The Royal Commission into the Robodebt Scheme peels back layers of a six year old onion

 

A SINGLE MOTHER HITS OUT AT THE ROBODEBT SCHEME IN EARLY 2017

The Sydney Morning Herald, 6 February 2017:

It all started when I began receiving calls from a debt collector, which I initially ignored. I knew I had no debt and that any request for personal details from a stranger was cause for suspicion. But after some time I gave in to the harassment – my curiosity got the better of me, and by then the calls were interrupting everything from work meetings to putting the children to bed.

And that was how I discovered I had a Centrelink debt…..

Terrorised by Centrelink, I began to behave as the bureaucracy saw me: angry, emotional, confused, dependent and idiotic. It does not matter that I am a full-time employed economist with several degrees, published books and articles, and security clearance for giving economic policy advice on secret government documents. Now, I was a welfare cheat….

The debt recovery operation currently being run by Centrelink using data matching has the extraordinarily high error rate of one in five. I doubt any private enterprise would be allowed to get away with these error rates for debt collection.

You would like to think that my story means at least the one in five errors are all being identified and eventually resolved, but it doesn't. Many of my fellow Centrelink "clients" will lack the assertiveness, confidence, energy and literacy I used to fight for my case. The errors in their debt will not be found. Money will be taken, wrongfully, from some of the very poorest people in this country. I guarantee you they are terrified.

And anyway, my case isn't over.

Days before publication of this piece I was contacted by Centrelink with a new notification of debt. I have been instructed to pay back the Family Tax Benefit we received in the year my ex didn't file his tax return. And so, it begins again.

PUBLIC PUSH BACK BY THE THEN MORRISON COALITION GOVERNMENT BEGINS

Excerpt from The Canberra Times columnist Paul Malone’s article in The Sydney Morning Herald on 24 February 2017:

“But Centrelink has a different story.

The agency says Ms Fox's debt is a Family Tax Benefit (FTB) debt for the 2011-12 financial year which arose after she received more FTB than she was entitled to because she under-estimated her family income for that year.

The original debt was raised because she and her ex-partner did not lodge a tax return or confirm their income information for 2011-12.

Centrelink says that after Ms Fox notified the department that she had separated from her partner, the debt due to her partner's non-lodgement was cancelled.

In a later article on 5 March 2017 Malone admitted his 24 February article was based on information supplied by both Centrelink and the office of the Minister for Human Services “To my surprise I got answers to my questions in a series of emails from Centrelink and the office of the Minister for Human Services, Alan Tudge.

They said Ms Fox's case was not a robo-debt matter.

Her current debt was a Family Tax Benefit debt for the 2011-12 financial year which arose after she received more FTB than she was entitled to because she under-estimated her family income for that year”.

POLITICAL EXCUSES APPEAR IN MAINSTREAM MEDIA

The Guardian, 2 March 2017:

The office of human services minister, Alan Tudge, mistakenly sent a journalist internal departmental briefings about a welfare recipient’s personal circumstances, which included additional detail on her relationship and tax history.

Senior departmental figures were grilled at Senate estimates on Thursday about the release of welfare recipient Andie Fox’s personal information last month.

Fox had written an opinion piece critical of Centrelink and its handling of her debt, which ran in Fairfax Media in February. The government released her personal details to Fairfax journalist Paul Malone, who subsequently published a piece attacking Fox and questioning the veracity of her claims.

Two responses were given to the journalist, one from the department of human services and the other from Tudge.

The department said its response – three dot points containing only minimal detail on Fox’s personal history – was cleared by lawyers and was lawful. The minister’s office then added two quotes from Tudge and sent its own response to Malone.

Guardian Australia can now reveal that the minister’s office also accidentally sent the journalist two internal briefing documents, marked “for official use only”, which had been prepared by the department…..

SIX YEARS LATER THOSE POLITICALLY MOTIVATED LIES ARE REVEALED 

Excerpts from Twitter threads by journalist Rick Morton @SquigglyRick as he live tweeted from the Royal Commission into the Robodebt Scheme public hearing on 31 January 2023:

Greggery: "You said the media demand was very high while the Minister was on leave, the media was generally adverse, heavily critical. Would you say that by January 2017... the media situation was in crisis mode?"

Miller "Yes, but I didn't think it was not able to be shut down."

