1.1
This interim report informs the Senate about claims of public interest immunity received by the Senate Select Committee on COVID-19
(committee) in the course of its examination of the Australian Government's (government) response to the COVID-19 pandemic.
1.2
This report discusses the following claims received by the committee:
a claim made by the Hon Christian Porter MP, Attorney-General;
two claims made on behalf of the Minister for Health by
Senator the Hon Michaelia Cash, then Minister representing the Minister for Health in the Senate;
two claims made on behalf of the Treasurer; one by former
Senator the Hon Mathias Cormann and one by Senator the Hon Simon Birmingham;
a claim made by Senator the Hon Richard Colbeck, then Minister for Aged Care and Senior Australians; and
a claim made by Senator the Hon Anne Ruston, Minister for Families and Social Services.
1.3
The committee has resolved not to accept these claims on the grounds provided. Correspondence relating to each claim is available in the appendices of this report. The committee's consideration of the claims is set out below.
1.4
Taken together, these claims have compromised the committee's ability to scrutinise government decisions with a profound impact on lives of Australians. The committee is concerned that they reflect a pattern of conduct in which the government has wilfully obstructed access to information that is crucial for the committee's inquiry.
Scrutiny of government during the COVID-19 crisis
1.5
In a time of crisis, when the executive government is afforded sweeping powers and considerable public funds must be allocated before policy can be appropriately scrutinised by the Parliament, transparency and accountability become critical. This committee is one of the primary mechanisms by which the Senate agreed to scrutinise the government's response to the COVID-19 crisis.
1.6
On the establishment of this committee, the former Leader of the Government in the Senate, former Senator the Hon Mathias Cormann, acknowledged that the government was making judgements every day and recognised the need for those decisions to be scrutinised and challenged. However, on multiple occasions the government has frustrated the committee's attempts to obtain important information that would enable it to perform this role.
1.7
During the initial stages of the committee's inquiry, senior public servants indicated a willingness to provide full and helpful information in light of the importance of the committee's work, particularly in the absence of usual parliamentary sittings. For example, when the Secretary of the Department of Home Affairs, Mr Michael Pezzullo AO, was asked to provide written advice he had given to Ms Caroline Edwards PSM, then Acting Secretary of the Department of Health, Mr Pezzullo provided two documents and stated:
Ordinarily, consideration would have been given to making a claim for Public Interest Immunity in relation to both documents, however in light of the significance of the work of the Committee, the decision has been made to provide the documents in full, apart from the minor redaction mentioned above.
1.8
Similarly, when asked during a committee hearing on 23 April 2020 for documents to be provided concerning advice by the then
Chief Medical Officer, Dr Brendan Murphy, to the Minister for Health, the Hon Greg Hunt MP, Ms Edwards provided the documents and made a similar statement about not seeking to claim public interest immunity given the significance of the work of the committee.
1.9
In that same hearing on 23 April 2020, Dr Murphy indicated a willingness to provide the date on which he first briefed the Cabinet:
Let me just have a look. I think I briefed the National Security Committee of cabinet that weekend. I'd have to go back and check that. I'd better take it on notice.
1.10
Despite these positive early signs, the government reverted to a more conservative approach to sharing information. This includes, for example, a continued refusal by government to confirm the date on which the
Chief Medical Officer first briefed Cabinet—a key part of the government's initial response to the pandemic which remains confidential over nine months after Dr Murphy's tentative answer.
1.11
The committee's efforts to obtain this kind of important information from the government are grounded in the powers and procedures of the Senate.
1.12
The inquiry powers of the Senate encompass the power to order information from ministers. While the Senate recognises that the government holds some information which should not be disclosed, the Senate has established procedures to enable it to consider refusals by government to provide information. This includes the procedures set out in the Senate Procedural Order of 13 May 2009 (2009 order), which describes the proper process for government to make a claim of public interest immunity.
