Shredders and dustpans. Mark Dreyfus’ desperate sweep on taxpayers

    by Rex Patrick

 

Attorney General Dreyfus looks to spend thousands more taxpayers’ dollars to appeal a Full Federal Court decision that denied the right of ministers to shred politically sensitive documents as they leave office. Transparency Warrior Rex Patrick reports.

In correspondence to me, the Attorney General’s Department has given a strong signal that the Federal Attorney-General, the Hon Mark Dreyfus KC, will appeal his recent loss in the Full Federal Court to the High Court.

In May this year I won a case in the Federal Court against Mr Dreyfus that effectively prohibits ministers who leave office from sweeping their dirty secrets under the carpet on the way out – killing off any FOI rights for public access to controversial documents.

In her decision, Justice Charlesworth declared:

“I accept that there may be very strong political resistance to an outgoing Minister transferring documents forming the subject of a pending FOI request to a new incumbent, particularly on a change of Government. 

“This Court was told that it was common practice for documents not to be transferred. But the FOI Act is not concerned with party-political matters other than to the extent provided for in respect of documents correctly described as falling within certain exemptions. To the contrary, it is a regime devised to enlarge scrutiny of Government activities in accordance with its terms, including in cases where scrutiny is not wanted. If there be a common practice of the kind suggested to this Court in submissions, it is not one that is authorised or contemplated by the FOI Act and it should stop. 

“The balance between maintenance of secrecy and public access is one that is struck by the Parliament. It is legislation, not political or administrative convention, that is determinative of Mr Patrick’s rights in the present case.”

In short,

There were to be no more shredders used in ministerial offices on a change of minister.

However, Dreyfus, who is relying on the taxpayer to stump up the more than $400K spent on the case so far, lodged a misguided appeal. Last month, the Full Federal Court dismissed that appeal.

That’s not stopping Dreyfus, though.

Another appeal

Perhaps at the insistence of ministerial colleagues who don’t want pesky citizens to be able to scrutinise them, and perhaps because his own ministerial career will sooner or later come to an end, the Attorney-General appears to want to appeal the matter again.

In response to the Information Commissioner complying with the Federal Court’s order to finally progress the review, the Attorney-General’s department has foreshadowed a High Court appeal.

The Attorney-General’s Department has pointed to ground two of the judgement, which is where the Court determined that there exists an implied duty for a minister not to frustrate the right of the [FOI] requesting party to have the request determined, including on review or appeal. That includes an obligation not to shred documents.

An appeal will likely add more than $100K to the legal costs – shifting it up to a cool half million. It’s OK, Dreyfus is not paying – you are.

Dreyfus is hanging on tight to that shredder and his dustpan. Shred and sweep, Shred and sweep.

Slowing down transparency

If he loses, at the very least, he will have delayed by another six months the release of former Attorney General Christian Porter’s ‘sports rorts’ document that I’m seeking access to. The review of this matter by the Information Commissioner has already been in progress for five years – what’s another six to 12 months going to do apart from delaying an already long overdue FOI review?

If nothing else, if Dreyfus does seek special leave to appeal to the High Court it will guarantee this FOI matter will span three parliaments. It began in the 46th Parliament, has gone unresolved through the 47th Parliament, and will now likely extend into the 48th Parliament.

It’s remarkable that a Labor Attorney-General should go to such lengths to try to keep a document written by a Liberal predecessor secret,

a document that, when in opposition, Dreyfus loudly demanded scrutiny over.

But he’s clearly thinking about Labor’s dirt as much as that of the Coalition.

If Dreyfus wins, ministers will be safe again, and taxpayers will, for the sum total of $500K, continue to be left in the dark.

 

Rex Patrick

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 - www.transparencywarrior.com.au.

 

https://michaelwest.com.au/shredders-and-dustpans-mark-dreyfus-desperate-sweep-on-taxpayers/

 

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The price of secrecy. Labor’s own $650,000 Robodebt cover-up

by Rex Patrick | Oct 14, 2024

 

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.

 

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!

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.

 

https://michaelwest.com.au/the-price-of-secrecy-labors-own-900000-robodebt-scandal/

 

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YOURDEMOCRACY.NET RECORDS HISTORY AS IT SHOULD BE — NOT AS THE WESTERN MEDIA WRONGLY REPORTS IT.