Richard Colbeck (Tasmania, Liberal Party, Minister for Senior Australians and Aged Care Services) Share this | Link to this | Hansard source

In response to the notice passed in the chamber, I advise the chamber that the government maintains its public interest immunity claims advanced in response to the request from the Select Committee on COVID-19.

I thank the select committee for its important work this year in overseeing the government's response to the economic and health challenges of the pandemic. Coalition senators acknowledge the important role of parliamentary oversight in our system of government, which has been even more important during the COVID-19 crisis.

On both the economic and health fronts, Australia has fared better than most countries in dealing with COVID-19. Australia's critical response has been underpinned by a combination of extensive testing and contact tracing, high vaccination rates, quarantine of people returning from overseas and measures to control community transmission. Of the 38 developed OECD countries, Australia has the second-lowest number of COVID cases on a per capita basis. By avoiding the death rates seen in the OECD, it's estimated that we've saved over 30,000 lives.

Commendably, 87 per cent of the eligible population aged over 16 are fully vaccinated, and hence we are one of the most highly vaccinated societies in the world, with a national booster program already underway. While Australia has been doing it tough, our economy has proved to be resilient. Australia was the first advanced economy to have more people in work than prior to COVID-19; nearly 900,000 jobs have been created since May 2020. The RBA has recently revised up its forecast for wages and now sees the unemployment rate reaching four per cent by the end of 2023. After last year's recession, Australia's economy—GDP—recovered to be larger than prior to the pandemic, ahead of any advanced major economy in the world.

While Australians have experienced public health restrictions this year, the federal government—

Sue Lines (WA, Deputy-President) Share this | Link to this | Hansard source

Senator Patrick on a point of order?

Rex Patrick (SA, Independent) Share this | Link to this | Hansard source

It's relevance. The purpose of this explanation is to explain why a document hasn't been provided to the Senate, not to rattle off a bunch of stuff about performance of government.

Sue Lines (WA, Deputy-President) Share this | Link to this | Hansard source

Thank you, Senator Patrick. You can seek to take note of the minister's comments afterwards, if you so choose. Minister, please continue.

Richard Colbeck (Tasmania, Liberal Party, Minister for Senior Australians and Aged Care Services) Share this | Link to this | Hansard source

While Australians have experienced public health restrictions this year, the federal government has supported 2.19 million individuals, who have been paid out of a total of $12.59 billion in COVID-19 disaster payments.

In 2021, the COVID-19 select committee has held 17 public hearings, which have included nine appearances by officials from the Department of Health. This year, the committee has sent out approximately 470 questions on notice to both government and non-government witnesses. Of those, 260 answers have been returned to the committee.

Since the commencement of this inquiry in April 2020, more than 2,700 questions to witnesses have been put on notice, and more than 2,160 responses to those questions have been received. The committee's public hearings have been held in addition to the regular parliamentary sitting weeks and appearances of government departments, and their agencies, before Senate estimates hearings. It is clear that parliamentary scrutiny is operating as normally as possible and that parliament is fulfilling its duty to keep the government accountable, even when challenges have arisen owing to public health restrictions across the country.

It should be noted that parliamentary scrutiny of the federal government's response to the pandemic has been far more extensive and robust than any state parliamentary oversight. Given the most onerous restrictions on the liberty of citizens during the pandemic, in the name of public health, have been imposed by state governments, they should at least have as adequate oversight as the federal parliament has put in place. It is regrettable that in many jurisdictions parliamentary committees scrutinising the performance of state governments have been put in place only temporarily, have had few public hearings and have often been chaired by government chairs.

Sue Lines (WA, Deputy-President) Share this | Link to this | Hansard source

Senator Colbeck, I have been listening, and you did make reference to it, but I draw to your attention that there are three orders for you to provide an explanation of the minister's failure to table the information. I have the document here in front of me. Whilst you did start to go some way towards that, you have deviated from it, and it is the requirement of the order.

