The federal court has ruled against a decision blocking access to early robodebt documents drafted under the former Coalition government, as part of one man’s long-running fight to shed light on the scheme’s origins.
Justices Geoffrey Kennett, Anna Katzmann and Shaun McElwaine ruled that a December 2022 decision made by the administrative appeals tribunal (AAT) to keep some robodebt documents exempt, including draft costings and new policy proposals, should be set aside due to procedural unfairness and because the AAT had incorrectly agreed with the cabinet confidentiality exemptions Services Australia applied.
The documents could add more details to the public record about what the former prime minister Scott Morrison – who was then responsible for the social services portfolio – and other senior ministers, including Christian Porter, Alan Tudge and Marise Payne, were privy to in the scheme’s initial stages.
The man seeking the key robodebt documents, IT expert Justin Warren, first made the freedom of information request to the then Department of Human Services, now named Services Australia, in January 2017. The department identified 13 documents, totalling 287 pages, but refused him access on the basis they were cabinet documents and related to the agency’s investigation methods.
The decision sparked a seven-year battle between Warren and the agency that landed them at the information commissioner’s office, the AAT and now the federal court.
The court’s ruling on Friday morning stated Warren had been “deprived” of procedural fairness after Services Australia altered its case and relied upon “confidential evidence that [Warren] was not privy to”.
It also ruled the AAT’s decision to agree the documents were cabinet-in-confidence – and therefore exempt under FoI law – was “mistaken in its construction and application”.
“The tribunal was only able to determine that information in these draft documents was deliberated on by the cabinet by considering other documents and ‘joining the dots’ ... that was a mistaken approach,” the judgment said.
The court ruled the matter be sent back to the AAT for “rehearing and determination according to law”.
A Services Australia spokesperson said the agency would “consider the reasons for the decision and liaise across government to determine next steps”.
Isabelle Reinecke, the executive director at Grata Fund – which is financially supporting Warren’s case – said the news was a win for robodebt victims and transparency more broadly.
“After yesterday’s news that the National Anti-Corruption Commission [Nacc] won’t investigate six people referred by the robodebt royal commission, this full federal court decision is a win for the victims of the robodebt scheme, and for greater integrity in government,” she said.
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“Today’s decision closes another loophole in the FoI system that has been manipulated by governments to avoid transparency, in line with commissioner Catherine Holmes’ recommendation to stop the misuse of cabinet confidentiality exemptions.
“Greater transparency means better policy making, and will help to ensure scandals like robodebt will never be able to flourish and cause so much harm again.”
The federal ruling builds on another judgment made in March closing a long-standing FoI loophole allowing federal governments to shred documents once they leave office.
This week Guardian Australia revealed the attorney general, Mark Drefyus, is seeking to appeal against the ruling.
On Thursday, the Nacc announced it would not pursue an investigation into six individuals referred by the robodebt royal commission, due to separate public service investigations being carried out into five of them.
It followed almost 11 months after referrals were made to the Nacc, the federal police and the Australian Public Service Commission (APSC) based on misconduct found by Holmes into the scheme, which she labelled “crude and cruel” and “neither fair nor legal”.
The final outcomes of the 16 referrals made to the APSC are expected to be made public in the coming months.