Katy 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.