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
The report discusses three claims received by the committee by or on behalf of the Minister for Health and Aged Care, the Hon Greg Hunt MP.
1.3
The committee has resolved not to accept these claims on the grounds provided.
Committee's role in scrutinising the government's COVID-19 response
1.4
In its Second interim report, the committee noted its role as one of the primary mechanisms scrutinising the government's response to the COVID-19 crisis.
1.5
The committee noted the level of bipartisanship that accompanied the committee's establishment and the initial stages of its inquiry. In particular, the committee noted the acceptance by the Senate of the need for transparency and accountability as the government took decisions to ensure the safety of Australians and the need for those decisions to be scrutinised and challenged.
1.6
This is a key role of all Senate committees: to 'probe and check the administration of the laws, to keep [the Senate] and the public informed, and to insist on ministerial accountability for the government's administration.' This role is never more important than at a time of national crisis such as the COVID-19 pandemic.
1.7
A committee cannot, however, effectively perform its role without sufficient and appropriate access to the information required to address the terms of its inquiry.
1.8
Since the Second interim report, where refusal to provide key documents requested by the committee was reported to the Senate, the committee has continued to make reasonable requests for access to important documents and information, held by the government that would assist the work of the inquiry.
1.9
Of particular concern to the committee is the executive government's widespread and inappropriate use of public interest immunity claims to control what information can be made available to the committee.
1.10
The response of ministers to the committee's Second interim report and the Senate's orders for the production of documents requested in that report provides no better example of this.
1.11
Despite orders for the production of documents, agreed by the Senate, ministers returned to the Chamber to simply restate the public interest immunity claims the committee had rejected, refusing to provide the information the Senate had ordered them to provide.
1.12
The committee is frustrated at this misuse of the public interest immunity claims process.
1.13
The refusal to provide key documents, the time and effort spent pursuing the documents and information only to have the government continue to ignore the will of the Senate is an abuse of process and is a failure to comply with the standing orders of the Senate.
1.14
The government's refusal to provide the information required by the Senate will significantly affect the committee's ability to fulfill the terms of reference agreed to unanimously by the Senate.
1.15
It would be regrettable if a committee formed with the unanimous support of the Senate should be forced to resort to political remedies in order to obtain access to the information and documents it requires to undertake its work.
1.16
The Senate Select Committee on COVID-19 recommends that the Australian Government stop inappropriately using the public interest immunity claims process to withhold documents and information relevant to the committee's terms of reference.
1.17
The Senate Select Committee on COVID-19 recommends that the Australian Government comply with orders for production of documents agreed to by the Senate.
Senate requirements for public interest immunity claims
1.18
The committee has chosen to provide another interim report about public interest immunity claims because of the serious and systemic refusal of the government to respect and comply with the powers and conventions of the Senate.
1.19
The power of the Senate and its committees to call for documents and order their production is not a new one, but rather a power that has existed since the earliest years of the Senate.
1.20
In each of the public interest immunity claims rejected by the committee and outlined in this report, the government relies upon a broad assertion that the information sought is cabinet-in-confidence or commercial-in-confidence, and that it would not be in the public interest to release the information.
1.21
Before outlining each of the three public interest immunity claims, it is important to understand the context within which the committee has to consider claims about access to information and public interest immunity claims made by executive government.
1.22
There is no category of information or documents which the Senate has accepted as immune from production. As the Senate Committee of Privileges has noted:
[T]he Senate has never accepted the existence of 'Crown' or 'executive privilege' in the sense that there exists any category of documents or information held by the executive government which is beyond the reach of the Senate's inquiry power. Rather, the Senate has always insisted on its right to determine what information it requires to undertake its work and, accordingly, to determine for itself any claim from the executive government that information should be withheld.
1.23
The Senate Procedural Order of 13 May 2009 (the Cormann 2009 order) prescribes the following process to deal with claims for the withholding of information or documents from Senate committees:
(i)
Public officials should state the ground for withholding the information and specify the harm to the public interest that could result from the disclosure of the information or document.
(ii)
The committee may request the officer to refer the question to the responsible minister.
(iii)
If the minister concludes that it would not be in the public interest to disclose the information or document, the minister should 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.
1.24
The 2009 order makes it clear that 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; and
the claim must specify the harm to the public interest that could result from the disclosure of the particular information or document.
1.25
Paragraph (7) of the 2009 order puts beyond doubt that a claim of public interest immunity which 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. 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.
Committee's expectations
1.26
This committee recognises that some information held by the executive government may be withheld where its disclosure could lead to harm to the public interest. The committee also insists on its right to weigh each public interest immunity claim advanced by the executive government and to be provided with sufficient detail to enable it to do so.
