Thread by @GrataFund

👇👇👇 Follow this thread for updates on @jpwarren's legal battle testing the secrecy around key #robodebt documents - being heard at the AAT now. Justin’s case forms the second in the Grata FOI Project and is being argued by Tom Brennan SC and @WeFightForFair #RightToKnow.

The issues at play are centred around whether or not Human Services unlawfully applied the #FOI ‘cabinet in confidence’, ‘deliberative process’ exemptions and the crucial public interest test.

Remember, the Information Commissioner has already found in @jpwarren’s favour and said the documents should be released to him. That decision is being appealed today by Human Services.

@jpwarren Tom Brennan SC is arguing that the evidence provided by Services Australia witness is speculative and that there is a lack of evidence to prove the documents in question were created for the dominant purpose of consideration by Cabinet.

@jpwarren He goes on, Services Australia witness evidence says that there is a ‘standard practice’ that ministers would be briefed...

..But it's not based on any evidence disclosed by the witness in relation to this specific document, just general experience working in Government and not necessarily Services Australia.

Andrew Berger QC is arguing that Brennan’s point about the evidence being speculative is speculative.

Side note: In these cases, it can feel like you’re going in blind, because you have to argue about the contents of the documents and whether or not exemptions have been applied properly without seeing them.

A Services Australia (SA) witnesses is offering evidence about the documents, without having been involved in the creation of the documents. Berger QC is arguing for SA that this does not make it irrelevant because they’ve been involved in developing Cabinet documents in the past

AAT Deputy President Britten-Jones asks if the witness can say this without having been involved in the specific document.

Berger QC argues that a practice can be so common and settled that a person can assert that it is what has taken place.

Berger QC argues that the witness is saying that the document in question is a New Policy Proposal (NPP) and that those are only created for the purpose of Cabinet.

Brennan SC is back... It’s the witness which speculates on the source of authority that Brennan SC is objecting. The witness says the source of authority came from a minister.

...The speculation that the source of authority came from a minister is the source of unfairness.

...If the case be that there is a source of authority, not the minister for Social Services, then that would be the Prime Minister or the Expenditure Review Committee.

Dep Pres Britten-Jones (DPBJ) will reserve consideration for the objections after cross examination of the witnesses.

DPBJ… The reason I'm hesitant to make a direction now is that I’m not satisfied there is any unfairness that would arise because/if the statements on their face are not supported with sufficient evidence.

... Secondly if they (witnesses) don’t survive scrutiny upon cross-examination the Tribunal would be able to decide what weight is placed upon them.

The Tribunal can’t disallow evidence unless it’s completely irrelevant, and in this case some relevance has been shown. It will be a question of weight after cross-examination.

Brennan SC ... objections to wording in a witness affidavit which says ‘it’s a DPP’ and ‘for the consideration of Cabinet’ but they don’t provide any evidence about whether or not this has been decided by a minister.

... It can only be an NPP if the minister has decided, but it’s speculation because there’s no evidnce of this being in his knowledge at all.

Berger QC, witness says they have reviewed the docs and that they have experience in NPPs. The combo of reviewing the doc, being involved in it’s creation and the process for NPPs amplifies his views/evidence.

Services Australia challenged about the inclusion of information about a decision by Justice Lee from the Federal Court who they say accepted that the docs are Cabinet docs in another case. This was not examined by Justice Lee specifically.

DPBJ... won’t accept this part of the evidence provided by Services Australia.

Pause for Berger QC to get instructions from clients based on this decision.

Now onto witnesses…

Scott Britton, formerly Services Australia and now at the NDIA is providing evidence about NPPs.

He is saying this that document in question is an NPP based on his experience with the document and preparing NPPs in the past.

….He was involved in many conversations about the content involved in the NPP, his team was involved in the underpinning assumptions. Was providing advice to managers and supervisors about the development of the NPP.

...as part of the dev of an NPP there are a number of processes and templates that have to be completed for the purposes of costing. Says this was the doc that was used to inform the NPP, and the detail that supports the summary in the NPP.

Another doc - asked to explain why this is a DPP. Britton says he’s looking at the doc and familiar with it as a template, and it’s a secondary part of the initial NPP.

… Drawing from my own experience and recollection, this was something that was intended to go to Cabinet for consideration.

Berger QC - do you recall who asked you to do this or how you were asked to do this?

Britton - lots of convos about this, I had a line mgt structure above me and wasn’t involved in all convos about the NPP. These were verbal conversations, can’t comment with certainty on written instructions.

Treated with a high level of sensitivity on the basis that they are intended for high level consideration by Government or Cabinet.

No file notes kept about conversations regarding these requests.

Berger QC- what can you tell the Tribunal about this being likely it came from a Cabinet minister?

Britton says this is based in experience and he would expect it to be with the appropriate authority.

Brennan cross examining Britton. Asking when was the first time in his career he had a role with direct interaction with a Cabinet process.

Britton discusses previous roles where he had ‘visibility’, Brennan brings him back to the question about a ‘role’ in Cabinet processes.

Brennan … Putting aside the word ‘visibility’, asks when he had a ‘role’ in any conduct in relation to Cabinet. Goes through career history and relationship with Cabinet.

Brennan SC … The Dep Pres would be quite wrong if he thought you had extensive exposure to Cabinet processes.

Britton... at the time I made the statement that was my view, in the context I made that statement in 2020 that was the view I held.

Brennan SC is asking Britton about his assertion of his role at the head of a branch for the covid response even in the context the branch didn’t exist.

Brennan, your evidence provided about extensive experience is sloppy. Britton disagrees.

Onto the documents in question. Brennan establishing that Britton’s work area was responsible for inserting some underlying assumptions and if he had a role in signing it off (or who is the author). Britton says he didn’t sign off.

Brennan asks about doc 2, and if his work area put data into it and someone else up the line was responsible for sign off. Yes. Asks about doc 3, Britton expects that the same process for the other two docs happened.

Brennan goes through processes for how docs are created, who adds info to each doc across Finance, ICT, Corporate affairs etc.
Brennan… the DPBJ would be quite wrong to see you as the author of the doc. Britton says that he agrees with that and that he wasn’t the sole author

Brennan SC asks about doc 8 and if Britton expects it would have gone anywhere else except internal to Services Austalia. Britton does not have info about it if it would go anywhere else.

Now looking at another doc 5 - Britton agrees a doc appears to be a draft. Brennan asks if as far as he knows the draft doc didn’t leave the Branch.

Britton says it could have, but it would be unlikley in its current form as a draft. Brennan asks about doc 6 and 7, Britton agrees they could be drafts.

👉 Side note: This is important because the docs may not have made it to Cabinet.

Doc 12 - Brennan asks about what ‘internal document’ means. Britton says internal to teams, branch etc and it was likely prepared based on internal thinking in prep for the NPP. Britton says he’s uncertain if the doc went anywhere else outside the dept.

Adjourned until 10am tomorrow morning.