There is little satisfaction remaining from the findings of the Royal Commission into the Robodebt Scheme - instead there is growing anger and resentment

 

In the aftermath of the release of the Final Report of the Royal Commission into the Robodebt Scheme there is little satisfaction remaining from the findings which found that the Scheme was an unlawful creation and pursuit of, for the most part entirely fictional or over stated, welfare debt.

By the time Robodebt was brought to a halt it is thought that around 443,000 welfare recipients across the country had received false debt notices.

This scheme was seemingly built on the basis of the then federal Coalition Government's false assumption that as a class of persons welfare recipients had a tendency to commit fraud and, that recovery of this 'overpayment' money mountain thought to be worth $4 billion would go some way to easing the public perception of its budgetary woes.

Instead of heads rolling for the level of illegality involved, the Cabinet Ministers, Ministers with portfolio, Departmental Secretaries and other key public servants & legal advisors appear to have - after the first shock of public exposure - moved on to lives where little or no consequences followed them as a result of the Royal Commission findings and referrals.

There was public anger expressed when on 6 July 2024 the newly created National Anti-Corruption Commission declined to investigated the referrals received from the Royal Commissioner eleven months before and that anger has been joined by resentment on occasion.

Evidence of this anger and resentment can be found on social media platforms and expressions of concern are found in news and media releases by relevant unions.

CPSU Community & Public Sector Union, News online, undated September 2024:

Union calls for Kathryn Campbell to lose APS honour

The main public sector union has called for Kathryn Campbell to have her membership of the Order of Australia revoked, after findings that she breached her obligations as a senior public servant throughout the robodebt scheme.

The Public Service Commission on Friday revealed Ms Campbell had breached the APS Code of Conduct a dozen times while she oversaw the unlawful scheme as Human Services secretary.

Findings included that she had failed to investigate legal concerns about the scheme, seek legal advice and keep her minister informed of criticisms about the program.

She was also found to have created a culture which prevented the consideration of concerns about the scheme, and to have caused its resumption in 2017, when she knew or ought to have known about inaccuracies in debts raised.

Ms Campbell has rejected all of the Public Service Commission's findings, telling The Australian she had relied on advice from the Department of Social Services over the course of the scheme, and that she felt she had been scapegoated.

But the Community and Public Sector Union has condemned Ms Campbell for her role in the scheme, calling for her honour to be stripped.

Ms Campbell was appointed an officer of the Order of Australia in 2019 by the Governor-General, in recognition of "distinguished service to public administration through senior roles with government departments, and to the Australian Army Reserve".

The commission's findings, which represent the final chapter of the government's formal robodebt response, have raised questions about whether she will be allowed to keep this honour......

First published: The Canberra Times, September 19 2024, by Miriam Webber.

Read the full Statement at

https://www.cpsu.org.au/CPSU/Content/News/Union_calls_for_Kathryn_Campbell_to_lose_APS_honour.aspx

National Tertiary Education Union, media release:

Charles Sturt University vice-chancellor must resign over robo-debt findings

16 September 2024

The National Tertiary Education Union (NTEU) has called for Charles Sturt University Vice-Chancellor Renee Leon to resign after she was found to have breached public service rules as part of her role in the robo-debt disaster.

Ms Leon, who was the secretary of the Department of Human Services between 2017 and 2020, has been in charge of CSU since 2021.

In a damning report, Public Service Commissioner Gordon de Brouwer found Ms Leon breached public service rules 13 times.

The breaches included misrepresentations of the department's legal position on income averaging, failures to correct or qualify that position and failures to "expeditiously" inform the responsible minister of advice on the lawfulness of the robo-debt scheme.

NTEU General Secretary Dr Damien Cahill said:

“Renee Leon must resign immediately. Her role as vice-chancellor at CSU is untenable after these damning findings.

“The chancellor’s claim that Ms Leon has the full backing of the university completely ignores the fact staff want the vice-chancellor to resign.”.....

Read the full Media Release at

https://www.nteu.au/News_Articles/Media_Releases/CSU_VC_must_resign.aspx

Statement by the Australian Public Service Commissioner on the Robodebt Centralised Code of Conduct Inquiry

Published 13 September 2024

The Robodebt Scheme was a failure of government in both policy design and implementation. The Australian Public Service acknowledges its role and takes responsibility for its actions, and is intent on learning from these failures to serve the Government, Parliament and Australian public better.

I apologise as Public Service Commissioner to those affected by the Scheme and to the Australian public for the part played by public servants in this failure.

Following the Royal Commission, the Secretaries of Australian Government Departments agreed a centralised process to investigate possible breaches of the Australian Public Service Code of Conduct to ensure consistency across the public service. The Australian Public Service Commission established a Robodebt Code of Conduct Taskforce and appointed expert independent reviewers to conduct inquiries into the actions of public servants associated with the Robodebt Scheme. Sixteen people were referred to the Taskforce, comprising current public servants referred by the Royal Commission, current and former public servants referred by their Agency Head, and former APS Agency Heads initially referred by the Minister for the Public Service, Senator the Hon Katy Gallagher. The Taskforce’s public report is published alongside this Statement.

In summary, 12 people have been found to have breached the Code of Conduct on 97 occasions....

Two former Secretaries, Ms Kathryn Campbell and Ms Renée Leon, have been found to have breached the Code of Conduct during their tenure at the Department of Human Services.

