5.1
The committee recommends that a Royal Commission be established to examine Australia's response to the COVID-19 pandemic to inform preparedness for future COVID-19 waves and future pandemics.
5.2
The committee recommends that the Australian Government publicly release all previous and future minutes of the Australian Health Protection Principal Committee to promote transparency and accountability and provide the public with access to the health advice that informs government decisions around community safety, livelihoods and personal freedom.
5.3
The committee recommends that the Senate consider referring to the Senate Standing Committee on Procedure a review of mechanisms to compel compliance with a committee’s legitimate entitlement to receive the information it has requested, to ensure that there is greater accountability for unanswered questions on notice and public interest immunity claims that are not accepted by the committee and the Senate.
5.4
The COVID-19 pandemic has been the defining issue of the 46th Parliament. As the scale of the pandemic became apparent, the normal processes of government were displaced. State and territory border closures that would become an ongoing feature of the pandemic limited the capacity for parliamentarians to easily travel to Canberra for ordinary sittings. On 23 March 2020 after sitting for a single day to pass urgent pandemic response measures the Parliament adjourned, and it was expected that it would not meet again for some months. The measures passed by the Parliament were extraordinary and far-reaching, enabling the government to respond to the pandemic and in doing so, to profoundly affect the rights and liabilities of all Australians.
5.5
Emergency law-making undertaken in response to the COVID-19 pandemic has challenged the Australian Parliament’s capacity to provide meaningful scrutiny of proposed laws, particularly in identifying and addressing the impact of emergency powers on the rights of individuals.
5.6
It was clear that the Parliament needed a mechanism to ensure ongoing scrutiny of the government’s pandemic response. In April 2020, UNSW Dean of Law George Williams observed the need to head off long term damage to our democracy brought about by the suspension of parliament at this critical moment in history, and said:
…even if it is thought too dangerous to recall Parliament, more must be done to enable its core functions to continue…a way of giving Australians confidence that democratic processes have not been completely abandoned.
5.7
Further urgent pandemic response measures necessitated another single-day of parliamentary sitting on 8 April 2020 and provided the opportunity for the Senate to establish this committee to inquire into the Australian Government's (government) response to the COVID-19 pandemic. It did so with strong bipartisan support. The committee became the primary mechanism for parliamentary oversight of the Australian Government’s response to COVID-19—of the 'formidable and truly remarkable set of powers' handed to the government in order to navigate the crisis.
5.8
At the committee's first public hearing on 23 April 2020, committee Chair, Senator Katy Gallagher, highlighted the importance of the inquiry:
This committee is a key vehicle to provide accountability, transparency and scrutiny of the Australian government's response to the pandemic for the Australian people. Over the next 18 months we will work tirelessly to shine a light on every aspect of the national response.
5.9
As it turns out, the committee’s role has lasted for a longer period.
5.10
Whilst the Parliament has been able to meet more frequently than envisaged, some sittings have been cancelled and others conducted in a limited fashion. With frequent changes in the pandemic response, the committee has been able to quickly respond to changing circumstances and has fulfilled this duty for two years.
5.11
The powers of the Senate and its committee system to scrutinise the activities of the Executive government have arguably never been more important. In the face of an unprecedented transfer of power to executive government and its agencies there was no other mechanism as effective or immediately available to scrutinise the government, and with its cooperation, hold it to account.
5.12
Over the last two years, the committee has heard over 200 hours of evidence from 679 witnesses at 56 public hearings—seven of which where all witnesses appeared virtually. The committee also published over 555 submissions and nearly 2238 individual answers to questions on notice on its website. The committee was also able to draw on evidence provided to other parliamentary committees, and to the Senate and the House of Representatives themselves.
5.13
The majority of the committee’s attention focused on witnesses from government departments, in particular from the health and treasury portfolios, as well as from the Department of the Prime Minister and Cabinet.
