In RoboDebt’s wake, our very system of government needs to be bulldozed and rebuilt. Rex Patrick argues it is time for a republican model, for separation of powers.

Executive failings

The executive’s failings in RoboDebt were many and varied. Putting aside the obvious lack of empathy from ministers and departments responsible for delivery of ‘human services’ and “social service”, a lot of the focus of the royal commission focussed in on the scheme’s unlawfulness.

It is impossible to overstate the seriousness of this.

The government developed, implemented and persisted with an illegal program.  The government broke the law.  It did so on a grand scale; it knew it was doing so.

The Department of Human Services (DHS) and the Department of Social Services (DSS) both knew from 2014 DSS internal legal advice that income averaging could not be used without a change to legislation.

A minister, with a departmental secretary appraised of the material being put to cabinet, mislead his cabinet colleagues through omission of advice that legislative change would needed for the scheme to be lawful.

Over the duration of the scheme’s operation a cabal of public sector lawyers worked to keep its unlawfulness under wraps, including by concealing legal advice from the ombudsman. The ombudsman, having been deceived, then had his incorrect report used by ministers to defend the scheme.

This cabal maintained the charade despite both an eminent senior counsel calling out the scheme’s unlawfulness and the Administrative Appeals Tribunal finding the same. They even attempted to end proceedings in the Federal Court that had been initiated to establish judicially that the scheme was unlawful, by waiving the RoboDebt that initially gave rise to the proceedings.

As Federal Court proceedings progressed the cabal delayed requesting and then distributing a Solicitor-General’s advice.

Some of the cabal’s activities were given top cover by the secretary of DHS. At one stage the secretary countermanded an acting secretary’s request for independent legal advice to be obtained. That same secretary also authorised taxpayers’ money to initiate a consultancy report into the scheme then ordered it “should not be finalised and delivered” when she realised the details of the scheme’s deficiencies were damaging for the department’s reputation.

Parliament’s failings

So, where was the Parliament as the Robodebt scandal was being played out?

At the beginning little attention was focussed on the scheme because the brief reference to a “savings measure” in the budget papers provided no detail about its nature and operation. It slipped under the radar, carefully concealed by the minister and bureaucrats.

However the Parliament picked up on things as MPs and senators were inundated with letters of concern and complaint from constituents and media attention was drawn to the issue in late 2016, early 2017.

A number of actions were taken by MPs.  There were questions to ministers at question time, questions to officials at senate estimates hearings and speeches expressing concern and calling for transparency in both houses of parliament. There was a ‘Fair Debt Recovery’ private members bill and two Senate inquiries.  All of that came to naught.

Even when the Senate got to the nub of the issue and ordered officials to hand over legal advice, it just stood by and let its lawful orders be ignored, despite the full bench of the NSW Court of Appeal having unanimously determined that a parliament had a right of access to legal advice.

The Senate showed no mojo.

Whole system is failing

The whole RoboDebt scam revealed Australia’s “Westminster system” in crisis.

Senior public servants were seen to exhibit a loyalty, not to the public as they should, but to their political masters in order to further their own personal careers.  They were more mindful about keeping their large salaries than they were about the rule of law. None of the foot soldiers beneath these purported leaders would step out of line either.

Officials felt confident they could operate with impunity to oversight by the Parliament, and particularly the Senate. So long as they responded to senators in a manner that protected ministers and their political interests, the minister protected them back. It was a marriage of convenience and self-interest at the expense of lawful government and the public interest.

And the ministers acted with impunity, knowing that cabinet colleagues of their own political colour would back them in. Backbench MPs of the governing parties also stayed silent, even though their constituents were telling them a disaster was unfolding. No-one rocked the boat. Party loyalty and ambition trumped the public interest at every turn as their own potential promotion to a future ministerial role was contingent on support for the current cohort of ministers.

The Westminster system only works when honour and selflessness is present. Sadly, there’s very little of that left in our Parliament. I know; I’ve seen it from the inside.

There is a better way

Winston Churchill once famously said, “Democracy is the worst form of government – except for all the others that have been tried.” But there are different types of democracies.

Ours is up for change. Prime Minister Albanese has indicated he wants to hold a republic referendum in the next term of parliament to create an Australian head of state. He’s likely to propose a model similar to the 1999 referendum where the Monarch and Governor-General are replaced by a president appointed by a two-thirds majority of the members of Federal parliament.

That sort of change is pretty unambitious. It’s largely cosmetic exercise that won’t address any of the real failings of our government and parliament. As such it’s unlikely to generate the required public support (again).

Perhaps a blessing can be found in RoboDebt if it provides the impetus to move to away from a system of government we now know to be broken and easily corruptible.

Republican virtues

The Republic of the United States of America may well be the worst form of democracy – except for all the other systems of democracy that have been tried.

In the US democracy model, there is no overlap between the legislature and the executive.

The President is not a member of Congress (the House and the Senate). He or she is indirectly and separately elected by the people. The President appoints secretaries, the equivalent of our ministers, to form a cabinet.

Each secretary must be confirmed by the Senate – ambitious officials appearing before the US Senate know not to play games, as happens in Australia. They know to answer questions properly.

Secretaries are not strongly connected, as our ministers are, to members of the legislature.  Whilst members of the Republican or Democrat parties may have an underlying allegiance to the president, the executive does not control the Congress as it does in Australia.

Indeed, members of Congress of the same party as the President may even from time-to-time, not back the President. To a greater degree than in Australia, members of Congress stand on their own record for re-election, and their willingness to support the president will depend on how far that support will aid their own re-election prospects.

Finally, the Congress can impeach a President, Vice President or any official. So, while US officials are part of the executive, it would be folly to cross the House or Senate. While a vote of no-confidence in a minister or secretary by the House of Representatives here in Australia would require attention from the prime minister, the House and Senate have no direct power to dismiss a member of the executive.

Indeed, while secretaries here serve at the discretion of the prime minister, our PM cannot directly sack a more junior official.

Finally, unlike in our parliament where members jostle and manoeuvre to eventually become ministers, which involves loyalty and obedience to the prime minister and the cabinet, there are no such direct promotion opportunities in the Congress.

Congressman and women rise to speaker of the House or president pro tempore of the Senate, or to committee chairs or whip positions, they do so on factors largely unrelated to the President. If they join the executive, they have to leave Congress.

Change relationships

RoboDebt could not easily happen in the US. That’s not to say that there aren’t scandals there, but few like RoboDebt. The true separation of powers has much to recommend it.

Australia is unlikely to completely remodel our constitution along American lines, and there are other republican models available, with or without a directly elected head of state.

Bit we should look closely at the relationship between the executive and parliament. That is the real crux of true reform.

At the very least we need to exclude ministers from the Senate and make the upper chamber of parliament what it was meant to be – a house of scrutiny and review, able to probe the workings of government without the obstruction it currently encounters regardless of who it in power.

RoboDebt is more than just a lesson in public administration. It’s a lesson about profound failures in governance and democracy.

Getting a more ambitious republic model passed the parliament would be very difficult, but it’s something we must talk about as we turn our minds to a referendum in the next parliament.

Constitutional reform shouldn’t just be a new paint job. I say, ‘bring on the bulldozer’.

This article by Rex Patrick is a former Senator for South Australia and earlier a submariner in the armed forces. Best known as an anti-corruption and transparency crusader – www.transparencywarrior.com.au. was originally published by Michael West Media