Tuesday, 11 February 2020
Community Affairs References Committee; Report
I present the interim report of the Community Affairs References Committee on Centrelink's compliance program, and I move:
That the recommendation of the report be adopted.
The Community Affairs References Committee has decided to table this interim report because, in the course of a hearing on 16 December—specifically into what had happened with robodebt and the fact the government had suspended the operation of aspects of the robodebt program—a claim for public interest immunity was received. The committee considered this particular matter. The claim for public interest immunity was then claimed at the hearing and the minister subsequently wrote to us on 24 January. On 24 January we received correspondence from the Hon. Stuart Robert MP, Minister for Government Services, concerning questions taken on notice at that particular hearing. It related to legal advice sought and received in relation to the compliance program. This was, as I think the chamber will understand, very, very important to the process that we are going into to look at the compliance program and its impacts.
The minister set out a claim for public interest immunity in relation to the confidential legal advice and the details surrounding any such advice, including the frequency at which the advice had been sought, the source of any such advice and the dates it may have been provided. This is very important advice, because we need to know when the government sought advice, how many times they did and how long they had known that, in fact, it wasn't legal—that some of these debts weren't legally raised. This is very important information to the community.
The committee considers that the correspondence outlining the minister's claim, which appears to be made on the grounds of legal professional privilege and prejudice to legal proceedings, does not sufficiently justify that the provision of this information to the committee could cause harm to the public interest. The Senate has rejected government claims that there is a longstanding practice of not disclosing legal advice. Legal advice to the Commonwealth government is often disclosed by the government itself, and we referenced that in our report. The committee notes that the minister's claim that disclosure of the information may materially affect the Commonwealth's position in the proceedings of a class action currently before the federal government. However, the committee is not satisfied that the minister's correspondence explains the specific harm to the public interest that could result.
The committee also notes that the minister's correspondence does not conform with the requirements of public interest immunity claims under procedural order 10(4), as it fails to address whether the 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. As a result, the committee has resolved that the minister's claim for public interest immunity does not specifically justify withholding the information requested by the committee.
The committee considers 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. We—and I—are deeply concerned to ensure that we get access to this information in order for us to understand the basis on which this robodebt program is claimed. At the hearing on the 16th, it was extremely difficult to get the information that we required and an understanding of what was going on.
It became very clear that the government was still in the process of working out what it was going to be doing with the robodebt program, with the debts that have now been frozen and the extent to which it applies. It's not as simple as just saying, 'It applies to all debts that were based on the averaging process,' because some debts have both averaging and people have been able to provide payslips for certain areas. So we understand that it's an extremely complex issue here. But the community has a right to know, given also that last week the committee released the email trail of correspondence from the ATO about garnisheeing these debts under the online compliance program. Those are available on our website and they go through the correspondence to the ATO about the fact that it does not appear these debts due to the Commonwealth. In other words, they're not legally valid. This is very important information that we released on the committee website last week as well.
We need to understand when the government first knew about these particular debts, when they acted and under what circumstances they received that legal advice. So that's why I've moved that the recommendation contained in the report be adopted:
The committee recommends that the Senate adopt the following resolution requiring the production of documents: …
We're requiring that, and we hope that this resolution is passed. It requires:
That there be laid on the table by the Minister representing the Minister for Government Services no later than 10 am on 24 February 2020, responses to all questions placed on notice by Senators Siewert and O'Neill relating to legal advice and Centrelink's compliance program.
I won't go through the documented list, but there's a list of specific requests that have been made so that the committee can get access to the information it needs to complete its inquiry into Centrelink's compliance program.
This is of vital interest to the committee but it's also, importantly, of vital, vital interest to the community in Australia, because people are watching this inquiry and watching what's going on with robodebt very closely, because it affects so many of them so deeply and personally. People don't know what's going on. They don't know if they're going to have to pay their debt. They don't know if they're going to get the money they've already paid repaid. It is a big mess and it is the responsibility of government to help—they made the mess! We need to make sure it's now sorted out as a matter of urgency. This legal advice will help us in our deliberations.