1:22 PM · Jan 31, 2023

Miller: "He [the Minister, Tudge] was very firm with me that I needed to shut this story down. The Minister became very quickly aware that the Prime Minister was unhappy. At the time, we were trying to decline as many media opportunities as we could."

1:23 PM · Jan 31, 2023

Miller: "That media strategy that I developed was very comprehensive and that involved placing stories in more friendly media about how the Coalition was actually catching people who were cheating the welfare system."

1:24 PM · Jan 31, 2023

Miller: "We were getting feedback from the Prime Minister's office that this was playing quite well in the marginal seats, Western Sydney, that sort of thing."

1:25 PM · Jan 31, 2023

This "counter-narrative" in the crisis strategy that Miller developed included pushing the message that they were "tracking down debts from the period when Labor was in Government that were not detected because they did not take the integrity of the welfare system seriously."

1:27 PM · Jan 31, 2023

Greggery asks about using "real life examples."

Miller: "The Minister was very adamant with me that I needed to hunt down as many case studies as I could, he was really very forceful about obtaining these."

He wanted to dismiss the stories that he thought were gussied up.

1:30 PM · Jan 31, 2023

Miller: "He wanted to put the attention back on the Labor Party and say 'what, you would let these guys go, you would happily give them taxpayer money that they were not entitled to'."

Miller spoke to Bevan Hannan, head of media at DHS etc

1:31 PM · Jan 31, 2023

Greggery: "What do you recall of the topic of releasing personal information from persons with whom Centrelink dealt to media?"

Miller: "So we didn't think of doing that at all ever."

This is early on. But then the author of an SMH/Age piece gets in touch.

1:38 PM · Jan 31, 2023

This journo sees this case in the media and says the case is "disgraceful" and "how is it the Minister can let this happen on your watch and he said I am going to write another piece about this." But he asks: can you assure me that what the author has written is correct?

1:41 PM · Jan 31, 2023

Miller talks to the DHS, they say well actually you CAN release very limited details about a person to "correct the record."

"The Minister requested the file of every single person who had appeared in the media."

The file was already in the MO

1:42 PM · Jan 31, 2023

Miller recalls Tudge being adamant they wanted people to think twice about going to the media with "false" information because if it's not true "we will correct the record."

"I wasn't too worried about [the criticism from the leftwing media]. That didn't surprise me at all."

1:44 PM · Jan 31, 2023

But she was worried, she says, that what they were doing was legal.

Miller says of the one case, where they released details "and the publicity that it got" sent the message that the Govt would push back.

1:45 PM · Jan 31, 2023

In the case of the person whose name they released, but in other cases too, Miller says there was "formal, signed legal advice." The Minister "requested that specifically."

1:46 PM · Jan 31, 2023

Miller: "It wasn't usual practice at that stage for Ministers in that portfolio to do that. It was a risk. There weren't, to my knowledge, previous cases of people using that particular loophole."

In retrospect, Miller says it is "not something I would do again."

1:48 PM · Jan 31, 2023

Miller says it was unethical that some leftwing journalists were not even going to them for comment.

"The usual relationships I would have with journalists were not working, and this particular group were being quite vindictive, being very biased and unbalanced."

1:49 PM · Jan 31, 2023

Of the name they did release, Miller says: "I did trust the reporter who was going to write that up, that rebuttal of ours, he was reputable, very reputable."

1:51 PM · Jan 31, 2023

Miller: "I did try to seek assurances from the policy issue but he was very firm that 'hey, this isn't your job'."

Policy adviser was Mark Wood.

1:56 PM · Jan 31, 2023

Miller: "Kathryn Campbell was there on a regular basis [in January 2017 at the Minister's office]. She was set up in the boardroom, almost permanently, I think. Malisa Golightly, I can't recall other specific people... Craig Storen."

1:57 PM · Jan 31, 2023

Prime Minister (Turnbull) asked Tudge to return from leave immediately to deal with the Robodebt "crisis."

Miller is asked about what she recalls about people committing suicide after receiving debt letters.

1:59 PM · Jan 31, 2023

The Saturday Paper, 4 February 2023, excerpts:

Alan Tudge, Rachelle Miller and Christian Porter appear at the robo-debt royal commission this week.  CREDIT: ROYAL COMMISSION INTO THE ROBODEBT SCHEME

An ugly “strategy” of demonising welfare recipients extended to almost all elements of the official response to the developing media storm. 

