Tuesday, 6 October 2020
Community Affairs References Committee; Report
As the Minister representing the Minister for Government Services, I rise to respond to the three recommendations contained in the third interim report of the Community Affairs References Committee's inquiry into Centrelink's compliance program that were adopted by the Senate on 2 September 2020. Protecting the integrity of the Commonwealth social security system is a core responsibility of any government. The proper administration and distribution of taxpayer funds to those who are eligible for them, and the recovery of debts from those who are not, is essential to fulfilling that responsibility. There is a longstanding principle that people should be paid correctly according to their individual circumstances. If people receive welfare payments they are not eligible for, it is only fair that they pay that money back to the taxpayer.
The government made changes to income compliance. When the government was made aware that the ATO average employment income data was not of itself sufficient to raise a social security debt, it acted quickly to fix the issue. As announced by the Minister for Government Services on 19 November 2019, Services Australia is no longer using income averaging alone to determine debts. As of 1 October 2020, 374,888 customers have received refunds or had their debts zeroed, with over $650 million refunded.
In response to the Senate's resolution arising from the Community Affairs References Committee's third interim report and in relation to the resolution of the Senate adopting the recommendations of the inquiry, I want to assure the Senate that the Minister for Government Services—me—together with the Department of Social Services and Services Australia have full regard for the process of the Senate and continue to cooperate to the fullest extent possible with the Community Affairs References Committee's ongoing inquiry into Centrelink's compliance program. It was not the intention of the government, or of officers of Services Australia or the Department of Social Services, to show disregard for the resolutions of the Senate in making public interest immunity claims.
Further, I am advised that the failure of the Minister for Government Services to respond to correspondence from the Community Affairs References Committee of 6 April 2020 was the result of an administrative oversight. There was no intention to not respond, and the Minister for Government Services has regularly engaged with the Senate and its committees to explain the government's position in relation to public interest immunity. Updates and additional explanations have also been provided as litigation in relation to the compliance program has evolved.
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 compliance program. The government does not make public interest immunity claims lightly and without careful consideration of the particular harm to the public interest. The government understands and accepts there is significant public interest in the matters before the committee. However, it would not be in the public interest to disclose some of the information that has been requested.
The current class action before the Federal Court involves very significant and potentially higher value claims against the Commonwealth. The trial for this litigation has now been set down for hearing on 16 November 2020. The applicant's claims in this litigation have been amended several times since the litigation commenced. In considering these evolving claims, the government has continued to review its position in relation to the prejudice it might face in defending the claims if certain documents were made public. As a result, public interest immunity claims have been reiterated and further information about claims has been provided to the Senate committee as necessary.
While the Senate has considered some of the government's previous public immunity interest claims, circumstances have now changed. On 16 September 2020 the applicants were given leave to file a second further amended statement of claim. This amended statement of claim alleges that the Commonwealth had particular knowledge which goes to the legal understanding of the program. While not clearly particularised, the applicants have also named particular ministers and senior APS employees as having knowledge of particular matters at particular times. These are very serious allegations and are completely rejected by the government.
Given the nature of the allegations being made by the applicants in class actions, the content and timing of any legal advice provided in relation to the Income Compliance Program is directly relevant to the issues to be decided by the Federal Court in the proceedings. Disclosing the content of any legal advice, or the date of it, would obviously have the potential to prejudice the Commonwealth's ability to defend the claims made by the applicants. The Commonwealth has discovered more than 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 the subject of challenge.
The position taken by the government is consistent with past practice over many years and under different governments. Former Attorney-General the Hon. Gareth Evans QC told the Senate:
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.
More recently, former Attorney-General George Brandis said:
What it represents is both a statement of the universal practice of all Australian governments since Federation in relation to legal advice, subject in exceptional circumstances to waiver, I acknowledge, but that is something that is seldom done and is never done, nor should be done, if the advice to government is that the publication of the advice would prejudice the legal position of the Commonwealth.
