In the 1993 Oscar nominated true-life drama In the Name of the Father starring Daniel Day-Lewis, a film about the Guildford Four, who were wrongly convicted of being IRA bombers, there is a pivotal moment where a lawyer finds a note that provides an alibi for the accused.
The note said “Not to be shown to the defence” and was hidden from the prosecution to make the Crown’s case against the Guildford Four stick. It worked and, until the note was discovered and justice prevailed, they were wrongly imprisoned for 20 years, with one of the four innocent people dying in jail.
In Australia, we could not imagine our Government burying legal advice that could prove someone’s innocence.
There is an ethos in Australia that the Government always has its people’s best interests at heart and, in legal matters, is a model litigant.
At the conclusion of the first week of the Robodebt royal commission public hearings, which commenced last week, Australians have learnt that the previous Coalition government received departmental and legal advice that indicated the Robodebt scheme was unlawful from its start.
The reckless Robodebt scheme used a faulty computer algorithm to create unlawful fake debts against hundreds of thousands Australians. It was created in a desperate attempt to deliver a Budget surplus that never arrived, at the expense of the lives and livelihoods of the poorest and most vulnerable people in the nation.
Robodebt ran from 2015 to 2019, when the Morrison government settled an historic class action, spearheaded by Gordon Legal and myself, for $1.8 billion to its victims on the steps of the Federal Court.
Australians have now learnt that, firstly, in 2014, at the start of the Robodebt scheme, the then Coalition government received advice from their own lawyers that the scheme was likely illegal.
Secondly, that the former Department of Social Services Director of Payments and Integrity, who was responsible for seeking the 2014 internal legal advice that warned income averaging to raise welfare debts was likely unlawful, said that he and his team were “almost immediately” concerned about the proposal, which he also described as “unethical.”
We need to know how an Australian government continued to run a scheme that sent hundreds of thousands of unlawful debt letters to innocent Australians when they must have known it was illegal.
Then, in 2018, top law firm Clayton Utz provided advice that the scheme was not able to be justified. This prompted internal emails saying this was “catastrophic”. Clayton Utz offered to rework advice.
Catastrophic and illegal. If these were two words were given to anyone as advice, you’d think the obvious response would be complete embarrassment you ever thought it was a good idea in the first place.
But for this royal commission, these revelations that the Coalition government received departmental and legal advice that Robodebt was illegal from 2014 would never have seen the light of day.
Lives were ruined, some families are adamant they lost loved ones in the aftermath. It was a tragic moment in Australian government public service history.
Menacing debt demands from the government can create massive pressure on vulnerable people.
Seven families have attributed their loved ones taking their own life to receiving Robodebt notices.
Like the Guildford Four, were these innocents our Robodebt Seven?
We need to know how an Australian government continued to run a scheme that sent hundreds of thousands of unlawful debt letters to innocent Australians when they must have known it was illegal.
The Robodebt royal commission was called to find out how the scheme was established and who decided to go ahead with it, despite it being unlawful.
During the first week of hearings, Royal Commissioner Catherine Holmes heard that it was common practice for government departments to receive external legal advice but didn’t have to use it, even if it said something was illegal – they simply ignored draft advice they didn’t like and pretended it didn’t exist.
On hearing this, Commissioner Holmes said she was “appalled” at this practice.
It’s the equivalent of doctor shopping to get medical advice or a prescription that suits.
It’s early days in the royal commission, which is scheduled to finish up in April 2023, and we don’t yet know how high up the advice that the scheme was illegal went.
What we do know is that from 2015 to 2019 when the unlawful scheme was operating, the following Liberal ministers were in charge of the scheme.
Scott Morrison, Minister for Social Services (2014-2015)
Christian Porter, Minister for Social Services (2015-2017)
Dan Tehan, Minister for Human Services (2015) and Minister Social Services (2017-2018)
Paul Fletcher, Minister for Families and Social Services (2018-2019)
Marise Payne, Minister for Human Services (2013-2015)
Stuart Robert, Minister for Human Services (2015)
Alan Tudge, Minister for Human Services (2015-2016)
Michael Keenan, Minister for Human Services (2017-2019)
History might not remember the names of these former ministers, but the victims of Robodebt surely will.
Especially the families of the Robodebt Seven.
This opinion piece was first published in The West Australian on Wednesday 9 November 2022.