Ms Campbell breached the Code in respect of 6 overarching allegations, each comprising two breaches of the Code and amounting to a total of 12 breaches of the Code.

The 6 findings or substantiated allegations are that Ms Campbell:

1. failed in 2017 to ensure that internal and external legal advices about the Scheme were sought,

2. failed to sufficiently respond to public criticism and some whistle-blower complaints received by her in early 2017 about the Scheme,

3. failed in 2017 to investigate legal issues raised in a public forum, namely the annual meeting of the Australian Institute of Administrative Law, about the Scheme,

4. failed in 2017 to ensure that her Minister was fully informed of academic and legal criticisms raised in that public forum in respect of the Scheme,

5. created and allowed a culture that prevented issues about the Scheme from being properly considered within the Department of Human Services, including aggressive and abusive behaviour by a Deputy Secretary, and

6. caused the resumption of income averaging under the Scheme in August 2017 when she knew, or ought to have known, that debts raised pursuant to that process were potentially inaccurate.

A substantiated allegation can breach different elements of the Code of Conduct. The breaches by Ms Campbell of the Code relate to failure to act with due care and diligence (s 13(2) of the Public Service Act) and not upholding the APS Values (s 13(11) of the Public Service Act) in each of these 6 findings.

The following allegations against Ms Campbell were not substantiated: that she misled Cabinet, that she directed that preparation of legal advice cease, and that she failed to discharge her legal obligations with respect to the PWC engagement.

Ms Leon breached the Code in respect of 4 overarching allegations, each comprising multiple breaches of the Code and amounting to 13 breaches of the Code.

The 4 findings or substantiated allegations are that Ms Leon:

1. misrepresented to the Ombudsman in March 2019 that the Department’s legal position regarding the use of income averaging under the Scheme was ‘not uncertain’,

2. failed in March 2019 to correct or qualify representations made to the Ombudsman of the Department’s legal position on the use of income averaging under the Scheme after receiving further legal advice,

3. failed in mid 2019 to ensure that the Solicitor-General was expeditiously briefed and advice sought regarding the lawfulness of the Scheme, and

4. failed to expeditiously inform her Minister and relevant Secretary colleague of the Solicitor-General’s advice on the lawfulness of the Scheme and cease the practice of income averaging under the Scheme.

The first and second substantiated allegations involved breaches of the requirement to act honestly and with integrity (s 13(1)), to act with care and diligence (s 13(2)), to not provide false or misleading information (s 13(9), and to uphold the APS Values (s 13(11)). The third substantiated allegation breached the requirement to act with care and diligence (s 13(2)) and to uphold the APS Values (s 13(11)). The fourth substantiated allegation breached the requirement to act honestly and with integrity (s 13(1)), to act with care and diligence (s 13(2)), and to uphold the APS Values (s 13(11)).

Because they are former Agency Heads, no sanction can be applied. However, if they seek employment or engagement as a consultant or contractor with the Australian Public Service in the next 5 years they are required to disclose when asked that they have been found to have breached the APS Code of Conduct....

The full Statement can be found at

https://www.apsc.gov.au/working-aps/integrity/robodebt-code-conduct-process/statement-commissioner-centralised-code-conduct-inquiry-final-report

Rick Morton writing in The Saturday Paper, 21 September 2024, excerpts:

The Albanese government is considering whether it will, or even can, release the confidential sealed chapter of the robodebt royal commission report, after all of the major public inquiries triggered by it have fizzled out, been halted or made their own findings.

When the confidential chapter recommending referrals for civil and criminal prosecutions was given to the Albanese government, it was provided in hard copy, in sealed envelopes marked for just a handful of people. In all, only five people have officially received the sealed section. It is understood it makes recommendations for referrals against both politicians and senior public servants.

The governor-general received the whole report, as did the secretary of the Department of the Prime Minister and Cabinet and the Australian Public Service commissioner. Officials in the Attorney-General’s Department’s royal commissions branch received two envelopes they were forbidden from opening. One was given to their secretary and one was reserved for the attorney-general himself, Mark Dreyfus. He is the only politician to have received it. The prime minister was not given a copy and nor was the minister for government services, Bill Shorten......

There is the small matter of the law, however. When the commissioner, Catherine Holmes, provided the complete confidential section to just five people in July last year, she issued a simultaneous non-publication order preventing its disclosure to any person other than official investigating agencies. Only the people referred for possible prosecution can disclose, if they choose, what has been said about them in the section.

“Any person who makes any publication in contravention of any direction for non-publication commits a punishable offence,” Holmes’s order states.

“The penalty for this offence is, on summary conviction, a fine not exceeding 20 penalty units or imprisonment for a period not exceeding 12 months.”

A March 2022 review into confidentiality provisions in the Royal Commissions Act recommended the Australian government look at ways to make such “non-publication orders” more “effectively” managed after an inquiry had finished because they otherwise had no expiry date.

“Another drawback is that non-publication directions operate in perpetuity, and the Royal Commissions Act does not provide a clear mechanism for removing or amending the scope or application of a direction once a Royal Commission has concluded,” the review says.

“Robodebt happened because of a political and media culture that punches down on income support recipients. This is a culture that dehumanises people on income support on the one hand, whilst humanising people like Kathryn Campbell on the other.”

