Legal fight over FOI access to key Robodebt documents reaches Full Federal Court

18 August 2023

In 2017, Melbourne transparency campaigner Justin Warren made an FOI request to the Department of Human Services (now Services Australia) for early business plans related to Robodebt.

The CEO of Services Australia refused to release the documents, citing Cabinet confidentiality exemptions, and the matter has been in legal dispute ever since.

The appeal before the Full Federal Court was filed following the 2022 decision by the Administrative Appeals Tribunal (AAT) to block the release of all but one of the 12 disputed documents.

The documents sought could reveal what former prime minister Scott Morrison and senior ministers Christian Porter and Alan Tudge knew when they had responsibility for the scheme.

Maurice Blackburn principal lawyer Jacinta Lewin, acting for Mr Warren, said:

“This case raises key questions about FOI law for consideration by the Court. Robust FOI laws are integral to a strong democracy. This case has the potential to clarify the Cabinet document exemption – a legal tool repeatedly used by governments to deny access to information.”

Isabelle Reinecke, Executive Director at Grata Fund, said:

“This case goes to the heart of why strong FOI laws matter to us all. If the laws worked as intended, Robodebt architects could have been held accountable long ago. It is our experience that the Cabinet document exemption is used excessively. We’re hopeful this case will be able to draw a line in the sand that strengthens our FOI regime and our democracy as a whole.”

Justin Warren said:

“Australians deserve to be able to hold Government initiatives up to public scrutiny in a timely manner. If we had access to these Robodebt documents when we first requested them, we may have been able to stop this illegal scheme earlier, avoiding the harm that has been suffered by so many. The Australian Government should follow the lead of New Zealand, which has been proactively releasing Cabinet documents since 2019. Public servants should be able to give frank and fearless advice to Government without the need for secrecy.”

In the amended notice of appeal filed with the Federal Court, lawyers for Mr Warren allege multiple legal errors, including that:

• How the AAT conducted the hearing was procedurally unfair
• The AAT did not correctly interpret the FOI law on Cabinet confidentiality
• The AAT fell into legal error when the decision maker failed to properly evaluate submissions by Mr Warren’s lawyers regarding the public interest in disclosure of the documents.

The CEO of Services Australia opposes the appeal. 

The case forms part of Grata Fund’s FOI Project and is being run pro bono by Maurice Blackburn Lawyers’ social justice practice.

In the recent Robodebt Royal Commission report, Commissioner Catherine Holmes took aim at sweeping Cabinet exemptions applied to Robodebt documents requested through the FOI system and called for greater transparency around Cabinet decision making.

Media enquiries: 
Chee Chee Leung, Maurice Blackburn, 0412 560 584 or cleung@mauriceblackburn.com.au;
Paddy Murphy, Maurice Blackburn, 0490 297 391 or pmurphy@mauriceblackburn.com.au;
Susie Gemmell, Grata, 0435 862 444 or susie@gratafund.org.au.