In the Rhys Cauzzo matter, in the week following publication of The Saturday Paper story in February 2017, the minister’s office debated the merits of releasing a dead man’s personal information in order to strike back at what they perceived to be unfair coverage. 

Tudge’s chief-of-staff, Andrew Asten, appeared to draw a line in the sand. 

“I would advise against going through these details in public because I think it is a bad look to be discussing the wrongdoing of a person who committed suicide.” 

He was overruled, presumably by Tudge himself, who micromanaged every aspect of his office’s media strategy, down to dictating the formatting of documents. Journalists were duly briefed about the “facts” as the government saw them. 

What is particularly telling about this specific episode – one in a catalogue of grotesque and deliberate acts designed to save robo-debt from “unethical” journalists, as Miller described them, and their good-for-nothing welfare complainants – is that Tudge ordered an investigation into the department’s handling of Cauzzo’s matter, but only to make them look good. 

A month after briefing journalists with Cauzzo’s protected Centrelink record, a departmental liaison officer working in Tudge’s office emailed her colleagues in the DHS with a “specific request” from the minister. The department and minister’s office had been drafting a letter to send to Rhys Cauzzo’s mother, Jennifer Miller. 

“The Minister has a specific request to open an investigation into Rhys’ circumstances,” the officer wrote on March 31, 2017. “He would like a brief on the investigation. The intent is to be able to update the letter to include a line similar to [redacted] letter, stating that he has investigated the matter and is confident the Department has done everything correctly (etc).” 

Within days, Tudge got the pre-determined outcome he was looking for: a ministerial brief from his department that noted “all interactions were appropriate and undertaken within the parameters of departmental processes”. 

What Tudge didn’t do, however, was investigate the use of income averaging in the creation of debts attributed to Rhys Cauzzo. Part of the fury about The Saturday Paper story at the time was that it was “not a robo-debt case” – even though this newspaper did not suggest that it was. The royal commission heard on Wednesday that Cauzzo’s matter was part of the manual PAYG intervention, which still included the use of income averaging and is now considered to be the very first iteration of the illegal robo-debt scheme. 

Greggery said that this matter was “the first point in time when the potential adverse consequences have gone beyond a matter of mere finance”. 

Addressing Tudge, he said: “Did you ask for an investigation into whether the role of averaging led to the death of Mr Cauzzo, a factor relevant to the suicide?” 

Tudge said what had been written in the piece “concerned him” and he “did want to … directly understand what had occurred”. Tudge’s inquiry deliberately avoided the two key criticisms of the debt recovery system, aired at length by this time in early 2017 and now accepted by Tudge. They were that debts being raised under the system were inaccurate and that Centrelink recipients were being swamped by the sudden reversal of the onus of proof. 

Now, people were killing themselves. 

The conflagration had ruined Tudge’s summer. There were many of these negative stories, beginning in December 2016, before Tudge went to Britain on a family holiday. Over Christmas, however, the situation was so obviously bad that then prime minister Malcolm Turnbull demanded Tudge cut short his holiday and return to deal with the crisis. 

In the royal commission this week, the former minister made a point of mentioning this holiday over and over again. It was a significant moment in a significant career because it was a media disaster and Tudge was a media performer. 

Miller had described her then boss as a “media tart” so obsessed with making a name for himself that he, a junior minister, sometimes did even more media appearances than his senior minister, Christian Porter, who held the Social Services portfolio at the time. 

Turnbull had forwarded to Tudge an article by the Fairfax economics editor Peter Martin, a former Treasury official and economist, in which Martin confidently – and presciently – declared the raising of Centrelink debts by use of income averaging could not be legal. 

Tudge flew back to Melbourne on January 9, 2017. From there he went immediately to Canberra, where “every second or third day” he held meetings in his parliamentary office, in committee meeting rooms or in the Department of Human Services, with the most senior leaders. 

“When I came back I very quickly had confirmed for me that this was a program that had been through the cabinet process,” he told the commission. “They are a rigorous process that always have a legal overlay through it so Social Services lawyers would have to have formed a view that it was lawful.” 

Later, Tudge claimed it was “unfathomable” to him that a secretary of his department would ever continue with a scheme that he or she knew to be illegal. That said, he didn’t expect them to bring their concerns to him, if there were any, without first “resolving” them within the department. 

