Details of Scott Morrison's seven year war on the poor and vulnerable are being exposed....
The
Saturday Paper,
5-11
November 2022:
Robo-debt:
Liberals knew it was illegal before it started
Rick
Morton, senior reporter.
@SquigglyRick
November
5, 2022
David
Mason was the first person to give advice about a thought bubble
program that would become robo-debt. In an email, he called it for
what it was: a program with no legal basis that would result in
serious reputational harm if it was allowed to go ahead.
His
assessment should have been the end of the perverse experiment.
Instead, this algorithmic program was used to terrorise welfare
recipients for more than five years.
Mason
was an acting director within the Department of Social Services (DSS)
means testing policy branch when he was asked, in October 2014, to
provide the advice. The service delivery arm of government, then
known as the Department of Human Services (DHS), had cooked up a
potential budget savings proposal that involved splitting taxation
data into fortnightly blocks, when social security benefits are also
paid, and using this to figure out if a welfare recipient had earned
too much money and needed to pay back a debt.
“We
would not be able to let any debts calculated in this manner reach a
tribunal,” Mason warned. “It’s flawed, as the suggested
calculation method averaging employment income over an extended
period does not accord with legislation, which specifies that the
employment income is assessed fortnightly.”
Again,
Mason reiterated that the team could not “see how such decisions
could be defended in a tribunal or court, particularly when DHS have
the legislative authority to seek employment income information from
employers”. He stressed that “the approach could cause
reputational damage to DHS and DSS”.
On
October 31, 2014, the team asked for a second opinion from within the
DSS’s legal branch. The same person who had sought advice from
Mason, Mark Jones, emailed principal lawyer Anne Pulford to note that
the two departments were working together on payment assurance, as
was normal, but noted “a strategy is being considered that requires
legal advice prior to proposing it to government”.
This
is important in establishing a provenance for the controversial
robo-debt idea: although governments enthusiastically set
expectations for savings in budget cycles, the robo-debt scheme
itself was the brainchild of someone or some group within the DHS.
The
legal advice from DSS, provided by lawyer Simon Jordan on December
18, 2014, was almost as unambiguous as David Mason’s: “In our
view, a debt amount derived from annual smoothing or smoothing over a
defined period of time may not be derived consistently with the
legislative framework.”
This
advice was a co-opinion from Pulford, who features repeatedly in the
years to come.
“Unemployed
people are… almost by definition, they have vulnerable cohorts
within them. There would be people who would enter into agreements to
repay debts which they had not incurred in the first place.”
Five
days later, Scott Morrison became the minister for Social Services.
The
end. Or there things might have rested were it not for a gruesome
lack of imagination on behalf of dozens of players across government.
It is not that they lacked the ability to conceive or design this
wicked hunter’s trap of a debt policy – that is well recorded –
but that these figures apparently possessed an inability, at all
levels of the public service, to wonder what the final outcome of
such a hideous program might be.
And
it was this: at least seven families believe the suicide of a loved
one was connected to the receipt of a robo-debt letter. Hundreds of
thousands of Australians were hounded by government officers and debt
collectors for money they never owed.
To
be clear, these people owed no debt – not because of some
administrative technicality but because the Department of Human
Services concocted a system that literally made them up, despite the
above advice being provided before the program even made it into
pilot form.
“Commissioner,
we anticipate that the evidence to be adduced may be sufficient to
show that the reason why no authoritative advice on the legality of
the robo-debt scheme – and by that I mean from the
solicitor-general or other eminently qualified counsel external to
the department – the reason why no advice was obtained prior to the
advice of the solicitor-general in September 2019 was because advice
in one form or another within the Department of Social Services or
Services Australia [formerly DHS] created an expectation within those
departments that the external and authoritative advice may not be
favourable in the sense that it may not support the legality of the
scheme,” senior counsel assisting the Royal Commission into the
Robodebt Scheme, Justin Greggery, KC, said on Monday.
Indeed,
what has emerged in an explosive first week of full hearings is
information that has been actively hidden from the public for almost
six years. This includes multiple rounds of “advice” seen by the
most senior people in both departments over many years before
officials finally scurried to ask the solicitor-general for advice in
2019. The answers to questions sought by Services Australia in
September of that year should have surprised nobody who had been
paying attention.
The
solicitor-general was very clear: the use of smoothed or apportioned
tax office data “cannot itself provide an adequate factual
foundation for a debt decision”. Further, his advice noted that the
government couldn’t use the same data in the same way to
essentially shake down past or current welfare recipients by
presenting it to them and demanding they provide evidence that they
did not incur a debt.