“In the time following the conclusion of a Royal Commission’s inquiry, there may be circumstances where there are legitimate reasons in the interests of public transparency for a non-publication direction to be removed or adjusted.

“For example, information that was confidential at the time of an inquiry may subsequently come into the public domain or may become less sensitive over time (for example information about criminal investigations). As such, there may be merit in exploring options for the Royal Commissions Act to prescribe methods of lifting a direction after a Royal Commission has concluded.”

A spokesperson for the attorney-general said the government was now considering what was possible.

“The Robodebt Scheme, run by the former Liberal Government, was illegal and one of the worst failures of public administration in history,” the spokesperson told The Saturday Paper in a statement.

“The Government is now giving consideration to questions relating to the release of the confidential chapter.”

A spokesperson for the Attoney-General’s Department suggested any potential changes to legislation to achieve this were not on the government’s radar, however.

“Any reforms to the Royal Commissions Act 1902 will be considered in the context of the Government’s broader reform agenda, noting there is currently no royal commission on foot,” they said in a statement.

Publicly, the commissioner noted she had referred individuals to the National Anti-Corruption Commission (NACC), the Australian Public Service Commission (APSC), the Australian Federal Police and the Law Society of the ACT. The NACC controversially elected “not to commence a corruption investigation” in relation to six individuals referred to it because the APSC was already investigating five of them.

One, however, was a politician who is not subject to the APSC.

The corruption body is headed by Paul Brereton, who delegated the decision to a deputy commissioner “to avoid any possible perception of a conflict of interest” – although the nature of that possible conflict was not disclosed.

That NACC decision is now the subject of its own conduct investigation by the NACC inspector, Gail Furness, after more than 900 complaints were received following the announcement in June.

The Australian Federal Police received a referral for an individual who the royal commissioner suggested had deliberately misled her inquiry, but the AFP declined to charge anybody because, it said, it lacked admissible evidence that the “alleged offender intended to mislead the royal commission”.

Finally, the Law Society of the ACT will not say whether it has even received a referral from the robodebt royal commission, as it neither confirms nor denies such things, but in some circumstances disciplinary action taken against its enrolled legal practitioners will be published in an online register.....

Despite its recommendations and findings, notably that Scott Morrison allowed cabinet to be misled about the illegal robodebt scheme and that vast swaths of Stuart Robert’s evidence were rejected as untrue, no minister involved in the scandal has featured in any other public accountability forum.....

This article was first published in the print edition of The Saturday Paper on September 21, 2024 as "Inside the fight to open the robodebt sealed section".

There were more income averaging schemes than just Robodebt robbing welfare recipients and the rot appears to have started under Prime Minister John Howard, Minister Amanda Vanstone & Department Secretary Mark Sullivan

 

In March 1996, by virtue of being Parliamentary Leader of the Liberal Party, John Winston Howard became Prime Minister of Australia. In January 2021 Howard made Senator Amanda Vanstone Minster for Family and Community Services, while he appointed Mark Sullivan as Secretary of the Family and Community Services in January 2002.

It would appear that sometime in the seven years between the start of1996 and the end of 2002, a virulent political, policy and bureaucratic rot began to to grow…..

In July 2002 the Department of Family and Community Services (FaCS) had introduced changes to quality control and quality assurance processes and had in place

comprehensive Centrelink processes to ensure

Quality control, service profiling, national validations.

• Awareness: newsletter, regular reviews, debt prevention strategy, life events products

• Deterrence measures: regular reviews, prosecutions, warning letters, raising and recovering debts

• Compliance initiatives: Accelerated Claimant Matching (ACM), ACM Rent Assistance, ATO tip-offs, Data-Matching Program [ATO, Australian Valuation Office (AVO) & Centrelink], Corrective Services Matching, DIMIA matching, Registrar-General’s Office death matching, Defence Housing matching, Com Super matching, ATO investment property matching, TDF matching, Tip-offs, T&Cs (ATO & ASIC matching), ID fraud detection, Optical surveillance, outposted Australian Federal Police agents, inter-agency Cash Economy Field Teams.

The Department of Family and Community Services, Annual Report 2002–03 Volume I & 2, (pp.14,16, 77, 216) revealed how this rot began to be seen as healthy:

[my yellow highlights throughout this post]

“There was a $162.1 million decrease in the write down of assets, primarily the result of a decrease in the provision for doubtful debts for the Student Financial Supplement Scheme ($386.6 million). This was offset by an increase in the provision for doubtful debts for other personal benefits ($224.5 million) due to a change in methodology for calculating the provision for doubtful debts.”…..

“To tackle the upward debt trend, we developed a national collection strategy that is already making an impact on collections and stemming debt growth. This ensures more parents support their children according to their capacity to do so. The strategy also provides a basis for implementing the 2003-04 Budget measures to target recalcitrant debt.”….

“Service profiling was introduced gradually in 2002–03.”

“Other methods to identify possible incorrect payments include:….

• risk-based review selections generated from statistical analysis of client characteristics

• duration reviews that examine client entitlements at specific intervals from payment commencement”

“Centrelink has contracted mercantile agents to recover some client debts when the debtor’s whereabouts are unknown or when pursuit of the debts through standard debt recovery processes is not cost effective.”

By February 2023 it had become clear that Services Australia and the Department of Social Services had been withholding information from the Commonwealth Ombudsman and possibly from the Royal Commission into the Robodebt Scheme.

