Morrison government tells tribunal robodebt documents must stay secret to protect cabinet process
The Morrison government has told a tribunal there is “strong public interest” in preserving the secrecy of “business case” documents that may outline the nucleus of the unlawful robodebt scheme.
IT expert Justin Warren won access to documents connected to the sincescrapped welfare debt recovery program under freedom of information laws in 2019, but he is yet to receive them after the government appealed against the decision.
Warren’s lawyer argues there is “profound” public interest in release because they may shed light on what went wrong with the scheme, which eventually saw the government reach a $1.8bn settlement with about 400,000 victims in what the federal court called a “shameful chapter”.
The Administrative Appeals Tribunal, which is considering the government’s latest attempt to keep the documents secret, heard closing arguments from both parties on Thursday.
The tribunal has previously heard the documents include detailed costings and other financial data about the program, which matched yearly income data against a person’s fortnightly reports to Centrelink to send a person a debt.
They are also said to include draft “new policy proposal” documents and purported attachments that outline a new plan to ramp up the government’s welfare debt recovery.
The tribunal is considering, among other issues, whether the documents were prepared for the cabinet process or were simply being worked on internally by the then Department of Human Services, which administered the robodebt scheme.
Counsel for the commonwealth, Andrew Berger QC, insisted on Thursday the documents should not be released because they were prepared for cabinet.
“There is a very strong public interest in protecting from disclosure cabinet documents, whether they be at the dead centre of cabinet, such as cabinet notebooks, or further away from the epicentre of cabinet,” he told the tribunal.
That extended to “preparatory documents”, such as some of the documents in question, he claimed.
The tribunal has heard the documents never made it to cabinet itself, though one is a draft of a document that did, and the commonwealth argues information in other documents also appeared in newer material subsequently considered by cabinet.
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In asserting the public interest in keeping the documents secret, Berger argued ministers would not receive full and frank information if there was concern any deliberations would be made public.
He also told the tribunal Warren’s public interest arguments weren’t “actually borne out by the information in the documents”.
Warren’s lawyer, Tom Brennan SC, said the commonwealth had failed to demonstrate why the documents should stay secret.
Senior ministers between 2015 and 2016 included the former social services ministers, Scott Morrison and Christian Porter, who were members of cabinet, and the former human services ministers, Marise Payne and Alan Tudge, who were not.
Brennan argued the Commonwealth had not proven that Morrison, as the cabinet minister at the time, had authorised the preparation of the material in question.
“If it’s not before you then the case isn’t proven,” Brennan said.
Because the commonwealth has appealed an earlier decision, it faces the onus of proof to show why the documents must be suppressed.
Brennan said understanding of the “shameful” robodebt scheme would be “significantly enhanced by the disclosure of the documents in issue”.
The public interest in release was “profound”, he said.
The AAT hearing is one of several efforts the government has made to block the release of robodebt documents.
The government services minister, Linda Reynolds, is facing a possible referral to the privileges committee for the government’s repeated refusal to hand over documents requested by the Senate.
Labor has also promised a royal commission into the scheme if it wins the election.
On Thursday, the Guardian revealed the government had reached a $2m settlement over a class action that claimed another welfare program – known colloquially as “remote work for the dole” – was unlawful on the bounds of racial discrimination.
Warren’s case is being run pro bono by Maurice Blackburn and the Grata Fund’s FoI Project.
The tribunal deputy president, Peter Britten-Jones, reserved his decision.