The recipients of the #Robodebt letters had to remember details from up to seven years prior.....
The ATO only requires documents to be kept for 5 years for taxation purposes. This was a cruel witch hunt.
Extract of note: They were simply taking the Customer Reference Number we provided to them and matching it to their record of the CRN, without checking it at all.
Robodebt and the APS
If the Australian Public Service and its satellite institutions were to last a thousand years, people will still say “The Robodebt was one of its most dismal hours”.
Robodebt royal commission hears former ombudsman who investigated the scheme allowed DHS to amend wording of report
Thank you all for your coverage of #RoboDebtRC
Thank you for kicking off scrutiny of #RoboDebt in the first place 
And a massive THANK YOU to all who followed and cared 
Robodebt inquiry analysis shows majority of victims were women, Shorten says
Robo-debt is a case study in bad government and public service failure
The robo-debt royal commission has provided a rare insiders view of the secretive world of big government, exposing a multiplicity of failures and lessons.
It has been the admissions about the lack of a statutory basis for the $1.2 billion scheme to claw back welfare payments from nearly 800,000 people that has unsurprisingly preoccupied much of the attention of Commissioner Catherine Holmes and her raft of counsel assisting.
Commissioner Catherine Holmes has already indicated she will need to determine the credit of ministerial witnesses. .
But beyond the ministerial doublespeak and bureaucratic sophistry that enabled the debt recovery scheme’s champions to claim robo-debt was simply an online expansion of what had been going on for years, the commission has revealed myriad governance, policy, service design, ethical and risk management failures.
The Commission now has to wade through more than 670,000 documents and more than 5000 pages of transcript evidence – much of it in conflict – to draw its final conclusions, but as the final witnesses are interrogated the major lessons from the highly troubled scheme are now apparent.
Washminster revisited
Australia’s federal system borrowed both from Britain and the United States, with the head of government drawn from the lower house and an upper house recruited from the states and territory to check on executive excesses.
Central to this design is an independent public service to provide expert policy advice and program implementation. Australia initially embraced the concept of a politically neutral professionally chosen bureaucracy which, until the Whitlam government, had monopolised advice to ministers.
The emergence of powerful personal ministerial advisers and the breaking of tenure for senior leaders has led to an increasing tendency to politicise advice. Coupled with a ballooning use of consultants – many who are ex bureaucrats – and contractors, this has led to what numerous reports have identified as a dumbing down of the bureaucracy.
All this was on show in spades at the royal commission, as compliant officials all too willingly rushed to deliver an automated recovery scheme that was highly flawed from the beginning.
Even when this became obvious the officials, encouraged by ministers, doubled down on their efforts.
With only a few exceptions few, it seems, had either the courage or professional strength to tell ministers what they did not want to hear.
It was only in 2019 when then prime minister Scott Morrison bluntly told the bureaucracy that ministers determine policy for public servants to deliver. This indentured view of government reflects a Washington-style public sector, where the whole top end of agencies is swept aside each time there is a new president of a different political flavour.
As the former head of the department of prime minister and cabinet, Martin Parkinson, has observed, the Australian governmental system is much more like a partnership between executive government and the public service. And like all relationships it must be nurtured and fertilised so that everyone knows where the line is where officials must say no – so-called frank and fearless advice.
There was precious little courage on show for what was a poster child for bad governmentand how this is recovered is something a group of secretaries will consider as part of the post-mortem that PM&C chief Glyn Davis has commissioned.
Failure to check at every point
There are lots of background reasons as to how the scheme to apportion annual income to derive what the Solicitor-General described as “speculative debts” even got off the ground, let alone survived for so long, in the end costing taxpayers $1.8 billion to settle and $400 million dollars to deliver.
“Lifters and leaners” had become official ministry speak only eight months earlier when Scott Morrison, fresh from stopping the boats, in early 2015 became enamoured with the idea of using big data and online wizardry to force welfare suspects to prove they had not been “cheating”.
With the government determined to be back in the black, it was hard to resist the allure of over $800 million in net savings, at a time when nearly $1.6 billion was being invested into modernising Human Service’s ailing payments platform.
A now notorious 2015 Morrison cabinet submission sailed through cabinet – along with 50 other budget proposals Human Services was managing. Crucially, deep concerns by some lawyers that the scheme would fail its first test were brushed aside as a relatively junior Social Services lawyer proclaimed all was well, provided income data was used as a “last resort”.
Commissioner Catherine Holmes described this advice as more of a “vibe”, but nevertheless if their testimony is to be believed, not theprime minister, not one minister, nor any mandarin (apart from an acting secretary in early 2017) thought to ask the most obvious of questions in government, what was the statutory basis of the scheme?
Government is fundamentally built around constitutional and statutory powers, and the failure of the many checks and balances to ensure the scheme was lawful is probably the most stunning example of the recklessness and indifference that allowed the poorly designed and executed scheme to be implemented for so long.
