Rick Morton
‘Absurdist leaps of logic’: Robodebt misused in FOI reforms
I am furious. Angry, certainly, about the federal government’s proposed freedom of information laws, which mock the very idea of transparency, but seething especially about the justification for them, a continuation of the rhetorical trickery that allows grotesque and nasty policy like robodebt to be born and survive inquiry.
It is not surprising to me that a government willing to actively deny the existence of all 57 robodebt royal commission recommendations, against the clear reality of the report and its authors, would later move to dismantle the spirit of the inquiry’s final direction.
What is galling is that these same fictions are being tied to a revisionist memory of the illegal welfare “debt” recovery project through a set of breathtaking and absurdist leaps of logic.
The Albanese government’s proposed amendments to the Freedom of Information Act ask us to take seriously its proposition that robodebt may have been avoided under a regime with moresecrecy.
In short, the proposed laws would increase the number and type of documents that can be stamped “Cabinet in Confidence” and introduce fees to make applications in the public interest. The former is a direct rebuke of the 57th recommendation of robodebt royal commissioner Catherine Holmes, who argued that this part of the act should be repealed to protect against abuses.
There are also new powers for public servants to decide a claim is “frivolous” based only on the criteria that it “does not have any serious purpose or value” – who says? – and to strike out any request they deem to take more than 40 hours to process.
Discretion is already built into the current law and is abused on a near industrial scale by a bureaucracy that simply does not like having to deal with FOI.
This is not a hunch. I’ve asked senior public servants over the years – privately, so they may respond with candour – and the common answer is that dealing with information requests is more work and is disliked because it increases scrutiny. This is precisely the object of freedom of information.
The government proposes adding a get-out-of-work clause to the end of the existing global objective, which “is intended to provide an explicit recognition of countervailing public interest in protection of private and business information as well as the proper administration of government”.
I’ll leave the broader arguments about the changes to others, however, because I really want to unpick the sickening narrative around the invocation of robodebt to manufacture consent for the new laws.
I say sickening partly because that is how I feel when parsing the above “clarification” about the objectives of FOI and the use of robodebt as a shield to reduce accountability.
These are two species of the same ugly logic. Let’s step it out.
When the government says it is protecting “business information” and wanting to ensure the “proper administration of government”, it is, of course, speaking about wishing to keep the serious business of policy formulation in advance of cabinet a secret.
There are already so-called “deliberative processes” exemptions in the current law and they are shot like confetti from cannons within the public service. The system needs less of this deceit, not more.
Two years ago, I attended a lecture held by Justin Greggery, KC, at James Cook University in Townsville, about his work as senior counsel assisting the robodebt royal commission, and reported on this in my book Mean Streak. Greggery added a postscript to the lecture after the then attorney-general Mark Dreyfus clicked his fingers and magicked away the final recommendation of the inquiry.
“It was my experience in assisting the Commission that DSS [Department of Social Services] and DHS [the then Department of Human Services] marked documents ‘Cabinet in Confidence’ which did not properly attract such a marking,” Greggery wrote.
“That marking was used as a basis to decline requests under the FOI Act for access to government documents which were, but for that marking, accessible. Public access to the documents related to the Robodebt scheme was inhibited during its lifespan in this way.”
The state rarely loses challenges in these cases, and people rarely fight them, but one person did during robodebt.
His name is Justin Warren, an IT consultant from Melbourne, who suspected “shenanigans” were afoot when the scandal began breaking into the public sphere thanks to digital rights activists such as Asher Wolf.
Warren had watched in 2017 as DHS officials told the Senate that robodebt was not really a big deal. The lie was critical to the whole farce. They said an “analysis identified that in 85 per cent of instances the discrepancy would result in a debt, and the likely average debt value is approximately $1440”.
“Since the Budget announcement, a pilot has been undertaken which has confirmed the assumptions that underpin the savings,” the department said.
“Using the newly developed streamlined intervention approach, the savings now far outweigh the cost of undertaking the activity and far outweigh the cost of the overall measure.”
We know this was a masterful fabrication thanks to several court cases and a royal commission, but at the time the public had to take the department’s word for it. Warren wanted more than that and applied for the analysis under freedom of information.