According to Rick Morton writing in The Saturday Paper on 12 August 2023:

Centrelink used the same bad mathematics as the illegal robo-debt scheme to raise debts estimated in the hundreds of millions of dollars from more than 100,000 welfare recipients – some of whom have faced prosecution.

The revelation shatters any illusion that defective administration was contained to a single program. If all inaccurate debts are ever found, the cost to fix the mess could top $1 billion…..

Services Australia chose not to tell the Commonwealth ombudsman in early 2021, when the ombudsman raised individual cases of inaccurate debts with the department. The integrity agency was only briefed on the issue in February this year, at which time it launched an own motion investigation into the matter.

At the start of this month, the Commonwealth ombudsman published a report titled “Lessons in Lawfulness” about this debt calculation technique, known as “income apportionment”, which Centrelink used for almost two decades until December 7, 2020, to effectively fit the reported income of welfare recipients into the rigid eligibility fortnights defined under the legislation.

“The agencies are still determining how much the known and potential debts are affected – that is, how much payment rates went up or down because of unlawful or inaccurate income apportionment calculations,” the report says.

“It is unknown how many other customers may have been impacted by unlawful or inaccurate debts or underpayments.”

The Commonwealth Director of Public Prosecutions told The Saturday Paper that Services Australia had “identified prosecutions before the courts affected by income apportionment which may affect the amount of financial advantage alleged”.

“At this stage, the CDPP is considering the circumstances of each prosecution with a view to allowing the income apportionment issue to be addressed,” a spokesperson said in a statement. “The CDPP has taken or is taking steps in relation to these matters to ensure these defendants/courts are advised. As a result a number of matters have been adjourned.”

What will happen to the historic cases dating back to 2003 is unclear.

Prosecutions are just the pointy end of the compliance system, however. The vast majority of Centrelink clients affected were simply slapped with a debt.

Scholars such as the University of Sydney’s health and welfare law lecturer, Dr Chris Rudge, as well as insiders who have spoken with The Saturday Paper, suggest the number of people affected could be higher than 500,000.

The bureaucrats “never worked out how to make a mathematical… a lawful mathematical approach”, Rudge says.

Centrelink could have changed the legislation to allow its accounting practice, he says, but this did not happen. “If the law had said you can just do it across different periods, then this wouldn’t have happened.”

At issue is an obscure provision of the Social Security Act, section 1073B, which purports to give officials the power to take the self-reported earnings of a benefit recipient and squeeze it into a Centrelink fortnight by dividing the lump sum income by 14 days. The practice is called “income apportioning”. It was considered necessary because the reporting periods did not neatly match the Centrelink assessment fortnights, and often overlapped. However, the section of the social security law immediately following is clear that this method can only be used within a single fortnight.

“In training they actively told us to never ever go to the legislation. Because they thought – and frankly they would be right – that the level of staff member that did that sort of work would not be able to accurately interpret it.”

The use of income apportioning to assess eligibility for welfare payments is discrete from robo-debt, which was a specific program of debt-hunting using annual tax office data, and created illegally in 2015 when it received cabinet approval. Under this administrative practice, bureaucrats used payment amounts accumulated over, for example, several months’ work, and attempted to fit them into fortnightly blocks. However, it is the same mathematical concept – averaging – that was deployed under the robo-debt scheme. Neither had a legislative basis. The earnings apportionment tool used by Centrelink employees actually did this averaging automatically. Robo-debt used the same tool, but with annual data, and with a deliberate strategy to raise debt.

Centrelink public servants were using the dodgy mathematics to uniformly populate successive assessment fortnights which, had a person been receiving benefit payments, could have retrospectively rendered them ineligible for those payments, creating a debt.

“It’s so artificial,” Rudge says. “If it goes beyond one entitlement period, it’s unlawful.”

As a former debt team worker tells this newspaper, cultural problems at the agencies meant these assumptions were never tested.

“In training they actively told us to never ever go to the legislation,” the source says. “Because they thought – and frankly they would be right – that the level of staff member that did that sort of work would not be able to accurately interpret it.

“Their view was go to the operational blueprint because we’ve got this wonderful team of people that are always reviewing the legislation and AAT [Administrative Appeals Tribunal] decisions and making sure it’s adjusted so it’s always right.

“In hindsight, that wasn’t correct.”

The robo-debt royal commission uncovered a political and administrative conspiracy spanning six years in which the debt-raising scheme was conceived, delivered and continued despite legal advice from the beginning that stated it was against the law.

Despite robo-debt’s effective end, in late 2019, and the use of income apportionment to determine payment rates being aborted in December the following year, it is clear sections of the vast social security bureaucracy either did not know what they were permitted to do, did not seek to find out or, worse, knew and continued anyway.

In the course of normal business, Centrelink has raised almost $12 billion in debts from mid-2018 to March this year, and waived $180 million of that due to “administrative error”. Income apportionment, which goes beyond simple error, dates back “at least” to 2003, according to the ombudsman…..

When Senator Patrick first raised individual cases related to the use of income apportionment, he spoke with two key figures found to have been intimately involved in robo-debt: Kathryn Campbell and former DHS chief counsel and chief operating officer Annette Musolino.

Campbell, then secretary of Social Services, said there had been “challenges” in administering the social security system because of a timing issue: whether income was assessed at the time it was earned or at the time it was received. She flagged the December legislation change as a way to end this impasse.