1.13
The committee has made regular efforts to remind officials of their obligation to comply with the 2009 order. Written advice about the 2009 order is provided to witnesses before public hearings; the Chair has referred to the order in her opening statements at hearings; the committee wrote to a wide range of Commonwealth departments and agencies on 15 June 2020 to remind them of the process; and the Senate passed a motion on 17 June 2020 reaffirming the principle that information may only be withheld following consideration by the Senate of a properly founded claim of public interest immunity.
1.14
This report details multiple instances where important information sought by the committee has been withheld by government on grounds of public interest immunity. It is disappointing that in each of these instances, the government failed to properly adhere to the 2009 order, which was moved by the former Leader of the Government in the Senate, former Senator Cormann.
1.15
Each of the government's claims discussed in this report do not provide adequate reasoning to justify withholding the information.
1.16
The committee believes the government's repeated misuse of public interest immunity claims as a basis for withholding key information from the committee is at best lazy and at worst a deliberate abuse of the public interest immunity process. Such an approach undermines the Senate and cannot be left to go on unchallenged.
1.17
To simply accept the government's approach to withholding key information would allow the Senate's power of inquiry to be irreparably undermined. The Senate must act to reassert its preeminent role in holding the executive to account and having the information necessary to perform that role.
1.18
If we do not stand up for the Senate's powers and reject this government's secretive agenda designed simply to protect the executive, then the Senate will become a toothless tiger that gets spoon fed only the information that the government wants to feed it. That is not how our system is meant to operate.
Claim made by the Attorney-General
1.19
Since its public hearing on 6 May 2020, the committee has sought to obtain legal advice provided to the Attorney-General's Department (AGD) on the interaction of the bill governing the COVIDSafe app—the Privacy Amendment (Public Health Contact Information) Bill 2020—with a particular piece of United States (US) legislation, the Clarifying Lawful Overseas Use of Data Act (CLOUD Act).
1.20
In that hearing, the committee sought the AGD's assurance that the data collected by COVIDSafe could not be accessed by a US law enforcement agency under the provisions of the CLOUD Act. Ms Sarah Chidgey,
Deputy Secretary at the AGD, confirmed that the AGD had sought and received legal advice on the interaction of the COVIDSafe bill with the CLOUD Act, but would not discuss the content of that advice on the basis of legal professional privilege.
1.21
In a letter to the committee dated 14 May 2020, the Attorney-General claimed public interest immunity over the legal advice concerning the interaction between the COVIDSafe bill and the US CLOUD Act. In refusing to provide the requested information the Attorney-General noted that:
it is a long standing practice of successive Australian governments to not disclose privileged legal advice;
it is not in the public interest to depart from this position;
it is essential that privileged legal advice remain confidential as it is critical to the development of sound Commonwealth policy and law-making; and
the disclosure of advice which is subject to legal professional privilege could result in harm to the administration of justice.
1.22
On 26 May 2020, the committee wrote to the Attorney-General to impress on him the importance of obtaining this legal advice as it would allow the committee to undertake its scrutiny function and provide the necessary assurance to the public. The committee drew the Attorney-General's attention to the requirements of the 2009 order, noting:
the Senate has never accepted that legal professional privilege provides grounds to withhold information in a parliamentary forum;
the stated harm to the public interest, namely, harm to the administration of justice, was not particular to the contents of the legal advice being sought and could apply to any material covered by legal professional privilege; and
the Attorney-General's claim did not address whether the perceived harm to the public interest could result only from the publication of the legal advice, or could result, equally or in part, from the disclosure of the legal advice to the committee as in camera evidence.
1.23
The Attorney-General's response reiterated his claim of public interest immunity on the grounds of legal professional privilege and contended that the harm from disclosure of the legal advice would be that 'disclosure of the legal advice could prejudice the Commonwealth's position in the event of future legal proceedings'. The Attorney-General further stated that the harm to the public interest would result if the advice was to be published, in whole or in part, or if the advice was to be disclosed to the committee as in camera evidence.