1.27
Throughout this inquiry the committee has consistently taken steps to ensure that departments and agencies are aware of the process by which a claim of public interest immunity may be made. Written advice about the 2009 order is provided to witnesses before every public hearing; the Chair refers to the order in her opening statements at hearings and the committee has written to departments and agencies to draw their attention to the 2009 order and to clarify the committee's expectations with regard to answers to questions taken on notice.
Committee's consideration of claims
1.28
The committee has considered all claims on a case-by-case basis, often seeking additional information to assist in its evaluation of a claim. The committee has also advised ministers of its intention not to pursue claims where the committee has been satisfied with a minister's efforts to comply with the requirements of the 2009 order.
1.29
The committee has not and will not accept claims that rely on generic statements or do not provide adequate reasoning to justify withholding the requested information or documents and therefore do not comply with the Cormann resolution or the standing orders of the Senate.
Claims made by or on behalf of the Minister for Health
1.30
The following public interest immunity claims have been lodged by or on behalf of the Minister for Health:
a claim received from Senator the Hon Michaelia Cash on
18 December 2020; and
two claims received from the Hon Greg Hunt MP, Minister for Health and Aged Care, dated 28 May 2021.
First claim – made 18 December 2020.
1.31
On 18 December 2020 the committee received a public interest immunity claim from Senator the Hon Michaelia Cash, then Minister representing the Minister for Health in the Senate, in relation to three questions taken on notice by officers of the Department of Health (department) 'and other similarly related questions':
written question on notice, dated 21 August 2020, regarding calculations of the additional cost to residents per day needed to protect older Australians in residential aged care from COVID-19;
written question on notice, dated 11 September 2020, requesting modelling used to inform the Australian Government's health response to the
COVID-19 pandemic; and
question taken on notice on 29 September 2020 regarding the decision to appoint the Australian Health Protection Principal Committee as a subcommittee of the National Cabinet.
1.32
In her claim, Senator Cash states:
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 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.
1.33
The committee notes that the claim made by Senator Cash relies on a series of broad, general statements, does not address the harm that may arise if the specific information requested in each question were to be made public and how the risk of this harm would outweigh the public interest in each case.
1.34
The committee has concluded that the claim made by Senator Cash does not satisfy the requirements of the 2009 order as it does not provide sufficient detail to enable the committee to determine the specific merits of the claim in relation to each of the three questions on notice on a case-by-case basis.
1.35
The committee recommends that the Senate adopt the following resolution.
a) That the Senate notes the Senate Select Committee on COVID-19 has rejected Senator Cash's public interest immunity claim.
b) That there be laid on the table by the Minister representing the Minister for Health and Aged Care in the Senate, no later than 12.00pm on 2 December 2021 answers that provide the information sought by the questions listed in Table 2.1 at Appendix 2 of the Third interim report of the Senate Select Committee on COVID-19.
c) In the event that the Minister representing the Minister for Health and Aged Care fails to table this information:
i) the Senate requires the Minister to attend the Senate at the conclusion of question time on 2 December 2021 to provide an explanation, of no more than l0 minutes, of the Minister's failure to table the information;
ii) at the conclusion of the Minister's explanation, or in the event that the Minister fails to provide an explanation, any senator may move to take note of the explanation of the failure to provide an explanation; and
iii) any motion under the above paragraph may be debated for no longer than 60 minutes and have precedence over all other business until determined, and senators may speak to the motion for no longer than 10 minutes each.
Second claim – made on 28 May 2021
1.36
During the committee's public hearing held on 28 January 2021, Senator
Rex Patrick requested information regarding the cost to taxpayers in terms of non-recurring costs associated with modification of CSL's plant to facilitate manufacture of the AstraZeneca vaccine. Senator Patrick asked:
In terms of the non-recurring costs associated with these contracts—again, they're sole source, and I understand the urgency with which these contracts were given—in effect we're funding the tooling up of a facility. That's not a criticism in any way shape [or] form. Typically in these sorts of arrangements, with things like grants, we would ask the company to have skin in the game in respect of making their own commitments. Can you outline broadly whether taxpayers are paying for all of this. If they are, what rights do they have in relation to the equipment the taxpayer paid for, perhaps with priority use in the future? Or is it simply we've given the company money and it's gone off and bought the equipment and we have established a capability but don't have any future rights.