The third interim report has also commented on the executive minute to the Minister for Social Services dated 12 February 2015. The subject of the minute is a public interest immunity claim by the government on the ground that its disclosure would or could reasonably be expected to reveal the deliberations of the cabinet. Notwithstanding this, the third interim report, adopted by the Senate, seeks production of the minute. While the minute was provided to the Commonwealth Ombudsman, it is important to note that the limited disclosure to the Ombudsman in these circumstances is not consistent with the maintenance of cabinet confidentiality. It should also be noted that, as a part of the class action litigation, the Federal Court upheld claims of public interest immunity in relation to such documents. This type of claim for public interest immunity in relation to material supporting cabinet deliberations and decision-making has also been consistent practice by successive governments and was supported by the then Minister for Climate Change and Water, Senator the Hon. Penny Wong, when she stated:
Last week the government opposed a motion for a Senate order for me to produce departmental documents relating to management options for the lower lakes . The government did so on the basis of extensive precedents including those set by the previous government where advice to government of a similar nature—that is, for the purposes of government’s deliberative processes—had not been provided on the order of the Senate. Those opposite cannot possibly take issue with that.
That was on 1 September 2008.
The third interim report noted that it may be appropriate to disclose the minute to the committee in camera. However, disclosing the deliberations of cabinet to opposition and crossbench senators would not maintain the well-established principle that the deliberations of cabinet should be able to be conducted in secrecy, nor would it preserve the freedom of deliberation of the cabinet. By making a public interest claim in respect of the minute, the government is doing no more than establishing a well-established right to protect the public disclosure of cabinet deliberations in the same way as has been done by past successive governments. A letter from the Minister for Government Services responding to these matters has also been provided to the President of the Senate.
I rise to take note of the minister's response to recommendations 1, 2 and 3 of the Senate Community Affairs References Committee's third interim report. This scheme has devastated hundreds of thousands of Australians, and the government won't even answer questions that relate not to what the legal advice is but to whether they actually asked for legal advice. I have the original questions that we asked when the original public interest immunity claim was made. That was again subject to the third interim report, because we did not get a response to our follow-up correspondence.
I will just touch on that very briefly. In our third interim report, we commented on the fact that the minister had not responded to the committee's communication in April this year when we rejected the claims of public interest immunity and wrote back to the minister. That email with that letter, I understand, went missing. I will just let the chamber know that I've checked with the committee, and the correspondence was sent in the usual manner, the manner in which we've been corresponding with ministers for some time. However, I personally accept that admin mistakes happen. But we subsequently referred to that correspondence quite a bit. Was there no thought in government that perhaps they needed to find out where this letter was, what—I was about to say a slightly naughty word!—was going on and why the committee was carrying on? I was very concerned that we hadn't heard back from the minister.
Having said that, I want to go back to what is fundamentally the problem here, and that is that apparently no-one in government thought to check whether trying to claw hundreds of millions of dollars back from people who had low incomes and were on income support was actually based on a legal premise or not—whether it was actually legal. Of course, it turns out it wasn't. There was no legal foundation for them to be claiming back these hundreds of millions of dollars, affecting hundreds of thousands of Australians and causing them a great deal of distress.
The sorts of questions that were asked included: is the department satisfied that its net-to-gross calculations provide a legal basis for raising a debt? Well, we would have thought that was okay. A series of questions were asked about how many times the department asked for or obtained legal advice from a range of government agencies, including the Solicitor-General and the Australian Government Solicitor—there are a number of them. We can't even ask how many times the department—or the minister, for that matter—asked for that legal advice. Does that mean they didn't actually ask for it at all, or does it mean that they asked for it and didn't get the answers that they wanted—they ignored the advice—or that they just didn't care about the impact this program would have because they were so desperate to balance the bottom line on the backs of people trying to exist on a payment that is, let's remember in this place, below the poverty line?
The minister, in her response just then, talked about how, when the government were made aware that using the ATO information for income averaging was unlawful, they never thought that they needed to go and seek legal advice.
The Community Affairs References Committee rejected the concept that it was not in the public interest to release this information. We rejected the claim for public interest immunity because we don't agree that it's not in the public interest for the community to know this information. We have sat for hours and hours and hours hearing about the impact of this scheme on Australians who have been impacted by this scheme. Those of us on the committee have sat—I think I've now been through three inquiries dealing with this matter—and I've sat, and heard people's accounts of the impact on their lives. People have been in tears. People's mental health has been badly affected. And I've heard from people's families who believe that robodebt led very directly to those people taking their own lives.
I'm trying to be very careful when I talk about this, because I'm aware of triggering. To people who read this or who are listening: please, if you are impacted by this or need some help, reach out to Lifeline. The fact is that this had a detrimental impact on people's lives. People have lost loved ones; people have had their mental health permanently affected. People talked of shame, of how they felt demonised and of how they thought that people thought they were cheating—all based on a lie, because this was not lawful. This process was not lawful.