Richard Colbeck (Tasmania, Liberal Party, Minister for Senior Australians and Aged Care Services) Share this | Link to this | Hansard source

Thank you, Deputy President. It is a longstanding view of governments of both persuasions that the deliberations of cabinet should remain confidential because disclosure may impact the government's ability to receive confidential information and, hence, make appropriate and informed decisions for the Australian community. This is especially so when the responsibility of protecting the health and welfare of the Australian people during a pandemic is at stake. As stated in the second interim report, the relatively few disagreements between this committee and the government regarding a small number of public interest immunity claims should be viewed in light of these facts and the committee's busy workload.

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

I move:

That the Senate take note of the statement.

I'm not actually sure that the minister addressed the issues that have been raised in the third interim report of the Select Committee on COVID-19. It seemed to be a whole lot of excuses about the fact that scrutiny was occurring and continuing to occur. But the real issue here, if we cut to the chase—because it's the final sitting day of the year and I know there's a lot of other business to get through—is that the select committee was established with the support of the government and other senators in this place. It was unanimously agreed to. The terms of reference were agreed to. They were broad. It was clear that this committee was going to travel through the pandemic. The specific terms of reference are to monitor the Australian government's response to the COVID-19 pandemic, so I'm not entirely sure why the Commonwealth's concern, now, over the lack of scrutiny of the states' role is being raised as an issue. It was a very clear term of reference.

Yes, we've had a lot of hearings. Yes, we've put questions on notice. The minister actually made the argument for me pretty well when he said, 'Yes, and we've answered at least half of them.' That's part of the point. While the scrutiny process from the committee side is working, the problem we are having is with the government either refusing to answer the questions or being very lazy in how they answer them. There's another subset where they answer without actually relating it to the question, so it's an answer about another matter that wasn't asked.

Then there's the blanket refusal to answer things that they have decided are cabinet-in-confidence. I'm sure it goes around the ministerial liaison units of every department because they use the same language—the government has decided that this information is cabinet-in-confidence, in line with longstanding conventions, blah, blah, blah, blah. Often, departments don't even bother referring it to the minister for a formal claim of public interest immunity; the committee has had to do that. So we, the committee, get the answer back and then have to chase them and go back to the department and say: 'No, that's not how the process works. If you are not going to answer this then you have to refer it to the minister, and they need to go through the process of making a formal public interest immunity claim and then you might get it done.' We chase and push the government, only to have the government reply, 'Well, we've considered it again, and the arguments we made last time'—which were not in accordance with the Cormann motion of 2009—'remain.'

When we bring it to the Senate and we force it through here, as we did with the second interim report, it's exactly the same thing. So we report to the Senate that the committee has not accepted public interest immunity claims, for whatever reason, and call for an order for the production of documents. The government has ignored the request of the committee.

The Senate passes it, and then requires the documents to be provided or the minister to come and make a statement. The documents are not provided. And then the minister comes and makes a statement, which is basically to say what they said originally to the question on notice! It is simply not acceptable. It's not how this place should work. It's not how this chamber was set up to work. And the longer this tired old government—eight years in—goes on, the worse it's going to get, because there is seemingly no consequence to this.

The job that the Senate asked us to do—asked me, as chair of the committee, and my colleagues, including Senator Patrick, who has attended most of those hearings—was to scrutinise the response. That job is impacted because of this government's unwillingness to provide information. The information is things like the Doherty modelling and the presentation that was provided to first ministers. Why on earth should the Australian public not have access to that information? It's AHPPC minutes from when the first lockdowns happened and the advice that was given. Again, why are the Australian public not entitled to that information? These are important decisions that were taken and information that has been withheld. This is a ridiculous one: the presentation by the Productivity Commission to national cabinet on the economic recovery—I presume, because we haven't seen it—was not allowed. Then, when we've again asked for that, following Senator Patrick's successful case through the AAT, and we've again put it back on notice, saying: 'Justice White has found that national cabinet is not a committee of cabinet, and therefore your blanket cabinet-in-confidence argument is tossed out, so please provide this document,' the answer has come back: 'No, we're not providing it.'

