The Morrison Government fought long and hard to suppress early Robodebt policy documents, spending $250,000 in the process. But the Labor Government has spent another $650,000 in the same fight, Rex Patrick reveals.
Justin Warren, a well-educated technology analyst with a strong sense of ethics, was ahead of the game. It was back in December 2016 after journalist Asher Wolf brought RoboDebt to his attention.
She showed him an answer to a question on notice from then Labor Senator Cameron. It advised of comparisons of Tax Office data with Services Australia data that identified a debt to the government 85% of the time, with an average debt of $1,440.
Mr Warren smelt a technical rat, and wanted to know more. He told MWM that he wasn’t just motivated by a likely abuse of poor people but also by the idea that if the approach was accepted, it would then be rolled out more broadly, including on small businesses.
Mr Warren is one of these people who is not inclined to let lying dogs (inside government) sleep.
RoboDebt FOI Request
In January 2017, Warren submitted an FOI to Services Australia to get access to documents that would help him understand the program. Information is power in any fight with government.
But there was too much at stake for the Morrison government to let transparency get in the way of the RoboDebt program. It took five months for Services Australia to provide Mr Warren with a decision: access was refused in full to all 13 documents to which he requested access.
A seasoned FOI’er, in mid-May 2017, Mr Warren appealed the decision to the Information Commissioner. Services Australia probably did not mind too much; IC reviews can bury documents for years.
Meanwhile, collection under the RoboDebt continued. Commercial debt collectors were engaged. Financial and social distress mounted. Bureaucrats ignored debt appeal decisions of the Administrative Appeals Tribunal (AAT). Suicides started and continued.
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AAT Appeal
It took two and a half years, until November 2019, before the Information Commissioner made a decision. Ten of the 13 documents Mr Warren requested were ordered to be released.
But the Morrison Government wasn’t having any of that. They appealed the Information Commissioner’s decision to the AAT, burying the documents (as it turned out) until well after the cancellation of the RoboDebt program, a change of Government and even a Royal Commission.
Indeed, even though Mr Warren has since won in the Full Federal Court he still doesn’t have the documents.
A question on notice from Senator Jacqui Lambie has now revealed that the price paid by the Morrison Government for its lawyers in the AAT was $256,315. They no doubt thought the delay was worth the money (just taxpayers’ dollars, in any case), and they even won that round.
Mr Warren described his battle with the AAT on his blog. He explained how the AAT (Administrative Review Tribunal – ART – as of today) is supposed to be a relatively informal place to go to sort out a disagreement with the government. He then adds:
“In practice, if the government decides it wants to fight you, you will be massively outgunned and at a huge disadvantage. Not just on the legal reasoning but on all the legal process and admin stuff that surrounds the actual legal argument bits. There’s a whole bunch of insider knowledge here that makes a big differenCE to your odds of success, and that’s part of what you buy when you pay a lawyer. Pro tip.
“Yes, it’s massively unfair. Like everything else in society. Cui bono?”
Halfway through his AAT proceedings, Mr Warren found support from The Grata Fund who organised assistance from good Samaritan barristers Tom Brennan SC and Glyn Ayres, supported by Maurice Blackburn’s social justice team.
But even with a silk and barrister supporting Mr Warren, Service Australia didn’t behave.
After the AAT hearings had concluded and the Tribunal was considering its decision, Services Australia sought to reopen the proceedings using confidential evidence written by a senior official, Ms McGregor of Prime Minister and Cabinet, that contradicted her own open evidence. This was outrageous;
The Full Federal Court later found Services Australia caused a denial of procedural fairness to Mr Warren.
On 2 December 2022, the AAT overturned the IC decision. Only one of the 13 documents was to be released. Services Australia and Mr Warren’s legal team are now negotiating what should be released given the Federal Court’s decision.
Court secrecy pitch
It’s worth pointing out that whenever the Commonwealth is in the Federal Court, it is open to negotiating an outcome that narrows or ends the proceedings. In early 2020, Mr Warren appealed to the Full Court.
Despite the Federal Court determining in 2021 that RoboDebt was illegal, and despite the fact that when Mr Warren made his application to the Full Federal Court, the RoboDebt Royal Commission was in full swing (and had concluded months before the Full Court Hearings), the Albanese Government continued the fight against Mr Warren.
Why? Well, the proceeding involved something more important to the parties of Government. Both the Coalition and then Labor were absolutely determined to defend, much more than having poor people being subjected to bureaucratic abuse to the point of taking their own lives, that the really important thing was the ‘right’ of governments to operate in secrecy.
Mr Warren, who told MWM he absolutely respects Cabinet confidentiality, was encroaching on a secrecy claim that ministers and officials use all the time – Cabinet aroma.
The doctrine of Cabinet confidentiality protects Cabinet solidarity and collective responsibility. It protects the views of the Minister in written submissions to Cabinet or what he or she says in Cabinet deliberations. That’s it! A Department’s view doesn’t get the Cabinet protection, even if a minister later adopts the position. The Department’s view will be reformatted into a cabinet submission signed off by a minister, and only that submission will be protected.
Mr Warren was challenging the practice of sprinkling Cabinet ‘fairy dust’ on anything vaguely related to Cabinet.
The Labor Government enters the fray
In what must be seen as a remarkably politically inept decision, Prime Minister Albanese and Attorney-General Mark Dreyfus shovelled another $394,188 of taxpayer’s money to lawyers to try to protect the Cabinet ‘fairy dust’ practices of officials.
That’s Labor spending nearly $400,000 cash on the barrelhead to protect Scott Morrison’s dirty secrets.
And that’s not all.
Because the Government failed in the Federal Court, and because of the loss and the foul play by Services Australia in the Tribunal, taxpayers will be forking out another $200K to $300K to pay for the work of the good Samaritans who went into bat for Mr Warren. Let’s say $900K all up!
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Open in new tab Morally bankrupt
RoboDebt was a shameful and massive failure of public administration for which it seems no-one will be held to account. The human casualties, social damage and the financial losses have been immense.
Some might also question the point of spending all that taxpayer’s money on a Royal Commission that results in no accountability. Prime Minister Albanese failed to complete the job. However, the Royal Commission is not the focus of this article.
Albanese came to government promising transparent and accountable government. The more than a million dollars he has spent on anti-transparency cases just against me is evidence of this. The $650K he spent defending an unsustainable Cabinet fairy dust is evidence of this.
Maybe I’m being a little harsh. The one real benefit to flow from the Full Court case of Warren v CEO of Services Australia is the locking of the fairy dust cupboard. Cabinet secrecy should no longer be so casually asserted. I’ve already taken advantage of this in some of my FOI fights.
The silver lining in the disgraceful behaviour displayed in this case across both Liberal and Labor governments is that a valuable precedent to help enforce greater transparency in the future has been established. It can involve a big fight and a lot of persistence, but that’s what it sometimes takes to force change for the better.
So, thank you, Justin Warren.
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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.