5.14
Regrettably, the Australian Government’s early rhetorical support for the committee has waned and the government has not conducted itself in a transparent manner, repeatedly obstructing the work of this committee, as detailed in this chapter. The Prime Minister was unwilling to subject the decisions of his government to parliamentary scrutiny, damaging the public’s trust in their leaders at a time when it was so desperately needed.
Lacking in transparency
5.15
Nowhere was this lack of transparency more apparent than in relation to the National Cabinet. The National Cabinet was speedily established in the initial days of the pandemic response as a means of engaging all state and territory first ministers and the Prime Minister. It was central to the Commonwealth’s management of the pandemic. A well-functioning National Cabinet should have been transparent and accountable, with its decisions subject to scrutiny and oversight. This has not been the case.
5.16
In its submission to this inquiry, the Australian Healthcare and Hospitals Association emphasised this point, arguing:
Critical to the success of the rapid decisions and actions that need to be taken during the COVID‐19 pandemic is transparency around the factors driving decisions.
5.17
The peak body pointed specifically to the need to disclose the scientific evidence underpinning the decisions of the National Cabinet as 'critical for building public confidence and trust'.
5.18
Yet, the government has erroneously maintained that the National Cabinet is a committee of Cabinet and thereby subject to Cabinet confidentiality and limitations on access to documents through the Freedom of Information Act 1982. On this basis, it has refused to disclose the deliberations of the National Cabinet (even in confidence), thereby frustrating the efforts of this committee—as well as other committees and those of individual senators—to gain a fuller understanding of the government's pandemic response. The New South Wales Council for Civil Liberties criticised this practice, submitting, 'the "Cabinet-in-confidence" classification is routinely abused to shield information from being publicly accessible'. As a consequence, the Parliament has been unable to adequately fulfil its responsibility to scrutinise and hold to account the government.
5.19
The government has refused to disclose vital information relating to the decisions and deliberations of the National Cabinet, despite a ruling on 5 August 2021 by the Administrative Appeals Tribunal that the National Cabinet was not a subcommittee of the federal cabinet and its documents therefore not covered by cabinet exemption. In doing so, it has operated as though it only needs to comply with legal requirements of its own choosing, not according to law or the powers of the Parliament.
Obstruction
5.20
This lack of transparency is illustrative of a pattern of behaviour in which the government has routinely obstructed the Senate's access to information. Indeed, this committee's second interim report detailed seven public interest immunity claims (that is, a claim through which the government seeks to withhold information from Parliament that it believes would not be in the public interest to disclose) made by government ministers over information requested by this committee. The committee resolved not to accept any of the seven claims on the grounds provided. This committee's third interim report detailed a further three public interest immunity claims made on behalf of the Minister for Health and Aged Care, the Hon Greg Hunt MP. Again, the committee resolved not to accept any of the three claims on the grounds provided.
5.21
On 23 November 2021, the Senate passed a motion rejecting public interest immunity claims made in relation to the National Cabinet on the grounds of cabinet confidentiality. Yet, the government has continued to withhold such information from the Senate and the Australian public, denying either's right to scrutinise its deliberations and decisions or those of the National Cabinet.
5.22
The government has repeatedly ignored the Senate's orders for the production of documents—both in relation to the work of this committee as well as other matters before the Senate. In response to this committee's second and third interim reports and the Senate's orders for the production of documents, the Government continued to reiterate the same claims of public interest immunity that were previously rejected by this committee. This is not an acceptable response; the only acceptable response is to produce the information ordered by the Senate.
5.23
On 2 December 2021, Senator Colbeck wrote to the President of the Senate, again restating the public interest immunity claims already rejected by this committee in its third interim report. Senator Colbeck noted the committee's rejection of the claims, but made the following misleading assertion:
Whether a public interest immunity claim is accepted or rejected is a matter for the Senate, and while the Select Committee on COVID-19 has rejected the claims advanced by the Government, the Senate has not.
5.24
The committee notes the role of committees in determining a public interest immunity claim, as detailed in Odgers' Australian Senate Practice:
Legislative and general purpose standing committees and most select committees possess the full range of inquiry powers, enabling them, if necessary, to summon witnesses and order the production of documents.
