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Tudge locates, won't release legal advice on Andie Fox case

29 May 2017
Josh Taylor
Crikey

The office of Human Services Minister Alan Tudge has refused to release more than a dozen documents related to his decision to release personal information on a critic of his robo-debt notice system on the grounds it is legally privileged and would disclose personal information.

After months of searching, Crikey finally managed to track down the advice Tudge was relying on when his office released the personal information of blogger Andie Fox to a Canberra Times journalist, but now his office won’t hand it over.

In Parliament in late February, Tudge appeared to quote from legal advice that suggested he was able to disclose the information to correct the record:

   “In cases where people have gone to the media, with statements that are incorrect or misleading … we are able to, under the Social Services Act, release information about the person for the purpose of, as I quote, ‘correcting a mistake of fact, a misleading perception or impression, or a misleading statement’. That is what the law allows.”

In response to a freedom of information request filed with Tudge’s office, his chief of staff Andrew Asten found 14 documents and 48 pages-worth of emails and briefings, but despite, as Michael Bradley suggested, Tudge waiving legal privilege by reading from the document in Parliament, Asten claimed all of the documents were exempt from release due to legal privilege.

“I am satisfied that the minister’s statement [in parliament] does not constitute a waiver of [legal privilege] as it amounts to ‘limited disclosure’,” Asten said.

To make this argument, Asten relied on the High Court’s 2008 judgment in Osland v Secretary to the Department of Justice. In that case, a woman convicted of murdering her husband filed an FOI request for legal advice given to ministers regarding their decision to refuse her petition for mercy after the ministers advised of the outcome of the advice in a media release. The High Court ruled that the limited disclosure in the press release did not constitute waiving legal advice.

Legal experts Crikey has spoken to suggest the government is on shaky ground in relying on this High Court decision to block the release of the documents. In the Osland case, the ministers just said that the advice put them in the clear legally, whereas Tudge directly quoted from the advice, thus potentially waiving his legal privilege.

Asten said that Tudge’s statement “revealed very little about the legal advice in question; and the purpose of providing the statement was to satisfy the public that due process had been followed and the minister had taken a proper course in obtaining and considering advice from appropriate persons”.

It is arguable that Asten is incorrect that the public has been satisfied that due process has been followed, with at least one senior barrister publicly stating that the release of the information was in breach of the law, and Labor referring the matter to the Australian Federal Police for investigation after Tudge made the statement in Parliament.

Asten also said it would be unreasonable to release the documents about why it was legal for release information about Fox’s personal affairs because the documents in question contained information about “an individual’s personal affairs”.

Linday Burney, opposition human services spokeswoman, told Crikey in a statement that the justification for blocking the request was absurd.

“Alan Tudge believes that private information about Centrelink clients should be put into the public domain but not the legal advice which he says allows him to leak it. That is not just ridiculous, it’s totally hypocritical,” she said.

“If he believes his legal advice authorises him to leak private information about clients to the media then that is something the public should be able to see.”

Fox’s case does not appear to be an isolated incident. The Department of Human Services told a Senate estimates committee in response to a question on notice last week that a total of seven times between September 2016 and March 2017 had “initiated action to consider the disclosure of limited customer information to a journalist to correct the record in the media”. The department had also highlighted “notable” social media posts of interest on the robo-debt issue to the minister. Burney said Centrelink seemed more likely to release a client’s personal information to a journalist than to the client.

“To get information about themselves from the Department Centrelink clients have to spend hours waiting on the phone – after the Andie Fox case it seems they might be better placed putting in a media request.”

Crikey has sought a review of the decision with the Office of the Australian Information Commissioner. The Senate committee examining the robo-debt issue has held its last hearing, and will report back to Parliament soon, but with the Department of Human Services appearing before estimates this week, officials from the department are likely to be grilled on it yet again.

On Friday, at a $300-a-head lunch at the Hilton Hotel in Sydney, campaign group GetUp organised for a table full of welfare recipients and people who had been targeted by the robo-debt notice system to question the minister after he delivered a speech on reforming the welfare system. One victim, Emma Gordon, said at a press conference beforehand that she had been issued with a false debt by Centrelink two weeks after her house burned down, and she couldn’t fight the debt because documents proving Centrelink was wrong were lost in the fire.

“I’m still paying that debt to this day,” she said.