The committee has on multiple occasions requested information from the government regarding its legal advice on the operation of Centrelink’s compliance program. Despite numerous attempts to obtain the information, the committee has been prevented from thoroughly assessing whether the government knew of the insufficient legal basis of the program due to repeated and poorly articulated public interest immunity (PII) claims.
This chapter examines the PII claims made by the government during this inquiry and its effect on committee processes as well as broader concerns relating to transparency and public trust in government services.
Public interest immunity claims
As the term suggests, claims of PII are merely claims, and ultimately, it is for the Senate to decide whether to accept these claims.
The Senate has long taken the view that there is no category of documents that is immune from production. However, the Senate recognises that some information held by government may be withheld where its disclosure could lead to harm to the public interest. In May 2009, the Senate prescribed a process by which a PII claim may be made.
PII claims must specify the grounds upon which the information or documents is being withheld, as well as specify the harm to the public interest that could result from the disclosure of the information or document. Additionally, claims must indicate whether the harm exists, equally or in part, from the disclosure of the information or document to the committee as in camera evidence.
During this inquiry, the committee has tabled three interim reports dealing with PII claims. The Senate adopted four recommendations across these reports which ordered the relevant ministers to produce documents relating to the government's legal advice and costs regarding the Income Compliance Program. The relevant ministers were also required to produce an Executive Minute to the Minister for Social Services, dated 12 February 2015 (Executive Minute). These documents have yet to be provided to the committee.
In addition, on two separate occasions the Senate ordered the production of documents (OPDs) relating to the government's legal advice about Centrelink’s income compliance programs and resolved that legal professional privilege is not an accepted ground for the withholding of information from the Senate.
A continued failure to sufficiently establish claims of public interest immunity
The committee has been provided with PII claims in respect of 19 questions taken on notice by Services Australia. Many of these questions do not go to the specific details of the legal advice and instead seeks general information such as:
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 relevant ministers have repeated PII claims in relation to these and other questions on the grounds of legal professional privilege and prejudice to legal proceedings. In relation to the Executive Minute, the ministers have claimed that the disclosure of the document would or could reveal cabinet deliberations.
In interim reports one, three and four, the committee provided an in‑depth explanation of the requirements for making PII claims on these grounds and determined that in each instance the government failed to articulate the risk to the public interest from the release of the requested document and rejected the PII claims.
On 12 August 2021, the Senate adopted the recommendation of the committee's fourth interim report which again ordered the government to either table the Executive Minute and legal advice about the Income Compliance Program or provide this information to the committee in camera.
Senator the Hon Linda Reynolds CSC, Minister for Government Services (Minister) tabled a response to the OPD (Ministerial response) which reiterated the previous PII claims (based on prejudice to legal proceedings, legal professional privilege and disclosure of cabinet deliberations) and did not provide the committee with any new information or address the request to provide the information to the committee in camera.
As required by the order, the Minister attended the Senate on 25 August 2021, to provide an explanation for the failure to table the documents. The Minister stated that ‘the government does not make public interest immunity claims lightly’, however, the explanation did not provide an adequate justification for the PII claims and did not respond to the opportunity to provide the documents to the committee on a confidential basis.
Following the Minister’s explanation, the committee held an additional hearing for this inquiry on 27 August 2021. Officials from Services Australia and the Department of Social Services were questioned about the government’s legal advice and costs surrounding the Income Compliance Program and the Executive Minute to which representatives again referred to the Minister's PII claims.
The committee again reiterates that throughout this inquiry the government has continued to make general claims relating to a class of documents and has failed to:
specify how the release of general information about whether and when the government sought legal advice about its Income Compliance Program could impact on future legal proceedings;
specify whether the release of the Executive Minute would in fact reveal cabinet deliberations; and
sufficiently explain the harm to the public interest that would result in the disclosure of the requested documents, including the disclosure to the committee in camera.
The continual refusal to provide the requested information to the committee, including providing the information in camera, and without proper justification, has diminished the committee’s ability to thoroughly examine all areas within the committee's terms of reference and has been detrimental to the public's trust in government services.
Public interest immunity claims in the Senate
In its PII claims, the government has stated that the questions regarding legal professional privilege and the disclosure of cabinet deliberations have been settled as the Federal Court of Australia upheld the Commonwealth’s PII claims in the course of the class action proceedings.
For example, the former Minister for Government Services, the Hon Stuart Robert MP, stated that:
The Commonwealth has discovered over 200 documents in the class action over which legal professional privilege has been claimed. The Federal Court has upheld the Commonwealth's legal professional privilege claims over every one of those claims that has been subject to challenge…
Further, the Government's position is that, whether or not the contents of the Minute contains material that would or could reasonably be expected to reveal the deliberations of Cabinet has been settled by the Federal Court. As part of the class action litigation the Federal Court upheld claims of public interest immunity in relation to such documents.
Similarly, the most recent Ministerial response states ‘… I note that in interlocutory hearings in the class action, the Australian Federal Court upheld claims of Public Interest Immunity in relation to cabinet materials [and that] the Administrative Appeals Tribunal found that this document was properly the subject of cabinet exemption under the Freedom of Information Act.’
