The
very next day, on 6 December 2016, Mr Tudge’s advisor was provided
with a copy of a brief to the Minister
for Social Services, Mr Porter, which contained data that was current
as at 30 June 2016.
The
brief contained detailed information about social security debt,
sourced from Mr Tudge’s own department’s
systems. That information revealed that fraud accounted for 0.1 per
cent of the debt raised in
the 2015-16 financial year, and just 1.2 per cent of the outstanding
debt base as at 30 June 2016. Mr Tudge’s advisor indicated to
departmental officers that he was going to show the brief to Mr Tudge
“over the next day or so.”
Mr
Tudge did not have a specific recollection of the brief. However, in
circumstances where the brief was
copied to Mr Tudge “for his information,” the data was sourced
from his own department, and where his
advisor had indicated that he was going to show Mr Tudge the brief
“over the next day or so,” it can be inferred
that Mr Tudge had knowledge of the contents of that brief…..
The
opinion piece related to that person’s experience with Centrelink
concerning a debt that was not raised
under the Scheme. However, its relevance to the Commission’s
investigations was that it occurred in the
context of a media strategy to discourage public criticism of the
Scheme. It was a response, from both DHS
and the minister’s office, to a person who had described their
negative experience with a Centrelink debt.
The information released related to a particular named individual,
rather than being an anonymised case
study or part of an aggregate of data about a number of case studies
and it was released by both the minister’s
office and DHS.
Mr
Tudge said that, in hindsight, he considered that the information
should have come from the department to “correct the record,” and
not from his office.
This
particular release had an observable impact on the willingness of
people to publicly speak out about their
experiences in the media. Ms Miller commented that, as a result of
the release of this personal information,
“there were less people speaking out in the media, which was the
intention.” It had the effect
of shutting down most of the personal stories appearing in the media
which were critical of the Scheme.
Ms Crowe, from ACOSS, described the release of the information as “a
shocking abuse of the government’s
power at the time.” She was worried that it would “silence people
who were affected by Robodebt” and agreed with the proposition that
the release of the information in fact had “a chilling effect”
on people who wanted to complain about DHS.
There
may well have been other reasons for the drop in Robodebt stories at
the time, but it is reasonable to
infer, particularly given the observations of Ms Miller, a media
professional, and Ms Crowe, who dealt regularly
with recipients subject to the Scheme, that it was largely due to the
release of information by the minister’s
office in response to complaints.
It
can be accepted that a minister may often be called upon to defend
government policy in the media, including
unpopular policy. However, this strategy went further than that. Mr
Tudge submitted that the use
of case studies, and the release of information relating to a
particular person, was intended to “correct the
record” in the media. Correcting errors in reporting may be a
legitimate exercise. But this was not done openly. Instead, the
minister’s office fed information to the press, and in the case of
the 26 January article in The Australian, Mr Tudge the same day
exclaimed over the “significant story” on radio without
disclosing that his office had been the source of it.
If
“correcting the record” were the only purpose for the collation
and release of this information, then it would have been equally
important for the minister’s office to do the same in respect of at
least some of the cases where DHS or the system had made mistakes.
Instead, in instances where debts had been discovered to be
incorrect, recipients were dealt with by contact with DHS. The effect
of the strategy employed by the minister and his office, of publicly
correcting the record by emphasising “legitimate debts,”
“preferably large debts” and “top 20 $ value potential
overpayments” without doing the same with respect to instances
where mistakes were also occurring, and debts were either inaccurate
or non-existent, was that it was apt to create a general perception
that debts under the Scheme were owed and the system was working.
Mr
Tudge’s engagement in this media strategy, and use of the media in
this way, had the effect of discouraging criticism of the Scheme, and
inhibiting open dialogue and analysis of the flaws of the Scheme.
It
also had the effect of undermining the credibility of complaints and
concerns about flaws in the Scheme.
As
a minister, Mr Tudge was invested with a significant amount of public
power. 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.
[Report
of the Royal Commission into the Robodebt Scheme, July
2023, p.140,
315]
STUART
ROBERT
former
Liberal National Party MP for Fadden, a former Minister for Human
Services, former Assistant Treasurer, former Minister for the
National Disability Insurance Scheme, former Minister for Government
Services
On
11 June 2019, the Hon Stuart Robert MP, Minister for Human Services,
was given a brief on the Masterton case. It indicated that if the
litigation were to result in an adverse decision concerning the
lawfulness of the debt, consideration would have to be given to
“legislative or revised administrative arrangements” for the
Scheme. Ms Leon had reviewed a draft of the brief some days earlier.
