Robodebt crooks are getting away with murder

As the dust settles on the Robodebt Royal Commission, an examination of how the scheme was orchestrated clearly shows its architects should face prison time, writes Paul Begley.

WHEN A PERSON rashly kills another, the killer is labelled a murderer. But when an unscrupulous politician carelessly kills thousands of people, the killer tends to don the mantle of wise statesman, virtuously doling out portions of tough love.

Two weeks ago, the Robodebt Royal Commission public hearings wound up. They began on 31 October 2022 and concluded on 10 March 2023, hearing from more than 100 witnesses and producing 5,000 pages of transcript. Despite near universal admission of criminality and incisive questioning by Counsel Assisting and the Commissioner herself, the exercise might fail to achieve closure for victims, the families of those who suicided and members of the public who followed the proceedings of the Commission.

On 23 February 2015, a draft Executive Minute was produced within the Federal Department of Social Services containing a dot point stating that legislation would be required for a new policy proposal (NPP) to be taken to Cabinet by the incoming DSS Minister, Scott Morrison. He wanted to introduce a $1.2 billion budget savings measure that would involve “welfare cop” interventions into the lives of more than 800,000 social security recipients with a view to collecting alleged overpayments going back many years.

That could only be achieved by massively increasing the scale of communication with those recipients from around 20,000 a year to 20,000 a week. Under the Morrison NPP, when overpayment discrepancies occurred, recipients would need to respond to letters they received by showing that the discrepancies were incorrect. Failing that, they would be served with a debt notice and a debt collector would appear at their door.

Scotty the Welfare Cop and his Robodebt Royal Commission copout

Despite Scott Morrison making a solid effort to represent himself as an innocent bystander in the Robodebt RC, his waffling and obfuscation are only convincing us all of his guilt as its engineer.

The sending out of discrepancy notices was to be produced by an automated system and instead of public service compliance officers consulting with recipients to determine the accuracy of overpayment assessments, the onus of proof was shifted to recipients themselves. They were required to produce evidence that would disprove a discrepancy, an insurmountable challenge for under-resourced people when it came to going back over years to find pay slips or separation statements from employers, some of whom had shifted address, gone out of business, failed to keep good records, or were just not interested in being helpful.

On 3 March 2015, Minister Morrison met with DSS officials to sign the Executive Minute that would authorise pursuit of the NPP for inclusion in the 2015-16 Budget. It was a mere fortnight after the original Executive Minute was produced, but over that time the dot point on the need for legislation to enable his Online Compliance Intervention initiative (OCI) had gone missing.

None of the public service witnesses appearing before the Commission admitted to having removed the dot point and no one recalled noticing that it was missing from the March document. Had the deleted item remained where it was a fortnight earlier, the OCI would not have been taken forward to Cabinet by Minister Morrison as an NPP. The requirement for legislation would have scotched it from the start.

Morrison insisted that the policy involved no change to the way social security overpayments were calculated. The only change was that a pitiless cop was now a menacing presence in the lives of social security recipients, much in the same way that immigration officials menaced refugee boat arrivals, a point Morrison made at the time. The Commission heard that even before the matter had gone to Cabinet, Morrison informed Sky News viewers on 21 January 2015 about the prevalence of rip-offs and welfare cheats, but assured viewers that there was about to be a welfare cop “on the beat” protecting the hapless taxpayer.

Public servants who heard about that interview would have been aware that new DSS Minister Morrison was not going to want to be told anything that jeopardised his OCI initiative and a number of them knew that a requirement for legislation would jeopardise it. It was also well known that he had a reputation for ferocity in the face of bureaucratic resistance. What that meant for public servants was that offering advice about the need for legislation would have been career-limiting to anyone who offered it. It also meant that were things to go pear-shaped for lack of enabling legislation, he would place public servants who withheld that advice in the firing line. For Morrison, a win-win; for public servants a lose-lose.

Coalition intimidated the powerless with iron fist

Among the L-NP's fraudulent Robodebt tactics was using the threat of Federal Police punishment as an intimidation method.

We know from sources outside the Royal Commission, including Annika Smethurst’s excellent biography, The Accidental Prime Minister, that Morrison saw the role of Social Services Minister as an opportunity to make his mark in a bid to win promotion to a ministry more in keeping with his ambitions, Treasury being the portfolio of choice. An impressive $1 billion budget-saving item in DSS would greatly assist him in a quest to wrestle that portfolio from Joe Hockey, a struggling Treasurer wounded by a disastrous 2014 Budget and accordingly the victim of constant Morrison sniping and undermining.

In the event, when Joe Hockey resigned the post and refused an alternative offer from new Prime Minister Malcolm Turnbull, Morrison was successfully promoted to the Treasury portfolio in September 2015.

