Linda Reynolds (WA, Liberal Party, Minister for Government Services) Share this | Link to this | Hansard source

Mr President, the government does not make public interest immunity claims lightly. We never have and we never will, and we certainly don't do it without the careful consideration of the particular harm to the public interest. I have carefully reviewed the claim. I have personally, again, carefully reviewed the claim of public interest immunity and recognise that it would not be in the public interest to disclose the information over which the claim is being reiterated in relation to legal advice and also to the deliberations of cabinet.

The government has engaged in good faith with the Senate and its committees at all times. We have provided updates and additional explanations as litigation in relation to the income compliance program has progressed. In addition, government agencies and witnesses have responded to many hundreds of questions at hearings and on notice in relation to the design and implementation of the income compliance program.

Firstly, I go to the claim for the disclosure of information relating to legal advice. It doesn't automatically follow from the Federal Court's approval of the class action settlement that there is no longer a proper basis for the government to maintain public interest immunity over the legal advice it received in connection with the income compliance program. The claim for information relating to legal advice has been made on two grounds. The first is the very, very long-held practice of claiming privilege over legal advice and associated documents obtained in the course of normal decision-making processes of government. The second ground is in relation to the possible prejudice to the Commonwealth in relation to the conduct of litigation relating to the income compliance program. The claim is grounded in the importance of government being able to obtain legal advice in relation to normal decision-making functions without the risk of the advice or the information relating to that advice being disclosed. If such a risk existed, it could prevent governments from appropriately seeking and obtaining such legal advice. The availability of frank legal advice to decision-makers within government should and must be protected as a fundamental principle of good government.

Although the class action settlement has been approved, as recognised by the Federal Court on 11 June 2021, not all potential claims arising from the income compliance program will be resolved through the class action. Disclosing the content or dates of any legal advice would obviously have the very real potential of prejudicing the Commonwealth's ability to defend the claims. To this point, I note that the Federal Court has previously found advices that are the subject of this public interest immunity interest claim to be privileged legal advice. In fact, His Honour Justice Lee upheld the Commonwealth's claim of legal professional privilege in connection with every one of the documents that was the subject of the challenge from Gordon Legal. Allow me to remind the Senate that former Labor minister Joe Ludwig told Senate estimates that he would refuse to provide the Labor government's legal advice for the very same reason. He said:

… it has been a longstanding practice of both this government and successive governments not to disclose the content of advice.

Similarly, this practice has also been previously outlined by former Hawke-Keating government Attorney-General the Hon. Gareth Evans QC, who said in this very chamber in 1995:

Nor is it the practice or has it been the practice over the years for any government to make available legal advice from its legal advisers made in the course of the normal decision making process of government, for good practical reasons associated with good government and also as a matter of fundamental principle.

Secondly, the minute disclosed deliberations of cabinet. I will now turn to the public interest immunity claims in relation to cabinet deliberations. Providing a copy of or information about the minute requested by the Senate Community Affairs References Committee would disclose or could reasonably be expected to disclose the deliberations of cabinet. It is in the public interest for the deliberations of the cabinet not to be made public. By making a public interest claim in respect of the minute, the government is doing no more than standing by a well-established right to protect the disclosure of cabinet deliberations, in the same way as has been done by successive past governments. In interlocutory hearings in the class action, the Federal Court upheld claims of public interest immunity in relation to cabinet materials, including this minute. Further, as recently as 4 August 2021, the freedom of information division of the Administrative Appeals Tribunal found that this document was properly the subject of cabinet exemption under the Freedom of Information Act.

In closing, the letter from me setting out a detailed explanation about the basis of the public interest immunity claim has been provided to the chair of the Community Affairs References Committee.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I rise to take note of the minister's response to the resolution of this place and the comments that she has just made in the chamber. I reject the basis on which the government are claiming public interest immunity. I put it that they're actually claiming government interest immunity, because this is about protecting the government and trying to make sure that the community does not get access to the information that the community affairs committee has, I will note, repeatedly asked for. I will remind this place, as I did yesterday—and, in fact, as Senator Pratt was just commenting on—that it has never been accepted by the Senate nor in any other comparable representative assembly that legal professional privilege provides grounds for a refusal of information in a parliamentary forum. What we have here is a system that illegally claimed debts from people who had received income support, and it made people pay $1.7 billion to the government. On top of refunding the $1.7 billion to all those hundreds of thousands of people that were affected deeply by this scheme, the government also had to pay $112 million to cover interest. That's not compensation. That's just paying back the debts. But nobody could ever, I would argue, fully repay and compensate the people that were affected by this scheme, because it caused untold damage.