The committee's consideration of the claim
1.24
The legal advice is significant evidence to the committee's inquiry. Serious concerns have been raised by the technology industry and peak legal bodies in relation to the safety of COVIDSafe data, which require scrutiny. The provision of the legal advice would permit the committee to independently assess whether the CLOUD Act could allow US authorities to compel Amazon Web Services to hand over COVIDSafe data under a warrant. It is also critical for the committee to scrutinise the evidence informing a key government decision.
1.25
In relation to the ground on which the Attorney-General seeks to withhold the information—legal professional privilege—the committee reiterates that the Senate has never accepted this as grounds to refuse to provide information. As stated in Odgers' Australian Senate Practice:
It has never been accepted in the Senate, nor in any comparable representative assembly, that legal professional privilege provides grounds for a refusal of information in a parliamentary forum.
1.26
Moreover, the Senate has 'rejected government claims that there is a
long-standing practice of not disclosing privileged legal advice to conserve the Commonwealth's legal and constitutional interests'.
1.27
The Attorney-General's contention that harm to the administration of justice could result if the advice were disclosed is a broad claim that would apply to any document covered by legal professional privilege and is not particular to the contents of the legal advice being sought.
1.28
The Attorney-General's second contention, that the disclosure of the legal advice could prejudice the Commonwealth's position in potential future legal proceedings, has not been adequately explained for this ground to be accepted—or even considered—by the committee.
1.29
Finally, the committee considers that any harm to the administration of justice caused by disclosing the legal advice would almost certainly be mitigated by providing it to the committee in camera. The Attorney-General's claim does not substantially engage with this option.
1.30
The committee recommends that the Senate adopt the following resolution requiring the production of documents:
That the Senate orders that there be provided to the Senate Select Committee on COVID-19 by the Attorney-General no later than 12.00 pm on 17 March 2021, the following document:
an unredacted copy of the legal advice that the Attorney-General's Department received regarding the interaction of the Privacy Amendment (Public Health Contact Information) Bill 2020 with the United States' Clarifying Lawful Overseas Use of Data Act;
In the event that the Attorney-General fails to provide the unredacted document, the Senate requires that the Minister representing the
Attorney-General attend the Senate at the conclusion of question time on 17 March 2021 to provide an explanation, of no more than 10 minutes, of the Minister's failure to provide the document.
Claims made on behalf of the Minister for Health
1.31
In letters to the committee dated 23 September 2020 and 1 October 2020 Senator the Hon Michaelia Cash, then Minister representing the Minister for Health in the Senate, made public interest immunity claims over information about COVID-19 briefs provided to Cabinet and committees of Cabinet.
1.32
The committee does not consider that Minister Cash's claims satisfy the requirements of the 2009 order. Moreover, while her claims cite Cabinet confidentiality, the mere fact that information is connected to Cabinet does not, in and of itself, mean that it is immune from parliamentary scrutiny.
First claim—made on 23 September 2020
1.33
During a public hearing on 26 May 2020, Department of Health officials were asked whether the Cabinet had received information on health data modelling as the COVID-19 case curve flattened. In responding, the then Acting Secretary of the Department of Health, Ms Caroline Edwards PSM, said it is 'standard practice' not to provide detail of advice provided to Cabinet. Ms Edwards undertook to refer to the Minister the question of whether a claim of public interest immunity would be made.
1.34
In a letter dated 23 September 2020, Minister Cash claimed public interest immunity in relation to the information. Minister Cash asserted that providing the information 'would or could reasonably be expected to disclose the deliberations of the Cabinet – or a Committee of the Cabinet.' Minister Cash stated:
It is a longstanding practice not to disclose 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, as to do so could potentially reveal the deliberations of the Cabinet, which are confidential.
The deliberations of the Cabinet and its committees should be conducted in secrecy so that the freedom of those deliberations can be preserved. It is not in the public interest to disclose information about the Cabinet's deliberations as it may impact on the Government's ability to receive confidential information and make appropriate decisions impacting on the Australian community.
