The attorney-general makes the case for reforms to Australia’s institutional checks and balances
“He was meant to be here.”
One of the most powerful moments of 2023 was watching Kathleen Madgwick give evidence about her son, Jarrad, to the Royal Commission into the Robodebt Scheme. Jarrad took his own life hours after learning of a decision that Centrelink had made about him: without evidence and with no explanation, Centrelink alleged that Jarrad owed the Commonwealth a $2000 debt. Jarrad was just 22.
Jennifer Miller’s evidence to the commission was equally profound and moving. Her son, Rhys, was 28 years old when he took his own life. Rhys’s own government had relentlessly pursued him for alleged debts amounting to more than $10,000. After his death, Rhys’s debts were reduced to zero.
Ms Miller told the commission, “[h]e was let down by the system”.
He sure was. These are stories no parents should ever have to tell.
A single mother of two in my electorate contacted my office for help after she received a debt notice asserting that she owed the government $6000. Jane received the notice after she returned to full-time work following the death of her partner. In between raising two kids on her own, and working full-time to support them, Jane was forced to spend months challenging a debt she did not owe while being forced to pay it back in instalments.
More than half a million Australians from so many walks of life were targeted by the robodebt scheme. They were vilified, worn down and made to feel like criminals by their own government. A catastrophic failure of public administration on such an extraordinary scale should not have been possible in Australia.
The current opposition leader, Peter Dutton, was a senior cabinet minister throughout the entire life of the scheme. As were many of his senior colleagues.
Before the royal commission reported, Mr Dutton had already dismissed it as a “witch hunt”. To this day, Mr Dutton has refused to apologise or take any responsibility for the role he and his colleagues played – as cabinet ministers of the former government – in creating, maintaining and defending the robodebt scheme. Instead, Mr Dutton continues to assert that “[w]hen the problems were brought to the attention of the government at the time, the program was stopped”.
The royal commission found that the opposite was true: in early 2017, when “Robodebt’s unfairness, probable illegality and cruelty became apparent”, the path taken by the former government “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”. It was not until mid 2020 that the robodebt scheme finally came to an end. Not because the former government stopped it voluntarily, but because the Federal Court forced it to be stopped by finding the scheme unlawful.
The robodebt scheme and a slew of other scandals under the former government revealed that the system was broken. By the time of the 2022 federal election, there was no doubt that Australians were in the mood for change. The Australian people deserve a government that is as hard-working, compassionate and fair-minded as they are. Since coming to office in May 2022, the Albanese government has embarked on a series of reforms to make government work better for Australians.
In my portfolio, the most well known of these reforms is the establishment of the National Anti-Corruption Commission – the most significant Commonwealth integrity reform in at least a generation. Less well known are reforms that are aimed at restoring or revitalising public institutions that once served Australians well but which the former government spent a decade neglecting, undermining or trying to dismantle. The tragic cost of the former government’s calculated assault on these institutions was exposed by the robodebt scheme.
In my first speech in parliament, I said that what we see and do in our path to becoming elected representatives must affect how we act as legislators, what we understand to be the role of the elected representative, and what we hope to achieve in our time in parliament. That is certainly the case for me.
My work as a parliamentarian and as a minister has been informed by my experience as a field officer for the then-embryonic Northern Land Council – my first job out of university – and by my experience as a lawyer.
As a lawyer, I represented members of the Stolen Generat-ions in their efforts to hold the Commonwealth accountable for the role it played in Aboriginal children being removed from their families. I represented individuals, businesses and community organisations in freedom of information matters in the Victorian Civil and Administrative Tribunal, and in environmental, climate and free speech cases in superior courts.
Through my experience in these and other cases, I witnessed ordinary – and extraordinary – Australians using the systems of government to hold government accountable. It is a big part of the reason why I am such a passionate advocate for building strong public institutions and for greater accountability and integrity in government: not as ends in themselves, and not only to stop abuses of power like the robodebt scheme, but also because I think they lead to better government.
That is why as attorney-general I have no higher priority than delivering on our commitment to restoring integrity and accountability to government. As the robodebt royal commission laid bare, there is a lot of work to be done.
