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Community Affairs References Committee—Senate Standing—Centrelink’s compliance program—Third interim report, dated September 2020


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September 2020

The Senate

Community Affairs References Committee

Centrelink's compliance program

Third interim report

© Commonwealth of Australia 2020

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iii

Committee Members

Chair Senator Rachel Siewert AG, WA

Deputy Chair Senator Wendy Askew LP, TAS

Members Senator Catryna Bilyk ALP, TAS

(from 5 February 2020) Senator Hollie Hughes LP, NSW

Senator Malarndirri McCarthy ALP, NT

Senator Anne Urquhart ALP, TAS

Substitute Members Senator Matt O'Sullivan LP, WA

(for Senator Askew on 3 October 2019) Senator Deborah O'Neill ALP, NSW

(for Senator Ciccone on 16 December 2019) Senator Carol Brown ALP, TAS

(for Senator Urquhart on 11 February 2020) Senator Andrew McLachlan CSC LP, SA

(for Senator Hughes on 31 July 2020) Senator Deborah O'Neill ALP, NSW

(for Senator Urquhart on 17 August 2020) Senator Murray Watt ALP, QLD

(for Senator McCarthy on 17 August 2020)

Participating members Senator Kimberley Kitching ALP, VIC

Senator Deborah O'Neill ALP, NSW

Senator Rex Patrick CA, SA

Senator Helen Polley ALP, TAS

Senator Amanda Stoker LP, QLD

Former Members Senator Raff Ciccone ALP, VIC

(from 5 December 2019 to 5 February 2020) Senator Deborah O'Neill ALP, NSW

(until 5 December 2019)

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Secretariat Jeanette Radcliffe, Committee Secretary Apolline Kohen, Acting Committee Secretary Anna Hough, Principal Research Officer Kathleen McGarry, Senior Research Officer Andrew Back, Senior Research Officer Carol Stewart, Administrative Officer

PO Box 6100 Parliament House Canberra ACT 2600 Phone: 02 6277 3515 Fax: 02 6277 5829 E-mail: community.affairs.sen@aph.gov.au Internet: www.aph.gov.au/senate_ca

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Table of Contents

Committee Members ........................................................................................................................ iii

Terms of Reference .......................................................................................................................... vii

List of Recommendations ................................................................................................................. ix

Note on Previous Reports ................................................................................................................. xi

Chapter 1—Public interest immunity claims................................................................................. 1

First claim in relation to legal advice ................................................................................................ 1

A disregard for the Senate’s resolution ................................................................................. 2

Second claim in relation to legal advice ............................................................................................ 3

Additional information received 13 August 2020 ................................................................ 4

Continuing to seek this evidence ............................................................................................ 5

Claim in relation to an Executive Minute ......................................................................................... 6

Disclosure of deliberations of Cabinet ................................................................................... 6

The document has been provided before .............................................................................. 6

What is the public harm? ......................................................................................................... 7

Government Senators' Dissenting Comments .............................................................................. 9

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Terms of Reference

Centrelink’s compliance program, with specific reference to:

(a) the ongoing impact of the Federal Government’s automated debt collection processes upon current and past income support recipients;

(b) data-matching techniques used by Centrelink, including limitations and uncertainties of data-matching techniques and error-handling processes;

(c) the handling of under-payment errors, including the number of payments identified and made through data-matching following an under-payment error;

(d) the use of real-time wages data and other techniques to prevent overpayment;

(e) the capacity and adequacy of Centrelink and the Department of Human Services to deliver the program, including the use of contract staff and the impact of staff performance targets on the program;

(f) the error rates in the issuing of initial letters and debt notices, the causes of these errors and what steps are routinely taken when errors are identified;

(g) the procedures that have been put in place to prevent future errors;

(h) the number of initial letters and debt notices sent out and the number of debts that have been recovered;

(i) the review process and appeals process for debt notices, including the number of reviews and appeals undertaken;

(j) the use and legality of the debt collection processes used by Centrelink and the Department of Human Services;

(k) the use of debt collectors in the compliance program; and

(l) the cost of the compliance program to date, including the projected and actual amount raised from the program.

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List of Recommendations

Recommendation 1

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.

Recommendation 2

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.

x

Recommendation 3

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.

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Note on Previous Reports

This is the third interim report of the Senate Community Affairs References Committee's current inquiry into Centrelink's compliance program.