1.37
In responding to Senator Patrick, Ms Caroline Edwards PSM, former Associate Secretary, Department of Health, undertook to take the question on notice, noting that the department was constrained in what it could say due to commercial-in-confidence requirements:
I understand the question, and I can see why you'd be interested in the answer. We're constrained in what we can say because of the very tight commercial-in-confidence requirements. I might take the question on notice so as to come back with what I can legally provide you. I can provide the assurance that we have entered into a unique deal in order to have a locally produced vaccine, which, as we've discussed already, gives us great security in relation to the supply chain. The value of that to Australia has been taken into account. But in making these arrangements and entering into the contracts, value for money and our accountability to the taxpayer have been absolutely taken into account throughout.
1.38
Ms Edwards went on to advise Senator Patrick that the detail he was seeking 'won't be available at this stage, because of the commercial arrangements that are in place.' Senator Patrick suggested that the information could be provided to the committee in confidence.
1.39
On 11 May 2021, the department advised that details of the contracts are commercial-in-confidence and provided the following answer to the question on notice:
The details of the contracts are commercial in confidence.
The agreement that we have entered into for local manufacture of
COVID-19 vaccines is with CSL, consideration of value for money and accountability to the taxpayer were key when entering into this agreement.
1.40
In claiming public interest immunity in relation to this question on notice, the Minister for Health and Aged Care regretted that he was unable to provide further detail in relation to future use of the CSL facility and claimed public interest immunity on the grounds that providing the information to the committee 'may prejudice the commercial interests of commercial traders in the market place.' The Minister stated:
This particular contract relates to national capability to manufacture vaccines and national capacity to vaccinate our citizens. It is vitally important that details of commercial arrangements between the Commonwealth and contractors relating to matters of public health and safety at a time of global pandemic are held in confidence. It is not in the public interest to disclose information about particular commercial negotiations of the Commonwealth in relation to the global pandemic where it may negatively impact on the Government's ability to have comprehensive and candid negotiations and make appropriate decisions impacting the health and safety of Australian citizens.
1.41
In considering the Minister's claim, the committee noted that the information requested is directly relevant to the committee's inquiry. The costs associated with vaccine manufacturing and contracts represent a significant expenditure of tax-payer funds. The committee observed that oversight of government expenditure is a core function of the Senate and its committees. Specifically, an understanding of the terms and conditions associated with the application of tax-payer funds to the repurposing of a commercial facility are central to the committee's consideration of questions of value for money and accountability.
1.42
The committee considers that the Minister has not made a persuasive case for withholding the information, noting that the committee is able to receive commercially sensitive information in camera.
1.43
The committee recommends that the Senate adopt the following resolution.
a) That the Senate notes the Senate Select Committee on COVID-19 has rejected the Minister for Health's public interest immunity claim.
b) That there be laid on the table by the Minister representing the Minister for Health in the Senate, no later than 12.00pm on 2 December 2021 details of costs to the Australian Government associated with retooling CSL's domestic facilities for the manufacture of the AstraZeneca vaccine, as requested by Senator Rex Patrick on 28 January 2021 (Committee Hansard, 28 January 2021, p. 28).
c) In the event that the Minister representing the Minister for Health and Aged Care fails to table this document:
i) the Senate requires the Minister to attend the Senate at the conclusion of question time on 2 December 2021 to provide an explanation, of no more than l0 minutes, of the Minister's failure to table the document;
ii) at the conclusion of the Minister's explanation, or in the event that the Minister fails to provide an explanation, any senator may move to take note of the explanation of the failure to provide an explanation; and
iii) any motion under the above paragraph may be debated for no longer than 60 minutes and have precedence over all other business until determined, and senators may speak to the motion for no longer than 10 minutes each.
Third claim – made on 28 May 2021
1.44
At a committee hearing on 20 April 2021, the Secretary of the Department of Health, Dr Brendan Murphy, was asked about a briefing he and the Associate Secretary, Ms Caroline Edwards PSM, had provided to National Cabinet on domestic and international vaccine supply and changes to the Australian vaccination strategy. The Prime Minister referred to the briefing in his statement following National Cabinet's meeting on 19 April 2021. Dr Murphy confirmed that he and the Associate Secretary had provided National Cabinet with 'some papers and some data, and a very significant verbal briefing too.'
1.45
Dr Murphy advised the committee that '[w]e've taken the position before that national cabinet documents are cabinet-in-confidence and they stay that way.' The committee notes that it is incumbent on government ministers, not public servants, to establish the grounds for public interest immunity in each instance that information is withheld from the Senate or its committees.
1.46
The department noted that if the committee requested the production of documents prepared for National Cabinet, this would need to be referred to the relevant minister to consider whether to make a public interest immunity claim.