The 34,000-strong Human Services department had long been the big boy on the Canberra bureaucratic block, and lawyers who owed a duty to the law were cowered by senior bureaucrats who drove a notoriously authoritarian culture. There is plenty of evidence attempts to raise concerns were pushed to one side by compliant in-house lawyers all too willing to accept instructions to “not scare the horses”.
External checks, such as the ombudsman and the Attorney-General’s department, were fobbed off, either by simply denying there was any issue, or by lying about the existence of alternative legal advices.
Central agencies, such as Finance and Treasury, should have been alert to the sheer stupidity of using annualised income to raise debts against a cohort that by their very character were unlikely to be working regular hours across a year. Instead, they went missing.
Data sharing protocols were simply ignored as was any proper risk assessment of the scheme that involved no artificial intelligence but rather was simply a group of rigid rules applied at scale by humans.
Projects of this scale this would normally be surrounded by risk checks, project boards, independent advisory groups, technology and ethical checks. According to Deloitte, none were present.
Designed for government, not for citizens
Robo-debt has emerged as the postcard for government designing a program for government rather than citizens.
Charged with finding $1.2 billion in over payments – and egged on by behavioural scientists – the original version of the debt notices did not even have a phone number to call, nor did suspects have any easy way to establish on what basis their debts had been raised. Many had to resort to freedom of information requests.
The reversing of the onus of proof meant Human Services was issuing, in effect, speculative invoices, a behaviour that would be prosecuted if it were a private business.
The sending of hundred of thousands of these claims spurred several suicides and countless stories of stress, anxiety and heart break as suspects struggled to understand how they had incurred such high debts.
In the dying days of the robo-debt program Human Services was morphed into Services Australia. With a fresh new sky-blue brand palette and a focus on services that are “simple, helpful, respectful and transparent” the agency is seeking to put people above process.
Time will tell, but the irony is the agency had already moved a long way down that path through its modernisation program. There has been a complete rebuild of the payment system that delivers 450 million transactions a year.
That program was well managed with proper risk and advisory oversight, as have other reforms of child care and Jobseeker payments. This suggests robo-debt was perhaps an outlier, egged on by tyro ministers and cowboy bureaucrats.
Who is responsible?
It was Scott Morrison and Senator Marise Payne who signed off on the scheme in early 201,5 and the hapless Andrew Tudge who broadly implemented it. Michael Keenan went missing in action, leaving Stuart Robert to defend the scheme till finally his then secretary, Renee Leon, pulled the plug in 2019.
All ministers and prime ministers have had a consistent defence that it was the bureaucrats who said the scheme was lawful and, until 2019, no one told them there were legal doubts about it. Like blind monkeys, not one asked for the actual advice that supported the scheme.
All those ministers are now either in opposition or have left parliament. Holmes has already said she will need to determine what credit it gives to the testimony of these ministers, amid the many conflicting accounts from officials.
Much of the key evidence has been lost in the blur of big government. But serving bureaucrats whom the commission determines either knew the scheme was unlawful or were recklessly indifferent to its illegality, could find themselves the subject of a recommendation of an internal code of conduct action that could see them terminated.
Clearly from the evidence this is most relevant to then Human Services secretary Kathryn Campbell who is now working in Defence as part of the AUKUS program. Campbell has her detractors and her fans and was a former a two-star general, leading Australia’s Reserve as the most senior female in the ADF. During the royal commission Campbell has not commented publicly. She has consistently said she relied on DSS advice that the scheme was lawful.
But depending on how far the commission pursues down the chain of command, this could be a long list.
Many of the key departmental players have retired or left the public service, meaning they can’t be charged with a code breach.
A key official, Human Services deputy Malisa Golightly, was the point official for the scheme, but passed away late 2021.
The taxpayers have already footed the federal court settlement bill of $1.8 billion but there remains the possibility that someone will seek to bring a tort of public misfeasance.
This applies to ministers and officials who exercised power that lacked legal authority and either knowingly or with reckless indifference about the lack of power acted with intention or with reckless indifference to cause harm. The public tort is aimed at stopping “targeted malice” and can lead to exemplary damages if losses can be proven.
The courts have set a high standard of proof, but on face value there appears more than enough evidence to suggest a case could be mounted by several of the many recipients that were clearly damaged by the program. This presumes they have not agreed to no further action after accepting the federal count settlement.
The deep breach of public trust associated with the scheme has profoundly damaged the Commonwealth government and the Australian Public Service reputation for fairness and ethical behaviour, something for which it will pay a large price for many years to come.
Tom Burton has held senior editorial and publishing roles with The Mandarin, The Sydney Morning Herald and as Canberra bureau chief for The Australian Financial Review. He has won three Walkley awards.Connect with Tom on Twitter. Email Tom at tom.burton@afr.com
