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While the members of the senate’s coronavirus watchdog are working well across party lines, its chair, Labor senator Katy Gallagher, says the government is delaying and obfuscating to avoid scrutiny. By Paddy Manning.

Covid-19 response inquiry awaits answers

Secretary of the Department of the Prime Minister and Cabinet Phil Gaetjens.
Credit: AAP Image / Lukas Coch

It was a straightforward question, one asked by the chair of the senate inquiry into the government’s Covid-19 response, Katy Gallagher, almost mechanically: “How many residents of aged-care facilities funded and regulated by the Australian government have passed away from Covid-19?”

For the next 53 seconds, the federal Aged Care minister, Richard Colbeck, shuffled through the papers before him in his office in Tasmania, searching for the number he knew should’ve been to hand.

Gallagher says she was stunned. It was only her second in a list of 15 questions, which she was expecting to move through quickly. Intentionally or otherwise, she had scored a direct hit. Colbeck was eventually rescued by a bureaucrat sitting in Canberra, who volunteered the information the committee was looking for: there had been 254 deaths by 8am on Thursday, August 20. (By September 2, it was 460 and rising.) The minister later apologised.

“We weren’t after a scalp,” says Gallagher. “That’s not our approach. But if people are not able to do their jobs, I’m not going to protect them.” While the moment garnered much media focus, Gallagher describes the minister’s performance throughout the hearing as “two hours of not being across his brief”.

The Covid-19 committee that Gallagher chairs was appointed in April during the first wave of the pandemic, when it was unclear when, or if, federal parliament would sit this year and there were fears about a lack of scrutiny on the government’s response. Gallagher, Kristina Keneally and Queensland senator Murray Watt make up its Labor contingent, alongside Liberal James Paterson, Perin Davey from the Nationals, the Greens’ Rachel Siewert and Jacqui Lambie.

The inquiry began with lofty goals. “This is not your typical senate committee,” Gallagher said during its first hearing. “We will demand a lot of witnesses in terms of a co-operative approach that is based on working together in the national interest to ensure all aspects of our response are the best they can be. Political grandstanding will be kept to a minimum; major political points can be made by members in other places.”

Internally at least, this seems to have held. The committee’s deputy chair, Senator James Paterson, says having a chair from the opposition has enhanced the committee’s independence. The members have worked in “a relatively bipartisan fashion”, he says.

But over more than 30 hearings, frustration has been mounting in some. So far there have been more than 463 submissions made and 85 witnesses from dozens of agencies have turned up, but only three ministers have appeared: Colbeck, Finance Minister Mathias Cormann and Families and Social Services Minister Anne Ruston. Ministers from the house of representatives do not front senate committees as a rule, but Gallagher says a joint standing committee was not explored because they are traditionally chaired by the government.

Gallagher says the government has not lived up to its promise to co-operate, and instead has used executive and parliamentary mechanisms to delay and obfuscate. She cites widespread misuse of claims of cabinet-in-confidence when departments and statutory bodies have appeared before the committee, including a failure to make appropriate public interest immunity claims to prevent the release of information. More than half the questions taken on notice, she says, have been answered late.

Paterson says that while he is pro-disclosure and pro-transparency, the committee has asked literally hundreds of questions on notice – initially demanding responses with a five-day turnaround, later extending that to 10. He argues it’s necessary to balance the desire for scrutiny with the imperative of responding to the pandemic, particularly for operating agencies such as the Department of Health.

“Committees are never satisfied with the amount of information they get from government,” he says.

Paterson says the tension between the executive and the senate – intended as a house of review – has always existed. “By the same token, there are extraordinary amounts of money being spent here, and there will be an extraordinary amount of debt that’s accrued as a result of this crisis,” he says. “Future generations are entitled to as much as we can put on the public record.”

Gallagher reserves her harshest criticisms for the Department of the Prime Minister and Cabinet, which she says has been the worst performer in terms of answering questions – some are 90 days late – and in providing documents. She says the department’s secretary, Phil Gaetjens, head of the Australian public service and formerly chief of staff to Peter Costello and Scott Morrison during their respective tenures as treasurer, repeatedly will shrug off questions, saying it is not his role to know.

“So, I think it’s more sinister than just being unprepared, because I’ve left those hearings thinking, ‘How does this guy keep his job?’ ” Gallagher says. “If you had someone showing up like that in a boardroom, you wouldn’t pay him.”

Gallagher believes Gaetjens’ behaviour is designed to project across the rest of the public service that the best approach to senate scrutiny is to let the committee members “have their fun, and then walk away”.