What this government is saying is that other people who weren't covered by the class action may in the future want to bring action against the government. The government wants to protect itself against Australians who consider that their debt was also raised illegally. That's what the government is saying here. The sorts of things that we are asking about I don't think are unreasonable. Did the government get legal advice? If it did, when did it get it? Who provided it? As I said, I don't think that these requests are unreasonable.

As we know, this Senate inquiry is ongoing. We had a hearing on 19 August and we had Mr Grech from Gordon Legal, as mentioned yesterday, present evidence to us, and he made a number of observations when I asked about the ongoing case and issues around the claim of public interest immunity. Mr Grech went through a number of these specific issues and that the court upheld the government's claim of public interest immunity. But that is not how I understood the evidence that Mr Grech gave us yesterday. He said that some documents, the judge agreed, were covered by public interest immunity but others were not. He said in answers to questions from me:

Having said that, I must say that one of the concerns we had throughout the conduct of the proceeding was what we considered to be the Commonwealth making quite spurious claims of legal professional privilege and parliamentary privilege in respect of documents. The record will show that there were very extensive court processes involved in persuading, and at times it required judges to make orders to coerce the Commonwealth to abandon some of the claims it made. I think it is a quite concerning feature, increasingly, of the way the Commonwealth litigates disputes—that it tends to claim both legal professional privilege and parliamentary privilege over a very, very wide array of documents.

He then went on to say, amongst other things:

… there is a deep concern that we have—and I know it's been expressed in academic circles as well—of how those privileges are being abused.

He went on:

When governments abuse those privileges, it brings the whole system into disrepute and creates an enormous undermining of public confidence in the way our governments operate and, in particular, in the relationship between our public servants and the government.

I support very strongly what Mr Grech said during this inquiry. We expect the government to be model litigants. Mr Grech elsewhere talked about the fact that that's what the government should in fact be, and yet they are claiming in this case parliamentary privilege over a very, very wide array of documents. He said, I reiterate, that it creates an enormous undermining of public confidence.

The government has already undermined confidence in it and the way it operates our social security system by the very fact that robodebt happened in the first place. It caused such distress. The government further undermined confidence in governments by the fact that they now seek to hide it, because that is what they are doing. Let's make no bones about it. They are seeking, repeatedly, to hide very, very important details about this whole sorry saga. Unless we actually identify what went wrong, the Australian community has no guarantee that this sort of thing will not happen again. Saying you're sorry, which is sort of what happened with robodebt—there was a sort of sorry—should mean that you mean it and that it won't happen again. As I just said, we have no guarantee that this won't happen again if the government doesn't come clean.

By seeking to perpetually claim public interest immunity, the government build further the case for a royal commission on this issue. I can tell you that all the people who contact me about robodebt express complete lack of confidence in the government and the way they handled robodebt. These people continue to feel upset that they were hounded—with debt collectors at the door in some instances, or on the phone, making them feel intimidated, scared, like they'd done something wrong. I had pensioners crying in the hearing—literally with tears streaming down their face—unable to speak because they were so choked up because they thought that the government and the community thought they had stolen money, thought they had cheated the Commonwealth, and they had done no such thing. That causes deep psychological distress.

We don't want to see that happening again in this country, but we are at risk of seeing that happen again if this government continues to hide behind public interest immunity. I hope that this place will continue to try and hold this government to account, to get access to this information, information that the Australians affected by this deserve to know. I urge the government to reconsider and not just—with all due respect—cut and paste, yet again, their excuses for not presenting the information that the committee is after. We are after whether legal advice was sought, whether the advice was provided internally or externally and the dates when the legal advice was sought and provided. The minister has not articulated how the release of this information could possibly prejudice ongoing court proceedings.

Senator O'Neill interjecting—

Exactly, Senator O'Neill. You just claim it; you don't explain it. It's not good enough for our community. We expect better, particularly in the face of how outrageous this robodebt scheme was.