The first interim report, relating to a claim of public interest immunity received in the course of the inquiry, was tabled on 11 February 2020.

The second interim report was tabled on 1 September 2020 and provided a detailed summary of the evidence received in the first year of the inquiry.

The Senate Community Affairs References Committee's previous inquiry into the same program (Design, scope, cost-benefit analysis, contracts awarded and implementation associated with the Better Management of the Social Welfare System initiative) tabled its report on 21 June 2017.

These previous reports are available at www.aph.gov.au/senate_ca.

1

Chapter 1

Public interest immunity claims

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’;1 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.2

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.3

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

1 The Hon Stuart Robert MP, Minister for National Disability Insurance Scheme and Minister for

Government Services, Public Interest Immunity Claim, received 24 January 2020; The Hon Stuart Robert MP, Minister for National Disability Insurance Scheme and Minister for Government Services, Public Interest Immunity Claim, 29 July 2020 (tabled by the Department of Social Services, 31 July 2020).

2 The Hon Stuart Robert MP, Minister for National Disability Insurance Scheme and Minister for

Government Services, Public Interest Immunity Claim, 13 August 2020.

3 Senate Community Affairs References Committee, Centrelink's compliance program - Interim Report,

11 February 2020.

2

 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.4

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.5

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.6

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.7

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

4 Senate Community Affairs References Committee, Centrelink's compliance program - Interim Report,

11 February 2020, p. 2.

5 Senate Community Affairs References Committee, Centrelink's compliance program - Interim Report,

11 February 2020, p. 2.

6 Journals of the Senate, No. 43, 24 February 2020, p. 1420.

7 Services Australia, answer to question on notice no. 14 and answers to written questions on notice

nos. 6, 9, 10, 16, 43, 53-61 and 64, 16 December 2019 (received 24 February 2020).

3

rejected claim, and to grant an opportunity for the minister to revise the content of the answers if they had been provided in error.8

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.

Recommendation 1

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.9

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

8 Letter from Senator Rachel Siewert, Chair, Senate Community Affairs References Committee, to

The Hon Stuart Robert MP, Minister for Government Services, 6 April 2020.

9 The Hon Stuart Robert MP, Minister for National Disability Insurance Scheme and Minister for

Government Services, Public Interest Immunity Claim, 29 July 2020 (tabled by the Department of Social Services, 31 July 2020).

4

(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.10

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.11

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.12

1.22 The minister informed the committee that he had decided:

10 See, Order of Justice Murphy in Katherine Prygodicz & Ors v The Commonwealth of Australia,

(Federal Court of Australia, VID1252/2019, 19 June 2020); Order of Justice Lee in Katherine Prygodicz & Ors v The Commonwealth of Australia, (Federal Court of Australia, VID1252/2019, 30 July 2020); Order of Justice Lee in Katherine Prygodicz & Ors v The Commonwealth of Australia, (Federal Court of Australia, VID1252/2019, 13 August 2020).

11 Senator Rachel Siewert, Chair, Senate Community Affairs References Committee, Proof Committee

Hansard, 31 July 2020, p. 13.

12 The Hon Stuart Robert MP, Minister for National Disability Insurance Scheme and Minister for

Government Services, Public Interest Immunity Claim - Additional Information, 13 August 2020.

5

… 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.

Recommendation 2

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

6

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 2015.13

1.31 This Executive Minute was cited in the Commonwealth Ombudsman's Centrelink's automated debt raising and recovery system report in April 2017,14 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.15

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.

13 The Hon Stuart Robert MP, Minister for National Disability Insurance Scheme and Minister for

Government Services, Public Interest Immunity Claim, 13 August 2020.

14 Commonwealth Ombudsman, Centrelink's automated debt raising and recovery system, April 2017,

p. 5, footnote 8.

15 Odgers' Australian Senate Practice, 14th edition, p. 665.

7

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’.16

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.

Recommendation 3

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.

16 Ombudsman Act 1976, para. 9(3).

8

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

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Government Senators' Dissenting Comments

1.1 Government Senators do not support the Senate Community Affairs References Committee Third Interim Report into Centrelink’s Income Compliance Program (Program) as presented by the Australian Labor Party and the Australian Greens Senators.

