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Sunday 22 October 2023

THOMAS MAYO: Although the Voice referendum was lost, and despite the racist vitriol it unleashed, the movement for Indigenous rights and recognition has grown

 

The Saturday Paper, October 21 – 27, 2023, No. 472:


Although the Voice referendum was lost, and despite the racist vitriol it unleashed, the movement for Indigenous rights and recognition has grown. By Thomas Mayo.



Analysis: The movement that follows the Voice


As a parent of five, I am acutely aware of the way in which our children absorb everything – conversations, body language, snippets of the news and the bits and pieces they share with friends at school. We try our best to protect them from the harsh realities of the world until we think they are ready. They might seem oblivious to it all, but they know more than they tell, as if they are reciprocating our care.


Though I knew this of our children, I wasn’t prepared for my 12-year-old son’s reaction to the referendum loss on Saturday. When I called my wife soon after the loss became official, to see how they were, she told me he had cried. He went to bed early, barely consolable.


The next day, when I checked in on them, she told me William was okay. She remarked on how he had mentioned several times that he felt calm that morning, as if the feeling were strange to him. We came to realise he had been feeling the weight of the referendum on his little shoulders. For the first time since the loss, I cried too.


The Indigenous leadership of the “Yes” campaign called for a week of silence that ends today. There was a need for contemplation after an intense campaign. Anyone who put up their head for “Yes” was brutalised. We were labelled communists, greedy elites, puppets of the United Nations and promoters of a racially divided Australia. None of this is true.


The racist vitriol we felt was at a level not seen for decades in Australia. Indigenous advocates for the Voice could not speak out about the abuse without some sections of the media, whose audiences we needed to persuade, falsely claiming that we were calling all “No” voters racist. Even if only in the way the headlines were worded.


Respected Elder and lifelong champion for Indigenous peoples Marcia Langton probably experienced the worst of this. The stories with negative headlines exploded and continued for more than a week because she dared to mention the race-baiting of the “No” campaign.


The “No” side, on the other hand, was barely scrutinised. When their figureheads claimed racism against them, some journalists showed sympathy and the “Yes” campaign was scapegoated. When leading spokespeople for the “No” campaign were racist beyond reasonable denial, their leaders doubled down defiantly. Most of the media’s focus quickly moved on. The abhorrent “No” campaign cartoon, depicting me in a racist trope and printed in The Australian Financial Review, is one example of many.


In the week of silence, I have had time to reflect on last Saturday’s outcome. I have concluded Indigenous peoples were correct to take the invitation in the Uluru Statement from the Heart to the Australian people. We were not wrong to ask them to recognise us through a Voice.


For a people with inherent rights but who are a minority spread across this vast continent – with a parliament that will continue to make laws and policies about us – it is inevitable that we will need to establish a national representative body to pursue justice. We need to be organised.


Delaying the referendum was never an option, not even when the polls were going south. Had we convinced the government to postpone the referendum, we would still be wondering what could have been, especially if the gaps continue to widen. We had a responsibility to try now, to use the rare opportunity we had, in the interests of our children. At least now we know where we stand.


While the outcome was disappointing, in all my years of advocacy for Indigenous rights, I have never felt such levels of solidarity.


As a leader of the campaign, I accept that, although we tried our best, we failed. I agree there were aspects of the “Yes” campaign that could have been better and I ponder what else I could have done. These thoughts hurt, like an aching emptiness in my chest.


An honest assessment compels me to mention Opposition Leader Peter Dutton as well. Dutton has shown he is bereft of the qualities held by the Indigenous leaders I have worked with. He is well short of the calibre of his opposite, Prime Minister Anthony Albanese.


While Albanese listened to Indigenous peoples respectfully, Dutton ignored us when in power. When Albanese negotiated the constitutional alteration with the Referendum Working Group, he did so in good faith, while Dutton was duplicitous, two-faced, deceitful.


At the next federal election, the record will show the prime minister had a go. He followed through with his pre-election promise to hold a referendum in this term of parliament. He kept his word, even when the going got tough, whereas Dutton has already reneged on his promise to hold another referendum should the first one to fail to pass.


It is noteworthy, because it exposes that this is all politics on his part. If he ever becomes prime minister, it is an indication that he places no value in speaking with Indigenous people before making decisions about them. His promise of a second referendum was decided without consulting Indigenous leaders, not even his own spokesperson on Indigenous affairs.