These comments demonstrate the government’s lack of understanding of the operation of PII claims in the Senate.
These decisions relate to specific court and tribunal processes. The court's determination related to whether the documents could be released as part of a court discovery process and found that the documents were subject to legal professional privilege and PII.
This process is separate to the Senate's consideration of PII claims. The Senate has never accepted legal professional privilege as a valid ground for withholding information from the Senate. Similarly, the fact that information has been refused under the Freedom of Information Act 1982, has also not been accepted as a valid ground to withhold information from the Senate.
The Senate has also reaffirmed that it is for the Houses of Parliament and not the courts to adjudicate PII claims in relation to a House or its committees.
An erosion of public trust
A common theme that has emerged throughout the course of this inquiry is the erosion of public trust that has occurred as a result of the Income Compliance Program. Many of those affected by the program still do not know how or why they received a debt. The government’s lack of transparency about the legal advice it received in the implementation of the debt recovery program has compounded these concerns.
Legitimate questions still remain about the government’s legal knowledge of the scheme. In discussing these matters, Ms Charmaine Crowe, Senior Adviser, Social Security, Australian Council of Social Service stated that:
… the government has not been forthcoming with information that we and probably everyone affected by robodebt have been demanding, which is about who is accountable for this scheme. Robodebt went for close to four years before it was stopped, and that was only because of the Federal Court case. We still don't know who knew what and when. We don't have clarity about what ministers knew and whether they had received advice that relying solely on averaging was unlawful. We just don't have that information.
Individuals affected by the program also informed the committee that they would like the government to be more transparent with the public about the operation of the program. For example, one witness, Mr Richard Winzor, stated that ‘… I don’t understand how you can create a scheme that ends up costing the government a billion dollars and it not being made public as to how the decision was arrived at’.
In relation to the PII claims that arose during the class action, Mr Andrew Grech, Partner, Gordon Legal, commented that during the proceedings they considered the Commonwealth to be making ‘quite spurious claims of legal professional privilege and parliamentary privilege in respect of documents’. Mr Grech further noted that he thinks this is ‘a quite concerning feature’ of how the Commonwealth litigates and stated that:
… it [the Commonwealth] tends to claim both legal professional privilege and parliamentary privilege over a very, very wide array of documents. Whilst I think we would all acknowledge the principles that underpin the rights that a party has to claim legal professional privilege, and in the case of a government the right it has to claim parliamentary privilege over documents which are used as the basis for making cabinet decisions, 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. That's not something of which the Commonwealth should be proud …
While these comments specifically relate to the litigation process, the government appears to have adopted the same approach in the Senate.
The committee echoes these concerns and expresses its disappointment that the government has not been forthcoming with the legal information and advice it relied on during the operation of the Income Compliance Program. Releasing the requested information would be one step in restoring the public trust lost during this program and resolving the committee’s outstanding questions.
The committee views the government’s knowledge regarding the legal basis of the Income Compliance Program as a crucial element of this inquiry and the repeated refusal by the relevant ministers to provide relevant and key information has limited the committee's ability to appropriately assess the operation of the Income Compliance Program.
The committee remains deeply troubled that the government has not released publicly or in camera its legal advice in relation to income compliance programs. This program has cost the Australian Government hundreds of millions of dollars and had a devastating impact on hundreds of thousands of individuals. The Australian public deserves answers as to how this could occur.
The committee reiterates its strong rejection of the public interest immunity claims made throughout this inquiry in relation to the Executive Minute and its legal advice and costs regarding the Income Compliance Program.
The committee recommends that the Senate adopt the following resolution.
1. That the Senate notes that the Senate Community Affairs References Committee has rejected the Minister for Government Services' explanation regarding public interest immunity claims on several occasions.
2. That there be laid on the table by the Minister for Government Services, by no later than 1pm on Wednesday, 24 November 2021:
revised responses to all questions relating to legal advice and the Income Compliance Program which have been subject to rejected claims of public interest immunity during the Community Affairs References Committee’s inquiry into Centrelink’s compliance program; and
a copy of the Executive Minute to the Minister for Social Services, dated 12 February 2015, as referenced in the Commonwealth Ombudsman’s April 2017 report into Centrelink’s automated debt raising and recovery system; or
a letter confirming that the above responses relating to legal advice and the Executive Minute will be provided in camera to the Senate Community Affairs References Committee by no later than 2pm on that same day.
3. In the event that the Minister again fails to table these documents:
the Senate requires the Minister to attend the Senate at the conclusion of question time on Wednesday 24 November 2021 to provide an explanation of the Minister’s failure to table the documents.
at the conclusion of the Minister’s explanation, or in the event that the Minister fails to provide an explanation, any senator may move to take note of the explanation or the failure to provide an explanation;
any motion under the above paragraph may be debated for no longer than 60 minutes and have precedence over all other business until determined, and senators may speak to the motion for no more than 10 minutes each.