Robodebt: political anti-welfare campaign

Article written by Laura Tingle ABC’s chief political correspondent. This article originally appeared in the ABC

Lawyers aren’t necessarily known for their humanity and compassion. And their forensic attention to detail can often mean that the bigger picture is lost in their dissections of events.

You will read and hear many words over the weekend about the findings of the Robodebt Royal Commission: a lot of it will focus on the pointy political bits about who is to blame; who lied; who failed to act; and speculation about what action these individuals, whether politicians, public servants or others, might face, as recommended in the titillating spectre of a ‘”sealed section” of the commission’s report.

But let’s go back to the uncompromising language of Royal Commissioner Catherine Holmes, SC, about a couple of fundamental ideas that have driven our politics for much of the past 30 years, only to reach their frenzied nadir in the Robodebt debacle.

Early in her nearly 1000-page report, Holmes says:

“Politicians need to lead a change in social attitudes to people receiving welfare payments.””The evidence before the commission was that fraud in the welfare system was minuscule, but that is not the impression one would get from what ministers responsible for social security payments have said over the years.”Anti-welfare rhetoric is easy populism, useful for campaign purposes. It is not recent, nor is it confined to one side of politics, as some of the quoted material in this report demonstrates.”It may be that the evidence in this royal commission has gone Asome way to changing public perceptions. But largely, those attitudes are set by politicians, who need to abandon for good (in every sense) the narrative of taxpayer versus welfare recipient.”

Holmes’ comments go the heart of what has really been exposed by Robodebt: there are the horrendous stories of its impact on thousands of Australians’ lives. But her report is also casting a light on how eroded, mean and corrupting a bit of embedded political populism is on our policy culture.

A bit like the way we seemed to collectively turn a blind eye to what was done in our name to asylum seekers, welfare bashing has sidled its way into justifying breaches of law, bad policy, deliberate, sustained and systemic misleading by public servants, and failures of ministerial responsibility.

A political sport

Welfare bashing as a long-standing political sport only became more central to the way government approached its task with the rise of the Coalition’s “debt and deficit” mantra.

Holmes observes:

“An enthusiasm for [budget]savings would seem an anathema to the underlying policy and rationale for social security spending, of supporting those in need;

however, it appears that the social security portfolio was generally perceived as a reliable source for such savings”.”There are different mindsets one can adopt in relation to social welfare policy”, she says.”One is to recognise that many citizens will at different times in their lives need income support — on a temporary basis for some as they study or look for work; longer term for others, for reasons of age, disadvantage or disability — and to provide that support willingly, adequately and with respect.

“An alternative approach is to regard those in receipt of social security benefits as a drag on the national economy, an entry on the debit side of the budget to be reduced by any means available:

by casting recipients as a burden on the taxpayer, by making onerous requirements of those who are claiming or have claimed benefit, by minimising the availability of assistance from departmental staff, by clawing back benefits whether justly or not, and by generally making the condition of the social security recipient unpleasant and undesirable. The Robodebt scheme exemplifies the latter.”

You don’t have to read the sealed section of the report to know that a lot of people are going to face some dire consequences as a result of their actions.

“An enthusiasm for [budget]savings would seem an anathema to the underlying policy and rationale for social security spending, of supporting those in need;

however, it appears that the social security portfolio was generally perceived as a reliable source for such savings”.

“There are different mindsets one can adopt in relation to social welfare policy”, she says.”One is to recognise that many citizens will at different times in their lives need income support — on a temporary basis for some as they study or look for work; longer term for others, for reasons of age, disadvantage or disability — and to provide that support willingly, adequately and with respect.”

An alternative approach is to regard those in receipt of social security benefits as a drag on the national economy, an entry on the debit side of the budget to be reduced by any means available: by casting recipients as a burden on the taxpayer, by making onerous requirements of those who are claiming or have claimed benefit, by minimising the availability of assistance from departmental staff, by clawing back benefits whether justly or not, and by generally making the condition of the social security recipient unpleasant and undesirable.

The Robodebt scheme exemplifies the latter.”

