied access to that document.

Importantly, we asked the Minister for Aged Care and Senior Australians about when he first briefed the cabinet about the unfolding crisis in Commonwealth regulated aged-care services in Victoria. Sadly, as we know, 75 per cent of all deaths from COVID-19 in this country were people in residential aged-care services that are funded and regulated by the Commonwealth government. As the minister appeared, we were asking questions about that period in May, June and July 2020 and what was happening—when was the aged-care minister briefing cabinet? Again, we've been told we're not allowed to have that information either. These are simple questions. They don't go to the heart of deliberations of cabinet. They don't disclose anything in terms of cabinet deliberations or discussions. They're not related to a decision of cabinet. Yet the government has decided that it won't provide that information to the Senate.

This is important, and we will continue to do this as more public interest immunity claims roll in, because fundamental to the work of this chamber and to holding this government to account is the ability of the Senate to call for documents, to require those documents, to call for evidence, to provide scrutiny and to ask the hard questions and for the government to respond, in accordance with the motion that Minister Cormann, as a member of the opposition, moved and passed in 2009—the Cormann motion. It's very clear, and this government doesn't follow it. It doesn't follow it whenever it doesn't want to. That's what we're seeing with these public interest immunity claims. We believe that these are matters of significant principle that require the Senate to work together, particularly non-government senators. Otherwise we will simply be spoonfed the information that the government want to spoonfeed us, on their terms and on their time. And that's not been the role of Senate committees or this chamber.

I would urge senators, particularly the crossbench, to think about this as a matter of principle and as a matter of making sure that when the Senate COVID committee, which is going to go for this entire parliament—but it's not just the COVID committee; it's all committees—calls for documents, that call is treated properly under the terms of the Cormann motion by the government so that when they claim public interest immunity it meets the test, as outlined in the Cormann motion, but that when the committees disagree with that claim of public interest immunity there is actually a contest on this floor, to contest that and to push back on the government. If we don't support these recommendations of this committee, then the government gets its way.

7:33 pm

Photo of Helen PolleyHelen Polley (Tasmania, Australian Labor Party) Share this | | Hansard source

I too rise to speak about the COVID-19 select committee public interest immunity claims. I'm making a contribution to this debate not only as a senator in this place but also as the chair of the Scrutiny of Bills Committee, where we have concerns about the way this government operates and the lack of legislation that is reliant upon regulations. As senators, we have not only the power but also the duty to scrutinise the government and to hold the executive to account. But the government's repeated misuse of public interest immunity claims in order to withhold information diminishes the select committee, and, in so doing, ultimately dismisses, diminishes and erodes the Senate's unique function of oversight and scrutiny.

As senators, we cannot allow the Senate to receive only information that is politically convenient for the government to provide. We cannot allow the government to drip-feed information based on its political agenda. This government has a reputation, under this Prime Minister, of being a government of spin, photo opportunities and lack of transparency. That's how the public is perceiving the Morrison government. If we don't stand up to this government to ensure that there is scrutiny, then we will see the public becoming more and more cynical about our democracy. We will continue to see cynical and deliberate attempts by this secretive government to delay or deny access to information that it is fully within the scope of the Senate's power to access.

We must protect the Senate's role and allow it to continue to perform one of its most important responsibilities, by endorsing the seven recommendations of this committee's report. This would give effect to a series of OPDs that would ensure that information denied to the committee—inappropriately claimed by the government to be protected by public interest immunity provisions—is provided to the Senate by no later than 12 pm on 17 March 2021. By not providing these documents, the government is denying the committee's ability to scrutinise government decisions, and this will have a significant impact on the lives of Australians.

As Senator Gallagher has already highlighted in her contribution, this committee was set up with the government fully aware of the need to have scrutiny at a time when there was the COVID-19 pandemic and the necessity for the government to act and to expend money. It was fully aware there would have to be oversight of that expenditure. That meant that it was going to be scrutinised by that committee, but, more importantly, it was going to be scrutinised by this chamber. Unfortunately, the behaviour of the government reflects a pattern of conduct by this government of smoke and mirrors and cover-ups and running a protection racket. The public are losing faith in this government to act in their best interests. The government's most recent announcement, of half-price airline tickets to conveniently located destinations in marginal seats, is just another example of how Mr Morrison—like his government—is a spin master and will only act for his own political gain.

