Government Senators do not support the Senate Community Affairs References Committee Third Interim Report into Centrelink’s Income Compliance Program (Program) as presented by the Australian Labor Party and the Australian Greens Senators.
Government Senators also note that this is the third interim report tabled by the Committee and that these dissenting comments should be reviewed in conjunction with the first and second interim report dissenting comments.
It is the strong view of Government Senators that the claims of public interest immunity (PII) in regard to relevant Cabinet materials and legal advice provided with respect to the Income Compliance Programme made by the Hon Stuart Robert MP, the Minister for the National Disability Insurance Scheme and Minister for Government Services (Minister), and received by the Committee on 24 January 2020, 31 July 2020 and 13 August 2020 are valid.
PII Claim – Legal Professional Privilege
As originally stated by the Minister in his initial PII claim '(i)t has been the long-standing practice of successive Australian Governments not to disclose legal advice'. Government Senators note that this has also been the practice of both Labor and Coalition governments.
It continues to be the view of the Government Senators of the committee that it is not in the public interest to depart from this established long-standing practice and believe it is integral that legal advice provided to the Commonwealth remains confidential.
Whilst legal professional privilege alone has not been accepted by the Senate as a grounds for withholding information, PII claims based on legal professional privilege have been accepted where it has been 'established that there is some particular harm to be apprehended by the disclosure of the information, such as prejudice to pending legal proceedings or to the Commonwealth's position in those proceedings'.
The risks of harm to the Commonwealth are not merely hypothetical or theoretical, with a class action in relation to the Program – Prygodicz & Ors v Commonwealth – currently live in the Federal Court. The potential prejudice to the Commonwealth in the context of this litigation alone meets the Senate’s test.
Government Senators consider that the totality of the correspondences outlining the Minister's PII claims in respect of materials covered by legal professional privilege is sufficient to justify that provision of this information to the committee would cause harm to the public interest. This includes harm caused by the disclosure of contextual information that might otherwise normally be regarded as ancillary.
Government Senators note, in particular, the clear explanation from the Minister for this position in his correspondence of 13 August, which states:
I acknowledge that in many circumstances information about legal advice (such as the cost, timing and provider of such advice) can be disclosed to a Senate Committee without specific harm to the public interest flowing from that disclosure. However, that position is different in these circumstances because of the issues that are central to the class action.
As set out in the PII letter, the claims of the applicants in the class action include a negligence claim for damages. Possible additional claims for exemplary damages and misfeasance in public office have also been foreshadowed.
The applicants have said, in public hearings of the litigation, that the legal knowledge of the Commonwealth or Commonwealth officials at particular times would be relevant to determination of these claims. Information about the cost, timing and provider of relevant legal advice relates directly to that issue. While any evidence given to the Committee would be covered by Parliamentary Privilege and not admissible in the Federal Court to prove the matters to which the evidence relates, the disclosure of this information under these specific circumstances could potentially prejudice the Commonwealth’s position in the litigation. It would therefore not be in the public interest for the information to be publicly disclosed.
It is clear from the Minister's correspondence that the risk of harm to the Commonwealth is not just from the practical existence of the class action litigation, but the specific causes of action being claimed in the case, or being foreshadowed to be claimed.
In the context of the significant and ongoing active legal adjudication of aspects of the Program, including through a class action brought against the Commonwealth, it is difficult to imagine more directly relevant circumstances where the conventions of legal professional privilege could and should apply. On this basis, the Minister's PII claims regarding all materials in relation to the Program covered by legal professional privilege should be upheld by the Senate and that production of this material should not be ordered by the Senate.
PII Claim – Cabinet Materials
Government Senators note that on 13 August 2020, Minister Robert wrote to the Committee to outline a PII claim over an Executive Minute dated 15 February 2015 which was being sought by members of the Committee. In his correspondence the Minister stated:
The Committee has requested a copy of the Executive Minute to the Minister for Social Services dated 12 February 2015 (the Minute) that was referred to in the Commonwealth Ombudsman’s 2017 report into Centrelink’s automated debt raising and recovery system.
Revealing this information would or could reasonably be expected to disclose the deliberations of the Cabinet. On that basis, I claim public interest immunity in relation to providing the Minute.
It is in the public interest for the deliberations of the Cabinet not to be made public. The deliberations of the Cabinet and its committees should be conducted in secrecy so that the freedom of those deliberations can be preserved. It is not in the public interest to disclose information about the Cabinet’s deliberations as it may impact on the Government’s ability to receive confidential information and make appropriate decisions impacting on the Australian community. This is a well-established basis for a public interest immunity claim.
Government Senators note the Minister’s advice that the disclosure of the Minute 'would or could reasonably be expected to disclose the deliberations of Cabinet', and that this is an acceptable ground for a public interest immunity claim.
Government Senators note that in their majority report, Labor and Greens Senators appear to question whether the Minute would disclose the deliberations of Cabinet on the basis that Services Australia appears to not have refused to provide the document to the Commonwealth Ombudsman as part of his investigations into the Program, despite the purported availability of a PII exemption at the time. It is important to note that a limited disclosure to an operational Commonwealth entity is not inconsistent with the maintenance of Cabinet confidentiality.
Government Senators note that challenges to the Commonwealth’s claims over documents related to the Program attracting coverage by legal professional privilege and public interest immunity, including Cabinet documents such as the Executive Minute in question, were heard and dismissed by the Federal Court as part of the class action. Government Senators accept that this decision puts beyond doubt the point that the Executive Minute can properly be the subject of a legitimate PII claim by the Minister.
In Camera Evidence
In their majority report, Labor and Greens Senators state the Committee 'acknowledges the sensitivities of publicly discussing material related to legal proceedings, however it has continued to express its willingness to accept material in camera regarding legal issues surrounding the [P]rogram'.
Government Senates note that the Minister has expressly and actively considered and rejected this approach, offering the following explanation:
I have considered whether the possible harm to the public interest could be avoided if information about relevant legal advice was provided to the Committee as in camera evidence. Even if evidence is taken in camera, the evidence may later be published. I have decided that, given the potential magnitude of the applicants’ claims in the class action, there may still be harm to public interest if the relevant information was provided as in camera evidence.
Government Senators agree with the Minister’s point in relation to the capacity of the Committee to elect to later publish any information provided to it in camera. It is noted that this could occur irrespective of the Government’s position on publishing and irrespective of the views of Government Senators. Disappointingly, Government Senators note that, to date, even basic issues raised with the Committee as feedback around demonstrable factual errors has been ignored, and that this jeopardises the spirit of good faith underpinning Committee operations. Therefore, Government Senators agree that providing in camera evidence in this context would equate to the same risk profile as public disclosure.
On the basis of all of the above, Government Senators believe the recommendations of the majority Third Interim report should be rejected by the Senate.
Senator Wendy Askew
Senator Hollie Hughes