FOI23245 Disclosure log Documents date of access 3 July 2023.PDF.pdf

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OFFICIAL: Sensitive
Legal Privilege
Item 6 – APS integrity

Action items:
•  Note the update.

Handling notes:
s 34(3)
•  You will then be asked to provide a brief update on the Royal Commission, including
Commonwealth submissions and relevant notices.
s 47C(1), s 47E(c)

Sensitivities:
•  The Notices of Potential Adverse findings issued by the Robodebt Royal Commission are
subject to a non-publication direction.

Talking points
Commonwealth submissions
•  The Commonwealth provided an initial submission to the Commission on 23 March 2023 on
general legal principles.
o  This submission covered issues including the standard of proof, procedural fairness,
jurisdiction, discharging the terms of reference and referral powers.
•  The Commonwealth provided a further submission to the Commission on 6 April 2023.
o  This submission focussed on the Commonwealth’s response to three expert reports
tendered by the Royal Commission in Hearing Block 4.
•  The Commonwealth’s submissions did not otherwise engage with the detail of the evidence
before the Royal Commission or themes arising, noting the short timeframe in which the
Commonwealth was required to provide submissions and the whole of APS nature of the
themes raised by the evidence.
•  This approach was the subject of consultation across impacted agencies.
•  It is expected that the Commonwealth’s submissions will be published on the Royal
Commission’s website, although timing for this is unclear.

Post hearing arrangements
•  The Royal Commission has held 9 weeks of hearings over four hearing blocks between
October 2022 and March 2023, hearing from over 100 witnesses.
•  Public hearings concluded on 10 March 2023, with Senior Counsel Assisting providing a
closing statement.
•  On 14 March 2023, the Royal Commission published a Practice Guideline setting out
guidance on post-hearing arrangements, which was subsequently updated on 30 March
2023 (Attachment A).
•  It set out the process by which the Commission will issue:
o  Notices of Potential Adverse Findings, and
o  Notices of Potential Referral pursuant to s 6P of the Royal Commissions Act 1902
to individuals and organisations and provide an opportunity for response.
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Legal Privilege
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Notices of Potential Adverse findings
•  Notices of Potential Adverse findings give an affected party the opportunity to make
submissions on the potential adverse finding.
•  The Notices are subject to a non-publication direction. This means that the fact that a Notice
has been issued to an individual and the contents of a Notice cannot be communicated to
another party unless strictly necessary.
•  The Commission’s Practice Guideline provides that the Commonwealth will receive a copy of
any Notices of Potential Adverse Finding that concern a current or former APS employee or
Commonwealth statutory appointee.
•  This is on the basis that the Commonwealth may have an interest in its own right in making
submissions on the Notice.
•  Where the Commonwealth has received a copy of a Notice, AGD has provided it to the
relevant agency on the understanding that the distribution of the Notice is limited, for the
purpose of their consideration of the written submissions the Commonwealth may make in
response to the Notice.
•  In the case where a witness has separate legal representation, the Royal Commission will
send the Notice to the witness’s lawyer.
•  [If asked about the number of notices/agencies who have received Notices:] Noting the
sensitivity of these Notices and the terms of the non-publication direction, I am not in a
position to share any details about notices received.

Notices of Potential Referral
•  Section 6P of the Royal Commissions Act provides that the Commissioner may refer or
communicate with third parties in respect of a contravention of a law of the Commonwealth
or a State or Territory. s 42(1)

•  Like Notices of Potential Adverse Findings, the purpose of the Notices of Potential Referral is
to give affected parties an opportunity to make submissions in response.
•  Notices of Potential Referral are similarly subject to a non-publication direction.
•  [If asked about the number of notices/agencies who have received notices:] Noting the
sensitivity of these notices and the terms of the non-publication direction, I am not in a
position to share any details about notices received.
s 47E(c)
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OFFICIAL: Sensitive
Legal Privilege
Government response
•  The Royal Commission is due to report by 30 June 2023.
•  It is usual practice to promptly table a report of a Royal Commission.
•  There is no requirement for the Government to respond to a Royal Commission’s report.
Any response, and timeframe, is a matter for Government.
[If asked: which agency will lead the Government response?]
•  Government responses to Royal Commission reports are usually coordinated by the lead
subject-matter department.
•  The content of the final report, and its recommendations, will inform considerations as to
the most appropriate department to lead the Government response.

Background
s 47C(1), s 47E(c)
s 42(1)
s 47C(1), s 47E(c)

s 34(3)
Attachments
•  Attachment A – Amended Practice Guideline – Post Hearing Arrangements – 30 March 2023.