You don’t have to read the sealed section of the report to know that a lot of people are going to face some dire consequences as a result of their actions.

A case study in bad public policy

The royal commission’s forensic detail of how Robodebt unfolded within two particular departments – the Department of Human Services and the Department of Social Services — is not just shocking but the ultimate case study in bad public policy.

But Holmes paints a much broader picture not only of public service dysfunction but specifically the utter failure of systems and institutions which are supposed to provide “checks and balances” for bad policy.

This includes the “ineffectiveness” of “the Commonwealth Ombudsman’s Office, the Office of Legal Services Coordination, the Office of the Australian Information Commissioner and the Administrative Appeals Tribunal” in stopping the scheme.

There are also gobsmacking failures in the budget process – a forum which you would be forgiven for thinking must represent the most rigorous and repeated examination of government spending conducted by the cabinet of the day each year.

Yet it turns out that, under current rules, departments aren’t actually required to state that a policy proposal is actually legal, or contain the legal advice that underlines that argument.

Nor does data used by departments in supporting a budget recommendation actually have to be properly sourced.

Maybe such niceties are a hangover from the days when you not only expected ministers to meet certain standards of conduct, but that they would be advised by honest and diligent public servants

Instead the commission reported repeated cases of public servants “engaged in deliberate conduct designed to mislead Cabinet”, and of a department head, Kathryn Campbell, who “the weight of the evidence … leads to the conclusion that Ms Campbell knew of the misleading effect of the NPP[new policy proposal] but chose to stay silent, knowing that Mr Morrison wanted to pursue the proposal and that the government could not achieve the savings which the NPP promised”.

In Scott Morrison’s case, the commission rejected some of his evidence “as untrue” and found that he “allowed cabinet to be misled” about a proposal he took to it “without necessary information as to what it actually entailed and without the caveat that it required legislative and policy change”.

There are many recommendations, beyond taking action against many people who have failed in their duty to protect the public interest, and the public.

But beyond all these are a myriad of proposals designed to change the culture of the public service that has been eroded by the meanness – and political expediency – of recent times.

They are summed up best in a recommendation so simple it is profoundly sad: that the department responsible for delivering government services, Services Australia, should “design policies and processes with emphasis on the people they are meant to serve”.

Laura Tingle is 7.30’s chief political correspondent.

Threaded through the robodebt royal commission’s evisceration of the “cruel” and illegal data-matching scheme is the constant effort by bureaucrats and ministers to stonewall journalists trying to investigate the unfolding tragedy, and the self-serving narratives fed to other reporters considered more likely to do the then government favours.

As concerns about the data-matching grew in late 2016, the Department of Human Services received a query from Guardian Australia’s Christopher Knaus, asking: “Is the department aware of any issues that are causing the automated compliance system to issue higher rates of incorrect debt notices?”

The royal commission report makes it clear the department was indeed already aware, but the response, cleared by a senior public servant and a minister, said exactly the opposite: “The department is confident the online compliance system, and associated checking process with customers, is producing correct debt notices.”

Defending the policy, rather than considering its increasingly obvious failings, was to become a pattern.

Knaus, who with Guardian Australia’s Luke Henriques-Gomes and reporters from other mastheads worked doggedly to expose robodebt over many years, has described the assignment as like “bashing your head against a wall”.

In the report the commission observed of the Department of Human Services:

“[Its] approach to the media, particularly during the period of intense publicity in the early months of 2017, was to respond to criticism by systematically repeating the same narrative, underpinned by a set of talking points and standard lines. There was no critical evaluation of this messaging, or its accuracy, because the ‘gatekeepers’ of its content were more concerned with ‘getting it [the media criticism] shut down as quickly as possible’, and ‘correcting the record’ with standard platitudes that failed to engage with the substance of any criticisms.”

Even when “the chorus of criticism was deafening”, ministers, reciting departmental talking points, kept insisting nothing was wrong.