None of this is bitterness on my part, just truth. Peter Dutton chose politics over outcomes. His career came before fairness. He sought victory at any cost.


When I go home on Sunday – just my 25th day in Darwin this year, having worked almost every day since May 21, 2022 – I can proudly tell my son that though the referendum failed, the movement for Indigenous rights and recognition has grown.


In 2017, we were almost 4 per cent of the population calling for Voice, Treaty and Truth-Telling. As of Saturday, we are nearly 40 per cent, walking together. Almost seven million Australians voted “Yes”. Both major parties would kill for a first preference vote like that.


Probably the most important analysis from the referendum was that polling booths in predominantly Indigenous communities across the entirety of the country overwhelmingly voted “Yes”. We have thoroughly established that this is fact: a great majority of Indigenous people support constitutional recognition through a Voice to Parliament. We seek self-determination over who speaks for us. Claims otherwise are an incontrovertible lie.


To my fellow Aboriginal and Torres Strait Islander people, I say we continue our push for our common goals. Don’t be silenced. Be louder, prouder and more defiant. Of course, you will be. The survival of our culture and our babies depends on it.


To the parents I met so many times, who turned up for their first doorknock with their little ones in tow, their “Yes” shirts worn proudly, sunscreen smeared on their faces: keep having those conversations with your neighbours at every opportunity. Keep turning up.


To the small number of people who registered to attend the town hall in Yamba and Grafton, and the hundreds more who turned up without registering, and who expressed their gratitude at how the forum had brought the community together: stay committed to this unselfish cause. In regional communities across the country, the town hall attendances were magnificent. Keep turning up.


To the random members of the public who have hugged me, to the beautiful Elders who treated me like a son, to the fellow union members who organised their communities, not just their places of work, maintain the love for what makes this country unique – more than 60,000 years of continuous heritage and culture.


While the outcome was disappointing, in all my years of advocacy for Indigenous rights, I have never felt such levels of solidarity.


Across the country, lifelong friendships have been made. I have new Aunties and Uncles, like the strong Aboriginal women at Baabayn Aboriginal Corporation in Mount Druitt, who themselves have formed bonds with the local ethnic communities as they campaigned for “Yes”. I love you, Aunties.


In this campaign we saw Liberals and Nationals give speeches alongside Labor and the Greens. We saw corporate chief executives leafleting with union officials. All denominations have prayed together. The “Yes” rallies, more than 200,000 people strong, brought colour, joy and diversity to the streets, in unity with Aboriginal and Torres Strait Islander people.


Late this week, ending the week of silence, an official statement from Indigenous leaders was made public. In summary: we continue our calls for our voices to be heard, for reform and for justice, and we need your ongoing support.


This is the task ahead. I say to all the hundreds of thousands of people I have spoken with over the past six years, the many friends I have made on this journey: we were always on the right side of history. Young Australians voted “Yes” with us. Imagine what we can achieve if the almost seven million Australians who voted “Yes” continue to have conversations with their neighbours, meeting “No” voters with an understanding that they may have voted “No” because of the lies they were told. In time, we will turn the “Nos” into “Yeses”.


Let us talk of our strengths while addressing our weaknesses. Let us believe in ourselves, our communities and our country, rather than looking over our shoulders at the shadows Peter Dutton has thrown across Australian politics. Let us call on the parliament to shine a light on those shadows, those deathly shadows, lest they continue to undermine our democracy. Ask yourself, which group will be targeted next?


When I was writing my first book about the Uluru Statement from the Heart, published in 2019, my son was just eight years old. He asked me what the title of the book would be. When I asked him what he would call it, he proceeded to do a series of armpit farts. We both laughed. Then I told him I would call it Finding the Heart of the Nation. He asked me, “Where is the heart of the nation?”


I put my laptop down beside me on the couch. I pulled him close. I put my hand on his chest, and I said, “The heart of the nation is here.”


The heart of the nation is still here. It always was and it always will be, waiting to be recognised by our fellow Australians. Whether you voted “Yes” or “No”, I say to you with humility and respect, open your hearts and your minds henceforth. The truth should be unifying, not divisive.


This article was first published in the print edition of The Saturday Paper on October 21, 2023 as "After the vote".


Thomas Mayo is an Aboriginal and Torres Strait Islander man, assistant national secretary of the Maritime Union of Australia and author of six books, including Dear Son – Letters and reflections from First Nations fathers and sons and the bestselling children’s book Finding Our Heart.


October 21, 2023



Friday 14 July 2023

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]



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…..