The cases Patrick’s staffers had been chaperoning through internal review, the AAT, senate estimates and finally put in writing to the then Social Services minister Anne Ruston in the Coalition government were all significant. There were 15 cases with an average debt of $3853.

Campbell’s explanation – that there were challenges in administering the scheme – failed to take account of the fact it was a policy choice made by bureaucrats to use the date income was earned as the trigger for benefit assessment, rather than when it was paid or received. They believed other approaches would create an inequity: some people could defer payments, rendering them eligible for social security benefits in fortnights where they would otherwise have been ineligible.

In doing so, senior bureaucrats read the law wrongly, for two decades.

When the legislation was changed in December 2020, the bills digest gave a hint of the scale of “overpayments” that would otherwise go on to become debts.

“The changes … are expected to provide savings of $2.1 billion over five years from 2018-19. The savings will be derived from reduced overpayments arising from inaccurate income reporting.”….

Although the Commonwealth ombudsman notes there is “an unresolved and significant difference of opinion between some of the legal advices”, its investigation statement leaves no room for interpretation.

“Our investigation found Services Australia and its predecessor the Department of Human Services had been spreading employment income evenly over two or more Centrelink instalment periods (Centrelink fortnights), in circumstances where this was not permitted by social security law,” the ombudsman says.

“This approach, known as ‘income apportionment’, could result in customers’ employment income being assessed in the wrong Centrelink fortnight, which could in turn result in their fortnightly Centrelink payment being over- or under-paid.”

A former Centrelink employee says the ombudsman’s certainty on unlawfulness and the competing legal interpretations of the departmental advice suggests the disagreement is not over the legality of using income apportionment but how to remedy a roughly two-decade overreach…..

“Once the legal issues are resolved, the Secretary of DSS will finalise a remediation strategy for historic cases and the General Instructions will be refreshed, as required, to reflect this strategy. We acknowledge this has taken longer than we would have wanted but we are determined to get it right.”

These general instructions were created by DSS to guide Services Australia in “how to process and review potential debts … which were potentially miscalculated due to unlawful application of income apportionment provisions”.

The ombudsman says they contain a glaring omission.

“General Instructions represent the policy position for how to calculate income apportionment debt-raising processes,” it says. “Currently, they do not cover any potential underpayments which may have been caused by income apportionment practices.”

These same instructions suggest the DSS secretary will only review historical decisions where a person requests a review and it is “not expected that the Secretary will initiate administrative reviews of historical debt decisions”.

The ombudsman disagrees.

“We consider the position adopted by DSS and Services Australia in the General Instructions is not appropriate,” the report says. “This is inconsistent with the principle of discretionary power and may lead to unfair outcomes for customers.”…..

Centrelink public servants were using the dodgy mathematics to uniformly populate successive assessment fortnights which, had a person been receiving benefit payments, could have retrospectively rendered them ineligible for those payments, creating a debt.

“It’s so artificial,” Rudge says. “If it goes beyond one entitlement period, it’s unlawful.”

As a former debt team worker tells this newspaper, cultural problems at the agencies meant these assumptions were never tested.

“In training they actively told us to never ever go to the legislation,” the source says. “Because they thought – and frankly they would be right – that the level of staff member that did that sort of work would not be able to accurately interpret it.

“Their view was go to the operational blueprint because we’ve got this wonderful team of people that are always reviewing the legislation and AAT [Administrative Appeals Tribunal] decisions and making sure it’s adjusted so it’s always right.

“In hindsight, that wasn’t correct.”….

BACKGROUND

Lessons in lawfulness: Own motion investigation into Services Australia’s and the Department of Social Services’ response to the question of the lawfulness of income apportionment before 7 December 2020, 1 August 2023, excerpts.

Highlights, p.1:

[my yellow highlights throughout this post]

WHY DID WE INVESTIGATE?

In February 2023, Services Australia and the Department of Social Services (DSS) told our Office

there was an issue with how Services Australia had been apportioning income to calculate social

security payment rates before 7 December 2020, when the law changed.

• ‘Income apportionment’ is different to ‘income averaging’ that was at the heart of Robodebt.

• The Administrative Appeals Tribunal (AAT) sent some debts back to Services Australia to be

recalculated. This raised concerns about whether income had been lawfully calculated.

• Services Australia advised it paused approximately 13,000 debt reviews while the agencies sought

legal advice. Another 87,000 files which may become debts were also potentially affected by

unlawful or incorrect income apportionment calculations.

• Given the scale, significance and potential impact, the Ombudsman decided to conduct two

investigations into income apportionment:

Investigation 1 – lawfulness of the    agencies approach to income apportionment.

Investigation 2 – examining the agencies’  administration of income apportionment  decisions, communication with customers, and  handling of complaints, internal reviews and AAT  or Federal Court appeals.

• This statement relates to Investigation 1. Investigation 2 is ongoing.

WHAT DID WE FIND?

• Since at least 2003, Services Australia (and its precursor the Department of Human Services), was

unlawfully apportioning customers’ income across two or more Centrelink instalment periods. This

in turn likely affected social security payment rates and may have lead to unfair debts against

customers.

• Since becoming aware of the issue in October 2020, the agencies took steps to seek legal advice,

but could have acted quicker to finalise advice.

• There is an unresolved and significant difference of opinion between some of the legal advices.