I'd like to take this opportunity to speak to the Senate Community Affairs References Committee report entitled Centrelink's Compliance Program Interim Report. This interim report has been delivered to expose the ongoing cover-up of the robodebt scandal by this government. It informs the Senate of an assertion made by the Minister for Government Services for a claim of public interest immunity on grounds of legal professional privilege set out in a letter sent to the committee on 24 January. The committee voted to make this letter public because it grossly mischaracterises the mechanism of public interest immunity and represents the continuing prerogative of the Liberals to avoid scrutiny, shirk responsibility and cover up their unlawful ideological motivated war waged on social security recipients.
The committee also resolved to make public answers to questions on notice, including an email exchange between departmental council which proves that this government knows the robodebt scheme was illegal. These prove government knowledge of robodebt's illegality. It is impossible that the Morrison government could not be aware their robodebt scheme is illegal because the Federal Court last year handed down orders from the government in the matter of Amato, conceding there was no legal basis in the Social Security Act for income averaging to be used as the sole proof to raise a debt. The government also know it is illegal because, in a knee-jerk response to these developments, last year they pulled the plug on the use of averaging and froze debts already tainted by the algorithm. Although Minister Stuart Robert would have you call it a 'refinement' of the scheme. Removing averaging as the sole proof point effectively ended robodebt as we know it, and it's a clear concession they were caught red-handed targeting vulnerable Australians without legal mandate.
In response to the report findings, Labor is calling on this government to come clean that a mistake was made, and admit it acted unlawfully, apologise to those affected by this harsh and inaccurate program, pay back the money to people from whom it unjustly enriched itself and detail the program for repayment.
The committee report also 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 no later than 10 am on 24 February 2020 responses to all questions placed on notice by my colleague Senator O'Neill and also by Senator Siewert relating to legal advice and Centrelink's compliance program. This includes but is 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; frequency and dates of legal advice obtained by Services Australia from the Solicitor-General, the Australian Government Solicitor, departmental lawyers and external counsel and all solicitors in relation to any aspect of the compliance program; specifically, whether a debt or debt components are able to be founded on extrapolations from Australian Taxation Office records; legal advice about the lawfulness of debt or debt components solely based on the 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.
These documents must be made available so the Australian public can learn the truth about the robodebt scandal, which has so far inflicted untold harm on struggling Australians, including 2,000 people dying after receiving a robodebt notice. It also includes taking money from 73 estates of people who had died, totalling $225,000; a systemic culture of cover-up with Centrelink never appealing judgements at AAT level 2 where the reasons for a decisions are public; taking up to 553 days to settle a decision at the tribunal and allegedly intimidating robodebt victims out of appealing their cases; using a company owned by debt collection agency Panthera, which was pursued by the ACCC, for unduly harassing consumers over electricity and phone company debts they did not owe; targeting disability support pensioners with robodebts to the value of $7.7 million throughout 2018-19, up from $2.3 million in 2017-18, an increase of 230 per cent; and considering a proposal to expand the scheme to pensioners and people with vulnerability indicators to fill a $600 million shortfall in the government's surplus savings target.
The government clearly knows the scheme was illegal, so why does it continue to spend taxpayers' money fighting litigation against Gordon Legal in the Federal Court? The matter of Amato had interest applied to the repayment of her illegally recouped debt. How much will the government run up the interest bill on the thousands of other robodebts while they try and run out the clock on the class action? Australians have had enough of mopping up the Liberals' mistakes. They should just admit they were wrong, pay the money back to people and apologise.
As Deputy Chair of the Community Affairs References Committee, I rise to make a brief contribution to this interim committee report. The government senators on the Community Affairs References Committee, Senator Hughes and I, do not support the Senate Community Affairs References Committee interim report into Centrelink's compliance program as presented by the Australian Labor Party and Australian Greens senators.
It has been the longstanding practice of successive Australian governments of both political persuasions not to disclose the fact or content of privileged legal advice. In fact, a former ministerial colleague of many on the committee in the Rudd-Gillard-Rudd government back in 2011, Senator Joe Ludwig, told Senate estimates that he would refuse to provide the Labor government's legal advice for the exact same reason:
… can I say that it has been a longstanding practice of both this government and successive governments not to disclose the content of advice.
Similarly, this practice has previously been outlined by another Labor luminary and former Hawke-Keating government Attorney-General, the Hon. Gareth Evans QC, who told the Senate 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.
