Services Australia 'legal privilege' robo-debt claim refused by Senate committee

Minister for Government Services Stuart Robert's claim of "legal professional privilege" has been refused by the Senate Community Affairs References Committee, resulting in the committee asking the Minister responsible for Centrelink's Online Compliance Intervention (OCI) program to hand over the documentation that Robert refused to provide.

On 16 December 2019, the committee gave Services Australia the ability to provide further information on notice. The deadline for providing this information was January 24 before the committee decided to extend it to February 7, citing the department's involvement in helping those affected by the country's bushfire emergency.

See also: Why Australia is quickly developing a technology-based human rights problem (TechRepublic) 

"The minister sets out a claim of public interest immunity in relation to: … the confidential legal advice … and the details surrounding any such advice, including the frequency at which that legal advice has been sought, the source of any such advice and the dates it may have been provided," a letter [PDF] penned by Robert states.

In its interim report [PDF] into the Centrelink data-matching -- robo-debt -- program, the committee said the correspondence outlining the minister's claim, which appears to be made on the grounds of legal professional privilege and prejudice to legal proceedings, "does not sufficiently justify that the provision of this information to the committee would cause harm to the public interest".

"The committee notes that legal professional privilege has not been accepted in the Senate as grounds for refusing to provide information or documents," it wrote.

"The Senate has rejected government claims that there is a long-standing practice of not disclosing legal advice; legal advice to the federal government is often disclosed by the government itself."

Similarly, while the committee said it recognises that "prejudice to legal proceedings" may be an accepted ground for refusing to provide documents, pointing to the class action currently before the Federal Court, it said it was not satisfied with the minister's explanation of the specific harm to the public interest that would arise from revealing the documents. 

Poking further holes in Robert's request, the committee said his correspondence "does not conform with the requirements for public interest immunity claims under Procedural Order 10(4)", as it "fails to address whether the 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".

The overall finding from the committee is that the claim for public interest immunity does not sufficiently justify withholding the requested information.

Making a single recommendation, the committee has asked that the minister representing the Minister for Government Services provide responses to all questions placed on notice by Senators Rachel Siewert and Deborah O'Neill relating to legal advice and Centrelink's compliance program no later than 10:00 am AEDT on 24 February 2020.

The information it is seeking relates to briefings between Robert and Services Australia regarding current legal proceedings; the frequency and dates of legal advice obtained by Services Australia in relation to any aspect of the compliance program and, specifically, whether a debt or debt components can be found on extrapolations from Australian Taxation Office (ATO) records; legal advice about the lawfulness of debts based solely on extrapolations from ATO 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.

The OCI program in question compares the income declared to the ATO against income declared to Centrelink, resulting in debt notices, along with a 10% recovery fee. 

The system had one large error where it would incorrectly calculate a recipient's income by basing fortnightly pay on their annual salary rather than taking a cumulative 26-week snapshot of what an individual was paid.  

In response [PDF] to the interim report, the government said it does not support the report's contents and that the claim of public interest immunity made by Robert is valid.

"It is 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," it wrote.

Regarding the claim that robo-debt provided the government with AU$1.5 billion in revenue, former Labor leader and now Shadow Minister for Government Services Bill Shorten said "probably most of it" should be returned to the individuals who paid.

See also: Shorten likens 'robo-debt' to the logic and ethics of a mob standover

"Just relying on a computer algorithm was a stupid idea," he said. "It doesn't take into account that sometimes people are unemployed and people are employed … they have relied on a computer-generated program.

"But what I've discovered in the last few months and now the courts have established, is it's actually illegal. In other words, the government didn't have the power to just rely on a computer program without checking it before they sent the letter of demand out to vulnerable Australians."

Shorten called it a "scandal".

"This is a situation where the government of Australia, the biggest entity, the most powerful organisation in Australia has been unlawfully creating debts from citizens to the Commonwealth which were just invalid," he continued.

Pointing to an email from the ATO's general counsel from November that saw Canberra concede that parts of robo-debt were unlawful in relation to a single case, Shorten was asked whether he had been aware that that was the first time the government received legal advice and if halting certain parts of the scheme was doing the right thing.

"If you have been breaking the law for three-and-a-half years and then you decide to stop breaking the law does that make you good or bad? At best it makes you look stupid because you didn't know you were breaking the law for three and a half years -- at worst it makes you negligent beyond belief," he said.

"Only two things can explain this .. one: The government were so greedy there they wanted to go after welfare-shaming-blame-the-poor-they-are-all-ripping-things-off and they didn't bother to check the detail. Or two: They did check the detail and they just didn't care.

"Either way it is an incompetent scandal and in this government where blame never sticks to the elected ministers."

Shorten wants the government to apologise for taking money "using the wrong power".

MORE ON ROBO-DEBT

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• Robert defends robo-debt averaging as 'entirely appropriate'
• Over 13,000 Centrelink 'first review' decisions finalised by the AAT in one year
• Over 617,000 robo-debts raised since data-matching project's inception
• Robo-debt: ATO relied on DHS data when garnishing tax returns
• DHS reckons the customer is at the centre of new and improved robo-debt program