Second claim—made on 1 October 2020
1.35
Between June and September 2020, the Department of Health refused to answer the following questions on the grounds that doing so would disclose the deliberations of Cabinet:
the dates in January 2020 on which the Chief Medical Officer provided COVID-19 briefings to the National Security Committee and the Cabinet;
the date(s) on which the Australian Health Protection Principal Committee first briefed the Minister for Health, the Cabinet and/or the National Cabinet on COVID-19;
the date on which the 'National Cabinet agreed to a suppression strategy not an eliminations strategy'; and
matters relating to modelling on border closures.
1.36
The committee considered the department's responses to each of these questions and agreed they do not meet the expectations of the 2009 order. In a letter to the department dated 15 September 2020, the committee requested that the information asked for in the questions be provided, or that the matter be referred to the minister to consider making a public interest immunity claim. The committee also reminded the department that it could seek to provide the relevant information to the committee in camera.
1.37
Minister Cash's response to the committee's letter claimed public interest immunity using the same explanation provided in the Minister's previous claim of 23 September 2020, as outlined at paragraph 1.34. Minister Cash's letter additionally claimed public interest immunity, using the same rationale, in relation to minutes of Australian Health Protection Principal Committee (AHPPC) meetings.
Disclosure of the deliberations of Cabinet and specifying the harm
1.38
The disclosure of the deliberations of Cabinet has achieved a measure of acceptance as a basis for claiming public interest immunity. However, such claims must be accompanied by sufficient detail to enable the committee to determine the specific merits of each claim on a case-by-case basis. Each claim must establish that disclosing the particular information requested would reveal Cabinet deliberations and cause harm to the public interest. It is not adequate to refuse to provide information merely on the basis that the information has a connection to Cabinet.
1.39
Minister Cash's claims make broad, general statements that it is 'longstanding practice' not to provide information relating to Cabinet and that Cabinet's deliberations should be 'conducted in secrecy'. Minister Cash's claims also rely on a general statement that disclosure is not in the public interest as it may impair the government's ability to obtain confidential information and make related decisions.
1.40
The committee has concluded that the Minister's claims do not substantiate how disclosing the requested information would reveal Cabinet deliberations. General statements regarding the sanctity of Cabinet deliberations do not satisfy the requirements of the 2009 order. In addition, Minister Cash does not address whether this information could be provided to the committee in a private briefing or confidential document.
1.41
Further, regarding the first claim (23 September 2020), it has not been established that confirming whether health data modelling was provided to Cabinet would disclose the actual deliberations of Cabinet.
1.42
It is deeply concerning that the government refuses to provide the committee with basic information about the public health advice it considered when formulating the health response. The committee's inability to access this information has unnecessarily compromised its scrutiny work.
1.43
The committee recommends that the Senate adopt the following resolution requiring the production of documents:
That the Senate orders that there be provided to the Senate Select Committee on COVID-19 by the Minister representing the Minister for Health no later than 12.00 pm on 17 March 2021, the following documents:
answers that provide the information sought by the questions listed in Table 3.1 at Appendix 3 of the second interim report of the Senate Select Committee on COVID-19;
In the event that the Minister fails to provide these documents, the Senate requires that the Minister representing the Minister for Health attend the Senate at the conclusion of question time on 17 March 2021 to provide an explanation, of no more than 10 minutes, of the Minister's failure to provide the documents.
1.44
The committee recommends that the Senate adopt the following resolution requiring the production of documents:
That the Senate orders that there be provided to the Senate Select Committee on COVID-19 by the Minister representing the Minister for Health no later than 12.00 pm on 17 March 2021, the following documents:
answers that provide the information sought by the questions listed in Table 3.2 at Appendix 3 of the second interim report of the Senate Select Committee on COVID-19;
In the event that the Minister fails to provide these documents, the Senate requires that the Minister representing the Minister for Health attend the Senate at the conclusion of question time on 17 March 2021 to provide an explanation, of no more than 10 minutes, of the Minister's failure to provide the documents.