And the government say that the community has no right to know whether they knew whether it was legal or not. And it wasn't sufficiently lawful; it was insufficiently lawful. It was unlawful—it was against the law! And yet the government tries to hide behind public interest immunity, saying that's not in the interest of the community. Well, it's very strongly in the interest of the community. And then they try to hide behind a minute having gone to cabinet. Trotting it through cabinet means that they can't give it to us.
Senator Patrick interjecting—
They sprinkle the cabinet dust—yes, Senator Patrick, they sprinkle the cabinet dust around it! They did not directly tell us that it did impact on the deliberations in cabinet, and giving us the minute would not release the deliberations of cabinet or tell us what those deliberations were.
It is very important to this inquiry that we actually have a look at that minute and see what was in that minute. We all know that, while the government have finally paid back most of the people who were owed money from this illegal scheme, they've only paid that back going back to 2015. They're not going back before 2015. That's why this committee which is inquiring into Centrelink's compliance program needs to see that information, so that we can actually get a true look at this. The government isn't releasing that information, which is why we and many other people are calling for a royal commission into this debacle. It is only that forensic review that will identify what went wrong here. (Time expired)
I rise to take note of the minister's explanation. I listened very carefully to the minister as she made her explanation, and my assessment is that it was legally insufficient. The minister ought to know that the issue as to whether or not a house can call upon legal advice to be tabled has been settled in the Supreme Court of New South Wales in the matter of Egan v Chadwick. There is no question that a house that has responsibility of oversight of government decisions has the ability to call any document before it that is relevant to the course of action that the government may have taken in respect of discharging its functions, so it's entirely appropriate that if a committee of the Senate, or indeed the Senate itself, makes a call for those documents then those documents should be tendered.
Of course, you do have a right to advance a public interest immunity claim. I did listen, and I heard what you said about the matter that is currently before the courts, but there is also another case that would protect you in this instance, and it's the matter of British American Tobacco Australia v Secretary, Department of Health and Ageing in the Federal Court. No less than Chief Justice Keane, as he was then, made a decision that basically said, 'If you wander into this chamber and table legal advice, as you are required to by way of order of production, you have not waived legal professional privilege.' Indeed, nothing that has been tabled in the Senate, nothing that has been said in the Senate, can actually be used in that court. They can't draw inference from it; they can't even use the information to establish truth. It's an important principle that allows us to do our work while the courts are permitted to do their work, so there can be no harm in tabling those documents. They cannot be used in the court case. It is not proper, and the court would not permit it.
Section 16 of the Parliamentary Privileges Act—because there was some dispute over this, the parliament decided to legislate to make it very clear to the courts that they can't use this, although I will note that in a matter I've got before the courts the government lawyers have tendered some statements made in the Senate, and that will no doubt become a matter of privilege shortly if the Attorney doesn't intervene properly. So I do not accept, when you roll out a list of ministers who have, in the past, said that legal professional privilege shouldn't be tabled—they are simply ministers making statements. They're making statements that are inconsistent with law, and we do have to comply with law here in this chamber.
I'll now go to the second claim that you are making, and that is in relation to cabinet-in-confidence. I draw your attention to the High Court case of the Northern Land Council, where the court ordered that in exceptional circumstances the court can order the production of cabinet documents. They are executive documents, not parliamentary documents, and the court can order the production of cabinet documents in special circumstances, and particularly in circumstances where life or liberty might be at stake—certainly when someone's liberty might be at stake. You might note that is being dealt with right now in the ACT in the matter of the Commonwealth and Collaery, the Witness K matter. We'll probably see that the court will make a judgement between the balance of public interest and the interest of justice. I listened to Bret Walker give a presentation, a lecture, on this, and the principle is that a court could, in certain circumstances, require the production of cabinet-in-confidence documents, making it equally the case that the Senate could. There's nothing to distinguish that, provided a balance is found in favour of the Senate requiring their production, and that has already happened here. In advocating that there would be harm caused, it's not helpful when the government makes ambit claims, cavalier claims, concerning cabinet-in-confidence.
We have currently a very bizarre situation where the COVID committee has asked for documents, minutes of the AHPPC, and it turns out the claim by this government is that a meeting of doctors is a meeting of a subcommittee of cabinet. That is truly bizarre. I am in discussions with the clerk's office at the moment in relation to an FOI I did for exactly the same documentation, where the department knew I would challenge them legally and they dared not make the claim. They properly made a claim of intergovernmental documents, and that will come down to the balance of public interest. They made a reasonable claim, although I don't think it will stand the test, but they never tried the cabinet-in-confidence claim.
