1.1
This interim report is to inform the Senate about several claims for public interest immunity received from the Hon Stuart Robert MP, Minister for Government Services (minister), in the course of the Senate Community Affairs References Committee (committee) inquiry into Centrelink's compliance program.
1.2
To date, the committee has received:
two claims of public interest immunity relating to legal advice sought and received by the Commonwealth regarding the Income Compliance Program, colloquially known as ‘Robodebt’; and
one claim of public interest immunity relating to an Executive Minute, which was cited in a report into the program by the Commonwealth Ombudsman.
1.3
The committee has resolved not to accept any of these claims on the grounds provided by the minister, which are detailed in its considerations below.
First claim in relation to legal advice
1.4
On 11 February 2020, the committee reported to the Senate its rejection of a public interest immunity claim received on 24 January 2020, concerning questions taken on notice in December 2019 about legal advice in relation to the program.
1.5
In that first interim report, the committee reported its resolution that the minister’s claim did not sufficiently justify withholding the information requested by the committee, as it:
relied upon a claim of legal professional privilege, which is not an accepted ground for refusing to provide information;
did not justify that the provision of the information would cause harm to the public interest; and
failed to conform with the requirements for public interest immunity claims under Procedural Order 10(4), as it did not address whether a perceived harm to the public interest could result only from the publication of the information, or could result equally or in part from in camera disclosure to the committee.
1.6
The committee concluded that the information it was seeking is vital to the conduct of this inquiry as it goes to the legal foundation of the Income Compliance Program and its administration.
1.7
The recommendation of the first interim report, which was adopted by the Senate on 11 February 2020, required the minister representing the Minister for Government Services to provide answers to a series of questions placed on notice relating to the legal advice about the Income Compliance Program, including but not limited to questions about:
meetings and/or briefings between the minister and Services Australia in relation to the current legal proceedings regarding Centrelink's compliance program;
the frequency and dates of legal advice obtained by Services Australia;
legal advice about the lawfulness of debt or debt components solely based on extrapolations from Australian Taxation Office records;
legal advice in relation to liability for the death of any Australian who received a debt notice under the compliance program; and
the cost of legal advice in relation to the compliance program.
A disregard for the Senate’s resolution
1.8
The minister representing the Minister for Government Services tabled a letter in the Senate on 24 February 2020 to state that all responses to questions on notice had now been provided to the committee.
1.9
However, all responses to questions on notice relating to legal advice received from Services Australia on that day continued to rely upon the rejected public interest immunity claim.
1.10
The committee wrote to the minister on 6 April 2020 seeking clarification of whether it was the intention of either the minister or Services Australia to provide answers to questions on notice which continued to rely upon the rejected claim, and to grant an opportunity for the minister to revise the content of the answers if they had been provided in error.
1.11
The committee received no response to this letter.
1.12
The committee is of the view that the provided answers to questions on notice in February 2020 and the minister’s failure to respond to the request for clarification in April 2020 shows a blatant disregard for both the committee’s decision and for the resolution of the Senate.
1.13
The committee recommends that the Senate adopt the following resolution:
That the Senate requires the Minister representing the Minister for Government Services to attend the Senate at the conclusion of question time on 6 October 2020 to provide an explanation, of no more than 10 minutes, of:
the government’s continued reliance on a rejected claim of public interest immunity in answers to questions on notice provided to the Community Affairs References Committee on 24 February 2020 in relation to the inquiry into Centrelink’s compliance program;
whether it was the intention of the Minister for Government Services, or of officers of Services Australia, to show disregard for the 11 February 2020 resolution of the Senate by providing answers relying on that rejected claim for public interest immunity; and
the Minister for Government Services’ failure to respond to that committee’s correspondence of 6 April 2020 seeking clarification in relation to this matter.
Second claim in relation to legal advice
1.14
At the committee's public hearing on 31 July 2020, the Secretary of the Department of Social Services tabled a further claim of public interest immunity from the minister, dated 29 July 2020, also relating to questions about legal advice and the Income Compliance Program.
1.15
This new claim makes no reference to the first rejected claim, although it largely deals with the same material.
1.16
The claim covers all legal advice provided by internal or external lawyers to ministers, departments or agencies in relation to the Income Compliance Program or in connection with litigation, including the Robodebt Class Action (Prygodicz & Ors v Commonwealth), or potential litigation relating to the program.
1.17
In his letter, the minister notes the specific harms to the public interest that could result from matters covered by the claim being made public include:
undue prejudice to the Commonwealth in relation to the class action; and
loss of confidentiality of interactions between lawyers and Government clients.
1.18
The minister further notes that the Commonwealth's ability to respond to the class action may be prejudiced 'if the applicants or their solicitors, Gordon Legal, are made aware of any legal advice covered by this claim' as these details could be 'directly relevant to the applicants' claims'.
1.19
The committee notes that the Commonwealth has successfully made a claim of public interest immunity in the Federal Court for the purposes of the class action in relation to documents that identify or refer to the Commonwealth's knowledge of the 'limitations, accuracy or reliability of the Robodebt System' during the program's inception and operation.
1.20
The committee continues to hold the view that the requested information is vital evidence for the inquiry into Centrelink's compliance program, as it goes to the legal foundation of the program and its administration. It therefore resolved that it did not accept this further claim of public interest immunity and informed the witnesses during the hearing on 31 July 2020 of its intention to report the matter to the Senate.