When Australians think of Gough Whitlam and Malcolm Fraser in the mid 1970s, “bipartisanship” is not a word that springs to mind.
However, between 1972 and 1977, the Whitlam and Fraser governments engaged in a pioneering and ultimately successful process of law reform: enacting a series of new laws, and establishing a number of key public institutions, to protect the rights and interests of individual citizens and make government more accountable.
At the time, there was general agreement that such reforms were needed to respond to the significant expansion of government – and, in particular, the federal bureaucracy – following World War II. That expansion was the result of, among other things, a wide array of new social programs and social security schemes, including for veterans and war widows.
With the expansion of the federal bureaucracy and government power, there was a need for greater safeguards to hold government accountable for the way in which it exercised that power. Courts alone would no longer be an adequate check on the power of government.
This new system of administrative checks and balances was nothing if not comprehensive. In addition to a new federal court, the system included the creation of the Administrative Appeals Tribunal, the Administrative Review Council and the Commonwealth Ombudsman.
The AAT was tasked with reviewing the merits – and not just the legality – of a broad range of government decisions. The ARC was given the job of monitoring and providing expert advice on the operation of the federal administrative law system, decision-making practices and other related matters. And the Commonwealth Ombudsman investigated complaints of maladministration by Commonwealth departments and agencies.
This new system of administrative law also included a new legal right for ordinary citizens to request reasons for government decisions that were made about them.
In my career as a lawyer, I saw firsthand how Australia’s innovative system of checks and balances worked effectively to improve government decision-making and make government better. And all Australians benefited from both major parties maintaining a basic, bipartisan commitment to preserving and, from time to time, enhancing this system in the decades that followed.
Disappointingly, this ended with the election of the Abbott government.
I will leave it to historians of the Liberal Party to explain why and how this shift occurred. Suffice it to say that, at least since 2013, it has been difficult to work out whether the modern Liberal Party stands for anything at all other than the pursuit of power as an end in itself.
The full-frontal assault by the Abbott government on Australia’s system of checks and balances began in earnest in 2013 and continued into the government’s final days under Scott Morrison, with profoundly negative consequences for Australians. Between 2013 and 2022, the former government pursued a particularly relentless campaign against the AAT and the ARC. It undermined the former and abolished the latter entirely.
The AAT was exactly the type of public institution designed to protect Australian citizens against a robodebt-type scheme. Each year, tens of thousands of Australians rely on the tribunal to independently review government decisions that have major, life-altering impacts – decisions such as whether an older Australian receives an age pension, whether a veteran is compensated for a service injury, or whether a participant of the NDIS receives funding for essential support. And yes, decisions to issue debt notices to vulnerable Australians too.
And yet, over the course of a decade, the rights and legitimate interests of citizens who rely on the AAT were subordinated to the greed and self-interest of the Liberal Party. The AAT was systematically stacked with at least 85 former Liberal MPs, failed Liberal candidates, former Liberal staffers and other close Liberal associates without any merit-based selection process – including many individuals with no relevant experience or expertise. The former government even appointed Liberal Party–aligned lobbyists as AAT members while those individuals were also being paid by corporate interests to influence government decision-making.
The AAT was undermined in other ways too. The tribunal is not on a sustainable financial footing, it is beset by delays and an extraordinarily large and growing backlog of applications, and is operating multiple and ageing electronic case management systems – a legacy of the former government’s mismanagement of the amalgamation of the AAT with several other Commonwealth tribunals.
In short, the former government did everything possible to undermine the effectiveness and standing of the AAT – including in the eyes of bureaucrats in the Australian Public Service.
The Royal Commission into the Robodebt Scheme found that AAT members started saying that the scheme was unlawful as early as 2016. In 2017 alone, the commission identified 132 decisions where a member of the AAT was not satisfied that the Department of Human Services had accurately calculated a debt because of the use of income averaging. These decisions kept coming in 2018, 2019 and 2020.
The correctness of these decisions was not challenged by anyone in the former government. Instead, these inconvenient decisions were ignored and buried.