• The General Instructions that DSS developed to guide how decision-makers should recalculate the

approximately 100,000 actual and potential debts need further development.

• The agencies could have acted quicker to inform us of this issue, particularly since Services

Australia knew our Office had investigated some of the affected complaints.

• The agencies are still determining how much the known and potential debts are affected – that is,

how much payment rates went up or down because of unlawful or inaccurate income

apportionment calculations. It is unknown how many other customers may have been impacted

by unlawful or inaccurate debts or underpayments.

Background to the investigation, p.2:

On 29 October 2020, at Senate Estimates, then-Senator Rex Patrick raised concerns with Services

Australia about the lawfulness of its approach to apportioning income when calculating Centrelink

payment rates. The Guardian Australia reported on the Senator’s questions and AAT reviews of

debts in November 20201 and March 20212, respectively.

In February 2021, the AAT made two decisions requiring Services Australia to recalculate debts that

related to income apportionment. The AAT identified issues in how Services Australia was applying

section 1073B of the Social Security Act 1991 (the Social Security Act) to apportion income. Section

1073B was in force between 2003 and 7 December 2020.

Around March 2021, the Office began receiving complaints about delays in Services Australia

reviews. Between then and January 2023, we investigated or made preliminary inquiries about these

individual complaints. Services Australia did not inform us, as part of these investigations, that these

review delays were affected by this underlying legal issue.

In January 2023, Services Australia approached the Office to offer a briefing on income apportionment. At that briefing, on 17 February 2023, Services Australia and DSS told us that, in the period between becoming aware of the issue and advising our Office, they:

• obtained several draft and final advices from multiple legal providers

• identified approximately 13,000 requests for reviews of debts that may be impacted by

income apportionment – they placed these reviews on hold while the agencies considered

how best to approach them, and

• identified another approximately 87,000 potential debts which may be affected by income

apportionment.

Due to the scale of the issue and the significant number of potentially affected customers, on 14 March 2023 the Ombudsman initiated this investigation using his own motion powers. The Ombudsman used section 9 of the Ombudsman Act 1976 (Ombudsman Act) to require information from Services Australia and DSS about income apportionment. Under the Ombudsman Act, it is an offence to fail or refuse to respond to a section 9 notice without a reasonable excuse.

THE ROBODEBT SCHEME: a tale of rampant ambition, abuse of power, systemic cruelty, venality, incompetence and cowardice

In September 2013, the Liberal-National Coalition, led by the then Liberal MP for Warringah & Prime Minister Tony Abbott, won government on the back of an election campaign predominately focussed on removal of the so-called ‘carbon tax, fiscal responsibility and the size of the national budget deficit.

By 2014-15 the concept of a fully automated system of data-matched debt creation was posited to reduce the federal budget deficit - which at that time stood at est. an underlying cash deficit of $37.9 billion.

It was expected that this data matching program would come online sometime in the 2015-16 financial year and generate over $1.7 billion in recoverable debt over 5 years.

The sole target of this debt creation was to be those Australians who received or had ever received federal government cash transfers as pensions, benefits or allowances (with the exception of those receiving veteran or aged pensions) during a period extending back in theory as far as 2006.

In February 2015 the then Liberal MP for Cook & Minister for Social Services, Scott Morrison, approved this new policy proposal and what was eventually to become colloquially known as the Robotdebt Scheme began its journey through various departmental and Cabinet processes towards a short pilot program followed by full implementation in December 2016 by a 3 month-old Turnbull Coalition Government.

On 5 December 2016, then Liberal MP for Aston & Minister for Human Services Alan Tudge appeared on national television to discuss Centrelink’s ‘welfare crackdown’. The Minister stated: “we’ll find you, we’ll track you down and you will have to repay those debts and you may end up in prison”. [ACOSS, 27 March 2017]

In addition to that particular Ch 9 “A Current Affair” interview this ACA clip was released probably sometime in January 2017:

[Ch 9 “A Current Affair”, 2016]

For the next three and a half years Scott Morrison - first as Social Services Minister, then Treasurer and finally Prime Minister used the disastrous and illegal Robodebt Scheme as a vehicle to support & maintain his personal ideological and political war on the poor and vulnerable of this nation.

In this he was assisted to a significant degree by members of his own Cabinet and the Murdoch media empire.

Until the combined pressure of expert legal opinion, Administrative Appeals Tribunal decisions, a class action before the Federal Court of Australia which the Commonwealth was obliged to settle, ongoing public calls for the scheme to end coming from activists and a significant number of voters in the national electorate, forced Morrison & his cronies to suspend automatic debt creation.

The Robodebt Scheme formally ended on 30 June 2020 and in 2022 the not quite 3 month-old Albanese Labor Government announced the creation of the Royal Commission into the Robodebt Scheme, under Letters Patent dated 18 August 2022.

The Report of the Royal Commission into the Robodebt Scheme was released of 7 July 2023 and can be found at:

https://robodebt.royalcommission.gov.au/publications/report

The following are excerpts from that report under general headlines created by me for clarity with some media grabs for context:

COMMISSION HAS SERVED THE PURPOSE

The recommendations made are collected at the beginning of this report. I hope that they are of use.