As we were faced with unprecedented circumstances last year, the Morrison government was afforded sweeping powers and billions of dollars of taxpayer funds to properly enact policy. We have to remember this is taxpayers' money, and we know this government will have racked up trillions of dollars of debt. It is only reasonable that the actions of this government are scrutinised by the committee, with transparency and accountability being crucial to upholding our democracy. The Select Committee on COVID-19 is one of the primary mechanisms to perform this duty and evaluate the Morrison government's response to the COVID-19 crisis. However, as highlighted by the work of this committee, this government has, on numerous occasions, obstructed its work and blocked attempts to gain vital information. The inquiry was deliberately given expansive powers of inquiry, including the authority to order information from ministers. With each of the government's claims discussed in the second interim report, adequate reasoning is not provided to justify withholding the information. But this is the normal practice and behaviour that we have come to expect from those sitting opposite. If we fail to stand up for the Senate's power of inquiry, I fear that it will become compromised, and our democracy will falter.

The Australian people deserve to have transparency and accountability. I commend the hard work of Senator Gallagher and our Labor team in their pursuit of the information from ministers. There has been claim after claim of public interest immunity, more often than not without any substantive explanation of how the public will be harmed by the release of such information. As Senator Gallagher has said, some of this information has been given to state and territory leaders but not to us, Australian senators responsible for scrutinising this government.

The information includes requests to confirm the date on which the Chief Medical Officer had briefed cabinet—a key part of the government's initial response to the pandemic—which, over nine months after Dr Murphy's tentative answer, remains confidential; whether or not a US law enforcement agency could access data collected by the COVIDSafe app; the economic modelling underpinning the government's response; and a presentation by the Productivity Commission to national cabinet. The former Minister for Aged Care and Senior Australians, now the Minister for Senior Australians and Aged Care Services, was asked when he first briefed the cabinet about the pandemic and if he briefed them at all on the royal commission's report during the outbreak in residential aged care in Victoria. These have been important questions. Again, we are being stonewalled by this government.

I acknowledge that the government had to enact swift responses to this once-in-a-century event, but information such as this is essential to evaluate and examine so that we can better prepare ourselves for the future. JobSeeker and JobKeeper were successful in maintaining domestic consumption, but billions of dollars of taxpayers' money was spent on these schemes, and it is only appropriate that we view the data the government had which determined the level of these supplements.

We tragically lost 685 Australians in residential aged care last year. Australia was one of the worst-performing countries in the world when it came to protecting older Australians from COVID-19. We must know when Minister Colbeck briefed cabinet about the management of COVID-19 in the aged-care sector. I have to say that older Australians—most Australians, certainly those members of our community who have family and loved ones in the aged-care sector in this country—have every reason to lack confidence not only in this minister but in this government for their lack of care for elderly people, not just during the pandemic but since they've been in government, with the royal commission bringing down its interim report, titled Neglect.

There is no reason why there should be hostility from the government when we are asking questions like, 'When did Mr Colbeck brief cabinet in relation to COVID-19 and residents in aged care?' Not disclosing such information causes us to question whether any briefings occurred until 5 August 2020, by which time 130 residents had already died. This report made seven recommendations to obtain vital information from ministers in their response to the COVID-19 crisis, and, by denying access, they are denying us justice. As I said earlier, the public are losing faith in this government—for good reason, I might add.

The Australian people, via the powers of the Senate, have the right to this information. The Senate must protect that right. Therefore, I call on the senators on the crossbench to endorse the recommendations made in this report. We cannot allow the Senate to receive only information that is politically convenient for the government of the day. The claim of public interest immunity is a callous attempt to deceive the Australian people, and it is not exclusive to this committee.