In the last sitting week, I stood in this chamber and I waved in front of everyone a document that I had obtained under FOI that had been denied to the Senate because it was purportedly cabinet-in-confidence. In actual fact it turned out not to be. Whilst I accept the principle that there is benefit in protecting cabinet documents and protecting the collective responsibility of cabinet, we have a really difficult issue before us in that the government regularly makes claims that are simply not believable or will not stand the test of a challenge, either with the Information Commissioner or in the AAT.
If the government continues to make cavalier claims or it continues to cry wolf, of course the Senate will get to a point where it simply no longer believes the claims that are being made by government. The government itself undermines the doctrine by making these cavalier claims. They're inappropriate. The minister should table the legal advice and the minister should table the cabinet documents, as ordered by the Senate.
Madam Deputy President, I am asking whether that is the appropriate course of action because, as I understood proceedings of this place, you bounce the call from side to side and do not allow one-way traffic in relation to matters of this nature.
In actual fact, Senator Abetz, you would normally alternate the call between the government and the opposition. I didn't do that because Senator Siewert sought the call first and, after Senator Patrick sought the call, I thought it only fair to go to Senator O'Neill.
What we are discussing this afternoon, for people who might have just picked this up and are listening to this discussion and who care about this matter, is a complex discussion about procedures, but it's really all about robodebt. What we see this afternoon from the minister who is now departing—I think that's a natural turnover, so I won't make a point about her leaving—is another scene in this government's determination to cover up what's gone on with robodebt. The senator made claims about proper administration and fairness but couldn't even bring herself to actually name the matter that is being discussed today, which is robodebt. To be clear: robodebt was the matter over which the government had to be dragged kicking and screaming to say a very insincere 'sorry'. To this day they continue to acknowledge that this scheme was responsible for the terrible impacts on mental health that were well described by Senator Siewert in her contribution—and I acknowledge her as the chair of the committee; that is why I thought it was appropriate to cede the first opportunity to speak to her.
I want to put on the record what Australians know but this government continues to deny—that for so many Australians the horror of their encounter with robodebt caused such incredible anxiety, distress and financial burden for their families that it is now a matter of public record that family members attribute loss of life to the total lack of hope that so overcame some Australians, particularly young Australians, that they felt they couldn't go on. In the circumstances created by their own government, they took their own lives. I want to acknowledge Kath Madgwick, mother of Jarrad, and Jenny Miller, mother of Rhys, who came forward and enabled me to put on the public record the horror of their experience, of their interactions with this government.
Today, if you listened to the minister's comments, after having been called here to the chamber by the Senate to answer these questions, you heard platitudinous comments, a failure to acknowledge the harm of robodebt and a failure to call it by its proper name, known to Australians in every state and territory of this great country. The reality is that because this government refuses to answer questions, we still don't know who came up with the legal advice for this unlawful scheme. The government still hangs its hat on bogus public interest immunity claims. For those who don't understand what a public interest immunity claim is: in simple layman's terms, it's when the government says: 'Look, this information is so precious, so important for the country, that we really can't talk about it. Just trust us; we're doing the right thing by you.' Except hundreds of thousands of Australians already know the government was not doing the right thing by them with regard to robodebt.
We know the government had to accept at the end of last year that they acted unlawfully. So much do they want to deny their responsibility that they can't even get the word 'unlawful' out of their mouths. They had to coin their own magic phrase: 'legal insufficiency'. What a con job that is. Any plain-talking Australian knows the truth. Robodebt is a scheme of the government's making, and they refuse to answer questions about what they did and advice they received. It is in the public interest for us to know. They stuffed it up royally. They should show us the evidence they used to support their claim to establish it. But they won't. What we've got from the government here today is more resistance, more obfuscation, more delay and more denial.
The only way we're going to get to the bottom of what happened is to have a royal commission. We cannot do with more spin from these ministers and their departmental staff. They have scorned the scrutiny of this chamber, the Senate of Australia. They do not think they're accountable to the Australian people, who are represented here by senators of every state who are here to hold the government to account. We're holding the government to account on a very important matter, of import to hundreds of thousands of Australian families. Make no mistake: this is the biggest social security scandal of a government in Australia's history. It's not the sort of history that, as a government, you really want to make. It is a scandal of extraordinary proportions. Hundreds of thousands have been affected and nearly a billion dollars has had to be paid back to Australians who had money illegally taken from them by their government. As I said in my opening remarks, countless Australians suffered emotional and mental anguish and despair at the terrible financial impact—all to prop up the Liberals' bottom line. Let's not forget who was Treasurer when this decision was made: none other than the Prime Minister of Australia.