Rex Patrick (SA, Independent) Share this | Link to this | Hansard source

[by video link] I wish to follow up on some of the things that Senator Siewert said. Firstly, I wish to make it very clear that, if the government were to table legal advice in this chamber, that advice would be protected by parliamentary privilege and could not be used in a court, in the same way that legal advice is otherwise protected through the normal doctrine of legal professional privilege. I'm very glad that the Attorney is sitting there. She will be aware of the case of Egan v Chadwick, in the New South Wales Court of Appeal, where three justices made a unanimous ruling that legal professional privilege is not an exemption that can apply in relation to a request by a house of parliament. The court ruled that it is quite within the rights of a house of parliament to gain access to the advice upon which governments made their decision. That's part of the oversight process. It's disingenuous for the minister to walk into the chamber and suggest that it's okay to do so because the court upheld legal professional privilege. The whole point of legal professional privilege is not to keep things secret; it's to make sure that discussions between lawyers and their clients cannot be used in a court. That's the only case where the protection applies. So it's quite incorrect to try and roll out the fact that a justice may have upheld that claim and use that as a reason for not tabling something in this chamber. Again, the relevant case is Egan v Chadwick.

I'm sick of ministers standing up, as attorneys-general have done repeatedly in this chamber, and saying something that suggests legal professional privilege documents shouldn't be tabled. It is wrong. It is wrong in law, and it's wrong for attorneys to make that sort of assertion. I acknowledge that this assertion was made by Minister Reynolds and not the Attorney, but the Attorney must always seek to uphold the law, not only outside this building but also inside it, and recognise the jurisdiction of the courts. In relation to claims that somehow documents shouldn't be tabled here because they're legally privileged and the AAT upheld it, again, the AAT is an environment in which the same rules don't apply in terms of the ability to look at legally privileged documents.

I'll now move to cabinet claims. I've got a bit of a background in cabinet claims, having won a few of these matters before the Information Commissioner and, indeed, in the AAT. Again, the Senate has never accepted that just because something is a cabinet document it can't be ordered for production. That is not true of deliberations of cabinet, but there has been a ruling in our courts that the deliberations of cabinet are the actual discussions that take place between cabinet ministers, as recorded in the notebooks. The notebooks that are associated with cabinet are very special in that, even under the Archives Act, they have an additional 10 years over cabinet documents. Cabinet documents are released after 20 years; cabinet notebooks, still, are only released after 30 years, recognising that is where deliberations are recorded. In the minutes of cabinet, only a record of the decisions is made. Which recommendations are accepted and what actions might need to be taken are actually recorded. It's long been accepted that, in exceptional circumstances—and, to make sure I'm not misleading the chamber, I will state that they have to be exceptional—either the courts or the Senate can seek access to cabinet documents. That ruling was made in Commonwealth v Northern Land Council, in the High Court, basically making it very clear that, if the interests of justice required it, in fact cabinet documents could be required to be produced in a court.

In relation to the Senate, I encourage senators to go and have a look at a lecture that was given by Bret Walker SC as part of the parliamentary series, which stated the same claim as exists in the court—that ultimately the Senate can seek these sorts of documents. Again, the burden is high. I don't necessarily suggest that the burden in this instance would warrant it in relation to the cabinet documents, but a minister should not walk into this chamber and mislead by suggesting that these documents can't be provided. They would be much better off simply saying that the burden hasn't been met. We need to make sure that, inside this chamber, when we're dealing with matters of oversight, when we're exercising our role in relation to oversight of government, things are done properly and in accordance with the judgements of courts. You might think that the courts don't have application or don't have jurisdiction to examine whether or not the Senate does or doesn't have a power. It was found in the case of Egan v Willis that the court can make a determination as to whether or not the Senate has a particular power. It can't just then decide on the use of that power. We must respect the court's views on this. It's inappropriate that ministers wander in here and simply quote that previous people have said that this doesn't need to happen and that, therefore, it's right, because it's not right. It's wrong and it's unlawful.