Finally, the Hon. Philip Ruddock MP stated to the House of Representatives in 2004:
It is not the practice of the Attorney to comment on matters of legal advice to the Government. Any advice given, if it is given, is given to the Government.
Questions that go to the timing of legal advice, the amount of legal advice, and issues the government may have sought legal advice on are appropriately matters for the subject of a public interest immunity claim. As the Attorney-General has stated publicly: 'The government frequently obtains legal advice. However, the content of that advice is privileged and not the government's practice to discuss any legal advice that may or may not have been received.' As the Senate is also aware, aspects of the income compliance program are currently before the Federal Court, including through a class action that was filed on 19 November 2019. Even the lawyers for the class action agree that government's legal advice is privileged, telling the ABC last week: 'As I understand the law, they are still entitled to client privilege and to prevent this unless they take a different position in court from being educed in the legal proceedings.' The government will not be releasing the legal advice and will let the court process proceed without political interference.
I rise to make a contribution to this important tabling of a very significant report. It's only short, but it goes to the very heart of what's really wrong with this government. The debate is about two things. It's about robodebt and the reports about that, because that's a substantive issue. It's about a government that is absolutely dedicated to covering its dodgy tracks.
With respect to Senator Askew, who is a hard worker for the people of Tasmania, she's been sent in here to put out a claim that governments don't release legal information. Australian people, all 900,000 of them who got letters, have a public interest in what's going on here. The government, when they make a public interest immunity claim, are saying that it's not in the public interest that this should come out. It matters to 900,000 Australians who got a letter, many of whom just paid without question because they were confident that no government of any integrity would do the sort of thing we have seen this government do. It's now being considered by the legal fraternity to be an illegal action without basis. The averaging that this government has undertaken is obscene, and the consequences are devastating.
Let's be clear: Minister Robert refuses to release this legal advice so he can continue his disgraceful scheme. He says—and Senator Askew is trying to argue—that Australian governments have no precedent in releasing legal advice. That's plain wrong. It's utterly, utterly wrong. In 2011, Prime Minister Julia Gillard released the Solicitor-General's advice on offshore processing. In 2007, immigration minister Kevin Andrews released advice in relation to Dr Haneef's visa cancellation. The current Attorney-General, Christian Porter, released advice on the eligibility of Mr Dutton in 2018. So it does not pass the pub test. This is a cover-up of a gross failure of governance by the Liberal-National government. And they're now trying to protect their own skin.
We know that these robodebt notices have led to people suffering all kinds of trauma and ignominy. They have been barred from travelling. People have been hounded outside by debt collectors. People have had their tax returns garnished. People have had their loan applications rejected. And that is just the tip of the iceberg. I recall reading the heartbreaking tragedy of a Melbourne musician and florist by the name of Rhys Cauzzo, who said the aggressive debt collection of $18,000 by Centrelink—a letter arriving from the government saying, 'You owe us $18,000'—nearly pushed him over the edge. That's what he said. Sadly, Rhys did take that fatal step: he suicided in 2016. What an appalling and utterly preventable loss of life—by a heavy-handed, hard-hearted government that, even in the light of that kind of evidence, continues to want to hide the truth from the Australian people whom it has so cruelly attacked.
Government should be about the empowerment of the citizen—support and enablement—not taking every opportunity you can to shove people down. Government should be about ensuring the dignity of ordinary Australians, not robbing them of their innocence, not hounding them with fake and false debts which you had no authority to establish in the first place. It's very important that the legal advice that this government got is actually made known to the public so that this matter can be resolved and this government can be called to account.
At the end of last year, when Senator Siewert and I asked questions, to give a sense of the scale of this problem, I asked: 'What's happening in the department about finding out about these debts? What's going on with robodebts?' And after they had received the advice, after the court case had come down and they had to concede that something might be going wrong, the department, which consists of 1,500 hardworking Australian people, was carved apart; and half of that workforce that should be out looking after Australians—750 people—was allocated the task of trying to clean up the government's robodebt mess. No wonder they want to hide the documents. No wonder they want to use any trick they can to try and pull the wool over Australians eyes. Well, 900,000 Australians have seen what this government's like and 900,000 Australians deserve to see the evidence of the legal advice that they receive. This government needs to be held to account for a shameful episode of exploitation of Australian people.
Question agreed to.