by Isabelle Reinecke. Published in The Canberra Times.
It shouldn’t have taken a Royal Commission to air the fundamental rot of the Robodebt scheme.
The Robodebt Royal Commission report exposed the elaborate deception that allowed a cruel and illegal scheme to flourish. But the public should have been able to find out what happened much earlier using the Freedom of Information system — an argument the Commissioner herself makes.
Proposed to Parliament by Whitlam and enacted by Fraser, Australia’s FOI system was designed to be a check on government power and a safeguard to our democracy. Whitlam envisioned it as a way to “end to excessive, paranoiac secrecy in government…giv[ing] every member of the public a guaranteed right to public information.”
This latest chapter of public administration shows just how far we’ve strayed from this bipartisan vision of transparency. Robodebt related FOI requests of substantial public interest were denied, keeping public watchdogs like journalists and civil society advocates in the dark on key facts while the scheme charged ahead wreaking havoc in the lives of some of the most disadvantaged members of our community.
Watching politicians, so used to obfuscation, squirm under questioning by Commissioner Catherine Holmes, the former Chief Justice of the QLD Supreme Court, was exceptionally satisfying. Holmes found advocates trying to “get to the bottom of how the scheme came to pass” were “thwarted” by sweeping exemptions protecting cabinet documents from disclosure. After wading through more than 10,000 exhibits and 3,030 hours of testimony, she says the stake were clear: had these documents had been made public at the time they were subject to FOI requests, we would have known that the government held legal advice that Robodebt “could not occur without legislative change”, and “that Cabinet was told nothing of those things”.
This critical evidence could have condemned Robodebt and architects of the scheme years ago. Commissioner Holmes directly tackles this furtive secrecy in a closing observation where she calls for the repeal of the cabinet confidentiality section of the FOI Act so that confidentiality can only be maintained where it’s reasonably justified or in the public interest.
Transparency campaigner Justin Warren has been battling unreasonable refusals about early drafts of New Policy Proposals held by the Department and final versions that went to Cabinet that have been subject to Commissioner Holmes criticism. In 2017, just a year after Robodebt was launched, Warren made an FOI request for early business plans and other documents produced by the Department of Human Services to justify the rollout of the scheme. The Department rejected the FOI request on the basis that the relevant documents were “Cabinet documents” and therefore exempt from disclosure — a decision disputed by Mr Warren that had made its way through the Administrative Appeals Tribunal and will be heard at the Full Federal Court in August this year.
It’s very likely that if released when requested - those documents could have shed light on the illegal scheme which the Commissioner described at the end of her investigation as ‘illustrating a myriad of ways that things can go wrong through venality, incompetence and cowardice’.
Australia’s FOI system is deeply broken. It is a shadow of the ideals Whitlam and Fraser hoped it would fulfill when they shepherded it through the parliament. Grata Fund conducted our own investigation into the operation of the FOI system where we found that that agencies and ministers rely excessively, and spuriously, on exemptions to refuse FOI requests or to heavily redact any documents released. We believe many of these decisions are unlawful and ripe for legal challenge.
Dysfunction goes well beyond overuse of exemptions. Documents held by outgoing ministers routinely disappear — as former Senator Rex Patrick found out when he sought letters sent from Christian Porter to the Prime Minister containing advice about the controversial ‘Sports Rorts’ affair, only to be told they no longer exist. Shameless gaming of the laws is rife.
Robodebt shows how the strength of transparency and accountability mechanisms like our FOI system have very real consequences for our communities. Robodebt’s architects abused Ministerial power and operated an illegal and, immoral scheme that stole money from the most financially disadvantaged and marginalised in our community. They played dirty and patently dishonest ad hominem politics about “dole bludgers” and “welfare cheats”. For years they were able to dodge accountability from bodies that should have been able to expose them: the Administrative Appeals Tribunal, Senate inquiries, the FOI system, the Commonwealth Ombudsman. The under-resourcing and diluting of these bodies is an insidious fraying of our democracy which affects all of our lives. It took litigation and a Royal Commission to air the rot.
These systems should be a check on executive power, a safeguard for our democracy — ensuring no one is above scrutiny and the law, not even Prime Ministers. Our democratic institutions must shine an unforgiving light in the darkest places of government administration.
The good news is that a Senate inquiry into the operation of FOI laws is underway, due to report in December. While it has gone ahead without the backing of the Labor Government, let’s hope the committee's recommendations are bold and transformative and that the government embraces its findings, along with those of Commissioner Holmes, to repeal the murky cabinet confidentiality exemption.
Isabelle Reinecke is the Executive Director and Founder of Grata Fund. Grata is a charity that incubates and supports strategic litigation that dismantles systemic injustice and protects the rights of people in our community.