Claims made on behalf of the Treasurer
First claim—made on 16 September 2020
1.45
On 16 September 2020, then Minister Cormann made a public interest immunity claim on behalf of the Treasurer, the Hon Josh Frydenberg MP, in relation to a range of questions on notice to the Department of the Treasury. The information sought (further detailed at Appendix 4) was:
advice provided to government on support for the aviation sector, including any modelling and costings of impacts to the sector;
advice provided to government regarding a request from Virgin Australia for financial assistance;
how the rate of the coronavirus supplement was determined;
modelling in relation to the JobSeeker payment rate;
analysis and modelling on the child care package;
parameters considered by government in the design of JobKeeper; and
analysis undertaken by Treasury related to bringing forward the stage 2 tax cuts, including information about certain assumptions.
1.46
Minister Cormann stated that the claim was made 'on the basis that the documents informed, and were the subject of, Cabinet deliberations, and that the information sought would or could reasonably be expected to disclose the deliberations of the Cabinet.' In doing so, Minister Cormann stated:
…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 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 on the Government's ability to receive confidential information and make appropriate decisions in the interest of the Australian community.
Disclosure of deliberations of Cabinet
1.47
As noted above, while the disclosure of Cabinet deliberations has previously been accepted as a ground for public interest immunity, it must first be established that the disclosure of the relevant information would in fact reveal Cabinet deliberations. Significantly, a document's mere connection to Cabinet does not, in and of itself, mean that it is immune from parliamentary scrutiny.
1.48
The committee is of the view that while the information requested may have aided or informed Cabinet deliberations, the disclosure of this information would not in itself reveal Cabinet deliberations. Moreover, former Minister Cormann's claim of public interest immunity does not persuasively state how disclosing the information would harm the public interest.
1.49
Former Minister Cormann's claim also fails to specify whether the apprehended harm to the public interest could equally result from disclosing the information to the committee in camera.
1.50
Some of the information that the committee is seeking—economic analysis and modelling that underpins the government's response to the COVID-19 pandemic—is directly relevant to the committee's inquiry and goes to several key issues considered in the committee's first interim report. The committee is therefore of the view that the relevant information should be provided
in camera if the perceived harm could only result from its publication.
Additional bases for the claim of public interest immunity
1.51
In relation to questions on the JobKeeper payment, former Minister Cormann argued that 'in addition to disclosing the decisions of Cabinet, publication of this information could undermine the integrity of the program and ATO [Australian Taxation Office] compliance activities.' This short statement does not provide enough information for the committee to properly consider the grounds of the claim—let alone be persuaded by them.
1.52
In relation to the questions on the aviation sector, Minister Cormann argued:
…in addition to this information being subject to Cabinet deliberations, it is also commercial in confidence and as such, the public release of such sensitive financial details would be detrimental to the aviation sector as a whole.
Further, it would also undermine the ability of businesses to engage with Government regarding their commercial affairs when necessary.
1.53
However, the committee considers that the information requested in the questions is directly relevant to the committee's inquiry and that a persuasive case for withholding the information has not been made. The committee also notes that it can receive commercially sensitive information in camera.
1.54
The committee recommends that the Senate adopt the following resolution requiring the production of documents:
That the Senate orders that there be provided to the Senate Select Committee on COVID-19 by the Minister representing the Treasurer no later than 12.00 pm on 17 March 2021, the following documents:
answers that provide the information sought by the questions listed in Table 4.1 at Appendix 4 of the second interim report of the Senate Select Committee on COVID-19;
In the event that the Minister fails to provide these documents, the Senate requires that the Minister representing the Treasurer attend the Senate at the conclusion of question time on 17 March 2021 to provide an explanation, of no more than 10 minutes, of the Minister's failure to provide the documents.