 And so his self-described “laser-like” focus on fixing the scheme never went to the issue of lawfulness in this period. It apparently never went there at all during his time as minister. 

“I did not know the full context about the legalities,” he said. “It just had not crossed my mind until the [2019 federal] court case.” 

One of the “hurdles”, as Justin Greggery described it, was that Tudge knew how important these welfare compliance schemes were for the Coalition government because he had unwittingly, or otherwise, helped further them in the July 2016 election. 

Tudge was sworn into the ministry in February that year and told the royal commission that the then Finance minister, Mathias Cormann, had asked him if there was anything more they could get out of welfare compliance – that is, he was asked by one of the most senior members of the government if there were budget savings that could be made from welfare recipients. 

After this conversation, Tudge spoke with his department’s secretary, Kathryn Campbell, to pass on this request. Her department dutifully sent a raft of so-called “new policy proposals”, or NPPs, with attendant savings figures that could be pursued. 

The April 28 brief noted there were “five NPPs that will increase compliance and debt activity and deliver significant savings commencing July 2016”. 

That year was an election year. Tudge agreed that, once announced, there would be added political pressure making it more difficult to walk-back any money-saving measures if they were later deemed too hard to implement. He noted Cormann would “have absolutely been aware” of the figures. 

Tudge’s office had sent an email to then treasurer Scott Morrison or Cormann, or both, with the new policy proposals attached “for the purpose of announcing during the election campaign, literally a few days before the election”. 

According to estimates shared with the commission, robo-debt was expected to add $1.2 billion to the 2016-17 bottom line. If the debts were raised under the older, manual, lawful system, that number dropped to $150 million. 

One post-election measure was to extend the robo-debt scheme by two years. By early December 2016, Tudge had been given a brief from his department responding to questions about the fiscal savings robo-debt programs were expected to produce for the budget over the forward estimates. 

That figure was $4 billion. Tudge was quick in instructing his staff to drop this story with the “friendly” newspaper The Australian, where it ran on page one on December 5, 2016, with the headline: “Welfare debt squad hunts for $4bn.” 

The interview with A Current Affair followed on December 6, but, according to the national media manager for the Department of Human Services, Bevan Hannan, Tudge was so “bullish” in his approach that it put a big target on their backs. “It conflated welfare fraud with compliance activities,” Hannan told the inquiry on Tuesday. “The rest of the story had nothing to do with putting people in jail, but that – that grab seemed to galvanise everyone. “And so suddenly instead of being a story which would explain what we are doing, it put a big target on things, and the program and the minister became the hunted.”....

When problems began being reported in the press, Tudge fought back with the only weapon he had bothered to sharpen in his political career: a dependent and obsequious relationship with the right-wing media. 

In January, on his instruction, the Department of Human Services put together a dossier of all of the people with debts who had complained in the media. This information contained their protected Centrelink information, albeit anonymised, and special legal sign-off from DHS chief counsel Annette Musolino. It was sent to The Australian’s political editor, Simon Benson. He ran the story as the front-page splash in the next day’s edition: “Debt scare backfires on Labor.” 

This tactic of tying a neat bow around a story and handing it to a favoured journalist, Greggery said to Rachelle Miller, was to ensure the story was written “or at least presented in a way that the minister liked”. 

She agreed. “And Simon Benson,” she said, “was very good at doing that.” 

This preoccupation with establishing a “counternarrative”, as Miller described it, may have clouded the minister’s judgement. But there were at least three concurrent and damning threads running as Tudge faced the royal commission this week. Many of them involved the at times clandestine behaviour of his own department. 

One prominent figure in this is DHS chief counsel Annette Musolino, who herself spent nearly one-and-a-half days in the royal commission witness box this week. During Musolino’s own leave over the new year break in 2017, lawyers within her team at the Department of Human Services drew up draft instructions to seek advice from the Australian government solicitor that could have settled once and for all whether robo-debt was legal. The instructions were never sent.....

It is worth noting that these instructions were drawn up within a day of Alan Tudge arriving back in the country from his aborted overseas holiday to deal with the unfolding catastrophe. 

Did he know anything about them? 

“I’m asking you,” Greggery said on Thursday, “whether you can explain why, if you didn’t turn your mind to legality in the first couple of days when you came back, your legal department would be preparing instructions to the Australian government solicitor about the lawfulness of averaging?” 