1.2 Government Senators also note that this is the third interim report tabled by the Committee and that these dissenting comments should be reviewed in conjunction with the first and second interim report dissenting comments.1

1.3 It is the strong view of Government Senators that the claims of public interest immunity (PII) in regard to relevant Cabinet materials and legal advice provided with respect to the Income Compliance Programme made by the Hon Stuart Robert MP, the Minister for the National Disability Insurance Scheme and Minister for Government Services (Minister), and received by the Committee on 24 January 2020, 31 July 2020 and 13 August 2020 are valid.2

PII Claim - Legal Professional Privilege 1.4 As originally stated by the Minister in his initial PII claim '(i)t has been the long-standing practice of successive Australian Governments not to disclose legal advice'.3 Government Senators note that this has also been the practice of

both Labor and Coalition governments.

1.5 It continues to be the view of the Government Senators of the committee that it is not in the public interest to depart from this established long-standing practice and believe it is integral that legal advice provided to the Commonwealth remains confidential.

1.6 Whilst legal professional privilege alone has not been accepted by the Senate as a grounds for withholding information,4 PII claims based on legal professional privilege have been accepted where it has been 'established that there is some particular harm to be apprehended by the disclosure of the information, such

1 Senate Community Affairs Reference Committee, Centrelink’s compliance program - Interim report,

Government Senators’ dissenting comments, 11 February 2020; Senate Community Affairs Reference Committee, Centrelink’s compliance program - Second interim report, Government Senators’ dissenting comments, 1 September 2020.

2 The Hon Stuart Robert MP, Public Interest Immunity Claim, received 24 January 2020; The Hon

Stuart Robert MP, Minister for National Disability Insurance Scheme and Minister for Government Services, Public Interest Immunity Claim, 29 July 2020 (tabled by the Department of Social Services, 31 July 2020); The Hon Stuart Robert MP, Minister for National Disability Insurance Scheme and Minister for Government Services, Public Interest Immunity Claim, 13 August 2020.

3 The Hon Stuart Robert MP, Public Interest Immunity Claim, received 24 January 2020.

4 Odgers’ Australian Senate Practice, 14th edition, Chapter 19.

10

as prejudice to pending legal proceedings or to the Commonwealth's position in those proceedings'.5

1.7 The risks of harm to the Commonwealth are not merely hypothetical or theoretical, with a class action in relation to the Program - Prygodicz & Ors v Commonwealth - currently live in the Federal Court. The potential prejudice to the Commonwealth in the context of this litigation alone meets the Senate’s test.

1.8 Government Senators consider that the totality of the correspondences outlining the Minister's PII claims in respect of materials covered by legal professional privilege is sufficient to justify that provision of this information to the committee would cause harm to the public interest. This includes harm caused by the disclosure of contextual information that might otherwise normally be regarded as ancillary.

1.9 Government Senators note, in particular, the clear explanation from the Minister for this position in his correspondence of 13 August, which states:

I acknowledge that in many circumstances information about legal advice (such as the cost, timing and provider of such advice) can be disclosed to a Senate Committee without specific harm to the public interest flowing from that disclosure. However, that position is different in these circumstances because of the issues that are central to the class action.

As set out in the PII letter, the claims of the applicants in the class action include a negligence claim for damages. Possible additional claims for exemplary damages and misfeasance in public office have also been foreshadowed.

The applicants have said, in public hearings of the litigation, that the legal knowledge of the Commonwealth or Commonwealth officials at particular times would be relevant to determination of these claims. Information about the cost, timing and provider of relevant legal advice relates directly to that issue. While any evidence given to the Committee would be covered by Parliamentary Privilege and not admissible in the Federal Court to prove the matters to which the evidence relates, the disclosure of this information under these specific circumstances could potentially prejudice the Commonwealth’s position in the litigation. It would therefore not be in the public interest for the information to be publicly disclosed.6

1.10 It is clear from the Minister's correspondence that the risk of harm to the Commonwealth is not just from the practical existence of the class action litigation, but the specific causes of action being claimed in the case, or being foreshadowed to be claimed.

5 Odgers’ Australian Senate Practice, 14th edition, Chapter 19.

6 The Hon Stuart Robert MP, Minister for National Disability Insurance Scheme and Minister for

Government Services, Public Interest Immunity Claim - Additional Information, 13 August 2020.