After another Guardian Australia article on 12 January 2017, based on internal Centrelink records, the commission records then prime minister Malcolm Turnbull asking then human services minister Alan Tudge for information and Tudge replying: “My assessment is that apart from ABC and Guardian, this is now no longer a story of any significant size. We have staff leaking to abc – Dhs is very highly unionised – which we have to manage. I gave our position to abc yesterday re latest allegations of theirs.”

As well as illustrating how journalists were obstructed when trying to do their jobs, the report lays bare the “particularly mean-spirited” way the government used “more friendly media” to spread a “counter narrative.”

A departmental officer observed that: “News Corp isn’t interested in the line being run by left-leaning media – but is keen on the alternative view. As such, the focus will be on working with News to achieve this.”

It documents how The Australian’s Simon Benson was provided with information and the paper published an article headlined “Centrelink debt scare backfires on Labor”.

“Labor’s attempts to mount a ­repeat of its discredited Mediscare campaign against Centrelink’s automated debt recovery system have been exposed, with at least two-thirds of those publicly claiming to be victims of Centrelink found to owe significant debts to the ­taxpayer,” the report began.

The same day, Tudge was interviewed on radio 2GB, and described it as a “very significant story”, without disclosing his office had been its source.

There will always be armies of political media advisers and departmental officers employed to provide information and try to get favourable coverage for government programs, or to ask for corrections if journalists get something wrong.

But the royal commission details the consequences of “managing” a story to the point of turning a blind eye to facts.

Of course, journalists will always receive information from those same advisers.

But robodebt demonstrates all too starkly that it can never be accepted uncritically, and that the most important and consequential stories are the ones they desperately don’t want us to know.

There are many more pressing lessons from this calamitous policy failure, but intertwined with them is an obvious demonstration of the value of legitimate journalistic inquiry. Imagine the suffering that might have been avoided if someone receiving those early media inquiries had dared to ask: “I wonder if there’s something going wrong here.”

The robo-debt royal commission has found the scheme was sustained by ‘venality, incompetence and cowardice’. By Rick Morton.

Robo-debt royal commission ends in criminal referrals

Scott Morrison. Kathryn Campbell. Alan Tudge. Stuart Robert. Malisa Golightly. Annette Musolino. Serena Wilson. Jonathan Hutson. Mark Withnell. Paul McBride. Emma Kate McGuirk. Karen Harfield. Jason McNamara. Craig Storen.

These are the names of the politicians and public servants who lied, dissembled and participated in the active cover-up of a multibillion-dollar fraud carried out against more than 400,000 disadvantaged Australians, motivated by “venality, incompetence and cowardice”.

After almost a decade of deceit, the robo-debt royal commission, led by former Queensland Supreme Court chief justice Catherine Holmes, found all of these people were complicit in one of the most shameful chapters of Australian government history.

Four of them have been referred to the Australian Federal Police, the National Anti-Corruption Commission and professional conduct bodies for public servants and practising lawyers.

Commissioner Holmes said the section containing these four names was sealed as a means of holding individuals to account, noting she was “truly dismayed” at the revelations of “dishonesty and collusion” that was used to prevent the illegal status of robo-debt becoming public.

What Holmes has found is simple and devastating.

Robo-debt was born in the depths of the Department of Human Services and it was brought into the world by Scott Morrison as Social Services minister. Morrison “allowed Cabinet to be misled” following the sudden removal of language from a February 2015 brief that warned legislative change was required.

It was Morrison’s pathological incuriosity that allowed cabinet to be deceived.

“Mr Morrison allowed Cabinet to be misled because he did not make that obvious inquiry,” Holmes’s report says. “He took the proposal to Cabinet without necessary information.”

Mark Withnell, the Department of Human Services integrity branch general manager, “engaged in deliberate conduct designed to mislead Cabinet” as did his superiors up the chain, including deputy secretary Malisa Golightly, now deceased, and Secretary Kathryn Campbell.

Campbell, in fact, is implicated at every stage of the robo-debt saga. Not only did she know the scheme always contemplated the use of income averaging, which advice said was illegal, but she also took steps to prevent external legal advice from being sought while she was on leave. That advice was sought by acting secretary Barry Jackson.