Wendy Askew (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Here we go again—it's Groundhog Day once again. We've been here before, and those opposite are using the valuable time of this chamber to make their political points again. Minister Reynolds has made a claim for public interest immunity in respect of the deliberations of cabinet and the disclosure of legal advice in relation to the Centrelink income compliance program. As has been said in this chamber every time this topic has raised its head—and despite what those on the other side might say—it has been a longstanding practice of successive Australian governments, of both political persuasions, not to disclose the fact or content of privileged legal advice. We have heard previously, even today, that Labor minister Senator Joe Ludwig told Senate estimates in 2011 that he would refuse to provide the Labor government's legal advice for the same exact reason. As we also heard earlier, it was confirmed by another Labor luminary, the Hon. Gareth Evans QC, in 1995. Furthermore, we all know that successive governments have upheld that deliberations of cabinet and its committees should be conducted in secret. This ensures the freedoms of cabinet deliberations can be preserved, as it is not in the public interest to disclose those deliberations. I reiterate: this is a long-established basis for a public interest immunity claim.

As the minister stated in the order-for-production letter, even though the class action has resolved and was recognised by the Federal Court on 11 June 2021, not all potential claims arising out of the income compliance program will be resolved through the class action. This is because a significant number of class members opted out of the class action and are free to bring their own individual claim should they wish to. As everybody in this chamber knows, the income compliance program has been subject to extensive scrutiny already, including by the Commonwealth Ombudsman and within parliamentary inquiries, including through the Community Affairs References Committee. As you are aware, the Community Affairs References Committee recently tabled its fourth interim report and has already held nine public hearings on it. This committee will be holding another hearing, the 10th, later this week. The process has also been subject to decisions of the Federal Court.

As announced in November 2019, the agency no longer raises debts by averaging ATO income information, without other information, on the basis that it is not sufficient. This relates to the sufficiency or adequacy of information used in making an administrative decision—specifically, whether or not there is enough information to make that decision. The government respects the decision of the court, including the finding of His Honour Justice Murphy that the settlement agreement proposed was fair and reasonable, and has approved the settlement. Group members who objected to the settlement will be given a further opportunity to opt out of the class action by 17 September 2021. Information about the opt-out process has been sent to objecting group members from 26 July this year. Once this process is complete, further information will be sent to class action group members on whether they are eligible for a settlement payment. And I note that a web portal and telephone line will be established so class action members can review their information and raise a query or a dispute.

Importantly, in the class action settlement agreement, Gordon Legal and the Commonwealth acknowledged that the settlement is not an admission of liability by the Commonwealth and it does not reflect an acceptance by the Commonwealth of the allegations that the Commonwealth or any of its officers had any knowledge of the unlawfulness associated with the income compliance program. The Federal Court similarly found that there is little in the materials placed before the court that could have sustained such an allegation.

Once it became clear that the basis upon which the debts were being raised—through the sole use of average ATO income data—was insufficient, Services Australia paused in-scope debts as they were identified. As at 20 August this year, about $736.6 million has been refunded, which is about 98.1 per cent of the estimated total of $751 million. Around 423,000 people have had their debts refunded and/or reduced to zero. Everyone who has responded has either been refunded or is in the process of being refunded. In cases where people haven't responded, their eligibility for a refund will remain on their record but Services Australia is unable to pay them until they provide up-to-date details so the transaction can be processed.

The government is focused on ensuring that the settlement agreement is implemented. The continued rhetoric from the opposition and crossbench that the government is not assisting those who need assistance is a falsehood. It is typical of their political games that have so frequently been used to scare the most vulnerable in our community. Frankly, it is no different than 'Mediscare'. Within the social service space, the Morrison government is focused on supporting all Australians as the economy recovers from the coronavirus pandemic. From 1 April this year, working-age payment rates, including JobSeeker payments, were increased by $50 and the income-free threshold was increased to $150 a fortnight. This was done to support jobseekers as they secure employment and re-enter the workforce. This reform has been the single biggest year-on-year increase to the rate of unemployment benefits since 1986 and represents an increase of 9.7 per cent between 1 April 2020 and 2021.

