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.
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.
I refer to the comments made by the Leader of the Government in the Senate today and the correspondence that I sent to the Chair of the Senate Select Committee on COVID-19 dated 18 December 2020. I confirm the government maintains its public interest immunity claim over the content of the advice that was provided in the context of cabinet deliberations.
I also refer to the comments made today by the Leader of the Government in the Senate and the correspondence from the Attorney-General to the chair of the Senate Select Committee on COVID-19, dated 14 May 2020 and 11 June 2020, and confirm that the government maintains its public interest immunity claim over the content of the confidential legal advice in question.
I refer to the comments made by the Leader of the Government in the Senate and the correspondence from the health minister to the chair of the Senate Select Committee on COVID-19, dated 23 September 2020 and 1 October 2020, and confirm that the government maintains its public interest immunity claim over the confidential cabinet deliberations in question.
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?
I'm a member of the COVID committee and am absolutely appalled that the government hides behind public interest immunity. I'd also remind the chamber that it's not the first time that this has happened in very recent history. We don't have to go far back to work out when it occurred—robodebt. It was repeatedly used there, and they refused to provide the Committee on Community Affairs with the information that we were very justified in asking for, about their decision-making around robodebt. I'm using that as an example not to prosecute that argument yet again but to show that this government keeps hiding behind cabinet-in-confidence arguments again and again. As Senator Gallagher has just said, wheeling a trolley through the cabinet with some documents piled high on anything that the Senate might ask for is not appropriate. This isn't the first time the government has been hiding behind cabinet-in-confidence or public interest immunity.
I'd argue very strongly that there's not a cabinet-in-confidence argument against telling us. One of the questions that they refuse to answer is how they determined the Coronavirus Supplement rate. How did they determine it? Wouldn't you think it was in the public interest to know that? I tell you what, I'm really interested to know, because it's very important for the debate on the legislation that we'll have later in this chamber, probably tomorrow—rushed through, and we'll no doubt get a motion on hours, where they'll then of course include the guillotine and try to gag debate on the government's appalling rate of increase to JobSeeker, which the legislation that will come before this chamber sets at just $25 a week. When the Coronavirus Supplement was doubled, this Senate supported and agreed with it. The government knew that people couldn't survive on $40 a day. We wanted to know, quite justifiably, because it was a COVID response, how that rate was determined. No, they won't tell us. We also asked for the modelling on the JobSeeker payment. No, they won't tell us.
We asked for the modelling around the stage 2 tax cuts. No, they won't tell us. We asked when cabinet was first briefed by the Chief Medical Officer—an absolutely fundamental question. No: 'It's secret; we won't tell you.' You have to ask: what have they got to hide? It's a really simple question that Australia has the right to know the answer to. Why not tell us?
We also asked: when did the minister for aged care, Minister Colbeck, brief cabinet on the aged-care issues that we plainly saw roll out in this country? Nuh, he wouldn't tell us. We also asked how often the minister for aged care had briefed cabinet on the aged-care crisis—and not one person here could deny that we had a crisis—but did he tell us? No. Apparently that's secret too. How many times? When did he recognise that we had a crisis on our hands? When did the government know that Australia had a crisis in aged care on its hands? We don't know, because he won't tell us. He wouldn't tell us. The government won't tell us. Oh, that's right—it's cabinet-in-confidence! How often did he brief? When did he brief? When did he attend cabinet? When did the government know? It tells us how urgently, and when, they started responding to the crisis. No, they won't tell us.
We also asked about child care. We all know that in the heat of the crisis last year there were amendments made to payments and to how we approached child care. They won't provide the modelling for why they then changed their mind and ended that particular approach. They won't provide that and they won't provide the parameters on JobKeeper.
They won't provide the information on when cabinet decided that Australia was going for a suppression approach to COVID rather than an elimination approach to COVID. These are all questions that are very legitimate questions for the COVID committee. They are part of our work. The committee was charged by this place to do this work, but the government won't provide that information. They are key bits of information for the committee to do its work, and not just for us to do our work but for broader Australia to know. But, no, it's cabinet-in-confidence. As has been discussed in this chamber before, we don't accept those claims. This is information the committee should have access to and Australia should have access to.
I'll go back to the issues around the coronavirus supplement. Those were very important decisions that the government made. They were happy to take the Australian community's support for it and its welcoming of it, but they're not happy to tell us how they came to the rate. That is appalling. Australia has a right to know how we decided on that rate. Having access to that rate has made a lot of difference to Australians who are unemployed, so I argue very strongly that we have a right to know how that rate was arrived at. It was so important and it is so important. But of course the government don't want to release that information, because they know it will make an absolute mockery of the lousy 25 bucks a week, $3.57 a day—I challenge people to find somewhere in this country where they can buy a cup of coffee for $3.57—that they are going to ask this place to pass within 24 hours or—it may be a bit longer depending on whether we get an hours motion—36 hours.
This information is important to this country and it should be made available.
I rise to take note of the minister's response. I accept what the Minister for Finance has said in relation to the Select Committee on COVID-19 being set up with bipartisan support. That's a good thing. But in order for a committee to do its work it has to be properly informed. It needs to have access to information. You can't stand and say, 'It's okay, we've assisted and we've given our support to a committee,' but then, on the other hand, deny it relevant information for its line of inquiry.
