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Over the past week almost all media outlets have reported that Victoria’s chief health officer, Prof Brett Sutton, tried to prevent emails that appeared to contradict his sworn evidence from being given to the state’s inquiry into hotel quarantine.
It has been made to appear that he was at the centre of an attempt to cover up.
But a close reading of the documentary trail does not support the thrust of the reports.
The key document – a letter from the Department of Health and Human Services’ lawyers, Minter Ellison – is at best ambiguous, and could be read to mean only that Sutton stood by his evidence.
Yet the Victorian media have all taken a more sinister interpretation.
This matters, because the opposition has used the controversy to call for Sutton’s resignation – meaning Victoria would lose its chief health officer during a pandemic. Victoria’s Department of Health and Human Services is in agony as it waits for the hotel quarantine inquiry to finish its work. Plenty of people are trying to spread the blame for past mis-steps.
It has been variously reported that Sutton “instructed lawyers to withhold” the emails (the Australian) and that he “blocked” the provision of the emails (the ABC). The Age has reported that he “instructed” lawyers for the Department of Health and Human Services that “they did not need to” hand the emails over.
But the evidence does not necessarily support this highly damaging reading.
The basis for the widely reported claim is a 19 October letter written by Minter Ellison, the lawyers for the department, in which they attempt to justify their earlier failure to pass the emails to the inquiry.
All the documents can be seen on the inquiry website here. The Minter Ellison letter is Exhibit 232a.
The emails at the centre of the controversy were sent on 27 March (Exhibit 230b) and began as a request from the commonwealth for information on Victoria’s hotel quarantine arrangements.
Sutton delegated the job of answering the email to someone else, and a seven-point briefing was provided, with Sutton copied in. One sentence of the briefing read: “Private security is being contracted to provide security at the hotels with escalation arrangements to VicPol as needed.”
Sutton then acknowledged this with a thanks to the person who wrote the briefing: “thanks so much”.
Sutton later told the inquiry that he didn’t know about the use of private security until much later – in May, after the virus leaked from quarantine.
Most of this email trail was provided by DHHS to Minter Ellison.
However, the emails were not passed on by Minter Ellison until the inquiry demanded them, on 15 October. Evidence before the inquiry ended on 25 September. According to the Minter Ellison letter, on 28 September a departmental employee who had been a witness asked whether the email trail had been given to the inquiry.
This apparently provoked a flurry within the department, during which Sutton was asked about the 27 March email. He said the reference to hotel security had not registered with him – the same explanation he has now given publicly.
Now to the crucial bit: did he oppose or block the email being given to the inquiry?
The basis for this assertion is the following passage in the Minter Ellison letter:
“Professor Sutton instructed us he had not read the detail of the email at the time and that the evidence that he gave to the Board was truthful at the time and remains so. In other words, Professor Sutton stands by that evidence which was provided honestly. Professor Sutton further instructed us that he did not consider he needed to clarify his evidence and therefore the email did not need to be provided to the Board for that reason.”
This is oddly worded and ambiguous, but it can be read as meaning that the only “instruction” Sutton gave was that his evidence was honest and the email didn’t alter that. He could have been saying (assuming that Minter Ellison are quoting him accurately) that it didn’t need to be provided to the inquiry for the purposes of altering his evidence.
It is not clear that he opposed the document’s release. Remember that lawyers use the word “instructed” as a description for what their clients tell them – it doesn’t necessarily mean a direction.
The rest of the Minter Ellison letter is an eight-page justification for why the emails hadn’t been provided earlier to the inquiry. Minter Ellison is itself under pressure because of this.
Summed up, the letter says that more than 500,000 documents were identified as potentially relevant, and in a process of to and fro with the inquiry it was agreed that only those “critically relevant” need be provided.
The 27 March email chain didn’t meet that test, on Minter Ellison’s account, because it was written after the decision to use private security was taken and did not shed any light on how that decision was made.
It stretches credulity that Sutton didn’t know about the use of private security until May. But it should be said that even if he had, it probably wouldn’t have made any difference.
He said in his evidence to the inquiry that he wouldn’t necessarily have acted to stop it. “I think the wisdom, we have in hindsight is a key element here. I’m not sure anyone at the point in time of decision-making around hotel quarantine commencement might have been able to foreshadow some of the complexities of that workforce.”
But as for the very damaging suggestion that he was engaged in an active cover-up – the evidence on the public record so far does not support it.
We will learn more when the inquiry delves into these matters, including by seeking more evidence from Sutton. Minter Ellison partner Rebecca Bedford was contacted but declined to comment. Professor Sutton also did not respond to invitations to comment.
Source: The Guardian
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