This
advice continued a piece-by-piece demolition of the entire framework
for robo-debt, noting that – as Greggery put it – compliance
officers are required to investigate other sources of information,
such as employer records, to justify the assumption that a debt
exists. They cannot simply outsource this to welfare recipients by
issuing threatening letters.
“Failure
to respond does not provide positive proof of a debt, and the
decision-maker cannot speculate about why a person may have failed to
respond and to treat that speculation as evidence of a fact,”
Greggery said on Monday, summarising some of the solicitor-general’s
reasons.
“The
question raised by the solicitor-general’s advice is whether the
Commonwealth government was, prior to that point, recklessly
indifferent to the lawfulness or otherwise of the use of averaged
PAYG ATO data obtained from the taxation office to allege and recover
debts.”
“Reckless
indifference” is a phrase no barrister uses lightly. It is also a
crucial element in the civil law of misfeasance in public office. In
its own advice on the tort, the Australian Government Solicitor notes
that the element of “bad faith” requires one of two things:
either intentional harm caused by knowingly acting beyond their legal
power or the defendant having been “recklessly indifferent to
whether the act was beyond power and recklessly indifferent to the
likelihood of harm being caused to the plaintiff”.
The
story of robo-debt is one in which those responsible for it gradually
knew less and less, and with less certainty, about its dimensions,
about what it was going to be used for and how. What happened between
2014, when departmental advice cast near total doubt over the
legality of robo-debt, and 2019, when the solicitor-general’s
advice was finally delivered and led to the scheme’s ultimate end,
is a collective act of leaning in to a studied ignorance.
We
now know, from the evidence so far, that departments had all the
legal power needed to compel information from businesses but that,
apparently, the government “didn’t want [the] burden to be on
employers”, according to a senior official at the DHS.
We
know that design decisions were made in relation to the debt letters
sent to robo-debt victims, which shunted them deliberately online
rather than providing a contact number, because “past experience
shows that if an alternative phone number is provided a significant
proportion of recipients won’t engage online”.
We
know the DSS, faced with an investigation by the Commonwealth
ombudsman in early 2017, considered withholding the 2014 legal advice
from that office and, even though it appears to have relented, had
new advice drawn up by the same co-author of the 2014 document, Anne
Pulford, which was used to hoodwink the ombudsman’s office and
“show” robo-debt was legal.
We
know that, once this convenient deception was established in the eyes
of the ombudsman, its subsequent reports declaring robo-debt to be
consistent with the legislative framework were used by the DSS as de
facto legal justification for a scheme that was – and that they had
every reason to expect was – illegal.
“You
must have understood,” Justin Greggery put to Pulford during
questioning on Wednesday, “that you were being asked to walk back
the clear terms of the 2014 advice in the context of what was
happening in the public arena with the robo-debt scheme.”
It
was Greggery’s contention that nothing had changed in the question
put to Pulford in 2014 and again in 2017, but somehow the answer had.
“This
was the most hypothetical advice that could be provided to legally
justify some aspect of the scheme then in existence,” he pressed,
adding that it had no practical application at all.
Pulford
agreed it was “hypothetical” but said she believed she was
answering a “quite narrow and quite technically focused general
question” put to her by acting group manager Emma Kate McGuirk, who
emailed on January 18, 2017, and asked: “As discussed, I am looking
for advice, please, regarding a last resort method of debt
identification for income support recipients … is it lawful to use
an averaging method as a last resort to determine the debt?”
Pulford
says she does not recall the robo-debt program being mentioned in
this context. That being the case, Greggery pushed, why did emails
written by Pulford mention a “business need” to “justify” the
question being asked?
“The
difficulty with you saying that you don’t believe the robo-debt
scheme was raised is the evidence that you have given that you simply
cannot recall the context of what was occurring socially, or
politically, or within the office, or within your department, at the
time that you were asked this question,” Greggery said.
“As
a purely academic question about administrative decision-making, one
doesn’t need to have regard to a business need do they?” No,
Pulford agreed. She was then asked if she felt pressure from above to
massage her advice.
“I
believe I felt pressure from Ms McGuirk to provide an answer that
justified taking action in circumstances which the broad general
advice in 2014 would not have supported on its face,” she said.
“I
now cannot recall whether that was done in full awareness of the
robo-debt scheme being in full flight or not.”
McGuirk,
who had involvement with robo-debt for only a matter of weeks and who
took the stand briefly on Wednesday afternoon, said she could not
recall this conversation with Pulford but accepted one must have
happened, as it is referred to in the email.
Greggery
and Pulford argued back and forth about whether the 2017 advice was
just a “rehash” of the same 2014 question with a different
answer. Greggery’s view concluded like this: “Despite all the
investigation in the world, if all you’re left with is smoothed
income, you still arrive at the same answer that you gave in 2014.