What questions are we asking that are so terrible and awful that the government simply cannot answer them, that are so dangerous for the country that the government keep saying it's not in the public interest to answer them? This is what we want to know, and have a right to know, on behalf of the Australian people: who came up with the idea for the scheme? We have a right to know, and we want to know: what due diligence was done and what advice was obtained by this government prior to the scheme's implementation? Those opposite will laugh at and mock this process, but the reality is that they're the ones who unleashed robodebt; they're the ones who chose to change the way in which debt was recovered.
This is what we want to know: when did the government first learn that their robodebt scheme was unlawful, and why didn't they stop it the minute they knew? The question you have to ask is: did they know it was unlawful all along and just say, 'Here's a few billion we can scrape back; it doesn't matter if we hurt a few Australians on the way through; let's just grab the money'? That's the question that lingers at the moment.
We want to know, and we have a right to know: did the government settle legal challenges and choose not to appeal adverse AAT determinations in order to avoid a court ruling that the scheme was unlawful? What we do know is that some brave Australians who could handle the paperwork warfare actually went to the AAT and had the AAT, a tribunal, find for them against the government. It didn't happen on just one occasion; it happened on multiple occasions. The government knew it and, instead of saying, 'We might have a bit of a problem with this; we'd better sort it out,' did what they're doing today: they went all quiet, had the big hush-up, the big cover-up. We want to know for the Australian people, and we have a right to know: how was such a fundamentally and obviously flawed scheme allowed to continue for as long as it did? We want to know, and we have a right to know: in total, how much has this failed scheme cost the Australian taxpayer so far? In total, how many debts were issued under the illegal robodebt scheme cooked up by this government? How many law-abiding citizens, especially vulnerable Australians, have been harmed by robodebt?
We know that the minister still refuses to respond to the Community Affairs References Committee. The letter has been the subject of some discussion this afternoon. We can hope it was an administrative error, but, sadly, I fear it was just another part in the cover-up game that this government plays. Scott Morrison and Stuart Robert need to rule out the possibility of robodebt 2.0 and the chance that they will continue with their old practices and develop a new method to harass the Australian people who have already been traumatised. Human Services should be about human services; it shouldn't be about an out-of-control algorithm with no safeguards or oversight. I am constantly shocked at the disregard this government has for this august chamber and, through that, for the people of Australia. (Time expired)
There are two issues here. One is the issue of reclaiming welfare payments, which was implemented, might I say, in a suboptimal manner by the department. I'm on public record as saying that and I'm also on public record as saying that I helped achieve good outcomes for many of my fellow Tasmanians who had been unfairly targeted by an officious letter and a scheme that was less than consumer-friendly. That said, can I remind Senator O'Neill that this scheme was in fact an add-on to a Labor devised scheme? So, if the honourable senator wants to talk about who implemented the scheme and started it all off, she need look no further than the mirror of the Australian Labor Party.
But the real issue here is not the scheme and the problems it occasioned for far too many Australians but the principle of public interest immunity. That is a principle well and truly established and well and truly accepted by governments of both persuasions—and usually attacked by desperate oppositions. From time to time, my side of politics has fallen into that category as well—regrettably. That is why these matters need to be considered with a degree of maturity and reflection. You have to ask the question: is this a principle that we actually want to undo, a principle which has withstood the test of time? Yes, Senator Patrick spoke for 10 minutes about how good he was with all the cases he's raised and how forensic he's been, but I would just invite him to have a look at a couple of High Court cases. One is Esso and the Commissioner of Taxation and other is Grant and Downs.
I take Senator Siewert's passion in relation to the issue of the reclaiming of welfare payments, but I would invite her and all other honourable senators to divorce that issue from the principle of the public interest immunity. It has served this country and this body politic—and, might I add, not only in Australia but elsewhere as well—exceptionally well. It is something that does protect the rightful business of government, even in circumstances where it frustrates an opposition. That is something where, if you have a mature reflection on these matters, you understand why the principle was established and why attorneys as diverse as former Senator Evans and Senator Brandis have accepted the principal. (Time expired)
Question agreed to.