1.1
This interim report is to update the Senate about a claim of public interest immunity received during the Senate Community Affairs References Committee's (the committee) inquiry into Centrelink's compliance program.
1.2
The committee has resolved not to accept the claim of public interest immunity on the grounds provided by the Minister for Government Services, Senator the Hon Linda Reynolds CSC (the minister), for the reasons detailed in this report.
Background
1.3
Centrelink's income compliance program, colloquially known as 'Robodebt', has resulted in approximately 347 000 people being pursued for debts that they did not owe based on an inaccurate calculation of their income, totalling up to $1 billion. On 14 July, Services Australia advised that $726 million had been paid in refunds and about 418 000 people had received a refund or had their debts zeroed.
1.4
The income compliance program has been the subject of legal challenges, and on 11 June 2021, the class action was settled in the Federal Court with the Commonwealth agreeing to pay a further $112 million in compensation.
1.5
As required under its terms of reference, the committee has sought to examine the use and legality of the income compliance program. However, the committee has received multiple claims of public interest immunity in relation to questions regarding the legal advice on the program.
1.6
The committee's First and Third interim reports outlined the committee's rejection of public interest immunity claims made by the former Minister for Government Services, the Hon Stuart Robert MP (former minister).
1.7
On 15 June 2021, the committee resubmitted questions to Services Australia that were previously subject to the former minister's public interest immunity claim and requested a response by 25 June 2021. These questions were resubmitted on the basis that the relevant class action had been settled.
1.8
On 14 July 2021, Services Australia provided answers to the questions on notice, of which 19 answers refused to provide information on the basis of the former minister's public interest immunity claim of 29 July 2020.
1.9
On 5 August 2021, the committee wrote separately to Services Australia and the minister requesting that they reconsider providing the information on the basis of the settlement of the class action. Further, should the minister continue to rely on the public interest immunity claim, an explanation be provided as to the harm to the public interest that would result from the disclosure of the information. The committee sought a response by midday, 9 August 2021.
1.10
Responses were provided by the minister and Services Australia on 9 August 2021, after the midday deadline.
Minister's public interest immunity claim
1.11
The minister's claim of public interest immunity reiterated advice provided by the former minister. The correspondence provided by Services Australia summarises the claim made by the minister and does not provide any further information.
Disclosure of information relating to legal advice
1.12
The minister provided two grounds for the withholding of information related to legal advice:
the possible prejudice to the Commonwealth in relation to its conduct of litigation relating to the compliance program; and
the long held practice of claiming privilege over legal advice, including over associated documents.
1.13
On the first ground relating to the possible prejudice to the Commonwealth, the minister advised:
I note that even though the class action has resolved, as recognised by the Federal Court on 11 June 2021, not all potential claims arising out of the Income Compliance Program will be resolved through the class action. This is because a significant number of class members opted out of the class action and are free to bring their own individual claim, should they wish to.
1.14
In relation to the second ground concerning the practice of claiming privilege over legal advice, the minister stated that '[t]his position is consistent with past practice over many years and under different governments'. The minister noted the importance of government being able to obtain legal advice without the risk of the advice being disclosed, that such a risk could prevent government from appropriately seeking legal advice, and that frank legal advice 'is a core plank of good decision making and should be protected as a fundamental principle of good government'.
Disclosure of cabinet deliberations
1.15
The minister also noted that the committee previously requested a copy of the Executive Minute to the Minister for Social Services, dated 12 February 2015 (the Minute), and reiterated the claim made by the former minister, that disclosing a copy of the Minute 'would or could reasonably be expected to disclose the deliberations of Cabinet'.
1.16
The minister advised that Cabinet deliberations should be conducted in secrecy to preserve the freedom of those deliberations and that disclosing Cabinet deliberations 'may impact on the Australian Government's ability to receive confidential information and make appropriate decisions'.
Committee's consideration of the claim
1.17
The committee continues to maintain that it is ultimately in the public interest for the Commonwealth Government to be transparent about the advice it received in relation to the income compliance program.
Legal advice
1.18
In relation to claims of privilege over legal advice, the committee reiterates that the Senate has never accepted legal professional privilege as a ground to refuse to provide information. 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.
1.19
Moreover, the Senate has 'rejected government claims that there is a long standing practice of not disclosing privileged legal advice to conserve the Commonwealth's legal and constitutional interests'.
1.20
The committee acknowledges that prejudice to legal proceedings has, in some circumstances, been accepted by the Senate as grounds to refuse to provide information. However, the committee notes that each claim is considered on its merits.
1.21
The minister states that people who opted out of the class action, 'are free to bring their own individual claim' and it is the possibility of a future legal claim against the Commonwealth, which could harm the public interest. The minister has not contended that a current legal proceeding could be prejudiced as a result of the disclosure of the information.
1.22
The committee also notes that many of the questions do not go to the specific detail of the legal advice but instead request general information, such as whether legal advice was sought, whether the advice was provided internally or externally, and the dates when the legal advice was sought and provided. The minister has not articulated how the release of such information could prejudice future court proceedings. Ultimately, the committee is not convinced that the disclosure of such information could result in harm to the public interest.
1.23
Further, the committee considers that any possible harm that may result by disclosing the information would almost certainly be mitigated by providing it to the committee in camera.
Cabinet deliberations
1.24
While the disclosure of cabinet deliberations has achieved a measure of acceptance as a basis for claiming public interest immunity, it is not sufficient to refuse to provide information merely on the basis that the information has a connection to Cabinet. Rather, it must firstly be established that the disclosure of the document would reveal the deliberations of cabinet and secondly, that disclosing the particular information requested could cause harm to the public interest.
1.25
The committee notes the broad assertion made by the minister that the document 'would or could' disclose Cabinet deliberations, and the general claim that the release of a particular class of documents, may result in harm to the public interest.
1.26
The committee again notes that the Minute was provided to the Commonwealth Ombudsman for the purpose of its 2017 review without any resulting harm to the public interest or any claim for immunity.
1.27
The committee has concluded that the minister's claim does not substantiate how the release of the particular Minute may result in harm to the public interest.
1.28
Furthermore, the committee again reiterates that there appears to be no basis on which the information cannot be provided to the committee in camera if the perceived harm could only result from its publication.
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 for Government Services, no later than 12.00pm on 24 August 2021:
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; and
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 the above responses relating to legal advice and the Executive Minute will be provided in camera to the Senate Community Affairs References Committee by no later than 5.00pm on that same day.
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.
Chair