Tuesday, December 20, 2022

Robodebt royal commission puts APS advice, culture on trial ore than ministers

 Robodebt royal commission puts APS advice, culture on trial ore than ministers (themandarin.com.au)

The robodebt royal commission is looking bleak for senior public servants as the quality of advice is put on trial as much as politicians.

For all of Scott Morrison’s many and varied sins as minister for social services, treasurer and prime minister now being pilloried as part of the ritual condemnation of the former government, those now in power will be surely wondering how to avoid falling into future political and ethical sinkholes that robodebt has come to exemplify.

Royal commissions by their nature are part show trial, part autopsy and part rectification.

The Scomo festival of faeces is the simple political Vaudeville of the royal commission, and the former PM obligingly played the role of villain by demonstrating as little, if not less, self-awareness than when he was in government.

It’s fair he was called to give account, as was Marise Payne. Both acknowledged their ministerial responsibility (thus failure) and then promptly disavowed themselves of the destructive actions of their agencies.

Yet there was no killer moment, no smoking gun and no demonstrable direct link between the ideation of robodebt and its political masters beyond saying a billion dollars sounded like a decent saving.

The key evidence, on who signed off on legality and due diligence, is still missing three months in.

Innovation theatre gone awry

This is where it gets really, really awkward for the bureaucracy. Without firm evidence that robodebt was envisaged at the top and pushed down, it’s mandarins who are on the hook and not ministers.

At the moment, it looks and smells like robodebt was dreamt up within Human Services as some sort of shonky, stulted piece of innovation theatre and upsold to ministers as a budget solution on a plate. That scenario, again, puts the APS on the hook.

If this is the case, and it’s looking that way, the Albanese government will have the trigger it needs to radically overhaul the diarchy of Human Services and Social Services in the same way it has just dispensed with the Administrative Appeals Tribunal.

This would draw a line under the Howard-era experiment of separating policy and delivery arms of the same portfolio (that actually fused together previously separate statutory agencies) and allow for a more ‘customer-centric’ realignment of service delivery on par with exemplars like New South Wales.

Morrison has already essentially borrowed the name ‘Service Australia’, it’s just that the institutional culture didn’t come along for the ride.

At Service NSW, if a customer service officer cannot pick up the phone in around three minutes you get the option of a callback. At Centrelink, spending several hours on hold, if you could get through at all, was just the price of getting welfare for the last government. It literally weaponised wait times.

Coincidently, the pieces of the puzzle in terms of what the ‘seed’ or kernel idea was for robodebt are also falling into place, but that’s a whole different disaster that deserves its own explanation.

Freaky Friday

Last Friday’s session of the Royal Commission into the Robodebt Scheme was part forensic discovery/part victim impact statement, and it concluded in yet another day that drove home just how much crucial evidence is still missing, even as key documents were revealed.

One of the worst of the documents was a blistering one-pager from DSS mid-level officer, attributed to David Mason, fired across the bow of DHS politely cataloguing the holes in the colander of a proposal bowled-up by DHS dated 7 November 2017.

Starting off with the view of “we would not support this proposal” and “it is flawed” and “does not accord with legislation”, the “request for clarification” it comprehensively demolishes any pretence of a defensible legal scaffold on which to build robodebt.

The assessment then generously concludes with an observation of a conspicuously protruding chin: “The approach could cause reputational damage to DHS and DSS.” A screenshot of the document tendered is below

Culture eats strategy and ethics

What we have really learned over the past three months is, that despite documents like the above, DHS seems to have persistently delivered itself and consecutive ministers an ‘out’ by somehow sidestepping strict legal necessities for a new policy (or lack thereof) in favour of something that appears to have ticked a bunch of political boxes.

Yet what really went on trial on Friday, by virtue of the damning documents dredged out, was the accepted model of a ‘diarchy’ comparable to that of Defence, where the department sets the policy and the uniform ranks of the Australian Defence Forces carry it out.

This is important because it’s well documented that there was a decanting of Defence senior executive service Mandarins to DHS. In Defence culture, for all the positive messaging, there is an enduring perception that uniform gets the job done and spills blood, while others ride desks.

There is also a strict hierarchy of command and control, derived from centuries of military affairs, which is instilled in soldiers, including unquestioning obedience to the mission irrespective of the human cost. Australians, militarily and culturally, have used this to help define our national identity.

It might make for great national shibboleths, but this does not help those marginalised, let go or cut adrift from society make a better fist of their circumstances, nor adjust to difficult or irrevocable life changes.

Tough love

This inherently combative mentality and culture, where institutionalisation is more a pre-requisite than a side-effect, demonstrably travels poorly from the coercive arm of government to the compassionate one.

Cops are not social workers, even if they persistently come into contact with social services. One of the key angles of inquiry directed at Morrison by counsel assisting Greggery last week went directly to the ministerial schtick of a so-called tough cop on the welfare beat, and whether this attitude permeated the actions of the DHS.

Morrisson defended cracking down on welfare fraud as a staple of both sides of politics, and a laudable pursuit in itself. Sadly, in the first part, he is right.

The pre-canned welfare-fraud crackdown to welcome a new government is one of the saddest and most tired tropes of Centrelink and Human Services over the decades, but it comes from within the bureaucracy. It is routinely offered up as an easy media win that is electorally saleable.

It was a cheap stunt, but when Morrison threw a heap of press releases from former ministers, including  Graham Richardson and Tanya Plibersek, into evidence as proof that all sides love a crackdown, he was deliberately dragging his political foes down into the mud with him.

No minister likes to admit it, but they are often managed by their departments, one of the reasons Morrisson issued the very overt warning to the APS in his now infamous IPAA speech that he expected his ministers to take decisions and make policy and bureaucrats to obediently deliver these.

Bonzai fig leaf

This, of course, jars with Morrison’s plea that neither he nor his ministers knew robodebt was illegal and, by extension, that they were poorly served by their public service advisors. But again, it doesn’t reflect at all well on the culture of the agency, and hangs the bureaucracy out to dry for two key reasons.

Firstly, if the advice on robodebt’s legality bowled up to Morrison, Payne, Tudge, Porter and others was defective and then allowed to continue as an aberrant policy that later crashed and burned, this logically means the bureaucracy was not up to the task.

Secondly, if bureaucrats suspected robodebt was legally undercooked but stayed silent to appease activist ministers, that’s actually worse because it abrogates the duty care to contest clearly dud propositions.

If it transpires that DHS actually tried to re-engineer robodebt to retrofit legality, for example by fudging the origin of data sources and how data-matching processes were undertaken to construe illegal debts people could not reasonably contest, this is maladministration at its very core, and it will go much deeper than the government of the day.