I want to go to two claims which have been made by the government. The first goes to legal professional privilege. It's worthwhile understanding the purpose of the privilege. The purpose of the privilege allows for confidential discussions between a client and a lawyer. In this case, the lawyer will be either the Solicitor-General or the AGS, or perhaps a contracted lawyer. But the client is of course the Commonwealth government. One of the things that you can do in relation to legal professional privilege when you are the client, because the privilege belongs to you, is that you can simply waive the privilege. You can say, 'I accept that this is legal advice, but the release of this information will not cause harm so I wave my privilege.' That's the first thing that the government could do in these circumstances. Have a look at what the content of the legal advice is and, in the spirit of openness and transparency, simply waive the privilege.
I know that people stand up on a regular basis and say that this undermines the well-established doctrine. Well, the bottom line is that it does not. The doctrine permits the waiving of privilege. The client simply has to say, 'I agree to waive the privilege.' I might point out that on 2 March 1986 cabinet made a decision under the secretary of the Attorney-General's Department at the time, Mr Brazil—it's called the Brazil Direction. This was a direction from cabinet that, in actual fact, legal advice belongs to the government, paid for by the people, and only in circumstances where harm could be caused should it not be released. I invite people to have a look at the Brazil Direction. Study it and you'll see that there's no reason, unless there's harm caused, as to why legal advice can't simply be handed over. The minister did not stand up and say, 'This is the harm that would be caused by a particular piece of advice being given.' He didn't do that. He simply said that it would be harmful just because we do it and that would cause harm. That's wrong—that's simply wrong, I say to Minister Birmingham. I think he should go away and reflect on that.
The second part of the equation, if you don't wish to waive privilege, is that the Senate has the power to order the production of legal advice. Earlier in this chamber—on Monday—I read out from the judgement in Egan and Chadwick in the Supreme Court of New South Wales where, unanimously, the appeals justices basically said that the New South Wales Legislative Council has the power to order the production of legal advice in circumstances where they believe it relates to the work that they carry out as a legislature, either in respect of considering legislation or in its oversight role.
So there's no reason why the government should not hand over that advice. It is consistent with the doctrine of legal privilege and it is consistent with the rule of law in this country. Please don't stand up and say, 'An Attorney-General said this, therefore it is.' Why don't they listen to the justices within our legal system, who I think are much better qualified than people in this chamber to understand what the law of this land is? It would be good if the government complied with the law of this land. Unfortunately, they're not.
In relation to the second aspect of some of the claims—the claim of cabinet in confidence—again, we should go back and look at the root purpose of cabinet in confidence. The dominant purpose of that protection is to protect the deliberations of cabinet—that is, the exchange of words between ministers across the cabinet table for the protection of what is referred to as collective responsibility. We allow ministers to have their opinions and say what they want to say about whatever is being talked about in cabinet, but the guiding insight is that there's collective responsibility. Once you walk out of the cabinet room, you adopt the position of the cabinet.
There is a protection around deliberation of cabinet, but there's also a ruling—again, in the civil jurisdiction—that deliberations are strictly the discussions that take place between ministers around the cabinet table. The cabinet rules—and I have looked into this in great detail—do not permit the deliberations of cabinet to be recorded on the minutes of cabinet. They can only be recorded by the note-takers, who then take the notebooks and lock them up. They send them to the archives, and we find out later what has been said. It is not possible for any minute from the cabinet or any decision of the cabinet to contain a deliberation, because that's not permitted under our cabinet rules. So claims that we see quite regularly thrown around—actually, I've got some challenges with the Information Commissioner in relation to some of these cavalier claims that these are deliberations of cabinet—are simply false because the only place deliberations of cabinet are recorded are in the notebooks.
Of course, there are accepted principles behind the keeping secret of cabinet decisions and cabinet ministers, but, again, understand what the law of this land is. I invite you to go and have a look at the case of Sankey v Whitlam in the High Court, where the High Court determined it is not for the cabinet to decide whether or not to keep cabinet documents secret in court proceedings; it is a matter for the court to do so. No-one in this country is immune from handing over documents or entitled to complete secrecy. If the interests of justice demand or require the adducing of cabinet documents then the High Court has said that is what will happen.
Bret Walker SC—and I know the Attorney respects Bret Walker SC; he's engaged him in his matter that he's just initiated—gave a presentation here a couple of years ago that said the High Court has said that cabinet documents can be adduced in a court if the burden had been met or the interests of justice demand it. He also indicated that the same threshold test can be applied and the Senate has the ability to demand those documents as well.
One of the problems we've got here is that the government is simply very cavalier in all of its claims. I have brought into this chamber on at least one occasion and certainly have brought to a committee room a document that is cabinet in confidence according to a response to an order for production but that I got under FOI. You make the claims in such a cavalier manner, and they get overturned. My current score has gone up since the last time I spoke about this in the chamber. The current score on FOI appeals is Rex 7, governments 0. It's gone up by one. It is because you make all these claims that are not properly grounded in law that they get overturned. What happens is everyone understands now what you're doing. You're crying wolf. You cry wolf every time someone wants a piece of information. You inappropriately and unlawfully withhold that document. Again I say that transparency, to the Prime Minister, is like kryptonite to Superman.
Question agreed to.