She had noted on the draft that the minister would “also need to be
briefed orally.”
Mr
Robert read and signed the brief on 22 June 2019, adding a comment
that the deputy secretary, Integrity, (Ms Annette Musolino) was to
brief him in the first week of July. That briefing duly took place on
4 July 2019. There is controversy as to what occurred at it…..
What
was the subject of dispute was whether Mr Robert was nevertheless
briefed orally about the Draft AGS
Advice. Ms Leon had made a notation on a brief delivered to her that
the minister was to be briefed orally,
in order to keep distribution of the advice itself to a more limited
group than would receive a written
ministerial briefing. Mr Ffrench said that in accordance with Ms
Leon’s instruction, he attended the
4 July meeting, with Ms Musolino and others, to brief the minister.
His evidence was that he took a copy of
the Draft AGS Advice with him and explained to Mr Robert the
difficulties raised by the Advice in relation to
aspects of the Scheme. He informed Mr Robert that, as a result of the
Draft AGS Advice, steps had been taken
to obtain an opinion from the Solicitor-General.
According
to Mr Ffrench, Mr Robert did not ask whether there was any existing
legal advice on the issue of
averaged PAYG data and did not say anything about obtaining external
legal advice on the question. He believed
that it might have been in this meeting that the minister made a
statement to the effect that a legal
advice was merely an opinion until a Court declared the law.
Unfortunately, however, Mr Ffrench did not document the meeting in
any way….
Despite
what Mr Robert said was his “strong personal view” that income
averaging led to incorrect calculations
of debt, he was prepared to advocate for its use. In particular he
claimed publicly that in 99.2 per
cent of cases where a debt was raised, the debt was correct. He
explained this figure in different ways.
In
an interview on 31 July 2019, Mr Robert asserted that in 99.2 per
cent of the 80 per cent of cases where recipients could not explain
their income, Services Australia had conducted a review which showed that
the recipient in fact had the debt. In a later doorstop interview, on
17 September 2019, he said it was
based on a calculation that of the 80 per cent of cases where the
recipient had not explained their earnings
satisfactorily, only 0.8 per cent had been overturned on appeal,
which meant a 99.2 per cent effectiveness
rate. (A media release authorised by Mr Robert on the same day made a
similar claim).
In
evidence, Mr Robert suggested that the 0.8 per cent might consist of
cases which succeeded on application to the AAT or, more generally,
cases where error by Services Australia or the ATO had been
identified.
The
Commission has tried to establish how a figure of 0.8 per cent could
have been arrived at as representing the percentage of inaccurate
debts in those cases where a debt was raised. To begin with, the
claim that debts were raised in 80 per cent of cases is flawed.
According to figures provided to the Commission by Services
Australia, across the life of the Robodebt Scheme, debts were
actually raised in about 55 per cent of cases where recipients were
required to respond to a discrepancy between declared income and PAYG
data.
Turning
to the figures for debts raised, a percentage as low as 0.8 per cent
could only be arrived at confining consideration to debts revised
after review in the Administrative Appeals Tribunal. This is to
ignore debts revised internally after reassessment by Services
Australia officers, after Subject Matter Expert (SME) review and
after Authorised Review Officer (ARO) review, which, on the figures
provided by Services Australia, accounted for about 16 per cent of
cases where debts were raised. And, of course, it was based upon the
unsafe assumption that if a recipient did not have the capacity to
seek review, the debt raised against them must have been accurate.
The
statement made in the 31 July 2019 interview was untrue (Services
Australia had not reviewed 99.2 per
cent of the cases where the income discrepancy had not been
explained, let alone found the debt to be
correctly raised). The statement made in the 17 September 2019
interview was, at best, misleading; it suggested that only a fraction of debts had been challenged and that
the balance of 99.2 per cent was therefore
correct….
The
Commission’s view is that the weight of the evidence is strongly
against Mr Robert’s having given any instruction to Ms Leon on 7 or
8 November 2019 to cease income averaging as a sole or partial basis
for debt raising. What seems to have happened at the meeting on 8
November 2019 was a canvassing of options.
It is reasonable to suppose that Mr Robert still hoped to salvage the
Robodebt Scheme in some respects.
The
lack of a clear instruction to Ms Leon to cease income averaging is
not surprising in light of the Government’s
intention to publicly announce, through the minister, the end of
income averaging in the most palatable terms it could find. Plainly,
if a direction were given to departmental staff to end the process
there was a strong risk that the announcement would be pre-empted by
the media’s being informed of it.
