Hotel quarantine inquiry: New affidavit from Brett Sutton sought

Victoria's hotel quarantine inquiry has demanded more statements from key players, including Chief Health Officer Brett Sutton, as new information threatens to "unsettle" the due date for the final report into the bungled program.

The lead counsel assisting the inquiry, Tony Neal, QC, led the extraordinary hearing – held virtually – on Tuesday afternoon.

Lead counsel assisting the inquiry, Tony Neal QC.Credit: Getty

Mr Neal said "two discrete developments" led to the hearing: fresh phone records from key decision-makers and emails that were not disclosed to the inquiry. Both pieces of evidence go to the vexed decision to use private security in the hotels.

Mr Neal said the inquiry will seek affidavits from a number of people, including Professor Sutton and Department of Health and Human Services secretary Kym Peake, to address the new information.

The chair of the inquiry, former judge Jennifer Coate, warned the inquiry may now need to postpone its final reporting date of November 6.

Inquiry chair and former judge, Justice Jennifer Coate.Credit: Getty

"Most unfortunately, these new developments, it has to be said may unsettle the due date for the report. I am unable to be clear about that at this stage," Justice Coate said.

“I can assure all that as soon as I am in receipt of the outstanding material, if the report date is affected and needs to be extended, I will advise the Premier and seek any necessary extension.”

Mr Neal told the inquiry on Tuesday that "it should be emphasised" that the relevant parties are being asked to address the new questions, and there was "no basis for inferring or speculating that any view has been formed about the veracity or otherwise" of the previous evidence that has been given to the inquiry before.

Justice Coate called the hearing as new evidence continued to emerge even after the last witness – Premier Daniel Andrews – finished in the witness box last month.

Last week The Age revealed that Professor Sutton authorised an email when hotel quarantine was set up that told the federal government that private security guards were going to be used in the program.

The emails contradicted Professor Sutton's evidence to the inquiry – he said he didn't know private security were involved until outbreaks of COVID-19 in late May – and were not tendered to the Board of Inquiry by the Department of Health and Human Services, who were required to provide all relevant materials.

Professor Sutton said over the weekend those emails had not “registered” with him.

Mr Neal said on Tuesday that two email chains involving Department of Health and Human Services officials have recently been submitted to the inquiry.

DHHS told the inquiry the department had 500,000 documents to go through and didn't consider the emails "relevant" nor "critical".

Mr Neal said the emails in fact go to "matters which occupied a very considerable amount of the board’s time” during the inquiry.

“You [Justice Coate] may consider it adds some weight in one direction or another to your deliberations as to who was in charge for the detention regime,” Mr Neal said.

One chain began on March 30 – three days after planning for the hotels program started – and ended on July 2. The chain, between a number of Health Department officials, including an email from Deputy Public Health Commander Dr Finn Romanes, went to the chain of command over the program.

Another four-page email chain that began at 5.22pm on March 27 with a query from a Commonwealth official directed to Professor Sutton about the security arrangements for hotel quarantine.

Health Department deputy director Braedan Hogan wrote back: "private security has been contracted to provide security at the hotels with escalation arrangements to Vic Pol [Victoria Police] as needed."

Professor Sutton replied to Mr Hogan: "thanks so much, Braedan."

Mr Neal said the email has "relevance to the time at which Professor Sutton had knowledge of the use of private security within the hotel quarantine program".

"His evidence before the inquiry was that he was unaware of it until media reports concerning the outbreak at the Rydges hotel in May this year came to his attention," Mr Neal said.

Professor Sutton will be given a week to respond to the new materials.

Mr Neal said it was too early to say how the inquiry would deal with the new information, aside from requesting further statements.

Justice Coate more evidence was still to arrive, from the Department of Health and Human Services in particular.

“Only after receiving it all will I be in a position to determine what, if anything, further needs to occur,” she said.

No decision was made to recall witnesses to be re-examined on Tuesday beyond requiring further sworn statements.

About 10 days ago the inquiry requested phone records from Premier Daniel Andrews’ department, including his top public servant, Chris Eccles.

The records are about trying to get an answer as to who made the decision that private security should guard the hotels over, for example, the police or defence personnel.

The records revealed Mr Eccles had called then chief commissioner Graham Ashton on March 27, the day the hotel quarantine program was established, despite Mr Eccles telling the inquiry he did not speak with Mr Ashton.

Mr Eccles subsequently resigned, becoming the second top official to quit after former health minister Jenny Mikakos resigned over the debacle that sparked 99 per cent of Victoria’s second wave of coronavirus.

Key with the phone records is who spoke to Mr Ashton that led him to send a text message in which he said private security would be used in a "deal" that was "set up" by the Department of Premier and Cabinet.

Mr Eccles remained adamant upon his resignation that he did not speak to Mr Ashton about the private security.