The commission found that the department implemented these AAT decisions “only as far as was convenient and disregard[ed] their effect for the purposes of the Scheme as a whole”. As these decisions were not published, the commission found that the Department of Social Services, and hence the former government, was “shielded from the adverse publicity which would certainly have followed a public understanding of what these decisions were saying and how many of them there were”.
The Abbott government took an even more extreme approach to the Administrative Review Council by defunding it entirely. The ARC had been established, with bipartisan support, to be a “watchdog for the citizen”. At its first meeting in 1977, Liberal attorney-general Bob Ellicott told the council that its role was “to ensure that our system of administrative review is as effective and significant in its protection of the citizen as it can be”.
In comments that appear particularly prescient in light of robodebt, Ellicott told members of the council that the bureaucracy inevitably “throws up questions which involve the citizen. The size of the bureaucracy makes it a greater temptation to apply rules of thumb and therefore it is important that the individual should not be swallowed up in the system and that his particular position be covered.”
What was the use of income averaging under the former government’s unlawful robodebt scheme if not the application of a “rule of thumb” that ignored the particular position of individuals? In a cruel twist of fate, the former government’s decision to abolish the ARC – the “watchdog for the citizen” – was made in the same budget that gave Australians robodebt.
The recent assault on critical aspects of our system of government by the modern Liberal Party has not been limited to these key components of the Whitlam and Fraser reforms of the 1970s. There was also the hollowing out and debasement of the Australian Public Service itself, with the government under Abbott, Turnbull and Morrison spending billions of dollars outsourcing government work to consultants and contractors.
There was the attempt to abolish the Office of the Australian Information Commissioner, the independent office responsible for conducting investigations and handling complaints in relation to alleged breaches of freedom of information and privacy laws.
There was the attempt to abolish the Independent National Security Legislation Monitor, the office responsible for the ongoing review of the operation, effectiveness and implications of Australian counter‑terrorism and national security legislation.
There was the refusal to establish a national anti-corruption commission.
There were repeated verbal attacks on the judiciary – often led by the current leader of the opposition, Mr Dutton.
There was the contempt shown for public interest reporting and whistleblowers – we should never forget that Scott Morrison’s initial reaction to a journalist’s home being raided by police was to say that “it never troubles me that our laws are being upheld”.
The list goes on and on.
When Treasurer Jim Chalmers wrote in this publication last year about the former government’s record on the economy, he referred to “the wasted decade” that had “made Australia more vulnerable than we should be”. He was right. And the systematic debasement of key public institutions by the former government has also made individual Australians more vulnerable than they should be.
The former government ruthlessly exploited that vulnerability when it created the robodebt scheme. It must not be allowed to happen again.
Since coming to power, the Albanese government has taken many steps to address the systemic failings exposed by the scheme, beginning with the establishment of the royal commission.
The commission produced dozens of valuable recommendations directed at strengthening the Australian Public Service, the social security system and the capability of oversight agencies. Many of these recommendations build on work that was well under way even before the commission handed down its report.
Since the 2022 federal election, the minister for the public service, Katy Gallagher, for example, has been doing extraordinary work to rebuild the Australian Public Service and restore trust and confidence in government. This work is so important because, as the minister has said, “the public service is an enduring institution central to the strength and success of our proud democracy. A stronger public service delivers better government and better outcomes for all Australians.”
The former government either never understood this or didn’t care.
The minister for the NDIS and government services, Bill Shorten, is restoring government services by bringing human oversight back to Services Australia, removing outsourcing of debt collection and increasing capacity so that Services Australia can function properly. The minister for social services, Amanda Rishworth, is pushing forward with reforms to ensure that we have a strong social safety net and that services are being delivered in a way that puts people at the centre.
I could go on. It’s pretty basic: governments work for citizens.
In my role as attorney-general, a key area of focus is on rebuilding and improving the system of checks and balances that holds government accountable. Not just because such a system will go a long way towards preventing another robodebt, but also because it will lead to better government.
As I noted earlier, the creation of the National Anti-Corruption Commission is the single biggest reform to the Commonwealth integrity framework in decades. The NACC began its work on July 1, 2023.
