15 June 2020
We write to you on behalf of the Select Committee on COVID-19 (the committee) in relation to the provision of information to the committee.
You would be aware that the committee is inquiring into the government's response to the COVID-19 pandemic. In fulfilling this role, the committee is responsible for scrutinising relevant policy, legislative and financial measures on behalf of the Australian Parliament and for examining matters of importance to the Australian community, including the government's health and economic response to the pandemic.
The committee acknowledges that public officials are working hard to implement the government's response to the pandemic. The committee also appreciates that senior public officials have made themselves available to appear to provide evidence at a public hearing, often at short notice and sometimes on multiple occasions.
Nevertheless, the committee has some concerns with the forthrightness of departments and agencies in answers to oral and written questions. A tendency to refrain from providing full and complete responses to the committee is particularly evident in answers about information that may have a connection to cabinet.
The committee reminds witnesses that there is no category of documents which the Senate has accepted is immune from production. However, the Senate recognises that some information held by government may be withheld where its disclosure could lead to harm to the public interest. The Senate Order of 13 May 2009 prescribes a process to deal with claims for the withholding of information or documents from Senate committees.
On a number of occasions government officials have refused to provide material to the committee on the grounds that it is cabinet-in-confidence. Such refusals to provide information are regularly made with no further details or explanation as to the harm that may result from the disclosure of the information.
The 2009 Order sets out the proper process by which a claim of public interest immunity may be made. This process applies where an official or minister seeks to withhold information from a committee or the Senate on the basis that disclosing the information would harm the public interest.
It is for the Senate to determine, on a case by case basis, whether information can be withheld for that reason. The process outlined by the Order specifies that:
Public officials should state the ground for withholding information and specify the harm to the public interest that could result from the disclosure of the information or document.
The committee may request the officer to refer the question to the responsible minister.
If the minister concludes that it would not be in the public interest to disclose the information or document, the minister should similarly inform the committee of the ground for withholding the information and specify the harm to the public interest that could result from its disclosure. The minister should indicate whether the harm to the public interest could result only from the publication of the information, or could result, equally or in part, from the disclosure of information to the committee as in-camera evidence.
As the Senate Order indicates, a claim of public interest immunity consists of two elements:
the claim must specify the grounds upon which the information or document is being withheld;1 and
the claim must specify the harm to the public interest that could result from the disclosure of the information or document.
Ministers making a claim of public interest immunity should also indicate whether the harm to the public interest could result, equally or in part, from the disclosure of the information or document to the committee as in-camera evidence.
In the past, the Senate has been persuaded to accept a claim of public interest immunity over information or documents that would reveal cabinet deliberations. However, this ground relates only to the disclosure of deliberations. It is not sufficient for the document to be classified as cabinet-in-confidence, for the document or information to have some connection to cabinet, or for the document to have been an input to cabinet processes.
It is important to note that paragraph (7) of the Order puts beyond doubt that a claim of public interest immunity that does not specify the harm to the public interest that could result from the disclosure of the information would not meet the requirements of the Order. Therefore, a claim that merely states that information or documents would reveal cabinet deliberations would not comply with the 2009 Order. Moreover, the harm to the public interest should directly relate to the disclosure of the particular information or document requested. This requires more than specifying a general harm associated with disclosing documents of a certain class, such as cabinet documents.
Answers to questions taken on notice
In relation to answers to questions taken on notice, some responses have not been forthcoming. On a number of occasions, answers have stated that the matter is for another department or a minister with no further referral. On other occasions, answers have stated that the requested information will not be extracted due to the resources required to do so, or that the information cannot be provided within the timeframe requested by the committee. In some instances, responses have not answered the question that was asked.
The committee appreciates that public officials are busy and that providing answers to questions taken on notice takes time. Moreover, some questions require departments to collate information and may therefore take more time to answer than others. While departments should endeavour to provide information within the timeframe set by the committee, where a department requires more time to provide an answer, this should be conveyed to the committee and an extension should be sought. The difficulty involved in providing information is not a sufficient reason to decline to provide an answer to a question, nor should it delay the provision of answers to other questions.
Transfer of a question taken on notice
The committee accepts that there may be occasions when a department or agency does not have the information required to answer a question.
If a department is unable to answer a question on notice, it should transfer that question to the appropriate department or agency and also provide to the committee:
the reasons as to why the department or agency is unable to respond;
the agreement of the relevant department or agency to which the question is transferred; and
the details regarding the department or agency to which the question has been transferred (with the date of transfer).
This information will enable the committee to pursue a response from the relevant department or agency if a response is not forthcoming.
Given the significance of the matters being examined as part of this inquiry, public servants should be prepared to provide as much information as possible when giving evidence. This is the expectation of the committee and the Australian people. The committee looks forward to working with departments and agencies to provide assurance to the public that the government's response to the pandemic is both transparent and properly scrutinised.
If you have any questions about this correspondence, please contact the Committee Secretary, Dr Jane Thomson, by email at email@example.com or by phone on (02) 6277 3892.
Senator Katy Gallagher Senator James Paterson
Chair Deputy Chair
 Odgers' Australian Senate Practice outlines potentially acceptable and unacceptable grounds for a public interest immunity claim. 14th edition, 2016, pp. 662–670.