Thursday, 12 August 2021
Community Affairs References Committee; Report
I present the fourth interim report of the Community Affairs References Committee on Centrelink's compliance program, and I move:
That the Senate adopt the recommendation contained in the interim report.
This is a very important motion and report. It is the fourth report from this committee and it relates to public interest immunity and the government claiming public interest immunity yet again over specific issues related to the Centrelink compliance program commonly known by the whole of Australia as robodebt.
We have repeatedly sought information about the legal advice they obtained—and I'll go into that a bit more in a moment. The fact is they were using the court case as an excuse not to provide that information. That court case has finished now. Judgement has been passed, debts have been repaid—though not all that we think should be repaid—and compensation will be paid. The government has no excuse to hide behind now, and the majority of the committee agree.
Senator O'Neill, who I'm sure will speak when I finish my contribution, and other senators including me have sought this information repeatedly. The community needs to know. Not just the Senate inquiry but the community need and want to know what the government knew about a program that caused untold stress and harm. I will say it here again: it did lead to people—when people are reading this Hansard, please be aware of the sensitivity of this issue—taking their own lives. I know Senator O'Neill has spoken to family members, as have I. They are absolutely convinced that it contributed to their loved ones' passing. That program was abhorrent.
What advice did the ministers—there were a number that oversaw this program—seek? Did they seek to check that it was legal? Did the department? If so, when? Was it at the beginning of the program, before they went down this track? I'm sure what we will hear from the government is that this was money that people owed. Well, they didn't owe it, and the government should have checked before they started this robo, automatic process. They will also say: 'We didn't do it automatically. It wasn't robodebt. It wasn't automated.' That is nonsense. There was a clear change in the way these debts were collected. When did they seek that advice? You know what? If the government didn't seek legal advice, even bigger shame on them for not doing so to see if they could actually do this.
The particular matter that I'm tabling relates to their latest claim of public interest immunity. This has been claimed, as you know, on many occasions. But on this occasion, as I said, the excuse is not there. They are using, as you will see from the correspondence, the excuse that there may be future ones. If that were the case, they could deny giving people any information at any time. Not everybody who had a debt raised against them was part of the class action, so the government are using the excuse that there could be others. It's complete nonsense. This information should be publicly available. The Australian people deserve to know how this program started and whether the government ever knew it wasn't legal and just hoped they wouldn't get caught or whether they never bothered to check for a program that resulted in untold misery. It's not on. This place, I hope, will continue to chase the government over this issue. It's not just me. There are many, many people in this country who want to know these answers. So we will, all of us, keep pursuing this information.
I urge the Senate to support the recommendation that we presented in this report and have moved as an amendment. The report specifically goes through a number of points which I won't take up time in reading out, but basically it says the committee recommends that the Senate adopt the resolution requiring the production of documents. It talks about the documents that we want laid on the table no later than 12 pm on 24 August 2021, and it goes on to say:
In the event that the minister fails to table these documents, the Senate requires the minister to attend the Senate at the conclusion of question time on 25 August 2021 to provide an explanation of the minister's failure to table the documents.
We are very clear in what documents we want, including answers to all the questions that relate to legal advice and the Income Compliance Program, commonly known as robodebt—I'm ad-libbing there; it doesn't actually say 'robodebt'—which have been subject to the rejected claims of public interest immunity during the Senate Community Affairs References Committee's inquiry into the Centrelink compliance program. We want the executive minute to the Minister for Social Services, dated 12 February 2015, and we also want a letter confirming that the above responses relating to legal advice and the executive minute will be provided. We're also giving the government the opportunity to provide this information in camera, by the way. It's not as if we're being unreasonable. I don't think it's unreasonable to ask for the basis on which the government thought they had legal authority to undertake this illegal program. Please support this resolution.
I want to acknowledge the leadership that has been shown by the Senate Community Affairs References Committee—which is very ably chaired by Senator Siewert, who has just made a contribution—on this matter of great importance to hundreds and thousands of Australians. For those who are just sort of listening or tuning in, if you've heard about robodebt, if you know anybody who was affected by robodebt, essentially the government created a bill and sent it to its own citizens, and that bill has now been considered to be an illegal activity by the government against its own people. That's where we are. After all that noise about robodebt that people heard, that's where we are in the sequence.
I also want to congratulate and thank all the other senators on the committee, including Senator Urquhart, who is here in the chamber with me, and, indeed, even though they hold a different view and they are members of the government, the government members who provided a quorum so that these inquiries could go ahead, because that's the job we're supposed to be doing here. We're supposed to be finding out about what's going on, double-checking that things are okay and that Australians aren't being ripped off. And this is a pretty big rip-off, where your government decides to concoct a debt and send it to the Australian people and it's found to be an illegal debt.
My contribution today refers to the recent report, which Senator Siewert was just talking about, on the government's continued attempts to cover their tracks. They've made a public interest immunity claim, saying that it is not in the public interest for them to release critical documents that show us what they knew and the decision-making that they undertook. We consider it to be a bogus PII claim to hide legal advice that a federal judge found legally insufficient and which was responsible for the sending of these false debt notices to 347 people.
