“I therefore recommend the cancellation of the remainder of the Australian Grand Prix, as soon as feasible,’’ Professor Sutton wrote in the previously unpublished advice obtained by The Age under freedom of information laws. He added that, as an alternative, the public health risk of staging the event could be mitigated by keeping the gates closed and having the cars lap a deserted circuit.
Within two hours, Premier Daniel Andrews stepped out of a COAG meeting in western Sydney and made public the advice. The lights at Albert Park never turned green. Professor Sutton, a little known public health official in the first year of his job, had wheel-clamped an $8 billion global motor sport.
Contrast this with Professor Sutton’s inaction two weeks later when Victoria and other states and territories moved to block the importation of coronavirus by subjecting returned travellers to 14 days of mandatory hotel quarantine.
Professor Sutton told the Coate inquiry he had no direct involvement in the planning, approving or running of Victoria’s hotel quarantine program, no personal involvement in implementing infection prevention and control arrangements and first learnt private security guards were being used after the virus broke out of the hotels.
Such was Professor Sutton’s apparent distance from what was happening inside these hotels, he was “not sufficiently aware of the details” to form a view about whether the program was set up properly or not, he told the inquiry.
The Coate inquiry, armed with belatedly produced emails which appear to contradict aspects of this sworn testimony, this week announced its intention to serve Professor Sutton with additional questions. His answers may determine whether he continues to lead Victoria’s public health response to the pandemic.
As he prepares his reply, written communications obtained under FOI between Professor Sutton, Mr Andrews, Ms Mikakos and their respective offices in the weeks surrounding the establishment of the state’s hotel quarantine program provide insight into the role he played at a critical stage of Victoria’s COVID-19 response.
The communications reveal Professor Sutton’s hands-on involvement in providing advice about overseas death rates, transmission rates in schools and the public health criteria for releasing COVID patients from isolation. They show that on most things COVID, the CHO kept a close eye on the details.
On March 21, the day before Mr Andrews announced Victoria would shut down all non-essential services, Professor Sutton emailed his Department of Health and Human Services bosses with suggested changes to the public health message.
Rather than wash hands, people should be told to wash their hands frequently, he said. Rather than press a traffic light or lift button with an elbow, they should also be encouraged to use their knuckle or a pen. “Have you ever tried pressing a lift button with your elbow?’’ he wrote. “Needs other options.’’
At 7.36am on March 12, he sent his race-stopping advice to Ms Mikakos about the grand prix. On March 26, the day before national cabinet met and approved the introduction of hotel quarantine, Professor Sutton sent Ms Mikakos modelling showing the importance of stopping the spread of COVID-19 from returned travellers.
Victoria’s cumulative caseload was above 200 and growing fast, driven overwhelmingly by infections acquired overseas. The modelling forecast that, unless infections acquired overseas were contained, total case numbers would explode tenfold. Professor Sutton told the Coate inquiry that at the time, he was “absolutely in support” of mandatory quarantine.
How can this be reconciled with his apparent dissociation from all aspects of the program and, according to his account, his lack of attention paid to an urgent email exchange relating to it on March 27, the day it was announced?
How can you reconcile his testimony with a separate email early in the quarantine program which placed Professor Sutton at the top of a DHHS chain of command for all direction, policy, reporting and arrangements for people in detention?
David Davis, a former health minister and the opposition leader in the Legislative Council, says you can’t.
“It is clear that Brett Sutton’s micro-management of minute detail is directly at odds with his apparent amnesia at the inquiry,” Mr Davis said. “The Chief Health Officer is a critical statutory position and he has legal responsibilities, whether he tries to distance himself or not.’’
The inquiry hadn’t seen either the March 27 email or the subsequent, chain of command email when Professor Sutton testified five weeks ago.
The March 27 email was an important one. It was compiled by a member of Professor Sutton’s public health team in response to a short notice request by Australian Border Force for details of the accommodation, transport, medical support and security arrangements in place for Victoria’s quarantine program. Professor Sutton asked to be copied into the response and immediately acknowledged its receipt.
He says he either didn’t read the email or the contents didn’t register with him and he stands by his testimony to the inquiry.
Within the material released under FOI, there is some support for Professor Sutton’s position.
The inquiry is investigating whether further communications about the use of private security guards took place between the Premier, his staff, public service chief Chris Eccles, police chief Graham Ashton and others in a crucial, six-minute period after 1pm on March 27.
What was Professor Sutton doing at this time? Reading The Conversation. At 1.16pm, the precise time Mr Ashton texted Mr Eccles seeking details about hotel quarantine, Professor Sutton sent Ms Mikakos a link to a story about social distancing.
The problem for Professor Sutton now goes beyond whether he read an email. It also threatens to embroil senior lawyers from MinterEllison, one of Melbourne’s most prominent civil and commercial law firms which also provides services to The Age.
According to MinterEllison, it was one of Professor Sutton’s DHHS colleagues who blew the whistle on the missing emails. The emails were provided by DHHS to MinterEllison but not produced by MinterEllison to the inquiry. The judgment made at the time – a judgment challenged by lawyers assisting the inquiry – is that the emails were not “critically relevant’’ to the inquiry’s terms of reference.
It is here that things get sticky for Professor Sutton.
In response to a please explain letter from the inquiry, MinterEllison partner Rebecca Bedford said that when her legal team raised the issue with Professor Sutton, he “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”.
The MinterEllison explanation, if accepted, suggests that the Chief Health Officer didn’t want the inquiry to have the documents.
In circumstances where someone is issued with a notice to produce, the onus to comply rests with the client, not the lawyers. Failure to comply without a reasonable excuse to a notice to produced by a board of inquiry is punishable by two years’ jail.
This is potentially a serious matter for Professor Sutton and Kym Peake, the DHHS secretary to whom the original notice to produce was sent. It also raises questions for the MinterEllison lawyers who advised Professor Sutton of his legal obligations and whether he followed that advice.
It is not certain whether Jennifer Coate will get to the bottom of all this. As of Friday, her inquiry had not scheduled further hearings or asked for a time extension to deliver its final report. This suggests she is not planning to recall any witnesses.
In the absence of further public hearings, the latest twists in the hotel quarantine saga can only be straightened “on the papers;” an exchange of documents prepared by lawyers rather than cross examining witnesses under oath.
“If it is correct that the board intends to complete its process by way of written material this would be deeply troubling and contrary to the public interest,’’ a legal source said. “If the board is serious about wanting to get proper answers to acquit its terms of reference diligently, it has no option other than to call witnesses and properly examine them.”
Professor Sutton will be hoping that whatever course the inquiry takes from here, he doesn’t share the fate of Ms Mikakos and Mr Eccles, who both resigned after their testimony to the inquiry was contradicted by material later brought to light.
In mid-June, just as Victoria’s devastating second wave of infections which broke out of hotel quarantine failures was gathering steam, Professor Sutton told the ABC he wanted to stick around as CHO for a while yet. “I love the job,’’ he said. “I absolutely adore it.’’
Whether he can may be known on November 6, when the Coate inquiry is due to hand down its findings.
Chip Le Grand is The Age’s chief reporter. He writes about crime, sport and national affairs, with a particular focus on Melbourne.