As I said at the outset, I chair the Scrutiny of Bills Committee. Our committee works in a bipartisan manner because our role is to scrutinise legislation—not to debate the legislation, but to scrutinise that legislation—and we have raised our concerns at attempt after attempt by the Morrison government to delegate legislation so as to avoid parliamentary scrutiny. They are doing this by stealth and are trying to erode the functions of the Senate. The government also routinely deny access to information, rejecting freedom of information requests and giving late and ambiguous answers to questions on notice. The only reason I can see for the government continuing to do that is that they are trying to hide something.

Now we know the Prime Minister is the master of spin. We know his agenda is only ever run by the political necessity of ensuring his political survival. That's what we saw on the weekend with this $1.2 billion bonanza for the airline sector, promising half-price fares to some destinations based on Liberal marginal seats and seats that they are targeting to win. Then, of course, they had to go back to the drawing board, when they were exposed for the frauds that they are, and add some further destinations. Well, the Australian people are not blinded by the confetti of money that it suits the government to throw around the community at their own political timing.

The community expects this chamber to be able to scrutinise the actions of the government. The billions upon billions of dollars that this government has been spending during this pandemic have not necessarily been well targeted. We have highlighted those sectors that were left behind, and we know what's going to happen at the end of the month when JobKeeper is cut. I know the dramatic impact that's going to have on my Tasmanian community, which relies so much on small business, tourism and hospitality. We know the impact that that's going to have. We know that wages have stagnated in this country. We know underemployment and casualisation are hurting Australian workers.

We will always demand to have scrutiny of expenditure by this government. Therefore, these recommendations from this committee should be supported. Along with my Labor colleagues, I seek the support of the crossbench and to have them stand with us and demand scrutiny of this government, because that is so important to our democracy. At this point in time we need to assure our community that there is scrutiny, that there is transparency and, most importantly, that there is accountability. So, in this chamber and in the other place, we will hold this government to account each and every day, because that's our job and that's what the Australian people expect from us each and every day.

7:48 pm

Photo of Tony SheldonTony Sheldon (NSW, Australian Labor Party) Share this | | Hansard source

I want to speak on the Second interim report: public interest immunity claims of the Select Committee on COVID-19 and the tabling of documents. Transparency and accountability are bedrock principles in government which I think you would find near-universal support for among the Australian public. In fact, if you ran a poll asking whether transparency and accountability are desirable traits for a government, I think close to 100 per cent of respondents would say yes. I say 'close to 100 per cent' because there are at least 112 members of the coalition government who, based on all the available evidence, would tick 'no'. This is a government so averse to scrutiny it has two senior cabinet ministers on indefinite paid leave, avoiding questions in this place, hoping that serious allegations against them will just blow over.

Earlier today, tens of thousands of people marched across the country, including just outside these doors, in the Women's March 4 Justice—and, of course, I was one of them. The Prime Minister and Deputy Prime Minister, rather than accept an invitation to meet this rally, opted to hide behind closed doors. This is emblematic of the Morrison government's approach to transparency and accountability. The Prime Minister bunkers down, hides from scrutiny and hopes we all will move on to the next scandal. It's never his responsibility and, of course, 'There's nothing to see here'—that's all you get from this Prime Minister. Occasionally he'll throw someone under the bus so that he can make a clean getaway, as he did with the now former Minister for Sport Senator McKenzie over sports rorts. But, more often than not, scandals engulfing this government are not only not the Prime Minister's fault; they are not anyone's fault. Take robodebt, the baby of the Prime Minister in his previous life as the Minister for Social Services—373,000 people were hounded for debts they did not owe and $1.7 billion was repaid. All the time, the government knew their actions were illegal. Parents have come forward telling of the suicides of their children, but neither the Prime Minister nor anyone else in the government were ever held properly accountable.