Tudge said he couldn’t explain it. 

“It’s the first I’m even aware that that was occurring,” he said. 

Musolino was not in the dark about potential legal issues with the scheme. From at least late 2016 and then into 2017, her team was closely monitoring and providing reports on the outcomes of Administrative Appeals Tribunal decisions that were either rejecting the use of income averaging to raise debts or waving them through. 

In one particular matter, in a March 2017 decision by then AAT member Terry Carney, Musolino’s own lawyers agreed Carney had made no error of law in his reasoning. Despite this, and model litigant obligations placed on Commonwealth agencies, Musolino said DHS didn’t have to agree with the decision. It only had to implement it. If there was no appeal against the decision, it was very unlikely it would receive attention – and so the scheme could continue. 

“So how does the position get resolved where the AAT is making decisions that a significant program is being conducted on a basis which isn’t lawful?” Commissioner Holmes asked. 

“It just ticks along, and as long as nobody ever recommends an appeal, which they never need to because you can always implement the decision without regard to the program, it just goes on forever, does it?” 

Musolino said the AAT decisions “were cutting both ways”. Commissioner Holmes was unimpressed. “Okay,” she said. “I think you’re either missing my point wilfully or inadvertently.” 

The March 8, 2017, decision from Professor Carney did involve a general point of law that Musolino eventually accepted, after much circular argument. Essentially, it found a fundamental aspect of the scheme was unlawful. “That’s … yes,” Musolino finally said. 

This was a significant moment in the hearings, although it was dealt with carefully by Commissioner Holmes.

Musolino was shown a ministerial brief, prepared well over two years later, on November 6, 2019, for then minister for Government Services Stuart Robert, following the unequivocal receipt of legal advice from the solicitor-general, which declared robo-debt had no basis in law. 

Even though the solicitor-general’s opinion was “not a declaration of law” it was sufficiently alarming to DHS officials that they recommended robo-debt be terminated. 

“There is considerable legal and reputational risk should the Department continue to administer the program in its current form,” the document says. 

“[Then] Secretary of the Department, Ms [Renée] Leon, also carries personal risk associated with the continued administration of the program in its current form by reference to various obligations that she had as a public servant.” 

Crucially, the brief also put in writing a case that is being built brick by brick by the royal commission. “The continued administration of the program in its current form may amount to misfeasance in public office,” the Robert brief says. “This is because continued administration of the program after receipt of the opinion would contribute to an argument that the Department had been raising and recovering debts in bad faith.” 

Commissioner Holmes thought that the Carney decision might have put a concrete time line on when officials ought to have acted. A key element of the offence is acting with “reckless indifference” to the use of an official power that was reasonably expected to cause harm. 

“The fact is that the AAT was finding that averaging was not a legitimate procedure in cases – not all of them, but in some – and that proved to be perfectly correct as the solicitor-general’s opinion demonstrated,” Holmes said on Tuesday. 

“So that went on through 2017, 2018, to some time in 2019, when, around about March 2017, somebody could have been having a look at this. Is that a fair summary? You were getting decisions from the AAT pointing to a problem?” 

When then senior minister in the Social Services portfolio Christian Porter took the witness stand on Thursday afternoon he was asked about whether, while acting for the holidaying Tudge in late December and early January 2017, he formed the view that there was a “reticence” from DHS to publicise detail about how the online compliance system worked. 

“I recall … a sort of acceptance of the position and the talking points,” he said. 

“That then turned, at some point, into circumspection. Then I became sceptical and in the end I was extraordinarily frustrated with the level of information being provided.” 

There was another suicide after Rhys Cauzzo’s. It involved a woman who killed herself just five days after receiving a debt “discrepancy” reminder letter. The woman had previously sought social work support through the department but had no “vulnerability indicator” on her file. 

Despite the fact an employment separation certificate was already on the woman’s Centrelink file, which contained more detailed employment information, compliance officers were not permitted to consider this because, under the design of the scheme, it could never have allowed the government to recoup billions of dollars. 

This was an element of the scheme Tudge had promised to fix five months earlier, in January. He never did. 

Unlike with Cauzzo, whose case had been the subject of reporting, Tudge never ordered an investigation into this case. 

Greggery noted this difference and the reason for it. “I am suggesting,” he said, “the reason you didn’t order an investigation into this case, and you did for Mr Cauzzo, is because you were confident this wouldn’t reach the media.” 

