Lawyers representing the Commonwealth are attempting to stop particular documents from being provided to the royal commission into robodebt, arguing cabinet secrecy could outweigh public interest.
Senior public servants involved in the design and implementation of the Centrelink robodebt scheme were due to front the commission but their evidence timeslot was delayed due to extensive legal arguments.
Commonwealth counsel Tim Begbie asked Commissioner Catherine Holmes to look at each document on a case-by-case basis to determine whether cabinet confidentiality outweighed the public interest.
He also cited previous cases where cabinet confidentiality had been upheld.
Meanwhile, commission counsel Angus Scott said the documents in question may not directly record or reveal cabinet deliberations.
“The significance of these documents rise higher than mere relevance,” he said.
“By not requiring production of broadly described ‘cabinet documents’, the commission would be failing to discharge its terms of reference.”
Ms Holmes will provide a ruling on the documents before Anne Pulford and Mark Jones, former public servants within a department that oversaw the scheme, give evidence on Tuesday afternoon.
The Albanese government initiated the inquiry into robodebt, a scheme designed under the Liberal-National coalition to recover debt from welfare recipients.
It was rolled out in 2015 and recovered more than $750 million from nearly 400,000 people after falsely accusing them of owing the government money.
Debt notices were issued by a process called income averaging, which compared people’s reported income with tax office figures.
But questions over the legality of this calculation method were raised as early as 2014.
Commission counsel Justin Greggery on Monday revealed the department knew about the potential illegality of the scheme well before a pilot program was initiated.
Mr Greggery told the commission legal advice was not sought from the solicitor-general before the scheme was implemented.
Instead, the departments responsible for overseeing the scheme sought internal legal advice.
“That advice raised significant questions about the legality of the scheme,” Mr Greggery said.
He said the advice raised concerns about the proposed approach by the department to determine a social security debt.
In December 2014, the social services department received advice that “the proposal to smooth a debt amount over an annual or other defined period may not be consistent with the legislative framework”.
The inquiry is accepting submissions until February 2023 with a final report due by mid-April.