Consequently,
the Commission rejects Mr Robert’s claim to have acted to end the
Robodebt Scheme quite as
promptly as he professes. Ms Leon was in fact the first to take steps
for that purpose. [Report
of the Royal Commission into the Robodebt Scheme, July
2023, pp.299,
301, 315]
KATHRYN
CAMPBELL
current
senior AKUS advisor to government, a former Secretary of the
Department of Social Security, former Secretary of the Department of
Human Services, former Secretary of the Department of Foreign
Affairs and Trade
As
will appear, after the meeting between DHS and DSS on 27 October
2014, DSS obtained legal advice to the effect that the use of income
averaging in the way that had been proposed by DHS was unlawful.
However,
DSS was not informed of the further work that DHS was undertaking on
the proposal until early
2015,
after a meeting between DHS secretary, Kathryn Campbell, and Scott
Morrison, Minister for Social
Services,
on 30 December 2014….
Ms
Campbell recalled that, at the time of the meeting with Mr Morrison,
significant media attention was
focused on “the integrity of welfare outlays” a phrase which she
said meant “payments to [sic] which
the recipient may not be eligible”. It is likely Ms Campbell had
some knowledge of the DHS PAYG proposal,
a deputy secretary of DHS having sought information about it on her
behalf in November 2014….
Kathryn
Campbell, former secretary of DHS, observed in her evidence that
“suicide was something that we [at
DHS] dealt with frequently.” That is no doubt due to the fact that
many social security recipients live in
situations of disadvantage or vulnerability. Any debt-raising
exercise in that context is likely to increase numbers
of suicide and self-harm.
That
DHS was aware of this likelihood – that it dealt with suicides
frequently – makes the implementation of
the Scheme all the more egregious, particularly when there was
evidence that they were raising inaccurate
debts. DHS had a responsibility to deal sensitively with those people
relying on its services, and to provide support rather than
inflicting distress….
On
16 August 2017, ACOSS met with Mr Tudge and Kathryn Campbell, the
Secretary of DSS. Ms Crowe told
the Commission that there were no notes from the meeting, but to her
recollection it was a “tense meeting”
where they discussed the Scheme and “the use of the AFP logo on
taskforce integrity letters.”
ACOSS’s
concerns were not resolved in the meeting, and it ended abruptly.
ACOSS
told the Commission that historically, when there were social
security measures announced, the DSS
would convene a meeting with stakeholders to discuss Budget measures
in their portfolio, at which meetings
ACOSS would provide input. In relation to the Scheme, there was no
such consultation….
The
CPSU wrote to Kathryn Campbell (secretary, DHS) on 19 January 2017,
relaying concerns raised by employees that “debts are being issued
where there is no proof that a debt exists.” Neither the Commission
nor the CPSU have evidence of any response….
The
Commission heard evidence from a number of SES officers who held
leadership and other senior positions. The role of SES officers
within each department is to provide APS-wide leadership of the
highest quality that contributes to an effective and cohesive APS.
The most prominent SES officers within each department are the
secretaries and deputy secretaries, who were integral to the making
of key decisions, communications with ministers, and in directing
other APS employees within their departments in relation to the
Scheme.
The
secretary of a department holds a distinct role as an “agency
head”, and is bound by the Code of Conduct
in the same way as APS employees. However, as an agency head, the
secretary of a department also has a separate statutory obligation to
uphold and promote the APS Values and the APS Employment Principles.
The
APS Value of ‘Impartial’ requires the public service to be
apolitical, and provide the government with advice that is frank,
honest, timely, and based on the best available evidence. The
Commission heard evidence about APS leaders (both Secretaries and SES
leaders) being excessively responsive to government, undermining
concept of impartiality and frank and fearless advice. For example,
when the Scheme was developed in 2015, the New Policy Proposal was
apt to mislead the Expenditure Review Committee and Kathryn Campbell
(Secretary, DHS) did not take any steps to correct that misleading
effect…. [Report
of the Royal Commission into the Robodebt Scheme, July 2023, pp. 40,
49, 337, 366, 393, 643]
LEGAL
REMEDIES
“People
may have individual or collective remedies. On the evidence before
the Commission, elements of the tort of misfeasance in public office
appear to exist. Where litigation is not available, the Commonwealth
does have a “Scheme for Compensation for Detriment caused by
Defective Administration” (which would be a very euphemistic way of
describing what happened in the Robodebt Scheme) where a person has
suffered from defective administration and there is no legal
requirement to make a payment. It is not appropriate to say any more
on that front.” [Report
of the Royal Commission into the Robodebt Scheme, July 2023,
p.659]
A
perspective on the political & social background of the years
2009 to 2022
The
Sydney Morning Herald,
26 May 2022:
As
the results rolled in it was difficult to grasp: the Liberals of the
2020s, eerily like the Soviet Communists of the 1980s, were suddenly
an anachronism. Like the Politburo, they too had become entrapped
within their fervent ideologies and grown so distant from reality
they lost the moral legitimacy to govern. Power was now haemorrhaging
away in a death agony of lost seats.
