Government misused public interest immunity claims despite public servants’ willingness to cooperate, COVID inquiry finds

By Shannon Jenkins

February 25, 2021

The car parks affair has shown the incalculable value of the ANAO as an instrument for honesty and accountability in public administration.
The car parks affair has shown the incalculable value of the ANAO as an instrument for honesty and accountability in public administration. (Image: Adobe/FiledIMAGE)

The Senate committee examining the commonwealth’s COVID-19 response has accused the government of misusing public interest immunity claims to withhold key information, describing the use of claims as “at best lazy and at worst a deliberate abuse” of process.

The Select Committee on COVID-19 was established in early April 2020. Since then, public interest immunity claims have been made by attorney-general Christian Porter, then-aged care minister Richard Colbeck, and social services minister Anne Ruston. They have also been made on behalf of health minister Greg Hunt, and treasurer Josh Frydenberg.

The committee has argued that the government didn’t give adequate reasons to justify withholding the information, and has repeatedly hindered its ability to examine key pandemic-related decisions by misusing public interest immunity claims.

“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,” it wrote in its second interim report.

“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.”

The committee has warned that the Senate will become a “toothless tiger that gets spoon fed only the information that the government wants to feed it” if it doesn’t reject the government’s “secretive agenda designed simply to protect the executive”.

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The report acknowledged that senior public servants, including Home Affairs secretary Mike Pezzullo, then-acting Health secretary Caroline Edwards, and then-chief medical officer Dr Brendan Murphy, had “indicated a willingness to provide full and helpful information in light of the importance of the committee’s work” during the inquiry’s early days. However, that willingness was short-lived, the committee found.

“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,” it said.

The committee has recommended that the Senate order the handing over of a number of documents, including legal advice on whether US authorities could obtain Australia’s COVID-19 app data; information on public health advice; Treasury advice and modelling; briefings from the aged care minister to cabinet; and advice to government on the reintroduction of the liquid assets test for some Centrelink payments.

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