Lawyers of the victims of the robodebt scandal will appeal against the $1.8bn settlement with the commonwealth on the basis of “damning new evidence” and claims senior public servants who administered the scheme engaged in “misfeasance in public office”.
Gordon Legal announced the move on Tuesday, saying it would allege that officials “knew that robodebt was unlawful but went ahead with it anyway”.
“Robodebt victims will ask the court to set aside the original settlement so that new claims of misfeasance in public office can be brought against the commonwealth,” Gordon Legal told Guardian Australia.
“The new claims will seek to hold the commonwealth and those responsible for the implementation of robodebt to account and deliver greater compensation for the victims of the scheme.”
“These are serious allegations to make, but we strongly believe these claims should be made, based on the new evidence,” it said in a public statement.
Gordon Legal explained that the royal commission, which released its report in July last year, had “uncovered new evidence” because the commonwealth “could not rely” in that forum on a claim that its legal advice was privileged.
“This evidence was not made available in the original class action, which was settled without the claimants, their lawyers or the court being told about the damning evidence,” Gordon Legal told Guardian Australia.
However, Gordon Legal publicly acknowledged “there are several complicated legal steps that will need to be completed before that new evidence can be put before the court”. The new court proceedings are listed for a directions hearing before the federal court on 8 October.
“If the court allows the appeal, the class action will be reopened to hear these new claims. It may take several months before there is an outcome.”
In July 2023 Peter Gordon, a senior partner at Gordon Legal, told Guardian Australia a misfeasance claim could explore alleged “coverups, sanitisation of legal advice and other reports, misrepresentations and systemic dishonesty” which prevented parties in the class action from knowing the full extent of the wrongdoing.
The robodebt royal commissioner, Catherine Holmes, described robodebt as a “failure of administration” that was “neither fair nor legal”.
The royal commission found that “the senior officers in DHS [Department of Human Services] responsible for the proposal” to cabinet – Kathryn Campbell, Malisa Golightly and Mark Withnell – “understood that income averaging would form part of the [new policy proposal]”.
Nevertheless the version submitted to the expenditure review committee claimed that “there would be no change to how income is assessed or overpayments calculated as part of this proposal”.
Withnell claimed he did not know income averaging was being used, which the royal commissioner rejected.
Campbell told the royal commission she accepted federal cabinet was misled when the robodebt scheme was approved, admitting to a “significant oversight”.
Holmes said that Campbell, the former department of human services secretary, “had been responsible for a department that had established, implemented and maintained an unlawful program”.
“When exposed to information that brought to light the illegality of income averaging, she did nothing of substance. When presented with opportunities to obtain advice on the lawfulness of that practice, she failed to act.”
Earlier in September the Australian Public Service Commission found Campbell had breached the public service code 12 times, including a failure to “sufficiently respond to public criticism” and having “created and allowed a culture” that prevented issues from being considered.
However, the APSC said allegations that Campbell misled cabinet, that she directed the preparation of legal advice to cease and that she failed to discharge her legal obligations with respect to engaging PWC were not substantiated.
