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Saturday, February 24, 2024

Final Robodebt royal commission report will be delivered on Friday, outlining who was responsible for the scheme

It was ruled a “shameful chapter” and a “massive failure” in public administration by a federal court judge, and a royal commission is about to determine who was responsible for Robodebt

What we learned from nine weeks of the Robodebt inquiry

More than 100 witnesses, including two former prime ministers, have faced the Robodebt inquiry and sworn to tell the truth. 

But it was the public servants, politicians and ministerial staff who, in tandem, laid bare the true scale of the scandal that culminated in a $1.8b settlement between victims and the Commonwealth.

Crucially, the commission uncovered government officials were repeatedly warned the debt recovery scheme was unlawful from the beginning and had numerous opportunities to stop it.

Robodebt ran from 2015 to 2019, lobbing false debt notices at 443,000 welfare recipients.

Victims gave evidence of their lasting trauma from the ordeal – some have vowed to never access social security again; others live in constant fear a debt collector could come knocking at any moment.

‘Everyone says it was really someone else’s doing’

There are key questions Commissioner Holmes must answer in her final report.

How did it go so wrong? Why was clear legal and policy advice dismissed or ignored? Was there any cover-up to protect the reputations of those involved or was it a botch-up? Was the former government “recklessly indifferent” to its lawfulness – a civil claim for misfeasance in public office?

The commissioner herself suggested public servants across the two departments involved in the scheme may have “colluded” to launch Robodebt when they knew it was unlawful.

Scott Britton told the inquiry he had “never been part of deception my whole career”.

She said another possibility was one department had deceived the other.

“Everyone says it was really someone else’s doing and it’s a bit hard to get to the bottom of whose doing it was,” Commissioner Holmes told a hearing in February.

It’s understood Commissioner Holmes requested a brief extension to the reporting deadline so she could make direct referrals to the new national anti-corruption commission (NACC), which began operations on July 1.

Darren O’Donovan said some people would be “deeply nervous” to see the report’s findings.

“I think Australians can expect a report where individuals are finally identified for key actions that led to Robodebt being brought into existence,” Darren O’Donovan, a senior lecturer in administrative law at La Trobe Law School, said.

“There will be, at this moment, people who are deeply nervous about this report.”

For now, here’s a refresher of the key things we learned from the inquiry.

Advice not acted on

Robodebt was all about boosting the budget bottom line.

The Department of Human Services (DHS) proposed a new policy in the 2015-16 budget that would recover about $1.7 billion in “overpayments” to welfare recipients.

Automated debt notices would be issued through a process of “income averaging” which compared people’s reported income with averaged tax office figures, with little to no human oversight.

Robodebt legal warning ‘watered down’, inquiry hears

Warnings about legal and policy problems with the proposed Robodebt scheme were “watered down” in a brief being prepared for then social services minister Scott Morrison, according to evidence given to the Robodebt royal commission.

The Department of Social Services (DSS), which was responsible for social security legislation, provided internal advice in 2014 that the proposal to “smooth a debt amount over an annual or other defined period may not be consistent with the legislative framework”.

The inquiry heard the DSS made DHS aware it would not be lawful without changes to the legislation, but the plan progressed anyway.

“The key question for the commission is; how did it get through? How did it keep going?” Dr O’Donovan said.

Another crucial warning emerged in an early 2015 draft executive minute to then-social services minister Scott Morrison, which also flagged the need for policy and legislative change.

But by the time the proposal reached cabinet, a sentence referring to “income averaging” was removed and the plan wrongly claimed there would be no change to how debts were issued.

Mr Morrison could not explain why bureaucrats had changed the wording of the existing proposal.

Scott Morrison was the Minister for Social Services for most of 2015

Top bureaucrat Kathryn Campbell, who gave evidence three times, accepted federal cabinet was misled and that it was a “significant oversight” but she denied it was deliberate.

Dr O’Donovan said the commissioner has to rule whether it was removed to ensure the scheme got the green light, and who signed off on it.

“The final report is likely to zero in on the precise individuals who massaged the key brief,” he said.

“If she (Commissioner Holmes) makes a finding of … a strategy of removing it, then the findings against the APS (Australian Public Service) are going to be extremely serious.”

Missed opportunities

The inquiry exposed several chances for officials to raise the alarm and stop the scheme between 2017 and 2019.

The Administrative Appeals Tribunal (AAT) ruled against the program at least five times throughout 2017 but DHS did not appeal the findings, which meant they were kept secret.