Morrison
was widely credited as the architect of this annihilation. But
perhaps he was no more than the sinister final act of a larger story
that began decades earlier when John Howard was elected prime
minister in 1996. Of all Australian prime ministers, it is Howard who
can rightly claim to be the most transformative, reshaping the nation
so completely that, other than a Labor interregnum of six years, it
has been conservative governments largely in his image ever since.
Every issue that defined Morrison's downfall had deep roots in
Howard's prime ministership.
It
was Howard, after all, who from 1996 on campaigned internationally
against binding global carbon emission reduction targets. His
reasoning for doing so, he told cabinet in 1997, was that Australia
was "a major exporter of energy". His advocacy to key world
leaders, cabinet papers reveal, proved "influential". And
so we led the world backwards.
He
similarly turned back a historic tide of national progress on
everything from the republic to reconciliation, refused to even use
the word multiculturalism in his early years of prime ministership,
and set the dogs of xenophobia onto Australian politics, transforming
refugees into a threatening invasion force. He revelled in fomenting
culture wars while gutting institutions and corroding civil society,
attacking it whenever it stood up for the environment, the rights of
citizens, workers, or of the weakest. He purged the Liberal Party of
what were then called wets, the moderates of the day, paving the way
for the far-right fundamentalist clique it has become.
His
success lay in speaking to what was smallest and worst in Australia's
breast: fear, greed, apathy, racism. It was a template for all that
followed.
Howardism
was to be taken up with a new aggression and misogyny by his
self-declared love child, Tony Abbott; continued, despite his
post-partum revisions, by Malcolm Turnbull; until there came its
final decadent phase: the Morrison government, a rabble characterised
by sleaze, scandal and self-interest. By then, Howardism resembled a
degenerative disease. What once had been merely cynical gestures to
win votes or wedge opponents had transformed into a terminal cancer
of mystical doctrine. They had come to believe their own baseless
babble, and they did not get that harassment in the workplace was not
part of the culture wars but lived experience. So too human-induced
fires, floods and cyclones. They never realised that their ideology
did not stand the test of reality: whether it be rain or flame or
allegedly being raped metres away from the prime minister's office.
It
was widely noted that they didn't get women, though, as Samantha
Maiden noted, it was women who finally got them. At root, the problem
was that they didn't get people: not the old, who were left to die
unnecessary, wretched deaths while they went to the cricket. Not
anyone under 40 who would never own a home, nor the trans kids they
damaged or the poor they may have driven to suicide with the illegal
and evil "robo-debt", wasting nearly $2 billion of our
money in the service of persecution.
They
didn't get kindness or decency, that the suffering in the theatres of
cruelty they called border defence not only distressed but shamed
many Australians. They didn't get that their ceaseless rorting and
corruption offended people who built lives around trust and honesty.
While
our artists were loathed, our scientists belittled, and our
journalists pursued by a politicised federal police for exposing
alleged war crimes, party hacks and corporate drones were rewarded
with sinecures and board seats and the bling of yet another Order of
Australia, a currency now more debased than the Iranian rial…..
Australia
was an increasingly illiberal democracy in which we were ever more
unsafe and more unequal. We were both inured to and haunted by the
idea that politics without a moral basis was the only politics
possible. On Saturday that nightmare abruptly ended. It turned out
politicians couldn't make up their own morality to explain away their
crimes without consequence. The historic significance of the election
is that it was the people who put an end to not only the Morrison
government but also the Howard ascendancy and with it, the two-party
system.
Many
weren't voting for a party or a program. Many had lived the
Armageddon of climate change as flood and fire and drought. They were
not afraid of change for the better. Trusting in each other, in the
idea that politicians should answer to them, they held to the
principle that they no longer would be told who their member would be
and what that member would stand for. They were standing up for a
future they were brave enough to believe we should, and we can,
address. They dared to hope…..
