The Senate has ordered government to release legal advice it received on the highly controversial robodebt scheme, as Labor called for everyone who paid a ‘debt’ under the program to be refunded.
The Senate Community Affairs References Committee is currently inquiring into Centrelink’s compliance program, known as robodebt.
With its final report due by the end of March, the Greens and Labor-led committee produced an interim report on Tuesday calling out government for claiming public interest immunity over the legal advice, and saying it should produce all of the relevant documents.
The report revealed that Government Services Minister Stuart Robert submitted a public interest immunity claim in late January to block the release of any legal advice the government received on robodebt, which had been requested by the committee.
Mr Robert made the claim based on legal professional privilege and that it would prejudice current court proceedings involving the scheme.
But this argument was rejected by the Labor and Greens Senators, who said it “does not sufficiently justify that the provisions of this information to the committee would cause harm to the public interest”.
“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,” the report said.
The government also failed to make the case for how releasing the legal advice would harm the public interest.
“The committee considers 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,” the committee said.
The Senate agreed to a motion requiring the government to produce the documents relating to the legal advice it received about robodebt by 24 February.
“This is very important advice, because we need to know when the government sought advice, how many times they did and how long they had known that, in fact, it wasn’t legal – that some of these debts weren’t legally raised,” Greens Senator and Community Affairs References Committee chair Rachel Siewert said.
“We are deeply concerned to ensure that we get access to this information in order for us to understand the basis on which this robodebt program is claimed. We need to understand when the government first knew about these particular debts, when they acted and under what circumstances they received that legal advice.”
Emails between high-level ATO officials recently released by the committee revealed that government had received legal advice that some robodebts were “not lawful debts”. The emails, from November, do not reveal when the legal advice was received though.
Labor Senator Malarndirri McCarthy accused the Coalition of trying to “cover-up” the robodebt scandal.
“The committee voted to make this letter public because it grossly mischaracterises the mechanism of public interest immunity and represents the continuing prerogative of the Liberals to avoid scrutiny, shirk responsibility and cover up their unlawful ideological motivated war waged on social security recipients,” Senator McCarthy said.
“Labor is calling on this government to come clean that a mistake was made, and admit it acted unlawfully, apologise to those affected by this harsh and inaccurate program, pay back the money to people from whom it unjustly enriched itself and detail the program for repayment.”
The Senate motion was rejected by government senators in a dissenting report, which said the public interest immunity claim was “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,” the Coalition senators said.
Releasing the legal advice would “cause harm to the public interest” and “may compromise” the Commonwealth’s legal position in an ongoing Federal Court case.
Shadow government services minister Bill Shorten has now said that all robodebts raised based solely on the flawed income averaging should be repaid.
“The first thing they should do is identify everyone [where] they have relied on this unlawful robodebt scheme and say, ‘sorry we took the money using the wrong power, so we’ll give it back to you’,” Mr Shorten said.