At the least, I am confident that the Commission has served the purpose of bringing into the open an

extraordinary saga, illustrating a myriad of ways that things can go wrong through venality, incompetence

and cowardice. [Report of the Royal Commission into the Robodebt Scheme, July 2023, pp.659-660]

ON NEED FOR CHANGE

But as to how effective any recommended change can be, I want to make two points. First, whether a public service can be developed with sufficient robustness to ensure that something of the like of the Robodebt scheme could not occur again will depend on the will of the government of the day, because culture is set from the top down.

Second, politicians need to lead a change in social attitudes to people receiving welfare payments. The evidence before the Commission was that fraud in the welfare system was miniscule, but that is not the impression one would get from what ministers responsible for social security payments have said over the years. Anti-welfare rhetoric is easy populism, useful for campaign purposes. It is not recent, nor is it confined to one side of politics, as some of the quoted material in this report demonstrates. It may be that the evidence in this Royal Commission has gone some way to changing public perceptions. But largely, those attitudes are set by politicians, who need to abandon for good (in every sense) the narrative of taxpayer versus welfare recipient.
[Report of the Royal Commission into the Robodebt Scheme, July 2023, p. iii]

A BRIEF OUTLINE

Budget control and debt reduction had been second in the Coalition’s list of policy priorities in its election manifesto. Consistent with that policy, in July 2014 the Hon Kevin Andrews MP, the Minister responsible for the Department of Social Services (DSS), proposed the setting up of an interdepartmental committee to develop a whole-of-government strategy for recovery of debt owed by members of the public to the Australian Government. The terms of reference included examining data matching, using online and self-servicing options, using external debt collection agencies and applying a standardised interest charge to debts. And in relation to welfare services, in January 2015 the newly-appointed Minister for Social Services, Mr Morrison described himself in an interview as planning to be a “strong welfare cop on the beat;” because Australians were “not going to cop people who are going to rort [the social security] system." Approved by the latter, they made their way in the form of a New Policy Proposal (NPP) through Cabinet with remarkable speed. In May 2015, as part of its 201516 Budget, the government adopted a measure named Strengthening the Integrity of Welfare Payments. Described as a package for “enhancing ... fraud prevention and debt recovery and improving assessment processes” in relation to the payment of social security benefits, it was expected to save $1.7 billion over five years. Most of those savings were to come from the Employment Income Matching measure, the initiative which began Robodebt, which was proposed to recover overpayments resulting from incorrect declarations of income. Another measure in the package, titled “Taskforce Integrity”, involved the secondment of Australian Federal Police officers and was designed to crack down on welfare fraud. The two were often, and not coincidentally, mentioned in the same breath.

It was in this climate that the essential features of the Robodebt scheme were conceived by employees of the Department of Human Services (DHS), were put by way of an Executive Minute in February 2015 to the Minister for Human Services, Senator the Hon Marise Payne, and to Mr Morrison as Minister for Social Services. [Report of the Royal Commission into the Robodebt Scheme, July 2023, p. xxiii]

SCOTT MORRISON

current Liberal MP for Cook, a former Minister for Social Services, former Treasurer, former Minister for the Public Service, former Coalition Prime Minister

The Commission rejects as untrue Mr Morrison’s evidence that he was told that income averaging as contemplated in the Executive Minute was an established practice and a “foundational way” in which DHS worked.…

Mr Morrison knew that the use of income averaging was the primary basis of the “new approach” described in the Executive Minute and that DSS had advised DHS that legislative change was required to implement the DHS proposal in that way. The NPP represented a complete reversal of the legal position without explanation. Mr Morrison was not entitled without further question to rely upon the contradictory content of the NPP on the question of the DSS legal position when he proposed the NPP to the ERC. The proper administration of his department required him to make inquiries about why, in the absence of any explanation, DSS appeared to have reversed its position on the need for legislative change. If he had asked Ms Wilson, she would have told him that it was because DHS had (ostensibly) reversed its position on using income averaging. He chose not to inquire.

Mr Morrison allowed Cabinet to be misled because he did not make that obvious inquiry. He took the proposal to Cabinet without necessary information as to what it actually entailed and without the caveat that it required legislative and policy change to permit the use of the ATO PAYG data in the way proposed

in circumstances where: he knew that the proposal still involved income averaging; only a few weeks previously he had been told of that caveat; nothing had changed in the proposal; and he had done nothing to ascertain why the caveat no longer no longer applied. He failed to meet his ministerial responsibility to ensure that Cabinet was properly informed about what the proposal actually entailed and to ensure that it was lawful. [Report of the Royal Commission into the Robodebt Scheme, July 2023, pp. 102 & 106]

CHRISTIAN PORTER

former Liberal MP for Pearce, a former Minister for Social Services, former Attorney-General

On 2 March 2016, Mr Tudge, along with the Minister for Social Services, Christian Porter, issued a joint media release signalling the government’s intention to introduce a Budget Savings (Omnibus) Bill, in order to “ensure people pay back their welfare debts if they have received payments they are not entitled to.”

Mr Porter was quoted in the media release as saying that, under the Bill, “the government will impose an interest charge on debts, remove the six year limit on debt recovery and prevent social security debtors from leaving the country.”….

On 3 January 2017, Mr Porter was interviewed on ABC Radio National in relation to the OCI program. His responses were largely based on the talking points that had been provided by DHS.

