The Robodebt Royal Commission lays bare a lack of regard for the rule of law among ministers and public servants yet the Prime Minister’s office is displaying a worrying lack of respect for rulings made by courts to protect citizen’s rights to know. Transparency warrior Rex Patrick reports.
The “Rule of law” is as old as the Magna Carta and recognised as key pillar of democracy. Harm, sometime irretrievable, comes when government officials don’t know the law, or worse still, they know it but don’t obey it.
In 2016, three Federal Court justices, Besenko, Robertson and Griffith, dismissed a government appeal of an earlier decision by (now High Court) Justice Jagot in a Freedom of Information case that determined the processing of a request for 237 days of Attorney-General George Brandis’ diary, in weekly view. The Federal Court ruled that it did not represent an unreasonable diversion of resources for his office.
Yet, in a number of recent requests to Prime Minister Albanese’s Office to access to his diary, mine for a period of 197 days, Senior Lawyer Simona Gory of the Prime Minister’s Office (PMO) has decided she knows better than the four judges, and ruled the request an unreasonable diversion of resources.
It’s an affront to the rule of law and an action that must be properly checked. But let’s return to that in a minute.
Robodebt Royal Commision
In the public hearings of the Royal Commission into the Robodebt Scheme we are seeing an unedifying revelation of a public service indifferent to the rule of law. It’s a picture in which the people at the highest levels of government agencies, extremely well paid and supposedly professional bureaucrats, are seen to ignore and disregard clear legal advice about the illegality of government actions.
Robodebt was a scheme that used automated processes to recover debts from income support recipients who were erroneously sent debt notices in circumstances where the debt was just made up, a product of faulty processes constructed without proper legal authority.
The Royal Commission has revealed that Social Services received several pieces of legal advice from 2014 (before the scheme started), through to 2019, that showed the scheme was unlawful. All of them were ignored by those responsible for the scheme.
Between March and September 2017, the Administrative Appeals Tribunal (AAT) made no less than five decisions “setting aside” debts because the income averaging that underpinned the scheme was not a lawful method for calculating the debt amounts. The decisions were all wilfully ignored by officials.
They did not appeal them, because they knew that losing a Federal Court appeal would bring the whole scheme undone. They just put the decisions to one side and continued doing what they were doing.
Only until the matter came before Federal Court Justice Murphy, did the Government finally concede the scheme was unlawful. But even then, officials fronting Senate Estimates could not bring themselves to say the word “unlawful”, rather they’d repeatedly say the scheme was “legally insufficient.”
Hopefully, the Royal Commission will fully expose those senior public servants who engaged in reckless indifference to the law. The expectation is that some will face charges and other will be fired.
That should certainly be the outcome, and one would hope that the leaders of Australian Public Service and government more broadly are digesting the lessons that are already clear and are resolved to put in place the reforms needed to ensure this never happen again.
Unfortunately, there are signs that this is not so, and that a disregard for the law persists in the PMO of all places.
It’s all just too hard
Last year, Ronald Mizen, a journalist for the AFR, requested access to the diary of the Prime Minister for his first 100 days in office. He made similar request of the Attorney General, the Treasurer, the Workplace Relations Minister and the Foreign Minister.
Officers of all ministries, except the PMO, released those diary entries. However, Simona Gory at the PMO refused to release Albanese’s diary on the basis that releasing it “would unreasonably divert” staff resources and also unreasonably interfere with Mr Albanese’s work.
I received the same reply when requesting 197 days of the Prime Minister’s diary on 5 December, 2022.
In the past week, a member of the public, who initially requested 14 days of the PM’s diary, reduced the request down to two days and was still refused access by Ms Gory because a “practical refusal reason” existed.
There are another 15 requests, all for different fortnights of the Prime Minister’s diary, that will probably be processed by Ms Gory and end in an adverse decision on obtaining access.