 Tudge denied this.

State of Play 2023: Royal Commission into the Robodebt Scheme in entering the final tranche of public hearings

 

Public hearings in the Royal Commission into the Robodebt Scheme have been underway since 31 October 2022.

Currently Hearing Block 3 is coming to an end and the final round of public hearings, Hearing Block 4, is due to commence on 20 February 2023.

This week evidence has been heard from a number of significant political & public service 'operatives': 

former Senior Media Adviser, Office of the Minister of Human Services (Aug 2016-Nov 2017), Rachelle Miller; 

former Agency Spokesperson, Department of Human Services (2000?-May 2019) & current Agency Spokesperson, Services Australia, Hank Jongen; 

Liberal MP for Aston & former Minister for Human Services (8.2.2016 to 20.12.2017), Alan Tudge; and, 

former Liberal MP for Pearce & former Minister for Social Services (21.9.2015 to 20.12.2017), Christian Porter.

However, before addressing their sworn testimony, a review of last week's hearings may be in order from journalist Rick Morton.

The Saturday Paper, 28 January 2023:

Evidence heard during one of the most incendiary weeks at the robo-debt royal commission has revealed the extraordinary lengths two federal government departments went to in order to cover up a multibillion-dollar crime that spanned years.

By early 2017, two years after the Centrelink debt fabrication scheme had begun, there were two external agencies with prying eyes threatening to expose the legal fiction on which the entire program rested.

The Commonwealth Ombudsman was investigating, and damning decisions were also coming back in greater numbers from the Administrative Appeals Tribunal.

Both the Department of Social Services and the Department of Human Services adopted a “pattern of behaviour” that would deliberately mislead the ombudsman, ignore directions from the AAT and conspire to keep the government’s dodgy decisions in-house by refusing to ever challenge them past a first-round loss with the tribunal.

It was this latter strategy – according to Emeritus Professor Terry Carney, who sat on the AAT and a predecessor tribunal for decades until the former Coalition government suddenly ended his tenure in 2017 – that was the main reason robo-debt was “able to operate for so long and at such costs to applicants”.

His evidence and the other evidence given this week is the clearest account yet of the extraordinary efforts the government and its departments went to in the name of continuing a scheme that they knew was unlawful and was raising fake debts. Tens of thousands more people were dragged into the mess while this was known.

“Had there been a public ventilation of what the AAT was ruling, there wouldn’t have been an instant change to, or abandonment of, the scheme,” Carney told the hearing on Tuesday.

“But it would have been a lot quicker than the three or more years that nearly half a million people had to suffer the raising of unlawful debts against them.”

The fact the Commonwealth never appealed against a single decision was “unprecedented”, Carney said. This was even more startling a strategy when it became clear lawyers and appeal branch managers in the Department of Human Services (DHS) knew what was going on and did nothing to change course.

"Everybody needs to understand how many thousands of people were affected so badly by a system that was put in by a government department."

Under Commonwealth model litigant obligations and separate responsibilities enshrined in social security law, the federal government is required to have “due regard” to AAT decisions and should act to contest them where it involves a significant matter of law or policy or where different decisions create “inconsistencies” in the application of policy.

Former DHS appeals branch manager Elizabeth Bundy, a qualified lawyer, told the Royal Commission into the Robodebt Scheme on Tuesday that she probably didn’t read one of Professor Carney’s adverse tribunal decisions that was explicitly sent to her for monitoring “because it was very long and legalistic”.

Emails between Bundy and a lawyer in her team, Damien Brazel, sent in late March 2017, show they understood the significance of the Carney decision because it involved the use of income averaging from the “manual” pilot stage of robo-debt, a domain they say they believed was not an issue.

“We need to escalate this ASAP,” Bundy wrote to Brazel on March 24, suggesting they should inform DHS deputy secretary Malisa Golightly.

The following day, a Saturday, at 8.35pm, Darren Zogopoulos, a manager in DHS, emailed about a “third set aside … decision” with a note of alarm.

“This one is very interesting,” he wrote. “I would be concerned of [sic] legal services didn’t contest this. If they don’t, it will open up Pandora’s Box.”

Not only did they not contest this or any other decision, however, but DHS lawyers met some of the decisions with institutional arrogance……

It is helpful to go through this time line in detail.