A spokeswoman for the Department of the Prime Minister and Cabinet strongly rejected Gallagher’s characterisation, saying Gaetjens is “a long-standing and experienced public servant who exercises his role as secretary in accordance with the Public Service Act”. She noted the secretary had appeared before the committee on each of the three occasions his attendance was requested. “Prior to 2020, in the past 35 years, there have been only four occasions when the secretary of PM&C has appeared before a parliamentary committee,” the spokeswoman said. She added that the department had received 176 questions on notice from the senate select committee on Covid-19, in addition to those answered at the hearings, and had answered as soon as practicable.

A point of contention during Covid-19 committee hearings has been the national cabinet, made up of state and territory leaders, which the prime minister created in the early days of the pandemic, replacing the Council of Australian Governments (COAG).

Gallagher and Keneally, a former ACT chief minister and New South Wales premier respectively, have pushed Gaetjens for transparency about how the national cabinet, constituted as a policy committee of the Commonwealth cabinet office, actually works.

On May 13, Keneally asked whether decisions of the national cabinet needed to go back to the full federal cabinet before they could take effect. Gaetjens took the question on notice. The department’s response, when it came on June 3, was ambiguous, referring back to the Cabinet Handbook for guidance “on when it is appropriate for decisions of Cabinet Committees to be referred to Cabinet for endorsement.”

PM&C’s spokeswoman pointed The Saturday Paper towards provisions of the handbook that state the prime minister can establish temporary or ad-hoc committees of the cabinet, “which may make final decisions for security or practical reasons”. The Cabinet Handbook continues, however, that “most Cabinet committee decisions are not acted on until they have been endorsed by the Cabinet, or the Cabinet Secretary agrees that decisions can be implemented without the Cabinet’s endorsement because they are urgent”. In short, the decision-making power of the national cabinet appears tenuous. Secretary Gaetjens was equally unclear on whether decisions of the national cabinet can bind the states and territories, and how they would do so.

Gallagher says unnecessary secrecy has been a feature of the government’s response to the whole pandemic. She points to the decision to keep confidential the crucial minutes of the Australian Health Protection Principal Committee (AHPPC) – which used to be public, and which she has unsuccessfully sought to obtain under freedom of information laws – and the unexplained spending of $5.2 million in public money by the National COVID-19 Coordination Commission, headed by former Fortescue Metals chief Neville Power. Now that the prime minister has restructured the commission as an advisory board to cabinet, Gallagher fears “we’re probably going to know less about them, not more”.

Greens senator Rachel Siewert, who this week announced she would not recontest at the next election the seat she has held for 16 years, says the committee’s effectiveness was highlighted by the questions asked of Power on plans for a gas-led recovery. Following the session, Power distanced himself from a leaked draft report of his commission’s manufacturing taskforce, which spruiked gas as key to Australia’s economic recovery. Siewert credits government agencies for turning up and taking questions but describes representatives constantly hiding behind public interest immunity as “frustrating”.

The sole Nationals member of the inquiry, NSW senator Perin Davey, agrees it was valuable to hear from Power, and shares Gallagher’s frustration at the lack of information from the AHPPC – especially when it comes to the medical advice behind state and territory decisions to close borders. Regional towns have been heavily affected by restrictions, despite being Covid-19 free, says Davey, and there has been no adequate explanation on public health grounds. “When I look at the maps of where the Covid outbreaks are, and where the really significant community impacts are, they don’t stack up,” she says.

For Gallagher’s part, she says scrutiny of the government’s pandemic announcements has been important, because often the reality has fallen short, there is little follow-through or money does not get to those on the ground.

Evidence to the committee revealed the COVIDSafe app had only detected one case, for example. Similarly, the $680 million HomeBuilder scheme was intended to spark a “tradie-led recovery of our economy”, but evidence to the committee showed that as of early August there had been no payments under the program. Treasury had approved none of 247 applications. They also discovered the Department of Education, Skills and Employment didn’t find out about the government’s JobMaker program until after it was announced. And that 10 weeks after that announcement, officials had no idea who was in charge of JobMaker, and had no forecast of how many jobs would be created.

While the committee isn’t required to report until 2022, with so much policy being made on the fly to deal with the pandemic’s impacts – and so much money being spent – its members say they want to publish something sooner rather than later. Paterson hopes they will produce an interim report by the end of the year. “I’d be surprised if we didn’t,” he says.

This article was first published in the print edition of The Saturday Paper on Sep 5, 2020 as "Hearings impaired".

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Paddy Manning is contributing editor (politics) at The Monthly.