11

1.11 In the context of the significant and ongoing active legal adjudication of aspects of the Program, including through a class action brought against the Commonwealth, it is difficult to imagine more directly relevant circumstances where the conventions of legal professional privilege could and should apply. On this basis, the Minister's PII claims regarding all materials in relation to the Program covered by legal professional privilege should be upheld by the Senate and that production of this material should not be ordered by the Senate.

PII Claim - Cabinet Materials 1.12 Government Senators note that on 13 August 2020, Minister Robert wrote to the Committee to outline a PII claim over an Executive Minute dated 15 February 2015 which was being sought by members of the Committee. In his

correspondence the Minister stated:

The Committee has requested a copy of the Executive Minute to the Minister for Social Services dated 12 February 2015 (the Minute) that was referred to in the Commonwealth Ombudsman’s 2017 report into Centrelink’s automated debt raising and recovery system.

Revealing this information would or could reasonably be expected to disclose the deliberations of the Cabinet. On that basis, I claim public interest immunity in relation to providing the Minute.

It is in the public interest for the deliberations of the Cabinet not to be made public. The deliberations of the Cabinet and its committees should be conducted in secrecy so that the freedom of those deliberations can be preserved. It is not in the public interest to disclose information about the Cabinet’s deliberations as it may impact on the Government’s ability to receive confidential information and make appropriate decisions impacting on the Australian community. This is a well-established basis for a public interest immunity claim.7

1.13 Government Senators note the Minister’s advice that the disclosure of the Minute 'would or could reasonably be expected to disclose the deliberations of Cabinet', and that this is an acceptable ground for a public interest immunity claim. 8

1.14 Government Senators note that in their majority report, Labor and Greens Senators appear to question whether the Minute would disclose the deliberations of Cabinet on the basis that Services Australia appears to not have refused to provide the document to the Commonwealth Ombudsman as part of his investigations into the Program, despite the purported availability

7 The Hon Stuart Robert MP, Minister for National Disability Insurance Scheme and Minister for

Government Services, Public Interest Immunity Claim, 13 August 2020.

8 Odgers’ Australian Senate Practice, 14th edition, p. 665.

12

of a PII exemption at the time.9 It is important to note that a limited disclosure to an operational Commonwealth entity is not inconsistent with the maintenance of Cabinet confidentiality.

1.15 Government Senators note that challenges to the Commonwealth’s claims over documents related to the Program attracting coverage by legal professional privilege and public interest immunity, including Cabinet documents such as the Executive Minute in question, were heard and dismissed by the Federal Court as part of the class action. Government Senators accept that this decision puts beyond doubt the point that the Executive Minute can properly be the subject of a legitimate PII claim by the Minister.

In Camera Evidence 1.16 In their majority report, Labor and Greens Senators state 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 legal issues surrounding the [P]rogram'.10

1.17 Government Senates note that the Minister has expressly and actively considered and rejected this approach, offering the following explanation:

I have considered whether the possible harm to the public interest could be avoided if information about relevant legal advice was provided to the Committee as in camera evidence. Even if evidence is taken in camera, the evidence may later be published. I have decided that, given the potential magnitude of the applicants’ claims in the class action, there may still be harm to public interest if the relevant information was provided as in camera evidence.11

1.18 Government Senators agree with the Minister’s point in relation to the capacity of the Committee to elect to later publish any information provided to it in camera. It is noted that this could occur irrespective of the Government’s position on publishing and irrespective of the views of Government Senators. Disappointingly, Government Senators note that, to date, even basic issues raised with the Committee as feedback around demonstrable factual errors has been ignored, and that this jeopardises the spirit of good faith underpinning Committee operations. Therefore, Government Senators agree that providing in camera evidence in this context would equate to the same risk profile as public disclosure.

9 Senate Community Affairs Reference Committee, Centrelink’s compliance program - Third interim

report, para. 1.37.

10 Senate Community Affairs Reference Committee, Centrelink’s compliance program - Third interim

report, para. 1.26.

11 The Hon Stuart Robert MP, Minister for National Disability Insurance Scheme and Minister for

Government Services, Public Interest Immunity Claim - Additional Information, 13 August 2020.

13

Conclusion 1.19 On the basis of all of the above, Government Senators believe the recommendations of the majority Third Interim report should be rejected by the Senate.

Senator Wendy Askew Deputy Chair

Senator Hollie Hughes