When you do an FOI on any correspondence that was engaged in, about, 'How did you come to that decision?' you see it's all coming from the Prime Minister's department. All these departments are going: 'Oh, the committee's after those documents again. What do we say?' and it's a coordinated refusal to provide that information—'Oh, we can't'—that comes back from PM&C. They've got all their hands on it. Health admitted as much—that they had consulted PM&C about their response before refusing, again, to provide the information to the Senate that was called for by the Senate.

The thing is: when you are in opposition and you are trying to do this, we will remind you of this—of the fact that you are trashing convention and practice of the Senate. So we have to stand up for it. We have to argue for transparency and accountability—and not just what you choose, because it seems to me that the approach the government has taken is: 'We will choose what access Senate committees have to information.' And that's not how the system was set up to work. It was that the Senate had the power to call for documents, to require documents, to order documents if they weren't provided. It was not executive government deciding: 'You know what? You can have half of this and a quarter of that and none of that.' That is what's happened and that is why the Senate committee has reported, for a third time, rejecting public interest immunity claims by this government—excepting one. We have excepted one, because the argument was made and we accepted that. But on the other ones—access to important information—we haven't accepted it, and the Senate yesterday voted to require the government to provide it. And we got this—a speech about how great the government's been, how great it's going to be and how great it's always been, 'But, by the way, you're not getting access to anything.' It's just not good enough.

I'll leave some time for Senator Patrick to make some other comments. But this is impacting on the work that we are able to do on the job that we have been given by the Senate. It is an arrogant, out-of-touch, conceited government that treats the Senate with such disrespect.

Sue Lines (WA, Deputy-President) Share this | Link to this | Hansard source

Senator Patrick, did you wish to take note of the same matter?

Rex Patrick (SA, Independent) Share this | Link to this | Hansard source

Yes, I do, but I still also reserve my rights in respect of 75. I want to touch on three areas in relation to this particular matter. The first of those is the disrespect of the executive—and I'm talking about ministers—in making claims which now, I might point out, are not just in defiance of Justice White's decision that national cabinet is not a cabinet but are also in defiance of a Senate resolution that says that particular public interest immunity in relation to national cabinet is not to be advanced. That is what the Senate has decided. As officers of the Senate, people need to look very long and hard at themselves in advancing those sorts of immunities. I'll give you another one to try—intergovernmental relations—because that may actually constitute a reasonable public interest immunity. But stop lying. Stop deliberately misleading. Stop basically confronting what is law in Australia. Accept the law as it is and that national cabinet is not a committee of the federal cabinet.

The second point I would touch on—this goes to what Senator Gallagher was talking about—is public officials turning up and basically making public interest immunity claims, also knowing full well because the matter in the AAT against the Prime Minister by myself, where Justice White established that the national cabinet was not a cabinet, has been quite highly publicised.

I'll go back to the law as it is in Australia. This is not me suggesting what should happen; this is the law. Under the Public Service Act section 10 there are certain values that the APS holds that include that they act in a professional manner, in an objective manner and with integrity. Indeed, section 10(5) says:

The APS is apolitical and provides the Government with advice that is frank, honest, timely and based on the best available evidence.

That is the obligation placed in law upon public servants. I've named a few of them. I might point out that there's another one that I've just got back in the last day or so from another public servant—I'll come back to that when I deal with late questions on notice. In effect what happens here is the secrecy obsession of the Prime Minister drives down through the frontbench, who don't have the courage to stand up and say: 'Sorry, Prime Minister, I'm going to recognise principles in respect of the rule of law and I'm not going to say to the Senate what you want me to say, which is that national cabinet is, in fact, a cabinet when we know that it is not and the Senate has resolved that it is not.' That's the first problem. We've got ministers not standing up to the Prime Minister. Perhaps they're more worried about their own personal position and, perhaps, the money that flows from that, rather than their obligation to the public.