Let's take the Paladin affair, another matter. A $500 million government contract was handed to a security firm being run out of a shack on Kangaroo Island without public tender awarded—no accountability from the Minister for Home Affairs and no accountability from the Prime Minister. Or how about the Watergate affair, when the then minister for water resources, Barnaby Joyce, was accused of funnelling $79 million to the company of the minister for energy Angus Taylor in the Cayman Islands? Again, there's been no real accountability from the Prime Minister or the minister for energy. What does it take to lose your job in the Morrison government? It raises a serious question, doesn't it?

Meanwhile, the same government shirks accountability by vigorous stacking of the body which reviews many government decisions, the Administrative Appeals Tribunal. A parade of ill-qualified Liberal mates now sit on the AAT. As Crikey reported in September 2019, the federal government had appointed 64 members and senior members to the Administrative Appeals Tribunal over the preceding six years who either worked for the coalition or had another form of close connection to that party. The stacking has continued in the 18 months since that article was finished, including former Liberal Senator Synon being appointed head of the social services division of the tribunal late last year. By no coincidence, this is the division which had the audacity to expose the illegality of the robodebt scheme. What do you do? You stick one of your mates in there and make sure that doesn't happen again. At the same time, the federal government has repeatedly cut funding to the ABC, and of course we learned today that the Attorney-General is now, in fact, suing the ABC. What we have is a full-throttle attack on the media and the Administrative Appeals Tribunal, the few entities which have the power to hold this government to account.

This brings me to this rather incredible second interim report of the Senate Select Committee on COVID-19. During this unprecedented pandemic, the federal government was afforded sweeping powers by this parliament. Large sums of financial stimulus passed through the Senate in an expedited fashion to deal with the crisis. And it was necessary. Labor worked constructively to make sure that the expenditure of the unprecedented amount of public money was subject to scrutiny by the parliament. Thus the Senate Select Committee on COVID-19 was born. The Senate Select Committee on COVID-19 was tasked with inquiring in detail—and in public—into how these powers were used, how these sums were spent and why certain decisions had been made. It was established with bipartisan support, yet, as a result of repeated, substantial and wilful obstructionism, the committee has been forced to produce a report reminding the government of its obligations to transparency and accountability.

They are a government who show contempt for accountability in all its forms, especially when it comes to what they do when they spend money. It's not their money. It belongs to the public, to taxpayers. It's not the Liberal-National re-election slush fund. The select committee on COVID has been forced to demand that the government no longer hide behind vague claims of public interest immunity which allow it to selectively drip-feed information to the Senate.

We also see that not one but six cabinet ministers have been cited in this report as attacking the Senate's inquisitorial powers by misusing public interest immunity claims. The Attorney-General, Christian Porter, has sought to hide whether US law enforcement agencies can access data collected by the Morrison government's COVIDSafe app. The Minister representing the Minister for Health in the Senate, Minister Cash, has sought to hide COVID-19 data modelling from the Department of Health. The former Minister representing the Treasurer, Mathias Cormann, sought to hide a broad range of information, including regarding support to the aviation sector, JobSeeker modelling and the design of the JobKeeper program. I for one would be very interested to see the advice provided to the government about why Rex needed an untied grant of $54 million while it recorded an underlying profit while Virgin, on the other hand, was left almost to collapse in administration. Another job for the mates.

The Minister for Finance, Minister Birmingham, has sought to hide a presentation provided to cabinet by the Productivity Commission. The list goes on. The Minister for Aged Care and Senior Australians, Minister Colbeck, has sought to hide the contents of briefings provided relating to aged care during COVID-19 and to the interim report of the royal commission. And the Minister for Families and Social Services, Minister Ruston, has sought to hide advice provided regarding changes to asset testing for Centrelink payments. These are important matters which the Senate and the Australian public have a right to know about.

As set out in this report, there are clear reasons why the public immunity interest test has been misused by the respective ministers. I welcome and wholeheartedly support the thoughtful recommendations within the second interim report. It is time for the Morrison government to front up and finally restore some accountability and transparency into the framework.