Briefing provided by: Royal Commissions Branch (Robodebt team)
SES clearing officer: Emma Swinbourne, A/g First Assistant Secretary, Legal Services and Royal
Commissions Division, s 22(1)
Consultation: N/A
Action Officer: Dianne Orr, A/g Assistant Secretary, Royal Commissions Branch,s 22(1)

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AMENDED PRACTICE GUIDELINE - POST HEARING ARRANGEMENTS
Part A
Introductory matters
1.  This Practice Guideline relates to the conduct of the Royal Commission into the
Robodebt Scheme (the Commission). It should be read in conjunction with the Royal
Commissions Act 1902 (Cth) (Act) and the terms of reference contained in the
Amended Letters Patent establishing the Royal Commission dated 16 February 2023.
2.  This Practice Guideline provides guidance for parties about:
a.  the production of further documents to the Commission;
b.  engagement with the Commission in respect of notices of possible adverse
findings issued by the Commission; and
c.  engagement with the Commission in respect of notices of potential referral
issued by the Commission pursuant to section 6P of the Act.
3.  Where the Commission considers it appropriate, this Practice Guideline may at any
time be varied, amended or replaced.

Part B
Providing post-hearing Submissions (Submissions) to the Commission
4.  Unless otherwise agreed with the Solicitors Assisting the Commission, any
Submission should be provided to the Commission by no later than 5.00pm on 6
April 2023.
5.  Any document referenced in a Submission must be a document which has been
tendered. Please include the Exhibit Number in the footnote of the Submission
together with the Document ID in parentheses fol owing the Exhibit Number.
6.  A copy of each Submission is required to be produced in native electronic form (for
example, in Microsoft Word format) with publicly available references to be
hyperlinked either in the body of the Submission or the sub-folder (see below).
7.  Each Submission must be accompanied by the fol owing:
•  A sub-folder named “Documents referred to in the Report/Submission of
[name of author] and [date]”. The sub-folder must contain al  documents
referenced within the Submission which are not publicly available in a
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format that complies with the Document Management Protocol. This folder
should not include a copy of the Submission.

Part C
Notice of Potential Adverse Findings
8.  Subject to any confidentiality order to contrary effect, Solicitors Assisting the
Commission will give to any person/organisation who/that might be adversely
affected (through their legal representative or nominated agent) (Affected Party)
notice of potential adverse findings as soon as practicable, drawing their attention
to the evidence which might be adverse to them (Notices of Potential Adverse
Findings).
9.  The Commission wil  endeavour to give 24 hours’ notice to any Affected Party to
whom it proposes to issue a Notice of Potential Adverse Findings.
10. Notices of Potential Adverse Findings will be provided subject to non-publication
orders.
11. All Notices of Potential Adverse Findings concerning an Affected Party who is a
current or former APS Employee or Commonwealth Statutory Appointee will be
issued to the Affected Party and to the Commonwealth.
12. An Affected Party will be given an opportunity to file written submissions specifying
the factual matters in the Notice of Potential Adverse Findings which are disputed
and why and any other submissions they wish to provide in respect of that matter
(Responses to Notices of Potential Adverse Findings), with reference to any exhibits
in support of their account with respect to those disputed matters.  An Affected
Party will be advised by the Commission at the time a Notice of Potential Adverse
Findings issued to them of the due date for such submissions (the Submissions Due
Date).
13. Should the Commission not receive by 5.00pm (AEST) on the Submissions Due Date,
a Response to a Notice of Potential Adverse Findings, the Commission will proceed
to make findings on the available evidence.
14. In the absence of extenuating circumstances, any Affected Party seeking an
extension to the Submissions Due Date is required to provide notice to the
Commission, together with reasons for any extension request, by no later than 2
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business days prior to the Submissions Due Date. It should not be assumed that
extensions to the Submissions Due Date wil  be granted without adequate reasons.
The Commission will advise the Affected Party in writing of its decision on the
extension request.
Notice of Potential Referral pursuant to s 6P of the Royal Commission Act 1902 (Cth)
15. The Royal Commission may refer or communicate with third parties in respect of a
contravention of a law of the Commonwealth or a State or Territory (see s 6P of the
Act) (Referral). Subject to any confidentiality order to contrary effect, Solicitors
Assisting the Commission may give to an Affected Party notice of a potential Referral
(Notices of Potential Referral).
16. The Commission wil  endeavour to give any Affected Party to whom it proposes to
issue a Notice of Potential Referral, 24 hours’ notice.
17. Notices of Potential Referral will be provided subject to non-publication orders.
18. The Notice of Potential Referral will advise the Affected Party of any opportunity to
file written submissions they wish to provide in respect of that matter (Response to
a Notice of Potential Referral). An Affected Party wil  be advised by the Commission
at the time a Notice of Potential Referral issued to them, of the due date for such
submissions (the Response Due Date).
19. Should the Commission not receive by 5.00pm (AEST) on the Response Due Date, a
Response to a Notice of Potential Referral, the Commission will proceed to make a
decision on the potential referral or communication based on the available
evidence.
20. In the absence of extenuating circumstances, any Affected Party seeking an
extension to the Response Due Date is required to provide notice to the
Commission, together with reasons for any extension request by no later than 2
business days prior to the Response Due Date. It should not be assumed that
extensions to the Response Due Date wil  be granted without adequate reasons. The
Commission will advise the Affected Party in writing of its decision on the extension
request.

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General
21. The Commission may issue more than one Notice of Potential Adverse Findings or
Notice of Potential Referral to an Affected Party.
22. In light of the limited time available to the Commission to report to the
Commonwealth Government (the Final Report), it is not presently proposed that
further hearings be conducted in respect of factual matters which are disputed.

DATED 30 March 2023

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