Behind Closed Doors: How Australian Government Have Bypassed The Public

Four laws. Four different governments. The same handful of tricks, used again and again.

Ask most Australians and they'll tell you their democracy runs on debate, scrutiny, committees, question time — the whole apparatus that's supposed to slow a bad idea down long enough for someone to notice it's bad. In practice, some of the most consequential powers ever handed to Canberra were waved through in the dying hours of a sitting week, or via instruments that never went anywhere near a vote at all. One of them ran for four years after officials were told, in writing, that it was illegal.

We've covered the current government's attempt to lock this pattern in for good in Democracy in the Dark. This piece goes back further — because it turns out this isn't a Labor problem or a Coalition problem. It's a Canberra problem, and it's been going on for a decade.

Robodebt: they knew, and they kept sending the letters anyway

Start with the one that actually killed people. The Robodebt Royal Commission found that ministers in the Morrison and Turnbull governments knew by late 2016 that the automated debt-recovery scheme breached the Social Security Act. Not suspected. Knew.

The department's own former chief counsel later admitted to the commission that he sat on legal advice — from 2014, then again in 2018, then again in 2019 — that all said the same thing: this is unlawful. He didn't pass it up the chain because, in his words, he didn't think it was "of significance" anymore by the time he took the job. Three separate warnings, and the debt notices kept going out.

It ran from 2015 to 2019. It raised $1.76 billion against 433,000 people who, in a great many cases, didn't owe the government a cent. It didn't stop because a minister had a change of heart — it stopped because the Federal Court told them to. The final compensation bill came to more than $1.8 billion, the largest of its kind in the country's history. The Commission's own report called it, plainly, "crude and cruel."

It's worth being precise about what Robodebt actually was, because the mechanism is part of why it was so obviously wrong from day one. There was no AI, no algorithm in any meaningful sense. The system took a person's annual income from ATO tax data and divided it by 26 to get an assumed fortnightly figure, then compared that against what they'd told Centrelink for each fortnight. If the two didn't line up, a debt notice went out — automatically, with the burden on the recipient to prove it wrong. For anyone with irregular hours, casual shifts, or a few different jobs across the year, that kind of averaging was never going to produce a real number. It wasn't a sophisticated system that malfunctioned. It was primary-school arithmetic applied to people's lives, and it was flagged as statistically and legally unsound almost immediately — which is exactly why the paper trail of ignored warnings matters so much.

Nobody has gone to jail for it.

The encryption law that landed a week before Christmas

Skip back to 2018. In the last sitting week of the year, Parliament passed the Assistance and Access Act — the law that lets ASIO, the AFP and state police compel tech companies to help them get at encrypted messages, with sign-off from a bureaucrat rather than a warrant from a judge. Sixty-seven pages of amendments were introduced and voted through in the final hours of debate. The pitch was a looming terror threat over the holidays. ASIO's own director-general, when asked directly, admitted there wasn't any specific intelligence pointing to an actual attack — just the general vibe of the season. By mid-2019, according to a cybersecurity researcher's submission to the parliamentary review that followed, the law had already been used to get around journalist-source protections that existed under separate legislation. That's part of what let federal police walk into newsroom offices and journalists' homes later that year.

Your metadata, no warrant needed

Since 2015, every telco and ISP in the country has been required to keep two years of your metadata — who you called, when, how long, roughly where you were — on file for law enforcement, warrant-free, except in the narrow case of chasing a journalist's source. The Parliamentary Joint Committee on Human Rights wanted a warrant requirement across the board. The government said no. The Attorney-General of the day argued a warrant would be "impractical" and might let evidence go stale while police waited for paperwork. Fair enough, maybe, if the access had stayed where it was promised. It didn't. A later review found the scheme had been tapped by more than 80 agencies — nowhere near the short list of serious-crime and national-security bodies it was sold to the public as being for.

Digital ID: three weeks to have your say on your own biometric data

Fast forward to 2024. The Digital ID Bill set up a national digital identity system tied to accessing government services — the kind of thing that, done badly, follows you around for the rest of your life. UNSW's Allens Hub and Digital Rights Watch both raised the obvious concerns: biometric data handling, scope creep, ID data being shared with police without much explanation of when or why. Consultation ran for three weeks. Three. For a system built around your face and your fingerprints.

So how does this keep happening?

It isn't some grand conspiracy meeting in a back room. It's a handful of very ordinary parliamentary tools, used on purpose, over and over. A government with the numbers can gag debate and force a vote — sometimes on two dozen unrelated bills in a single sitting day. Contentious legislation gets timed for the last few days before a break, when the press gallery has already checked out mentally. And a huge amount of law never sees a vote at all: it's made by ministerial instrument. In just seven months of 2020, 249 of these instruments were issued, and about one in five of them was exempt from the parliament's power to knock them back. Three weeks of consultation on a digital ID system isn't an accident. It's a decision about how much friction is tolerable.

The Centre for Public Integrity and a fair few legal academics have started calling this what it is: a structural erosion of the guardrails, not a one-off. And it doesn't seem to matter who's in the Lodge when it happens.

None of it was secret. That's the point.

Here's the uncomfortable bit. Every one of these four cases was, technically, out in the open. The committees existed. The warnings were on the public record — often from the government's own lawyers, or its own intelligence chiefs. Nobody needed a whistleblower or a leaked file. What was missing wasn't secrecy in the spy-novel sense. It was time. Scrutiny. Someone with the numbers actually willing to slow down and let the public look before the ink dried. A free society doesn't fear questions. A government that's actually confident in what it's doing doesn't fear a bit of scrutiny either. Worth remembering next time you hear "this bill is largely technical in nature" from the floor of Parliament.

Sources & Further Reading

• Royal Commission into the Robodebt Scheme — Final Report
• JURIST — Government lawyer knew Robodebt was illegal
• Department of Home Affairs — Assistance and Access Act
• Carnegie Endowment — The Encryption Debate in Australia
• Stanford Law — Anti-encryption laws used to bypass journalist protections
• MinterEllison — Australia's data retention laws
• Xiph Cyber — Metadata retention loopholes exploited by 80+ agencies
• Lawyers Weekly — Digital ID Bill privacy concerns
• UNSW Newsroom — Is Australian democracy eroding?
• Southern Cross Bulletin — Democracy in the Dark: Albanese's War on Transparency