“The Commission finds that Ms Campbell instructed DHS officers to cease the process of responding to Mr Jackson’s request for advice, motivated by a concern that the unlawfulness of the Scheme might be exposed to the Ombudsman in the course of its investigation.”

Critically, the commission also found it was Kathryn Campbell who ordered a $1 million report from consultants PwC not be released.

“The Commission concludes that Ms Campbell made the decision that it should not be finalised and delivered to DHS,” it says.

“The rational inference is that although the report was contracted for and all but finalised, Ms Campbell formed the view that its detail as to the deficiencies of the Scheme was damaging and that it would be better for the department’s reputation, and her own, if it were not produced.”

Similarly, the chief counsel for the Department of Human Services, Annette Musolino, played along in a game of hide-and-seek with the provision of external legal advice, blocking attempts to settle the question properly.

She did this “because she knew that DHS executives, particularly Ms Campbell and Ms Golightly, did not want to be told they should seek independent advice because of the likelihood of its confirming that income averaging was unlawful and the professional consequences that they would face in that event”.

Critically, Commissioner Holmes pinpoints the beginning of 2017 as the event horizon beyond which ministers and public servants could not escape the “unfairness, probable illegality and cruelty” of the scheme that had by this point been operating for almost two years.

This is the moment, she says, that these features of robo-debt “became apparent”.

“It should have been abandoned or revised drastically, and an enormous amount of hardship and misery (as well as the expense the government was so anxious to minimise) would have been averted,” she says.

“Instead, the path taken was to double down, to go on the attack in the media against those who complained and to maintain the falsehood that in fact the system had not changed at all.”

These findings put then Human Services minister Alan Tudge and his office in the frame for a significant failure of leadership but also capture the tail end of Kathryn Campbell’s tenure as secretary of the Department of Human Services, before she moved to lead Social Services.

Tudge, Holmes found, was motivated by a desire to “save face” both personally and on behalf of the government. He wanted to “minimise public embarrassment” after he had publicly trumpeted the new-era of debt compliance when he became minister the year before.

Holmes found he abused his power in the role.

“As a minister, Mr Tudge was invested with a significant amount of public power,” the report says.

“Mr Tudge’s use of information about social security recipients in the media to distract from and discourage commentary about the scheme’s problems represented an abuse of that power.

“It was all the more reprehensible in view of the power imbalance between the minister and the cohort of people upon whom it would reasonably be expected to have the most impact, many of whom were vulnerable and dependent on the department, and its minister, for their livelihood.”

At the same time, Christian Porter, who was then Social Services Minister, did nothing to check whether this scheme was operating as it was intended.

“Mr Porter could not rationally have been satisfied of the legality of the Scheme on the basis of his general knowledge of the [new policy proposal] process, when he did not have actual knowledge of the content of the NPP, and had no idea whether it had said anything about the practice of income averaging,” the report says.

Around this time, there was also a concerted effort in Porter’s department, by Emma Kate McGuirk, Serena Wilson and Paul McBride, to engage in “deception of the Commonwealth Ombudsman” who had launched an investigation into robo-debt.

The result of this deception was to trick the Ombudsman into believing there was legal advice that declared all was okay with the scheme. It was Wilson’s idea to withhold the original legal advice, which declared the policy illegal and, when this option was overruled, the trio worked to come up with another plan to get around their predicament.

That plan was to engage the same in-house lawyer, Anne Pulford, to write new advice that came to a different conclusion.

“The Commission is satisfied that Ms Pulford’s advice was influenced by pressure placed upon her by Ms McGuirk,” the report says.

Robo-debt continued with minor revisions because the deception of the Ombudsman was so convincing it gave Alan Tudge political cover, and an independent report, behind which he could stand.

When Stuart Robert was appointed minister for Government Services, he was briefed on a Federal Court of Australia case concerning a robo-debt victim in which the Australian Government Solicitor had provided draft legal advice warning the scheme was almost certainly not lawful.

Robert denies being briefed on this advice in June 2019, but the royal commission does not believe him. This poses a significant problem for the former minister because it was another five months before the opinion of the solicitor-general was sought. This was the definitive, scheme-killing legal advice.

