A Melbourne-based transparency campaigner has won his Full Federal Court appeal following a judgment handed down by the Full Federal Court today.

In the judgment for the case brought by Justin Warren, the Full Court overturned a Tribunal or AAT decision denying access to documents. The court found that there was serious denial of procedural fairness, and that the Tribunal did not interpret the law on the Cabinet document exceptions correctly.

The documents at the centre of the case include early business plans produced by the Department of Human Services – now known as Services Australia – to justify the unlawful Robodebt scheme.

The long-running legal dispute over the documents started in 2017, when Mr Warren first requested access under Freedom of Information (FOI) laws.

The documents could reveal what former prime minister Scott Morrison and senior ministers, including Christian Porter and Alan Tudge, knew about Robodebt when they had responsibility for the program.

Mr Warren welcomed the judgment as a win for government transparency.

“The unlawful and underhanded Robodebt regime stole money from hundreds of thousands of Australians. It was a deliberate, systematic process of abuse conceived in secret and executed with malice. It never should have happened and it was far too difficult to stop. The only way we can prevent this from happening again is by keeping a close eye on what the government is doing at all times,” Mr Warren said.

“We have every right to closely observe what the government does in our name. It is a fundamental principle of liberal democracy. Only tyrants use reflexive secrecy to hide their nefarious schemes from the public. It should not be this hard, or take this long, for us to learn what is really going on.”

The decision of the Full Federal Court found that the Appeal is upheld:

• Mr Warren was denied procedural fairness when the Tribunal did not sufficiently consider his legal arguments and was not given a fair opportunity to understand and respond to the case being argued by Services Australia.
• The Court clarified the law on the use of the cabinet document exemption, which is often used to deny access to documents. Finding that the Tribunal did not apply the law correctly. The Court’s interpretation of the law keeps the use of the exemption confined.

Jacinta Lewin, Principal Lawyer at Maurice Blackburn Lawyers, said:

“The decision is about holding government to account. Australians have the right to know how our elected officials are behaving - especially when their decisions do not support the interests of the community. Our democracy is stronger when government is open, transparent, and accountable.

“This decision provides much needed clarity on Freedom of Information law and the use of the cabinet document exemption. It is also a case study in perseverance. Robodebt caused significant harm to people who were relentlessly pursued for these false debts. Justin Warren’s attempts to seek answers were relentlessly fought.” 

Isabelle Reinecke, Executive Director at Grata Fund, said:

“After yesterday's news that the National Anti-Corruption Commission 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.”

"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 last decade was characterised by attacks on our freedom of information system and deliberate attempts to hide from public accountability. Justin Warren’s win today builds on Rex Patrick’s recent Federal Court win to stop governments using ministerial reshuffles to deny FOI requests. It’s high time the government stepped up to fix the broken FOI system.”

Further background

The documents at the centre of this case were first requested under FOI in 2017. In 2019, Mr Warren secured a finding from the Office of the Australian Information Commissioner (OAIC) agreeing to release key documents. The former Morrison Government’s Services Australia took the OAIC’s decision to the Administrative Appeals Tribunal (AAT) on appeal. It was claimed the documents were exempt from release as Cabinet Documents and, in the alternative, that the disclosure of documents was contrary to the public interest. The AAT ruled that the documents were exempt from FOI laws in December 2022. Mr Warren then appealed that decision in the Federal Court in 2023.

The matter will be remitted back to the AAT so the release of the documents can be considered in accordance with the correct application of the law.

The case forms part of the Grata Fund FOI Project and is being run by Maurice Blackburn’s Social Justice Practice.