More recently, in parliament’s final sitting last year, I introduced legislation to advance the biggest reform to Australia’s system of administrative review in half a century: the abolition of the AAT and the creation of a new Administrative Review Tribunal.
Like the AAT of old, the Administrative Review Tribunal will provide Australians with a quick, informal and simple means of challenging government decisions that affect their rights and interests. This means people will once again have an effective mechanism to review a huge number of government decisions, including those relating to taxation, child support, social security, the National Disability Insurance Scheme, freedom of information and visas.
A key objective of the new tribunal will be to improve the quality and transparency of decision-making across government. To ensure public confidence in the independence, integrity and quality of the tribunal’s membership, the legislation to establish the new tribunal would require all members to be appointed through a transparent and merits-based selection process.
To help prevent another robodebt, the legislation would establish a “guidance and appeals panel” made up of senior tribunal members who would be tasked with resolving – and publishing authoritative decisions about – matters that raise serious or significant issues in government decision-making. The new tribunal would also be required to publish all decisions involving a significant conclusion of law, or with significant implications for Commonwealth policy or administration (implementing a key recommendation of the robodebt royal commission).
Finally, the president of the new tribunal would be tasked with reporting systemic issues with government decision-making to relevant government entities, ministers and the independent ARC – the “watchdog for the citizen”, which will also be re-established by the legislation. The re-establishment of the ARC was, unsurprisingly, a recommendation of the robodebt royal commission.
The government is also committed to expanding powers of the Commonwealth Ombudsman and imposing an obligation on government officials to respond to ombudsman investigations – implementing two other key recommendations of the royal commission.
In 2023, the Albanese government strengthened Australia’s public sector whistleblowing framework for the first time since 2013 (when I first created the framework as attorney-general), with further improvements to come.
In recognition of the critical role that public interest journalism plays in informing the community and holding governments to account, the Albanese government is working to implement key recommendations made by the Parliamentary Joint Committee on Intelligence and Security in its 2020 report on press freedom – recommendations the Morrison government claimed to support but never did anything to progress.
In 2022, I asked my department to undertake a comprehensive review of secrecy provisions across Commonwealth laws. In response to that review, the Albanese government is proposing to scrap one fifth of all existing secrecy offences and to introduce important new safeguards to protect journalists from prosecution for public interest journalism.
To deliver the best outcomes for Australians, governments need to listen to the voices of Australians, and the people and organisations that represent their interests. That is why I removed the appalling gag clauses that the former Liberal government inserted into funding agreements with legal assistance providers. Those gag clauses meant that community legal centres in receipt of Commonwealth funding were restricted from engaging in public advocacy on behalf of local communities.
What each of these reforms and initiatives have in common is that they will make government work better for Australians.
However, as the final report of the robodebt royal commission warned, the existence of strong laws and public institutions do not guarantee good government. They do not even guarantee that something like robodebt will not happen again. Because, as the former government demonstrated, given enough time, bad governments can succeed in watering down the laws and undermining the institutions that are supposed to hold them accountable.
Until the election of the Abbott government in 2013, Australia’s system of institutional checks and balances had endured because it enjoyed bipartisan support. While the Liberal Party of Malcolm Fraser supported the creation and maintenance of public institutions that protected Australian citizens against a robodebt-type abuse of power, the Liberal Party of Tony Abbott, Scott Morrison and Peter Dutton did almost everything possible to undermine or dismantle them.
Every member of parliament, regardless of their political persuasion, has a fundamental duty to protect and, where possible, advance the rights and interests of the people we represent. That duty extends to restoring and revitalising the system of checks and balances that once served Australians so well.
The proposal to create a new Administrative Review Tribunal to replace a broken AAT and the re-establishment of the Administrative Review Council present a particularly significant test for Peter Dutton: if Mr Dutton and the Liberal Party want Australians to believe they have changed course and moved past robodebt, they must wholeheartedly embrace these reforms.
The stakes could not be higher. We all now know the risks if government doesn’t work for people.
MARK DREYFUS
Mark Dreyfus is the attorney-general of Australia.