Inconsistent with the law
In 2015, Justice Jagot stated in her reasoning for granting access to Attorney-General Brandis:
I consider that there is a significant public interest in knowing the outline of the daily activities of elected representatives.
She went on to grant access to the diary ruling that, with an office of 18 people, a request for processing 237 days of the Attorney’s diary was not an unreasonable imposition on the Attorney’s office.
Access to Prime Minister’s diary must be considered of greater public interest than access to the Attorney’s diary. And with 56 staff, that is three times what Attorney-General Brandis had, and fewer diary days to processes, Ms Gory’s practical refusal decisions are diametrically inconsistent with established law and a Federal Court ruling.
And Ms Gory cannot be under direction, because the FOI Act requires that she be independent in her decision making (and accountable for it).
Cost and time spent on appeals
The three refusals to provide the requested diary entries from the PMO discussed above, have been referred to an already overloaded Information Commissioner. It’s likely a further 15 referrals will follow.
Each appeal will cost the Information Commissioner time and resources, and that means public money. Mr Mizen’s request for 100 days has been fast tracked to the Administrative Appeals Tribunal. The Prime Minister’s Office will have to engage external lawyers at even greater cost to the taxpayer to deal with that appeal.
“Stare decisis” is the legal doctrine of determining points in litigation according to precedent. It brings consistency and predictability to the application of the law. Whilst officials inside government may feign blindness to the law, the Tribunal will not. It will be bound by the decision of Justice Jagot, affirmed by the full Federal Court.
It is likely that Mr Mizen’s appeal will be settled by consent; meaning that the Australian Government Solicitor will consent to the Tribunal making a decision that the PMO be directed to process his request on account of the decision of Ms Simona Gory being legally unreasonable. Or even rule according to the ‘Wednesbury Principle” – a decision so unreasonable that no reasonable person acting reasonably could have made it.
Of course, all this will take time. And maybe that’s what this is about. Ms Gory is a well-qualified and experienced lawyer. I don’t doubt she knows the law and its processes. She knows that an AAT decision takes time, and by that time anything that is potentially politically damaging in the Prime Minister’s diary, and there probably is something there, given the obstruction. When a decision is eventually made, the diary entries will be increasingly irrelevant in a political environment in which memories are short and media and public interest spin is every faster.
And when the AAT eventually rules that Ms Gory is wrong, she’s won’t face any adverse consequences. On the contrary, within the Prime Minister’s Office, she’ll probably get a pat on the back for effectively delaying transparency and scrutiny of the Prime Minister’s political business.
Time to step in, Mr Albanese
This is not a story about diaries. It a story about the importance of the rule of law in a democracy.
Tribunals and courts set low and high legal tide marks within which officials can operate. Officials are bound to follow their decisions for the sake of consistency and predictability that underpins confidence in Government.
Anthony Albanese came into office promising to lift the ethical standards of Australian Government and to ensure that disasters such as Robodebt will not be repeated. His Government has gone some way towards this, and his Ministers have so far shown themselves to be more transparent than their Coalition predecessors.
But the Prime Minister needs to demonstrate leadership in regard to his own office. Whatever political embarrassment lurks within his official diary, he needs to put that aside and step in. A call to not oppose appeals of MS Gory’s FOI refusals can, and should, now be made by the Prime Minister.
On 30 November last year, when the House of Representatives was censuring former Prime Minister Scott Morrison, Mr Albanese rose and stated with force:
The fact is that our democracy is precious. There’s no room for complacency … we can’t take our democracy for granted.
Yet his own office is engaged in undermining the rule of law; a foundation for democracy. If the Prime Minister doesn’t act in this instance, he’s no better than the man that was censured on that day.
Duck, Weave and Waffle: Robodebt Royal Commission grills Scott Morrison
Rex Patrick is a former Senator for South Australia and earlier a submariner in the armed forces. Best known as an anti-corruption and transparency crusader, Rex is running for the Senate on the Lambie Network ticket next year - www.transparencywarrior.com.au.