The sequence of events begins around January 11, 2017, when DSS officials – including former director of payment integrity and debt strategy Robert Hurman – became aware of the ombudsman’s investigation.

From this date, the fuse of bureaucratic panic was lit.

Within hours, Hurman had been sent the only written advice his department had ever sought about the legality of the scheme: the 2014 advice written by Simon Jordan and second-counselled by senior lawyer Anne Pulford, which was unequivocal in its statement that the fundamental basis of robo-debt was illegal.

What to do?

Greggery laid out the department’s blueprint for deception.

“I suggest to you there was a common understanding within DSS – from the time the ombudsman’s investigation was received – to go on the front foot and defend the scheme as being both lawful and accurate in raising debts,” he said to Hurman.

“There was a pattern of behaviour from the start by people within DSS, of which you were a part, and it was designed to establish the lawfulness of the scheme in the representations that it made to the ombudsman, irrespective of the true position.”

Hurman responded that they “were trying to show it in a positive light”, a description that rankled the senior counsel.

“Yes,” Greggery said, “but it’s a bit hard to put a positive light on something that you understood was being conducted unlawfully according to the advice that had been given in 2014.”

Hurman and colleagues commissioned a new set of legal advice from Pulford, the same lawyer who co-authored the 2014 advice, only this time the answer to ostensibly the same proposition was that income averaging could be used to raise a debt.

This “2017 advice” wasn’t delivered until later in January. Six days before it arrived, on January 18, DSS officials attended a walkthrough with DHS leadership about the robo-debt scheme. About the same time then ministers Alan Tudge and Christian Porter were making public statements asserting the lawfulness of the program.

Although Hurman was on leave for this January 18 walkthrough, he authored an email that stated DSS staff were “comfortable that the current process is lawful and clear”.

Greggery asked how this could have been so. The walkthrough happened after the 2014 advice had been recirculated, noting the scheme was unlawful, and before the new Pulford advice had been received.

“So how could you be satisfied, or how could you represent that senior department staff were comfortable that the current process was both lawful and clear,” Greggery pressed, “in circumstances where you had been given contrary advice?”

Initially, Hurman had believed the original advice should be withheld. After a tense back and forth between the policy and legal teams, a decision was made to send both to the ombudsman.

However, on February 23, Greggery said, Hurman learnt that only the 2017 advice had gone to the ombudsman. The legal opinion acknowledging the scheme was likely unlawful was not sent. Former branch manager Russell de Burgh, Hurman’s boss, accepts that the 2017 advice was the only document the department ever had that could be construed as suggesting the scheme was even remotely lawful…….

Read the full article here.

Administrative Appeals Tribunal became so bloated by Abbott-Turnbull-Morrison Government appointees that Liberal Party cronyism began to eat away at its reputation. It is to be abolished and a new tribunal created in 2023

ABC News, 16 December 2022:

One of the most notoriously politicised bodies, the Administrative Appeals Tribunal, will be abolished after the attorney-general declared its reputation had been irreversibly damaged.

Attorney-General Mark Dreyfus said the former government made dozens of politicised appointments to the AAT in its time in office, and that he would end the "cronyism".

"By appointing 85 former Liberal MPs, failed Liberal candidates, former Liberal staffers and other close Liberal associates, without any merit-based selection process … the former government fatally compromised the AAT," Mr Dreyfus said.

"Australians rightly expect honesty, integrity and accountability in government."

A new review body will be established in the new year, and already-appointed tribunal members will be invited to continue with it.

For almost 50 years the AAT was tasked with reviewing the decisions of government, including on matters of taxation, immigration and social security.

Appointments to the AAT were made by the government of the day for terms of up to seven years, though members could be re-appointed.

Mr Dreyfus said the new body would have a merit-based process for appointing tribunal members, after he accused the former government of sometimes appointing members to review issues such as taxation despite having no expertise in the area.

"The AAT's dysfunction has had a very real cost to the tens of thousands of people who rely on the AAT each year to independently review government decisions that have major and sometimes life-changing impacts on their lives," Mr Dreyfus said.

"Decisions such as whether an older Australian receives an age pension, whether a veteran is compensated for a service injury or whether a participant in the NDIS receives funding for an essential report."….

Accusations of politicised appointments have been levelled at former governments of all stripes, though progressive think tank The Australia Institute found a significant rise in what it deemed political appointments after the Coalition won office in 2013.