5.25
Whilst the resolution of the Senate of 13 May 2009, known as the “Cormann Order”, makes clear that:
If, after considering a statement by a minister provided under paragraph (3), the committee concludes that the statement does not sufficiently justify the withholding of the information or document from the committee, the committee shall report the matter to the Senate.
5.26
It would not be necessary to undertake such a process if the government was more willing to provide information reasonably requested by the committee, rather than prosecuting every public interest immunity claim through the Senate, and even then refusing to comply.
5.27
The government’s disregard for the Senate and its committees is also manifest in long delays in responses to questions taken on notice and responses that frequently do not answer the questions asked. This is symptomatic of a broader disdain for Parliamentary scrutiny and the rights of Australians to know the basis on which the decisions are taken that so profoundly impact their lives.
5.28
As of the tabling date for this report, nearly 450 answers to questions on notice to government departments by this committee have not yet been received, amounting to around 17 per cent of all questions asked.
5.29
A report by the Australia Institute pointed to the ‘loss of a public record of decision-making’ through the National Cabinet. Indeed, as this committee’s second interim report concluded:
[The actions of the government] have compromised the committee's ability to scrutinise government decisions with a profound impact on lives [sic] 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.
Ministerial appearances
5.30
The Prime Minister has painted a picture of a government cooperating with the Senate to scrutinise the COVID-19 response. Indeed, in a media interview on 28 January 2022, Mr Morrison claimed one of his ministers had appeared before the committee, 'on many, many occasions… he's appeared before [this committee] on countless occasions'. The Prime Minister even took credit for the work of the committee, claiming, 'we set up the committee at the start of COVID because we wanted to ensure there was an ongoing oversight and visibility on everything we've been doing'.
5.31
The reality, however, was that the minister in question, Senator the Hon Richard Colbeck, Minister for Senior Australians and Aged Care Services, had appeared before the committee on only two prior occasions. Indeed, of the nearly 700 witnesses to appear before this committee, only three have been ministers of this government: Senator Colbeck; former Senator the Hon Mathias Cormann, Minister for Finance; and Senator the Hon Anne Ruston, Minister for Families and Social Services.
5.32
These ministers have not all appeared willingly before the committee. The Prime Minister's comments above were in relation to Senator Colbeck declining to appear before the committee on 14 January 2022. Senator Colbeck cited the impact his appearance would have on the 'urgent and critical work of the Department' in addressing the outbreak of Omicron, yet he attended a cricket test match in Tasmania on the scheduled date of the public hearing, prompting public outrage given the impact of omicron in aged care settings, for which he was responsible.
5.33
The Treasurer, the Hon Josh Frydenberg MP, also declined the committee's invitation to appear on 25 May 2020. The Treasurer cited as the basis for his refusal convention that a House of Representatives minister should appear through their representative ministers in the Senate—in this case—Senator Cormann, then-Minister for Finance. However, whilst this convention means that the Senate could not compel a minister from the House of Representatives to appear, such an appearance is not unprecedented, with a House of Representatives Minister having appeared as recently as 2014. In the case of Mr Frydenberg, Senator Cormann subsequently appeared before the committee on 9 June 2020.
Lessons for the Senate
5.34
The work of this committee—and by extension the Senate—has been obstructed by the government at a time when it was exercising extraordinary powers that demanded constant and visible scrutiny by the Parliament. Failings within the Australian Public Service have also been exposed, as senior departmental officials’ initial candour and willingness to provide evidence diminished over time. Questions remain as to whether public officials may have been inappropriately constrained in presenting evidence to the committee.
5.35
The Senate is responsible for holding the government to account, and responsible governments submit themselves to scrutiny. The government failed to do this at a time when its '[e]xtraordinary powers must be balanced by vigilance and accountability'.
5.36
The Senate may wish to seek advice on whether its systems and procedures are sufficient to ensure the Parliament’s access to the information it needs to perform its vital oversight and scrutiny functions in the future, and if not, how these might be improved.