Second claim—made on 3 December 2020
1.55
At a hearing on 10 September 2020 the Chair of the Productivity Commission, Mr Michael Brennan, was asked for a copy of a presentation he provided to National Cabinet. After the Commission declined to provide the presentation on notice, the committee wrote to Mr Brennan on 20 November 2020 to ask that the Commission review its answer and either provide the information requested or refer the matter to the responsible minister to consider whether a public interest immunity claim should be made.
1.56
On 3 December 2020, Senator the Hon Simon Birmingham, Minister for Finance, made a public interest immunity claim over Mr Brennan's presentation.
1.57
Minister Birmingham's claim was made on the grounds of Cabinet confidentiality and contained the same passage quoted above at paragraph 1.46 from former Senator Cormann's claim. As discussed in this report, a claim must establish that disclosing the particular information requested would reveal Cabinet deliberations and cause harm to the public interest. It is not sufficient to refuse to provide information merely on the basis that the information has a connection to Cabinet.
1.58
Minister Birmingham's claim also asserts that National Cabinet, which received Mr Brennan's presentation:
…is covered by the same longstanding Cabinet-in-confidence conventions as the Commonwealth Cabinet, and indeed the Cabinets of State and Territory Governments.
1.59
Noting that National Cabinet was only established recently, Minister Birmingham has not provided adequate justification for this assertion and there is insufficient clarity around the confidentiality rules that apply.
1.60
The committee has concluded that Minister Birmingham does not substantiate how disclosing the presentation would reveal Cabinet deliberations. Broad statements regarding the sanctity of Cabinet deliberations do not satisfy the requirements of the 2009 order. In addition, Minister Birmingham does not address whether this information could be provided to the committee confidentially.
1.61
It is deeply concerning that the government refuses to provide the committee with key information that informed the economic response to COVID-19. The committee's inability to access this information has directly compromised its scrutiny work.
1.62
The committee recommends that the Senate adopt the following resolution requiring the production of documents:
That the Senate orders that there be provided to the Senate Select Committee on COVID-19 by the Minister representing the Treasurer no later than 12.00 pm on 17 March 2021, the following document:
a copy of the presentation that Mr Michael Brennan, Chair of the Productivity Commission, provided to National Cabinet on 10 July 2020;
In the event that the Minister fails to provide this document, the Senate requires that the Minister representing the Treasurer attend the Senate at the conclusion of question time on 17 March 2021 to provide an explanation, of no more than 10 minutes, of the Minster's failure to provide the document.
Claim made by the then Minister for Aged Care and Senior Australians
1.63
The then Minister for Aged Care and Senior Australians, Senator the Hon Richard Colbeck, appeared at a public hearing of the committee on 21 August 2020 and took the following questions on notice:
the date on which the Minister first briefed Cabinet on aged care in relation to COVID-19;
whether the Minister briefed Cabinet between 10 July and 5 August 2020;
whether the Minister briefed Cabinet on the interim report of the Royal Commission into Aged Care Quality and Safety titled 'Neglect'; and
the number of National Cabinet meetings attended by the Minister.
1.64
In a letter to the committee dated 15 October 2020, Minister Colbeck made a claim of public interest immunity in relation to information requested by the committee about briefings made to Cabinet on aged care matters and the Minister's attendance at National Cabinet.
1.65
Minister Colbeck's claim was made on the basis that the responses are 'the subject of Cabinet deliberations.' The Minister reiterated:
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 discussion of relevant proposals within Cabinet.
The committee's consideration of the claim
1.66
As with all claims made on the basis of Cabinet confidentiality, the committee expects Minister Colbeck to establish whether the particular information requested by the committee would disclose Cabinet deliberations, and to specify the harm to the public interest that would be caused by disclosing the information. These are the requirements agreed by the Senate in the
2009 order, but Minister Colbeck's claim does not meet these requirements.
1.67
The committee is particularly concerned by Minister Colbeck's refusal to provide the date of his first briefing to Cabinet about the management of COVID-19 in the aged care sector—an issue that has been of vital importance to so many Australians during the pandemic. It is not widely accepted that providing the date of a Cabinet meeting would reveal Cabinet deliberations.