1.47
In his correspondence to the committee dated 28 May 2021, Minister Hunt stated that the claim was made 'on the grounds that this document would or could disclose the deliberations of the Cabinet and the provision of this document could damage the commercial interests of the Commonwealth.' With regard to his claim that the document 'would or could' disclose the deliberations of the Cabinet, Minister Hunt stated:
It is essential that the operation and business of the Cabinet and its committees, including what form of submissions were provided, to whom and when, remain confidential until the open access period provided for in the Archives Act 1983. It is not in the public interest to disclose information about submissions to the Cabinet as it may impact on the government's ability to receive confidential information and make appropriate decisions impacting on the Australian community.
1.48
In substantiation of his claim that the disclosure of the document could damage the commercial interests of the Commonwealth, Minister Hunt stated:
Furthermore, the specific document requested is in relation to the supply of COVID-19 vaccines from domestic and international sources. The document details Australia's vaccine supply and manufacturing strategies, capacities and capabilities. These are highly sensitive matters pertaining to the health and safety of the Australian public. Its disclosure may cause harm to the public interest as it could prejudice the Commonwealth's ability to negotiate commercially sensitive contracts with relevant suppliers.
Disclosure of deliberations of Cabinet
1.49
In its Second interim report, the committee noted that, while the disclosure of Cabinet deliberations has previously been accepted by the Senate as a ground for public interest immunity, it must first be established that the disclosure of the particular information requested would in fact reveal Cabinet deliberations and that its release would cause harm to the public interest.
1.50
The committee notes that this premise applies equally in the courts, where only documents which record or reveal the actual deliberations of the Cabinet have been accepted as immune from production.
1.51
The committee further notes the recent decision of Justice White on the Department of Prime Minister and Cabinet's refusal to provide access to minutes of the National Cabinet which calls into question the extent to which the National Cabinet can be characterised as a committee of the Cabinet. Justice White's decision certainly highlights the need for public interest immunity claims to avoid loose, general statements and to focus instead on the harms that might result from disclosure of specific information.
1.52
On 23 November 2021, the Senate resolved to reject public interest immunity claims made on the grounds of Cabinet confidentiality with respect to documents or information related to the National Cabinet. The Senate further resolved not to countenance claims that the provision of such documents or information would reveal Cabinet deliberations.
1.53
The committee does not accept the Minister's assertion that the material requested is so sensitive as to warrant it remaining confidential for 20 years— the open access period provided for in the Archives Act 1983—by which time it would be of historical interest only.
Disclosure of commercial-in-confidence information
1.54
In considering the Minister's claims regarding the potential damage to the Commonwealth's commercial interests, the committee was not satisfied that the Minister's claim provided sufficient detail of the perceived risk. The committee asked the Minister to provide clarification on the specific potential harm that would result from disclosure of the briefing document.
1.55
The Minister responded to this request by stating:
I can advise that the Government maintains the public interest immunity claims advanced in the initial response to the Committee's request.
1.56
The committee is not satisfied that the Minister's claim meets the requirements of the 2009 order.
1.57
The committee recommends that the Senate adopt the following resolution.
a) That the Senate notes the Senate Select Committee on COVID-19 has rejected the Minister for Health and Aged Care's public interest immunity claim.
b) That there be laid on the table by the Minister representing the Minister for Health and Aged Care in the Senate, no later than 12.00pm on 2 December 2021 documents used in the briefing on 19 April 2021 provided by the Secretary and Associate Secretary of the Department of Health to National Cabinet on domestic and international vaccine supply and changes to the Australian vaccination strategy.
c) In the event that the Minister representing the Minister for Health and Aged Care fails to table this document:
i) the Senate requires the Minister to attend the Senate at the conclusion of question time on 2 December 2021 to provide an explanation, of no more than l0 minutes, of the Minister's failure to table the document;
ii) at the conclusion of the Minister's explanation, or in the event that the Minister fails to provide an explanation, any senator may move to take note of the explanation of the failure to provide an explanation; and
iii) any motion under the above paragraph may be debated for no longer than 60 minutes and have precedence over all other business until determined, and senators may speak to the motion for no longer than 10 minutes each.
Note on appendices
1.58
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 a claim made on behalf of the Minister for Health and Aged Care by Senator the Hon Michaelia Cash.
Appendix 3: Material relating to a public interest immunity claim by the Minister for Health and Aged Care regarding non-recurring costs associated with CSL contract
Appendix 4: Material relating to a public interest immunity claim by the Minister for Health and Aged Care regarding a briefing to National Cabinet
Appendix 5: Senate Resolution: National Cabinet – Public interest immunity claims, Journals of the Senate, No. 127, p. 4279
Senator Katy Gallagher
Chair