7:58 pm

Photo of Rex PatrickRex Patrick (SA, Independent) Share this | | Hansard source

I rise tonight in support of the motion relating to the ability for a Senate committee to get access to information relevant to its line of inquiry. The general principles upon which I support this particular motion go back to the functions of the Senate. The Senate has two major functions. The first of those is to review, amend, and reject or pass legislation, and that is something that this chamber does quite well. We seem to have worked out how to do that, how to have a good contest of ideas and so forth.

The second function, of course, is to conduct oversight of government, the scrutiny of government—to watch over what government does, to shine a light on what government does. The purpose of that is not to obstruct the government in its stewardship of the nation but simply to examine that stewardship to make sure that, in the conduct of government, things are done properly. That's the purpose.

In this instance, the circumstances are that we've had a Senate select committee established to look at the government's response to COVID. That's quite a reasonable thing to do, noting that, as Senator Sheldon said, a lot of public money was being spent for public purposes throughout the pandemic. That's not to criticise anything that the government has done specifically in relation to that, but the Senate decided to examine the conduct, the stewardship, throughout the pandemic. In doing so, of course, it needs access to information. It needs to inform itself as to what government is doing and to critique, criticise and congratulate. They are the sorts of things we expect to happen in these committees, but that's not possible if the information is not being handed over. As a result, orders for the production of documents have been made to get access to information.

I just want to take people to a well-known case, Egan v Willis, in the High Court of Australia. The background to this is that the New South Wales parliament, trying to carry out its functions in respect of reviewing legislation, sought access to documents. When the New South Wales Treasurer refused to provide those documents, the Treasurer was ejected from the Legislative Council. He raised an issue of trespass upon himself in being escorted from the chamber. The High Court dealt with that. I just want to go back to some of the principles that were determined in Egan v Willis and some of the things that were said by Justices Gaudron, Gummow and Hayne:

(ii) Each House performs the parliamentary function of review of executive conduct, in accordance with the principle of responsible government;

(iii) The Legislative Council has such powers as are reasonably necessary for the proper exercise of its functions;

(iv) Production of documents by ministers is reasonably necessary for the performance of both functions (i) and (ii).

That's not Senator Patrick giving an opinion; that's the High Court of Australia saying that this is what the law is in this land.

Often ministers stand up and say, 'No, we're not going to provide these documents,' but they do so inconsistent with the law of the land, with the rulings of our High Court. People are talking about the rule of law recently. The government is thumbing its nose at the High Court in respect of the principles it has laid out. In respect of this particular motion tonight, recommendation 1 of the COVID committee was to do with the fact that, during the discussion on the Privacy Amendment (Public Health Contact Information) Bill 2020 dealing with the COVIDSafe app, the committee wanted to look at legal advice that had been produced about whether using a US company risked data perhaps being sent back to the United States. It was not unreasonable to ask for the production of that legal advice.

Of course, ministers stand up here all the time and say, 'Consistent with the principles or the previous statements of other attorneys-general in this place, we're not going to provide those legal documents, because legal professional privilege is involved.' Well, there's another case that followed from Egan v Willis and it's called Egan v Chadwick and Others. It was dealt with by the New South Wales Supreme Court. I want to read to the chamber the exact words of the three judges agreeing in respect of rights for a legislative council—or it could be a senate—to have access to documents which are otherwise legally privileged. What they said is this:

In performing its accountability function, the Legislative Council may require access to legal advice on the basis of which the Executive acted, or purported to act. … access to such advice will be relevant in order to make an informed assessment of the justification for the Executive decision.


… access to legal advice is reasonably necessary for the exercise by the Legislative Council of its functions.

They added, 'If any access should occur as a matter of the occasion and the manner of the exercise of a power, not it's existence.' They make it very clear that the Senate—the Legislative Council in the case of New South Wales—has the ability to call for legal advice.

Justice Priestley said: 'The justification for legal professional privilege does not apply when a house of parliament seeks the production of executive documents. It must have the power to call for information relevant to the fundamentally important task of reviewing, changing and adding to the statute laws of the state. There will be from time to time information in the executive documents either necessary or useful for carrying out this task.' There is no question that it is proper and lawful to request access to legal documents, and it is improper to withhold it. I don't care about the opinions of Attorneys-General; I care about the law of this land, and the government scoffs at it! On one occasion it might say, 'It's convenient; we're going to rely on rule of law.' On another occasion, it simply turns its back on what is the law of this land. It's really clear. Make no mistake. That is the situation. That is the law as it exists in Australia.