1.68
The committee is not convinced that providing this particular date would disclose Cabinet deliberations. The committee cannot understand why Minister Colbeck readily told the committee about his briefing to Cabinet on 5 August 2020, but has claimed public interest immunity over the dates of earlier briefings.
1.69
Minister Colbeck's refusal to provide this information means there is no evidence of any briefings to Cabinet or National Cabinet about the aged care sector until 5 August 2020—by which time there had already been 959 confirmed cases of COVID-19 in residential aged care facilities in Victoria, across nearly 100 facilities, and 130 residents had died.
1.70
The committee recommends that the Senate adopt the following resolution requiring the production of documents:
That the Senate orders that there be provided to the Senate Select Committee on COVID-19 by the Minister for Senior Australians and Aged Care Services no later than 12.00 pm on 17 March 2021, the following documents:
answers that provide the information sought by the questions listed in Table 5.1 at Appendix 5 of the second interim report of the Senate Select Committee on COVID-19;
In the event that the Minister for Senior Australians and Aged Care Services fails to provide these documents, the Senate requires the Minister to attend the Senate at the conclusion of question time on 17 March 2021 to provide an explanation, of no more than 10 minutes, of the Minster's failure to provide the documents.
Claim made by the Minister for Families and Social Services
1.71
At a committee hearing on 18 August 2020 the Department of Social Services was asked about its advice to government on the reintroduction of the liquid assets test for certain Centrelink payments. The committee wrote to the department on 20 November 2020 regarding the department's answer on notice.
1.72
On 18 December 2020, Senator the Hon Anne Ruston, Minister for Families and Social Services, made a public interest immunity claim in relation to the question. The claim was made on the basis that 'providing the information requested would or could reasonably be expected to disclose the deliberations of the Cabinet'.
Consideration of the claim
1.73
The basis on which this claim was made reflects a pattern encountered by the committee. As with all claims made on the basis of Cabinet confidentiality, the committee expects Minister Ruston to specify whether the particular information requested by the committee would disclose Cabinet deliberations, and to specify the harm to the public interest that would be caused by disclosing the information. Minister Ruston’s claim does not meet these requirements.
1.74
The committee additionally observes that, as the liquid assets test was reintroduced on 25 September 2020, the relevant Cabinet decision has already been made. It follows that any risk of prejudicing Cabinet deliberations by releasing the information has passed. It is notable that previous Senate orders for the production of documents that were refused because the documents had been 'brought into existence for the purpose of cabinet consideration' were later complied with, 'apparently because the cabinet decision had now been taken and the risk of prejudice to its deliberations had passed'.
1.75
Minister Ruston also does not address whether the requested information could be provided to the committee confidentially.
1.76
The committee recommends that the Senate adopt the following resolution requiring the production of documents:
That the Senate orders that there be provided to the Senate Select Committee on COVID-19 by the Minister for Families and Social Services no later than 12.00 pm on 17 March 2021, the following documents:
answers that provide the information sought by the questions listed in Table 6.1 at Appendix 6 of the second interim report of the Senate Select Committee on COVID-19;
In the event that the Minister for Families and Social Services fails to provide these documents, the Senate requires the Minister to attend the Senate at the conclusion of question time on 17 March 2021 to provide an explanation, of no more than 10 minutes, of the Minster's failure to provide the documents.
Note on appendices
1.77
The questions being pursued by the committee, relevant correspondence, and the claims of public interest immunity, are presented in appendices as follows:
Appendix 1: Correspondence from the committee to Commonwealth departments and agencies, 15 June 2020.
Appendix 2: Material relating to the claim made by the Attorney-General.
Appendix 3: Material relating to the claims made on behalf of the
Minister for Health:
Appendix 4: Material relating to the claims made on behalf of the Treasurer.
Appendix 5: Material relating to the claim made by the then Minister for Aged Care and Senior Australians.
Appendix 6: Material relating to the claim made by the Minister for Families and Social Services.
Senator Katy Gallagher
Chair