Senior department lawyers attended a keynote speech given by esteemed silk Peter Hanks KC at a national law conference in 2017 where he argued the scheme’s method was unlawful.

His comments generated “discussions” among the lawyers but they did not take action or seek external legal advice to see if he was right.

The Commonwealth Ombudsman was investigating the program in early 2017 after a surge in complaints, but its final report raised no legal concerns.

The commission heard DHS officials may have misled investigators by making false statements and withholding key documents.

Then there was the damning 70-page PricewaterhouseCoopers (PwC) review, which was shelved in 2017.

It found Robodebt had a “lot of flaws” but the full report was left in draft stage after DHS said it was no longer needed.

Shane West — a partner at the consulting giant, which is now embroiled in a tax scandal — couldn’t recall how PwC was informed, or the reasoning provided, with no record of communication or meetings.

Shane West tells the commission the PwC report was shelved.

Commissioner Holmes suggested a “nod and a wink” may have been given by the department to bury the firm’s findings.

Fast forward to 2018 when DSS requested external legal advice from top private law firm, Clayton Utz, which also suggested the use of income averaging to raise debts was unlawful.

The advice was left in draft form and not acted on.

DSS principal lawyer Anne Pulford told the inquiry it was common for government departments to discard draft advice that was not favourable.

“I’m appalled,” the commissioner said of that admission.

In March 2019, DHS officials got advice from the Australian government solicitor in response to a Federal Court legal challenge that flagged the scheme was likely unlawful.

Further advice came from the solicitor-general in September, who made the same finding.

The program ended in November.

‘Didn’t turn my mind to it’

When questioned over their knowledge of Robodebt’s lawfulness, one particular turn of phrase was heavily leaned on by politicians and public servants alike:

“I did not turn my mind to the legality of the program.”

– Former Prime Minister Malcolm Turnbull

“I didn’t turn my mind to it.”

– Former DHS and DSS secretary Kathryn Campbell

“I’m not sure my mind turned to that.”

– Top government lawyer Paul Menzies-McVey

“It had not crossed my mind until I read about it in the newspaper, I think, following the Federal Court case.”

– Former Human Services Minister Alan Tudge

The royal commission also heard departmental cultural issues and “definite pressure” from senior leadership may have stopped public servants from speaking out or asking questions about the scheme.

High-ranking public servant Serena Wilson conceded she did not raise concerns about the lawfulness of “income averaging” due to a lack of “courage.”

Former ministers Christian Porter and Stuart Robert, who are no longer in politics, did accept some responsibility for Robodebt’s failure.

Stuart Robert at the Robodebt royal commission.

Mr Robert admitted to making false public statements to defend it because of “cabinet solidarity”, despite knowing the method central to the scheme could cause inaccurate debts.

Personal information of victims — who appeared in the media — was released in an effort to deter them from speaking out, according to a former media adviser of Mr Tudge, who has also since quit politics.

What could happen to those found responsible for Robodebt?

Evidence given by witnesses cannot be used against them, but Commissioner Holmes can recommend fresh investigations into potential breaches of the public service code of conduct.

“We can probably expect a sizeable number [of recommendations],” Dr O’Donovan said.

“It is most likely the weight of this [final report] is going to be felt against the bureaucrats, the public servants.

“It is quite clear they have fallen short of their duty of providing frank and fearless advice and meeting professional standards.”

Government Services Minister Bill Shorten told the National Press Club in April that “there should be consequences for the people who did the wrong thing.”

The report is significant because it “will talk about the timeless power public servants have over vulnerable Australians”, according to Dr O’Donovan.

“It speaks to the most terrifying power of all – which is the ability of a government not just to make a mistake, but to disappear its mistakes,” he said.

Commissioner Holmes will also outline what measures are needed to prevent similar failures in public policy.

The pursuit of truth has helped mothers Kath Madgwick and Jenny Miller grieve their young sons who took their own lives after receiving debt notices.

They’re hopeful the commissioner’s recommendations will pave the way for radical reform of the welfare system.

Other Australians, whose lives were ruined by this illegal money-making government program, will be hoping the same.

The report is expected to be made public after it is tabled in parliament on Friday July 7th 2023.

Jenny Miller and Kath Madgwick both lost their sons to suicide after the men were caught up in the Robodebt scheme.()

This article written by Ciara Jones was originally published by The ABC

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