Unfortunately, we've got a government that is acting inconsistent with the law, particularly in reference to recommendation 1. To the rest of them, of course, what has happened is the government has decided to sprinkle cabinet-in-confidence dust over all of the other information that's being sought. Now, the claim of cabinet in confidence is a serious one—it does warrant some level of protection and respect of deliberations and the decisions of cabinet—but, unfortunately, the Morrison government has watered this down completely. It has arrogantly stated that cabinet is now anything it wants it to be. It can be a meeting of doctors, a meeting of the AHPPC. It can be a meeting of gas executives with the NCCC. Let me make it very clear: a cabinet is a collection of ministers responsible to one parliament. There is no such thing as a national cabinet. I don't mind if you form a national council to deal with issues related to COVID, that's quite appropriate, but you don't sprinkle cabinet secrecy dust over everything. You don't say: 'I am the Prime Minister. I'm dissolving COAG, and now I'm going to make it all part of cabinet, and nothing that the government does will be seen because it's all national cabinet in confidence.' Sorry, but that's not the way it works.

Another principle of cabinet is one of collective responsibility. Minister Ruston will know this. Minister, you have collective responsibility. You can say whatever you like inside the cabinet, it's protected—as deliberations of cabinet ought to be. But once you step out of the cabinet, you are as one or you resign from cabinet. They're the rules. And yet in the national cabinet we see the Prime Minister come out and say one thing, and then we see the Western Australian Premier come out and say another thing, and then we see the New South Wales Premier come out and say another thing again—clearly not collective responsibility. The situation in relation to that will be tested very shortly. I have actually asked for the minutes of the national cabinet. I asked for them under FOI and of course the government denied them to me, making a claim that they were cabinet-in-confidence. I took that to the Information Commissioner and the Information Commissioner, properly, forwarded it to the AAT, where it can be dealt with seriously.

At the time, the government said: 'Nothing to see here. All precedents are sorted out; it's not complex.' That's what they said. But it got to the AAT, and I'm happy to inform the chamber now that the matter is so serious that it's been referred to a Federal Court justice—Justice White in Adelaide—and, suddenly, the government has made its mind up that it is important and has appointed a QC to represent it! So it went from something that was not an issue to something that requires a taxpayer funded QC to keep secrets from the Australian public which never should have been kept secret.

It's disgraceful! It's disgraceful and it's arrogant. It's arrogant to stand and say, 'I am simply, as a Prime Minister, going to unilaterally say that everything the government does is now secret.' That's what they've done and I'm going to fight this. I'm sure that Justice White will make a good decision on this, but it may need to go further. So government, you're on notice. If I win that case then everything that has been asked for in relation to the COVID committee will suddenly become available under FOI, because the defence that's being run—the racket that's being run here—to keep things from the parliament will evaporate by way of judicial order.

It's sad. There are a number of recommendations in this committee report that basically say the Senate needs access to information in order to do its job properly. We're not after information about the top speed of our future submarines and we're not trying to see what the exact range of an F-35 is. We're simply trying to see perhaps what decisions were made in respect of border closures, or some of the earlier decisions relating to vaccines. There are lots and lots of different questions being asked by the committee and the shutters get put up, unlawfully and arrogantly, by the coalition government. It's not proper.

Sadly, we find ourselves debating this—and I absolutely support Senator Gallagher in relation to this particular motion that she has put, because she's trying to do her job as the chair. She's trying to make sure that the committee can properly examine the reference made by the Senate to her committee, but she can't, because information is being denied, inappropriately and unlawfully. There's no question about that, so I will be supporting this motion.

Photo of Scott RyanScott Ryan (President) Share this | | Hansard source

The question is that the motion moved by Senator Gallagher be agreed to.