Legally, the absence of evidence doesn’t amount to positive proof
of a debt, correct?”
Pulford
wrote a separate email in February 2017 to a colleague in which she
noted that “DSS policy has become more comfortable with the DHS
approach of using smoothed income, given it is being applied as a
last resort”.
She
continued, “This appears to represent a change in DSS position,
although it doesn’t represent a change in the legal position.”
On
the stand, Pulford accepted that this meant the robo-debt scheme was,
and remained, “legally flawed”.
In
isolation, it is conceivable that the different cogs in the social
service machine really had become aligned with the original DHS
proposal. After all, despite early and significant doubt over its
legality, the idea still made it to the minister’s office in a
joint executive minute alongside a bundle of options presented for
the 2015-16 budget.
A
new minister at that time, Scott Morrison, with his eyes on the
Treasury, liked the “PAYG” element. Once he had seen it, there
was apparently no turning back.
“Minister
Morrison has requested that the DHS bring forward proposals for
strengthening the integrity of the welfare system,” DSS branch
manager Catherine Dalton wrote to Pulford in January 2015.
“DHS
has developed the attached minute and, given the quick turnaround
required to the Social Security Performance and Analysis Branch, has
provided comments highlighting the need for legislative change, as
well as the shift away from underlying principles of social security
law.
“We
would appreciate your scrutiny of the proposals and advice on any
legal implications/impediments. What action would need to be
undertaken to resolve legal issues, as well as some indication of the
lead time required to obtain legislative change?”
This,
of course, was never done. After the PAYG option was cleared for
advancement by Morrison, DHS drafted a “new policy proposal”,
including a checklist that indicated “no legislation is required”.
So
far the inquiry has heard only from DSS public servants.
What
began as an idea floated within the public service to please
political masters had done exactly that. Now that it involved the
knowledge of those politicians, the pressure to deliver was many
orders of magnitude higher than before. All of this was happening
despite additional “legal questions” being identified in 2015 by
internal DSS lawyer David Hertzberg. Handling a jarring disconnect
between what was now being asked, and the ever-growing certainty that
robo-debt had no legislative basis whatsoever, required an unlearning
of unhelpful facts or the almost comical evasion of knowledge.
Take
the events of mid-2018, when the DHS referred an Administrative
Appeals Tribunal to DSS to consider an appeal. At stake was a
robo-debt case that threatened to derail the program, or at least add
to mounting and sustained public backlash.
The
AAT decision so alarmed DSS officials that they punctured a
longstanding refusal to get outside legal counsel regarding the
legality of robo-debt and enlisted the private law firm Clayton Utz
to provide an opinion on the matter.
In
the eyes of those same officials, it was not a good opinion.
“In
our view, the Social Security Act in its present form does not allow
the Department of Social Services to determine the Youth Allowance or
New Starts recipient fortnightly income by taking an amount reported
to the ATO for a person as a consequence of data-matching processes
and notionally attributing that amount to or averaging that amount
over particular fortnightly periods,” the draft advice says.
This
draft advice was sent to DSS principal lawyer Anna Fredericks on
August 14, 2018, and must have produced an extraordinary cognitive
dissonance among legal officers there.
Fredericks
emailed colleagues and said the advice from Cain Sibley and John Bird
was “somewhat unhelpful”.
“[They]
called me to discuss as the advice is somewhat unhelpful if the
mechanism is something that the department wants to continue to rely
on,” Fredericks said in the email, sent to Melanie Metz and
Pulford. “Cain advised that they might be able to rework the advice
subtly if this causes catastrophic issues for us, but that there is
not a lot of room for them to do so.”
Backed
into a corner, someone within DSS decided to deal with the problem by
pretending it didn’t exist. The Clayton Utz invoice was paid but
the department never asked for the draft advice to be “converted”
to final, more “official”, advice.
Was
this not extraordinary? No, Pulford said, because this kind of thing
happened all the time. If the advice on any given matter was not
favourable or judged as no longer needed, it would not be finalised.
Commissioner
Catherine Holmes, who has shown herself to be a fair but direct chair
of the inquiry, simply said: “I am appalled.” ……
After
the first full week of her royal commission, a few things are clear.
Robo-debt was a wicked scheme. It was illegal, and many people knew
or ought to have known it was illegal from its conception. Despite
this understanding, which never vanished, it was rolled out in such a
way as to herd past and current welfare recipients, like cattle,
through deliberately designed gateways that maximised the amount of
money they could be forced to pay.
For
many, they never owed a cent. This was a particularly cruel abuse of
the Australian public, at scale, by their own government, which
persisted – indeed, which was covered up – for five years against
truly overwhelming evidence that it should never have been allowed to
begin.
Read
the full article here.