Additional information received 13 August 2020
1.21
The committee received correspondence from the minister on 13 August 2020, relating to the claim dated 29 July 2020 and providing additional information about the specific harms to the public interest outlined in the claim that may arise if information about legal advice is disclosed, either publicly or in camera.
1.22
The minister informed the committee that he had decided:
… given the potential magnitude of the applicant’s claims in the class action, there may still be harm to the public interest if the relevant information was provided as in camera evidence.
1.23
While the committee appreciates the minister's efforts to further state the perceived potential harms of disclosing information about legal advice, it is not satisfied with his explanations.
1.24
This additional information did not alter the committee's decision to reject the claim.
Continuing to seek this evidence
1.25
The committee maintains that it is ultimately in the public interest for the Commonwealth Government to be transparent about the legal advice it received in relation to the Income Compliance Program.
1.26
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 the legal issues surrounding the program.
1.27
The majority of questions on notice which have been subject to this and the previous claim of public interest immunity from the minister have been regarding the circumstances of legal advice relating the Income Compliance Program, and not regarding the specific content of that legal advice.
1.28
The committee fails to understand why information relating to the circumstances of legal advice, such as the dates advice was provided or the costs related to seeking advice, cannot be provided to the committee in public let alone in camera, either in a private briefing or as a confidential document.
1.29
The committee recommends that the Senate adopt the following resolution requiring the production of documents:
That there be laid on the table by the Minister representing the Minister for Government Services, by no later than 12.00pm on 6 October 2020, either:
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; or
a letter confirming that these responses will provided in camera to the Community Affairs References Committee by no later than 5pm on that same day.
In the event that the Minister fails to table these documents, the Senate requires the Minister representing the Minister for Government Services to attend the Senate at the conclusion of question time on 6 October 2020 to provide an explanation of the Minister’s failure to table the documents.
Claim in relation to an Executive Minute
1.30
On 13 August 2020, the committee received a new claim of public interest immunity from the minister in relation to a request for the Executive Minute to the Minister for Social Services, dated 12 February 2015.
1.31
This Executive Minute was cited in the Commonwealth Ombudsman's Centrelink's automated debt raising and recovery system report in April 2017, and has been sought by the committee on the basis of its citation in that report.
1.32
The minister claims that revealing this information ‘could or would be reasonably expected to disclose the deliberations of cabinet’, and that is in the public interest for the deliberations of the cabinet not to be made public. The minister maintains that this is a ‘well-established basis for a public interest immunity claim’.
1.33
The committee is concerned that this blanket statement provided by the minister only recites the rationale for the ground of disclosure of cabinet deliberations and fails to:
establish whether the Executive Minute would actually disclose the deliberations of cabinet; or
describe any genuine risk of public harm in the specific disclosure of the Executive Minute.
Disclosure of deliberations of Cabinet
1.34
While the disclosure of the deliberations of cabinet may be an accepted ground for public interest immunity, it must be first established that the disclosure of the document would reveal cabinet deliberations – a document’s connection to cabinet alone does not mean that it is immune from parliamentary scrutiny.
1.35
The committee is of the view that the Executive Minute is a document that, while connected to cabinet to assist discussions, would not in itself reveal cabinet deliberations.
The document has been provided before
1.36
The committee notes that the Executive Minute was apparently provided to the Commonwealth Ombudsman for the purpose of the 2017 review without any resulting public harm or any claim of immunity.
1.37
Under the Commonwealth Ombudsman’s enabling legislation, there are exemptions for the receipt of information where the Attorney-General certifies that its disclosure to the Ombudsman would be contrary to the public interest on several grounds, including on the grounds of ‘disclosure of deliberations or decisions of the Cabinet or of a Committee of the Cabinet’.
1.38
The committee notes that there is no indication that there was any resistance to the Commonwealth providing the Executive Minute to the Commonwealth Ombudsman in 2017 and questions why this ground is now being applied to the committee’s request.
What is the public harm?
1.39
The minister's claim fails to clearly state what the public harm of the Executive Minute’s disclosure would be.
1.40
Furthermore, the minister’s claim does not address whether a perceived harm to the public interest could result only from the publication of the Executive Minute or could result equally or in part from in camera disclosure to the committee.
1.41
This document is another key item of evidence in the committee’s inquiry, as it outlines the then Department of Human Services’ original proposal for Income Compliance Program. The committee is therefore of the view that this document should be provided in camera if the perceived harm could only result from its publication.
1.42
For the reasons outlined above, the committee has rejected the minister's claim for public interest immunity in relation to the Executive Minute.
1.43
The committee recommends that the Senate adopt the following resolution requiring the production of documents:
That there be laid on the table by the Minister representing the Minister for Government Services, by no later than 12.00pm on 6 October 2020, either:
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 this Executive Minute will provided in camera to the Senate Community Affairs References Committee by no later than 5pm on that same day.
In the event that the Minister fails to table either of these documents, the Senate requires the Minister representing the Minister for Government Services to attend the Senate at the conclusion of question time on 6 October 2020 to provide an explanation of the Minister’s failure to table the document.
Senator Rachel Siewert
Chair