The think tank found around 5 per cent of AAT appointments under the Howard, Rudd and Gillard governments had been made to people with political connections, but that jumped to more than one-third of appointments under the Morrison government.

It also found a quarter of senior AAT members who were political appointments had no legal qualifications.

Plum jobs that paid as much as $500,000 were sometimes offered to people in the dying days of government before a federal election.

Former NSW state Liberal minister Pru Goward, former WA Liberal minister Michael Mischin, and Mr Morrison's former chief of staff Anne Duffield were among those appointed to the AAT in the final days of the Morrison government.

The AAT had also faced several accusations of bullying by its members since 2016.

Bill Browne, The Australia Institute's democracy and accountability director, said reform was urgently needed.

"Whatever body replaces the AAT must be robust and independent, and that means the AAT’s replacement must be carefully designed with an open and transparent appointment process that ensures only qualified, independent members are appointed," Mr Browne said.

Australian Lawyers Alliance spokesman Greg Barns SC welcomed the AAT's abolition.

"Mr Dreyfus has the chance to create a new, impartial and fully independent tribunal that deals with thousands of cases each year involving Centrelink issues, tax issues and military compensation, to name some of the areas," he said.

"Today is a win for the rule of law."

Justice Susan Kenney has been appointed as the acting president of the AAT to guide its transition to the new system.

Mr Dreyfus said the new review body would be given 75 additional staff to help clear backlogs, at a cost of $63.4 million.

He said legislation to establish the body would be introduced next year, though likely not until the second half of the year.

BACKGROUND

ABC News, 7 November 2022:

Administrative Appeals Tribunal reveals 17 members have faced bullying or harassment complaints since 2016

Seventeen current members of the Administrative Appeals Tribunal (AAT) have had more than one bullying, harassment or discrimination complaint made against them since 2016.

Allegations have been made against 19 members in total, with two members no longer working with the AAT.

They include senior officials and a deputy president, with the head of the tribunal unaware until Monday that they were still serving despite the multiple complaints.

The Klaxon, 3 September 2022:

AAT member paid for two gov’t jobs – for over five years

The top public official responsible for penalising medical practitioners who rip-off Medicare was paid for two Federal Government jobs for her entire five-and-a-half-year tenure.

The Klaxon can exclusively reveal Professor Julie Quinlivan, the long-time head of the Federal Government’s Professional Services Review agency, was also paid as a member of the Administrative Appeals Tribunal.

Quinlivan has been employed as a “part-time member” of the Federal Government’s Administrative Appeals Tribunal (AAT) – in a position paying tens of thousands of dollars a year – since July 2015.

She was also employed as the full-time “director” of the Professional Services Review (PSR) agency from February 2017 until six weeks ago, when she quietly departed, seven months before her contract was due to expire.

The director of the PSR is responsible for reviewing allegations of “inappropriate practice” against Medicare by medical practitioners – including double-billing – and is paid almost $400,000 a year.

The payments to Quinlivan while she held both the AAT and PSR positions totalled over $2 million.

ABC NEWS, 14 April 2022; 

Government unnecessarily extends jobs ahead of election

Plum jobs worth up to $500,000 a year were extended to Liberal Party-linked individuals by the Morrison government in the lead-up to the election, and many were not due to end for another two years. Some had their tenure extended by Morrison & Co to 2027.

The Sydney Morning Herald, 1 February 2019:

Morrison government moves to re-appoint Abbott-era AAT members

The Morrison government is moving to re-appoint dozens of Abbott-era Administrative Appeals Tribunal members despite their terms coming to an end six weeks after a May federal election.

Crikey, 27 November 2019:

AAT accused of ‘intimidating’ robo-debt victims out of appealing

In the last financial year, the Administrative Appeals Tribunal contacted almost 800 people who wanted to appeal their Centrelink debt. Around half of those contacted withdrew their appeal, a figure that has alarmed experts.

Crikey, 25 September 2019:

Members of the Administrative Appeals Tribunal are steadily losing their jobs and being replaced with people less qualified.

Terry Carney lost his job as a member of the Administrative Appeals Tribunal (AAT) via a short, blunt email. It arrived five months after he delivered a tribunal decision which declared Centrelink’s robo-debt scheme to be illegal — a finding that angered the federal government.