While the opposition has claimed otherwise, the truth is that our social security system has served Australians very well. Prior to the global COVID-19 crisis, we saw the proportion of working-age Australians reliant on welfare payments drop to just 13.5 per cent, the lowest level recorded in more than 30 years. No government has done more for Australians doing it tough than the Morrison government. At the height of the pandemic, we provided $32 billion in emergency support payments. This was on top of the previously mentioned increases in welfare payments. The Morrison government's key focus is creating jobs and getting people back into work. We know that getting a job is the best way to improve the living standards of people and their families. And it's not just about the money; it's about self-respect too; providing for your family promotes self-respect. The conduct of the opposition and crossbench is frankly appalling.

Finally, I would like the Senate to note that, as outlined in our dissenting comments on the interim report, during the interlocutory hearings in the class action the Australian Federal Court upheld claims of public interest immunity in relation to documents such as cabinet materials. This includes the executive minute to the Minister for Social Services dated 12 February 2015. Thank you.

Deborah O'Neill (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I rise to respond to this gross failure to actually tell the truth, to come clean and to give to Australians who had robodebt inflicted upon them access to the information they need about what the government knew and how they organised this terrible experience of public policy that has seen the government have to pay back to its own citizens $1.8 billion that it illegally charged them through robodebt. They sent you a bill you should never have received, and, if you didn't cough up without question, they chased you. They chased you and chased you.

I don ' t care what names the people on the other side of this chamber call me, because I ' m going to keep coming in here and raising this on behalf of the hundreds of thousands of Australians who had a debt inflicted on them by their own government. We have the minister claiming that hundreds of questions were answered by public servants. This government has claimed public interest immunity in those hearings over and over, and said it is against the public interest for them to know the truth about how Mr Morrison cooked up this scheme — how he oversaw it with Minister Robert, Minister Tudge and now Minister Reynolds . They are continuing to try to hide from the Australians what they did and how they decided to make this historic mistake. They refuse to provide that information . It ' s just not good enough. Going forward, this has got to be fixed.

We ' ve got Senator Reynolds coming in and saying : ' Oh, on this occasion, no, the government didn ' t give any response. When it was a Labor government, you didn ' t give a response. ' Let me give you a few back. In 2007, the then Minister for Immigration and Citizenship, Kevin Andrews, released advice in relation to the power to cancel the visa of Dr Han ee f. So, b efore you try to convince people that you don ' t have to fess up and don ' t have to give these documents , because that has never been done, let ' s tell the truth here for a change, shall we? Of course governments hand it over if they have any integrity, and that ' s what Minister Andrews did. In 2011, Prime Minister Julia Gillard advised the House of Representatives that she had made available to the Leader of the Opposition, who was then Mr Abbott, the advice of the Solicitor-General on asylum seekers and offshore processing. Yes, legal advice is handed over. Even Christian Porter handed over information about the eligibility of Mr Dutton. This claim that no documents about legal information get handed over ha s to be put to bed once and for all.

I ' ve got a feeling we ' re going to be back here debating this , because I can tell you I will not let this rest. I will not leave all those people who were attacked by their own government hanging in the wind with this litany of lies . The government come forward and they start talking all th is gobbledegook —legal professional privilege and public immunity claims—as if they can snow the Australian people under with this professional language. But the Australian people , especially those who were impacted by robodebt , are onto this government. They know what was said so clearly by one of our witnesses last week, who described what the Australian government had done to its own people as a shakedown. That ' s how they d escribed what happened to them.

We ' ve heard from amazing witnesses who told us that this problem is actually continuing. Ms Eagle came and spoke to the committee. She spoke about the problem that happened with robodebt continuing today, and that ' s why it ' s so important that we get these documents. The government cannot continue to hide behind the smokescreen that it ' s against the public interest to tell us how you got this so wrong. The public deserve to know. You should be coughing up these documents. You should not be able to again do to the Austr alian public what you did then.

Ms Eagle says this is how it rolls at the moment:

A client receives a call from a private number, perhaps on a Saturday, and they ' re told they need to make an arrangement to repay a Centrelink debt. This is the first contact they ' ve had. They ask what the debt is about. They ' re told they have to look on myGov or at the app. So the client checks, and there ' s no letter there that explains how the debt arose.

It goes on and on. The litany of failures and the abuse of artificial intelligence against human rights being perpetrated by this government on its own citizens continues. That is why the mistake of robodebt has not yet been acknowledged by this government. Despite the fact they paid $1.8 billion back, they still need to come in here and cough up the documents.

Question agreed to.