What happens is they push this down through the Public Service where, in effect, they force public servants to breach the law, to act in a manner that is inconsistent with the APS values and the APS Code of Conduct, which is also enshrined in the Public Service Act. I'm not making any excuses for those public servants, because they, particularly the senior ones, ought to stand up and say: 'Sorry, Minister; I'm not saying that. I'm not doing that.' Sadly, we've seen some examples—led by Mr Gaetjens—where they just cast that aside and say: 'No, I'm going to hoist my Liberal Party spinnaker because whilst the Liberal government is in charge I'm going to do everything that they say.' That's what Mr Gaetjens does. I'm hoping that the Labor Party, should it get into government, looks very long and hard at these people and looks at their moral fortitude and their courage. Again, I'm not talking about some very good people who work in the APS and do a really good job; I'm talking about the very senior people that are corroding what would otherwise be the confidence that we're supposed to have in the Public Service. That's the second problem.

The third problem is actually our problem. It's the problem of the Senate, which simply allows this to happen. I again go to the report of the Privileges Committee in the last few days, where we had a lawful order of the Senate not complied with by a statutory officer. In actual fact, somehow the Privileges Committee finds that that's not a contempt. It's no wonder only half the questions are getting answered in this place.

I'll go to the matter—and I know Senator O'Neill raised this yesterday, but I'm not convinced—of the referral that took place in relation to the lack of provision of documents to the Economics Committee. The referral was made on 15 June this year. Six months later, we're likely to end this parliament without that matter being resolved. Now, I'm happy to inform the chamber that there at least has been some agreement in respect of the provision of information to the Economics Committee—and that's a good thing—but it's taken six months. Nothing that happens from now will undo the fact that the minister and the secretary have frustrated this Senate from being able to conduct its job.

I'm absolutely sure we'll get to a point now where that committee will not report properly. Sadly, we've lost the chair, who had so much passion in relation to this particular issue. But the Senate may not end up reporting on this. It's certainly not doing the job that it wanted to do. And whose fault is that? It's the fault of the Senate. I'm sorry, but the fact that the Privileges Committee has taken six months to get to this point is atrocious. I invite the Chair of the Privileges Committee and Senator Abetz, the Deputy Chair—both senators who I respect greatly; they are very tough senators in normal circumstances; I don't understand what is happening here—to go and read Machiavelli's The Prince. That will show you how you can deal with these sorts of circumstances. Just a couple of fines, just a couple of jail terms, would stop this instantly. We wouldn't be having these debates. We wouldn't be having these discussions. But, unfortunately, as I've found out, the Privileges Committee is weak. The Privileges Committee of the Senate is weak. If any journalist ever uses the words 'the powerful Privileges Committee', I'm going to correct them. This is the fault of the Senate.

No, it's not the fault of the government. The government are in breach, but we do nothing about it. It's within our power to do something about it and we don't. That's the problem.

Senator O'Neill is welcome to stand up afterwards and take note as well. But this is the problem. We don't get to go and look to somebody else and say: 'Hey, guys, it's not fair. They're not playing the game.' We're at the top of the tree. We sit at the top. It's up to us to do it. It's up to us to stand firm. The powers are there. They flow through from section 49 of the Constitution. There is no question. We know the House put a couple of journalists into Goulburn jail for a little while—that was, in my view, wrong. The power exists. The High Court affirmed that. The High Court affirmed that power. Just as the High Court in Egan v Willis affirmed the powers for us to produce documents. Just as, in Egan v Chadwick, the New South Wales Court of Appeal affirmed the ability to receive documents that were legally privileged. But it is up to us. I'm not saying the government's doing the right thing and I'm not saying the senior public servants are doing the right thing—they're in fact breaking the law—but we're not doing anything about it, and that needs to change.

Question agreed to.