Having authored the OCI as DSS Minister in March 2015 with mission achieved, Morrison moved on and successive ministers followed him in implementing the program within DSS and the Department of Human Services, each using the roles as stepping stones to something more prestigious. They were Ministers Marise Payne, Michael Keenan, Christian Porter, Alan Tudge and Stuart Robert.

Each of them gave evidence to the Commission, as did Morrison himself, and they all took refuge in not having been told that ATO averaging was being used to calculate debts as a default method, rather than as a last resort, or specifically that the onus of proof had been reversed. And they claimed not to have been informed by responsible public servants that DSS lawyer Anne Pulford had provided internal advice that legislation was required for those purposes as early as 2014, advice that was still visible in late February 2015 but had mysteriously vanished by early March, with no one noticing its disappearance.

It became apparent to the Government once the OCI scheme got up and running that a mere 0.1 per cent of overpayment discrepancies were connected to fraud, but that knowledge did not stop DHS Minister Tudge from going to the media threatening to hunt down welfare cheats and put them in prison.

Robodebt Royal Commission reveals stupidity as best defence

The Robodebt Royal Commission saw ministers and public servants play dumb and make a mockery of the justice sought by victims.

Attempts by the Commission to discover who had caused the omission of Anne Pulford's advice came to nothing and Pulford herself gave evidence that she felt pressure not to pursue the matter. Public service witnesses claimed to have simply followed orders.

Even so, other opportunities arose from 2015 until 2019 that might have put a stop to the OCI program before the Federal Court decision in favour of Deanna Amato found it illegal. DHS Secretary Renée Leon brought it to an end in February 2019, a fact disputed by DHS Minister Stuart Robert who gave evidence that he had persisted in defending the OCI when he said he knew it was fundamentally flawed.

Opportunities to stop robodebt included:

Department of Finance early doubts about the legal footing on which the OCI relied;
an order by Acting DHS Secretary Barry Jackson that its legal standing be investigated, an order not followed up by Secretary Kathryn Campbell when she returned from leave in 2017;
criticism of the OCI legal standing by PwC in a draft report commissioned by DHS but never finalised;
an unfavourable draft opinion by Clayton Utz that was also not finalised; and
sweeping criticism by distinguished barrister Peter Hanks KC who attacked the Robodebt method of assessment and calculation of debts as a perverse type of “magic”, questioning its legal foundation.

In addition, DHS began to lose cases at the Administrative Appeals Tribunal (AAT) brought by OCI “debtors” on the basis of the program’s legality. AAT member Professor Terry Carney wrote a demolition of Robodebt in the mainstream press, yet DHS chief counsel Annette Musolino refused to appeal lost cases.

Counsel Assisting the Commission, Justin Greggery KC, suggested Musolino refrained in order to avoid the precedent a DHS loss on appeal would constitute, a suggestion to which she would only say that not all the AAT applications were successful: “It went both ways.”

Mainstream media fails to address the Robodebt elephant in the room

The mainstream media has failed to hold the Liberal Party to account for inciting the Robodebt scheme that ruined the lives of thousands.

One of the most critical opportunities lost was a report by the Acting Ombudsman, Richard Glenn, in the early months of 2017. Key staff in Glenn’s office had recommended his report include the necessity of DHS seeking legal advice as an option. The Solicitor General had said the test case application in the Federal Court on the legality question was “not hopeless”, yet despite that and justified suspicion that DHS withheld critical information from the Ombudsman about the legal standing of OCI, including the 2014 Pulford advice, Glenn softened the wording on the question in his report on the basis that others were looking at the matter of legality.

So he focused instead on calling for administrative improvements. Glenn’s report had offered hope that the OCI’s days were numbered but it was subsequently used by Coalition ministers to defend Robodebt at a time when it was under widespread criticism from many quarters.

There will be time between the closing of public hearings on 10 March and the Commissioner’s report due in June to ask more questions and with any luck subpoena people who can answer them.

Knowing DSS Minister Morrison had a strong motive to menace “undeserving” Australians in 2015 is not the same as establishing a case to prosecute him. In 2015 he was a relatively minor minister with a big opinion of himself so a $1.2 billion credential mattered to him, especially if it could be extracted from unworthy losers.

Five years later, that $1.2 billion credit became a $1.8 billion deficit when the Federal Court decided the quantum on refunds to Robodebt victims.

By 2021, Morrison was Prime Minister and those numbers had become small change. For example, he received a Treasury report about firms that had been overpaid around $25 billion of labour subsidies that they refused to return despite not suffering a revenue shortfall during the COVID lockdowns. When pressed on the matter, Morrison said he was happy if the firms paid back the money but he was not going to push them because he wasn’t into “the politics of envy”.

When it came to corporate welfare, the tough cop was no longer on the beat.

Paul Begley has worked for many years in public affairs roles, until recently as General Manager of Government and Media Relations with the Australian HR Institute. You can follow Paul on Twitter @yelgeb.