Why was there such a long wait? Officials argue it was simply a long process.

“In the Commission’s view, none of this justifies the five-month delay in preparing and delivering the brief,” the report says.

“The question that needed answering was a simple one – was the use of averaging to determine social security entitlement lawful? It should not have taken almost half a year for the question to be asked.”

The Albanese government has asked Department of the Prime Minister and Cabinet secretary Professor Glyn Davis, Attorney-General’s Department secretary Katherine Jones and the Australian Public Service Commissioner Dr Gordon de Brouwer to “lead the development” of advice in response to the report’s recommendations.

It has gone a step further in responding to the adverse findings against individual public servants. The Public Service Commissioner, who would ordinarily investigate if bureaucrats breached conduct codes, will delegate his powers to an independent reviewer, a former commissioner, Stephen Sedgwick, who will himself be supported by a taskforce set up within the APS Commission. Sedgwick will decide on breaches but will not get to choose what sanctions apply.

On Friday, after the report was released, Minister for Government Services Bill Shorten, who lobbied for and won the establishment of the inquiry, said the story of robo-debt was one where “previous government and senior public servants gaslighted the nation and its citizens for four-and-a-half years”.

“They betrayed the trust of the nation and its citizens for four-and-a-half years with an unlawful scheme which the Federal Court has called the worst chapter of public administration,” he said.

Prime Minister Anthony Albanese thanked Commissioner Holmes “for exposing in such a direct, clear way, the human tragedy that this represented”.

This article originally published in The Sydney Morning Herald

Peter Whiteford, in a report written for the royal commission, showed that, in reality, very few benefit recipients who received income did so at a “smooth” rate: “More than 93 per cent of those with earnings while on youth payments did so unevenly, as did 95 per cent of those receiving income while on Newstart or Austudy, and 90 per cent of those receiving income while getting parenting payments.”

So an assumption that might have applied to 10 per cent of people at most was deemed to apply to all.

“In essence,” writes Commissioner Holmes, “people were traumatised on the off-chance they might owe money. It was a costly failure of public administration, in both human and economic terms.”

Worse yet, the government sooled private debt-collection agencies onto people. In the month before his suicide, Rhys Cauzzo, for example, received at least 40 forms of communication from debt collectors for his supposed debt of $18,000. He was 28.

It was so cruel, so unfair that the royal commissioner identified at least three people who’d been driven to kill themselves at least partly because of the way they’d been treated by the federal government.

It was impossible to know how many more people had been driven to suicide, she noted, but: “At the least, I am confident that the commission has served the purpose of bringing into the open an extraordinary saga, illustrating a myriad of ways that things can go wrong through venality, incompetence and cowardice.”

Venality. Incompetence. Cowardice. Is it possible to write a more damning epitaph for any government?

The robo-debt outrage didn’t persist for four years because it was somehow overlooked. “Truly dismaying,” writes Holmes, “was the revelation of dishonesty and collusion to prevent the scheme’s lack of legal foundation coming to light”.

The red flags, apart from the known and publicised suicides, included warnings from the staff administering the program in Centrelink, warnings from the Australian Council of Social Services, warnings from the Commonwealth Public Sector Union, Senate inquiries and hundreds of Labor questions in parliament. Not to mention 4339 appeals to the Administrative Appeals Tribunal and tens of thousands of media reports on problems with the scheme.

Within the system, staff concerns “fell on deaf ears,” reports the commission. The commission was told that “managers did not care, did not want to hear about it, didn’t want to know about it”.

“Equally disheartening,” reports Holmes, “was the ineffectiveness of what one might consider institutional checks and balances – the Commonwealth Ombudsman’s Office, the Office of Legal Services Co-ordination, the Office of the Australian Information Commissioner and the Administrative Appeals Tribunal – in presenting any hindrance to the Scheme’s continuance.”

If the prime minister and the ministers were determined to persist with an illegal and failed program, they proved to be unstoppable, regardless of cost. Holmes’ report gives us an unsettling glimpse of how an autocratic government works.