For this and other documents, he fought for seven years before finally winning a Federal Court appeal last year, overturning an earlier tribunal decision to uphold spurious cabinet confidence over documents that were never brought within cabinet, or created for that dominant purpose.
“It is unreasonable for the government to try to retreat into the past because it fears the public,” he told me last week when I asked about the new bill.
“We do not need or want a tyranny of secrecy. We want a transparent, liberal democracy, one where the government not only governs in our collective best interests but with our ongoing explicit consent. We cannot consent to what our government does if it hides its actions from us.
“We cannot say we are a liberal democracy if our government behaves like an authoritarian force, issuing diktats we may neither understand nor question.”
Other excuses have been made for the changes. One of particular concern has been floated since the robodebt royal commission report was released and has been prosecuted again by the Australian Public Service Commission (APSC) in response to this bill.
Public Service Commissioner Dr Gordon de Brouwer gave a speech in February last year warning that public servants were avoiding putting things in writing because they were worried about FOI. His agency’s submission to the parliamentary committee examining the new FOI amendments makes the same case again.
It is a bogus argument.
“The comments quoted above by major leaders in public administration in Australia highlight that the current exemptions for deliberative material have made it harder for public servants to do their duty,” the APSC submission says, “and the consequences of avoiding written advice about serious risks are evident in the Robodebt and Home Insulation Royal Commission reports.”
Let me be perfectly clear here, as vested interests distort this debate. The Royal Commission into the Robodebt Scheme made no such finding at any point in its final report linking FOI to the failure of senior public servants giving “frank and fearless advice” to the government of the day.
Commissioner Holmes noted: “It may be observed that the advice provided by DSS to DHS in the development of the Executive Minute did comply with the duty to give full and frank advice about the need for legislative change.
“The candour of that advice stopped, at least on the part of DHS, after Mr [Scott] Morrison instructed DHS to develop the NPP [New Policy Proposal] by signing the Executive Minute which specifically advised of the need for legislative change.”
In any event, the written submissions that went to the Expenditure Review Committee and cabinet itself about the robodebt proposal – which were then and are still now completely protected from disclosure under freedom of information laws – never contained the original frank and fearless advice that evaporated with Morrison’s interest in the executive minute.
It wasn’t fear of FOI that kept that advice from cabinet.
It’s worth pointing out, too, that this supposed fear of committing advice to writing didn’t for a second stop the Department of Social Services from creating an entirely new, and fraudulent, legal document designed to trick the Commonwealth Ombudsman in its investigation of the scheme in early 2017.
It is true that Holmes found the saga of robodebt was “riddled” with occasions where key decisions were made but never committed to writing, or noted in any way, and this was found again by the APSC when it held the code of conduct investigations into 16 mostly former public servants as a result of the illegal scheme.
None of these instances were about providing advice to government. In any event, as the APSC noted in its code of conduct report: the Public Governance, Performance and Accountability (PGPA) Act already imposes a legal obligation on all public servants to keep appropriate records.
That they don’t, at apparently strategic moments in time, invites a novel conclusion that, inconveniently for the government, would not allow it to keep more secrets, more tightly. Officials should be compelled to write down their advice and that advice should be reasonably available to the public. This is how accountability works.
The robodebt disgrace is a near consequence-free zone, even where there are, at least in theory, legal directives that oblige officials to act with honour and integrity. Any real concern – as there must be – about record keeping in the public service would manifest in a complete overhaul of the PGPA Act. That is not what we are getting.
It is a sick joke to leverage the horror of that debt recovery scheme to remove the precious few protections, already so abused, available to the public, and for this reason alone the proposed FOI amendments should be treated with the contempt they deserve.
To the extent that the government has acted on Commissioner Holmes’s recommendation to “develop standards” for record keeping, we get an almost comical “online module” and a public service-wide “communication strategy” led by the APSC about how to keep good records.
This is de Brouwer’s agency. If you want insight into the commitment to that training and strategy, let’s revisit the speech he gave to The Mandarin’s public service conference in February 2024, where he framed FOI as the underlying problem: “It is no use just telling everyone to change.” He’s right, of course, but not in the way he suggests.
This article was first published in the print edition of The Saturday Paper on October 25, 2025 as "Rank and feckless device".
