With a front-row seat at Wednesday's Robodebt Royal Commission hearing, David McIlveen gives his account of how out of touch MP Alan Tudge is with reality.
ANOTHER DAY at the Robodebt Royal Commission, and another master class in obfuscation and evasion, this time courtesy of former Minister for Human Services Alan Tudge. Despite the best efforts of the Senior Counsel assisting Justin Greggery KC to establish whether Tudge shared the same reality we all do – that black is black and an email or document does indeed say what it clearly says on the screen in front of us all – Tudge must’ve agreed with the Counsel’s plain, concise, reasonable and often virtually self-evident statements less than a handful of times over the course of the hearing, making another day at the RC like pulling teeth.
Given to frequent tangential musings and reflections, presumably carefully couched so as to add nothing to the Counsel’s evidence or propositions, Alan Tudge seemed assured of his innocence and good intentions. After Rachelle Miller’s testimony yesterday and watching the evidence unfold before Alan Tudge today, everyone watching was likely far less so.
Things started well enough for Tudge when he began as the newly appointed Minister for Human Services in February 2016, during the period from the initial policy announcement and media release for the new debt collection program to the Election. If he was pleased with the tabloid media coverage at the time and the predictably vacuous and uncritical headlines presented to him during the hearing today (including ‘Cheats cop whack’, ‘Welfare probes claw back $329m’ and ‘$1B better off after curb on cheats’), he didn’t let on.
Tudge said at the time that he was only ever broadly across reporting in the media and took an arm’s length approach to the media, or both, according to Tudge… he never could quite recall, though.
Nevertheless, at the time, it was Tudge’s job to find savings in welfare spending in response to a request from the then Finance Minister, Mathias Cormann, and the new automated data matching measure seemed to do the trick. The Coalition had a policy ‘for better management of the social welfare system’ to take to the Election, doubtless meant to be something for the Liberals to gloat about in relation to tightening belts and catching welfare cheats.
It stated that:
‘From 1 July 2015, the Government will increase DHS’s capability to detect, investigate and deter suspected welfare fraud and non-compliance. This initiative includes improved automation of assessment processes... and recovery of historical debt from 2010 to 2013. [It] will achieve net savings of around $1.5 billion over four years.’
Notably, these savings represented less than 0.5% of the welfare budget.
The Counsel pushed for a sense of Tudge’s understanding of the political benefits of such a policy announcement and favourable press reception — would this be attractive to the Government’s base, he asked? Would these commitments be hard to walk back on post-election, should the system do more harm than good? Alan Tudge seemed non-committal.
At this point, following a review of the media coverage in the early stages, the Counsel turned to questions of legality — was this a focus in 2017? No, according to Tudge. No legal advice was sought, but Tudge was aware that an article by Peter Martin had raised the issue, brought to Tudge’s attention by then PM Malcolm Turnbull while on leave in the UK. Tudge said that when he returned, his intense focus was on issues associated with the implementation of the scheme, not the legality.
The issue of legality was, initially, a recurring theme. Tudge’s argument, not unlike former chief counsel at the Department of Human Services Annette Musolino’s, appears to largely consist of the understanding that so long as a government program exists and has passed through the usual departmental channels and cabinet processes, it must be lawful. No need to check or confirm, or seek independent legal advice.
It was unfathomable that a secretary would implement a scheme that they knew was unlawful, he said. Furthermore, income averaging had been used as far back as 1990, according to Tudge, and “was a regular part of the architecture of welfare compliance”. Any concerns were allayed.
In June 2017, eight lawyers within Tudge’s department attended an administrative law conference and reports were sent to chief counsel Musolino. Still, no concerns were raised, according to Tudge. Would Tudge not expect them to at least raise the potential issue with Tudge, queried the counsel? Tudge replied that he’d expect them to contemplate it and satisfy themselves. No briefing and nothing raised with him, apparently, and nor would this be expected, according to Tudge, who seemed keen to downplay the conference and alarming claims in the media at the time.
There seemed at this point, according to the statements made by Tudge, at the very least a failure by his department to raise the issue of illegality at this time with either Tudge or the Minister for Social Services, Christian Porter. The Counsel proposed that this amounted to a failure of ministerial responsibility, which Tudge denied. Up to this point, there was little to none that Tudge agreed with or accepted from the counsel — thankfully, he could at least understand and accept the doctrine of individual ministerial responsibility (phew), that ministers are individually responsible to the Parliament for actions taken under their authority.
Tudge then admitted responsibility for the lawfulness or otherwise of the scheme. So why did he not seek to verify the legality of the scheme?
Following this, Tudge’s involvement and interest in the media coverage become apparent, with radio interviews, more helpful News Corp coverage and an appearance on A Current Affair. The focus, at least in the tabloid and commercial media, was clearly kept on frauds and cheats, and the successes of the program. The Counsel proposed that more could have been done to de-emphasise the “catching frauds” aspect of it, if only to point out the remarkable fact that historical data, presented in a brief to Tudge and others around the time, showed only 0.1% of debt cases were fraudulent.
It appears Tudge neglected to do so, despite having ample opportunity. The Counsel suggested it would’ve been easy to emphasise that in 99.9% of cases, debt incurred was not due to fraud. “I’m not disagreeing with your proposition,” admitted Tudge.
With further questioning, it wasn’t at all clear what information or briefing Tudge was basing his comments in the media or the department’s media narrative on. Meanwhile, recipients receiving debt collection letters can well have imagined that they were being tagged as “frauds” by the new automated scheme.
At this point, the gross and predictable inaccuracies and the reversal of onus built into the Robodebt system came to the fore in the discussion between Tudge and the Counsel. These were not contested by Tudge, but he did reserve that he may not have been aware of these issues at the time, despite adverse media coverage and his – or at least his department’s – apparent attempts to counter it in the media.
Much of the thrust of Tudge’s responses to the Counsel’s questioning seemed intended to demonstrate an “arm’s length” approach to his department in anything related to the legality of the system and the media strategy described by Rachelle Miller and evidenced in the hearing today.
Still no questions in Tudge’s mind regarding lawfulness, at this stage. The onus had shifted and there appeared to be no basis in law for this, according to both the Commissioner and the Counsel. Tudge maintained the cabinet process gave to him, at the time, assurance enough and assumed it was lawful, apparently.
And at this point, with the discussion of the onus, it is worth reflecting that a pernicious feature of the scheme is that it simply externalised the department’s work to make the government of the day – and numbers in its budget – look better and to garner favourable media coverage. Of course, the stress, heartache and effort borne by welfare recipients targeted by the program well and truly eclipsed any savings in the Government’s budget.
There was not much point in the program at all if it both failed and didn’t win the Government favourable media coverage.
David McIlveen studied science and environmental engineering at the University of Queensland and now works as an environmental consultant in Brisbane.
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