He told the interviewer that the debt recovery scheme was “working exceptionally well.” He also made the following statements:

- I think this [the Scheme] is about as reasonable a process as you could possibly derive…

- Ultimately, if a real discrepancy does exist then eventually we raise a debt, and that happens much later than this initial letter, and even then, there are many ways in which you can dispute that debt, if you think that a mistake has been made…

- It really is an incredibly reasonable process…

- Only in 2.2 per cent of instances [do people need to provide things like payslips]…

- 169,000 letters and the complaint rate is running at 0.16 per cent. So that’s only 276 complaints from those 169,000 letters. That process has raised $300 million back to the taxpayer.

Mr Porter was also asked, “How important is this debt recovery to the budget bottom line?” and replied:

It’s very significant. Four billion dollars over four years is evidently a very significant amount of money. That is helping us get back into surplus.

The Commission accepts that Mr Porter was simply repeating information from the talking points given to him by DHS staff. As it transpired, that information was wrong. The rate of complaint was most certainly not as low as 0.16 per cent of reviews. The Commission heard evidence that, in fact, the information with which Mr Porter was provided did not include complaints specifically relating to OCI that were held in DHS’s central complaints repository,11 and that even if it had, there were systemic problems with the recording of OCI complaints in that repository in any event.

Mr Porter’s comments, based on the talking points provided to him, suggested a high degree of confidence in the program generally and in particular the reasonableness of it, which was reiterated. They also gave the impression that recipients seldom had to provide information, and that the rate of complaint and internal review of debts generated under the Scheme was very low, suggesting that such debts were unobjectionable and, in turn, accurate.

On 9 January 2017, Mr Porter said on ABC Radio that “debts raised under the automated system were ‘fairly and legitimately calculated’.” He also noted that, in circumstances where a person did not respond to the initial letter, “it will be the case that the ATO estimate will be the preferred reporting and there will be an averaging out process.”

By the time Mr Porter made the statement about debts being “fairly and legitimately calculated,” it is likely that he was starting to appreciate that this position lacked credibility; that income averaging was liable to produce inaccurate results as to the existence and quantum of debts….

The statements Mr Porter made in media interviews about the fairness of the process, and the statistics he cited, were wrong. One has to recognise, however, that he had been plunged in a maelstrom of media enquiries and public complaint about the Scheme, and there was not much he could do but rely on what DHS staff told him about the program. His performance in the short period he was Acting Minister for Human Services cannot fairly be criticised.

That is not true, however, of Mr Porter’s response in his role as Minister for Social Services. He was responsible under the AAO for the lawful administration of the Social Security Act and the Administration Act. The responsibility for ensuring that DHS officers lawfully exercised their DSS-delegated powers of overpayment identification and debt recovery under the legislation lay with him.

On 28 December 2016, the first day of Mr Porter’s acting position as Minister for Human Services, his office requested “talking points” on the OCI program and, later in the day, a briefing from DHS about the program. The request for the briefing said that the Minister wanted it to cover “averaging out of income provided to ATO by CLK [Centrelink] impacting on people who only earned income seasonally (e.g. students) – it appears CLK is averaging income over 26 fortnights and then raising debts.”

This was an obvious question to ask, as was accepted by Mr Porter in his evidence before the Commission. Inaccurate results produced by income averaging, with respect to both the existence and quantum of debts being raised by the OCI program, had been squarely raised as an issue in the media at the time. Mr Porter was trying to “get an understanding of some of the basic fundamental mechanics of the program.”

On 9 January 2017, Mr Porter asked, during a meeting with Mr Britton, a question to the effect of whether Centrelink could be given more frequent data on a person’s income. He evidently appreciated that the use of yearly data to calculate a person’s income was likely to give rise to inaccuracies, and that the provision of more frequent data would produce more accurate results. His office had already raised the query with DHS about its effect where the income of seasonal workers was concerned.

Mr Porter may not completely have understood what the OCI process was, but he did know it involved income averaging. It did not take a genius to see that averaging a person’s annual income to arrive at a fortnightly figure was likely to produce inaccurate results unless the person was on a consistent income.

Mr Porter, from his inquiries, clearly appreciated that. It was not a big step from there to ask whether the Social Security Act allowed this. Mr Porter, as Minister for Social Services, should have made that inquiry.

In an ABC interview of 31 May 2020, Mr Porter said in respect of the Scheme: “We received advice at the time that the program was put together that it was lawful. Many governments have used ATO averaging….” That suggested that at the inception of the Scheme, the government had obtained legal advice that the use of averaging in the way proposed was lawful; which it had not. [Report of the Royal Commission into the Robodebt Scheme, July 2023, pp. 137, 156, 157]

ALAN TUDGE

former MP for Aston, a former Assistant Minister for Social Services, former Minister for Human Services

On the same day, 5 December 2016, Mr Tudge was interviewed on radio station 2GB by Chris Smith. Mr Smith observed that, from the media coverage he had seen, he had not been able to get an understanding of what percentage of overpayments were a result of deliberate fraud. Mr Tudge replied that “It’s very hard to assess.”

However, it did not appear that it was too difficult to assess, particularly if the question had been asked.

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]

Kathryn Campbell: From her own mouth: please watch this revealing/distressing video compilation contrasting 2018 Institute of Public Administration speech and her examination at Robodebt royal commission. 👇👇 https://t.co/SGpgLirZEn

— Quentin Dempster (@QuentinDempster) July 12, 2023

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…..