What we have to say about this program is that it was a colossal and callous failure from its inception in order to prop up the budget and the bottom line that Scott Morrison used to talk to you about. That was the only thing he used to talk about then. Now he's telling you why he's not doing a bad job looking after the country's health. Back then he was telling you he was looking after the economy and the budget. But, as Minister for Social Services, it was Scott Morrison who began concocting this scheme to target the most vulnerable in our community and unleashed debt collectors on Australians. Australians on the pension, Australians on carers allowance, Australians who were doing it tough were harassed by debt collectors and the Australian state over money that they actually did not owe. This was an illegal act by the Australian government under the leadership of Mr Morrison. It was illegal. It was enormously expensive, and we need clarity on how on earth this monstrous item of public policy was allowed to be unleashed on the public. We cannot allow the mistakes that were made to be repeated.
Now we come to Minister Reynolds's claim. This comes after a long line of claims by the government that they shouldn't provide the advice because, as they originally said, 'There's a court case coming up.' Well, the court case that declared the government had undertaken an illegal activity has come and gone, yet Minister Reynolds decided to send to the committee a letter that claims it would not be in the public interest for the legal advice that underpinned robodebt to be made public to the committee.
The committee's terms of reference for this inquiry, which give us the task and the job that we're supposed to do, require us to examine the legality of the Income Compliance Program. That actually means dealing with the legal advice that underpinned the entire enterprise—advice that was later found by the Federal Court to have been legally insufficient and responsible for a $1.8 billion payout from the taxpayers. It's a critical matter of public interest that the representatives—that's us; the senators—examine the faulty legal advice on which the whole dirty scheme was cooked up by Mr Morrison as the Treasurer, a scheme which he then presided over for years as the Prime Minister.
The public needs to know—and these are the documents that we are seeking by 24 August—the dates that legal advice was sought and provided by internal and external lawyers to the ministers, departments and agencies in relation to robodebt or in connection with a class action or potential litigation. We need to know, for the Australian public, to make sure that this doesn't happen again, the identity of the person, the agency or the firm who provided the legal advice. We need to know the costs of the legal advice. We need to know where issues remain to be resolved. And we need to know the dates and content of any briefings or meetings, including ministerial briefings and ministerial meetings, that relate to that legal advice. We need to see and know about the instructions to the lawyers by this government, which inflicted illegal debt on its own people, and we need to see any legal advice provided in relation to the modification or enhancement of the Income Compliance Program. That's what they call it—the Income Compliance Program. It's more the 'government harass you program'. That's what it was.
Minister Reynolds's claim that it is still in the public interest to continue to hide this advice is not merely untenable; it's grossly offensive. The committee is even willing to have the documents provided in camera, thus negating the risk that it could ever be used against the government. Yet still they continue to keep the legal advice hidden. This government has fought this disclosure tooth and nail, which tells me only one thing: those opposite absolutely must be hiding something very, very big—and it's very closely connected to the man who holds the highest position in this the land, the Prime Minister of Australia, Scott Morrison.
How could it possibly be considered to be in the public interest for the government to continue to hide advice that cost the public $2 billion? As Senator Siewert indicated, we know that there were several lives lost—confirmed—because of the harassment that people suffered at the hands of this government when it sicked the debt collectors onto them. Of course, there was untold mental anguish, and we have no data collection about the families that were torn apart and the businesses that went under—fledgling businesses that needed support but had all of their economic capacity ripped away from them, only to be repaid later when they had lost the lot. That's the scale of error that we see with this government.
The class action brought against the government to sort out this robodebt matter has been settled. There is no current court action that I'm aware of with regard to robodebt. Even last year, when the case was still alive, the Secretary of the Department of Social Services, Kathryn Campbell, was unable to explain to the committee how sharing this data would prejudice the Commonwealth's position on the class action. But it didn't stop her from pretending that she didn't know what robodebt was and trying to lock up the information.
There is a legal precedent for disclosure of legal advice to the Senate. As stated in Odgers' Australian Senate Practice:
It has never been accepted in the Senate, nor in any comparable representative assembly, that legal professional privilege provides grounds for a refusal of information in a parliamentary forum.
Moreover, the Senate has consistently rejected government claims that there's a longstanding practice of not disclosing privileged legal advice to the conserver of the Commonwealth's legal and constitutional interests. The government does not have a leg to stand on. The Morrison-Joyce government is merely playing for time—delaying, kicking the ball into the weeds every time this Senate rightly asks for the documents to allow us to get to the truth. Well, I will tell them: we will not let this go. The Australian people will not let this go. And one day soon—I hope soon—we will find the truth of this matter.
Several questions go not to specific legal advice but to general information regarding the procurement of legal advice. The government says this is never released, but that is not true. Christian Porter released legal advice on the eligibility of Minister Dutton under section 44(v) of the Constitution on 24 August 2018. In 2011, Prime Minister Julia Gillard advised the House of Representatives that we had made available to the Leader of the Opposition the advice of the Solicitor-General on asylum seekers and offshore processing. In 2007, the Minister for Immigration and Citizenship, Kevin Andrews, released advice in relation to the power of the cancellation of the visa of Dr Haneef. These are just three examples of the common practice of federal governments of both parties releasing legal documentation. It's clear that, if the government weren't so afraid of the implications of releasing this advice, it would have done so. But it has responsibilities, moral, ethical and parliamentary, to provide to the Senate the documents that we seek and to lay them on the table no later than noon on 24 August. It's time. Cough it up. Let's get on with the job.
Question agreed to.