AUS: Robodebt commission submits final report

The royal inquiry examining Robodebt released its stinging report into the scam on Friday.

The commission was established last year to look into the so-called “robodebt” federal government scheme, which aimed to recoup purported overpayments to welfare users dating back to the 2010–2011 fiscal year.

The program mainly depended on “income averaging” as a method of determining a person’s income and eligibility for benefits.

The purpose of Catherine Holmes SC’s investigation into the scheme’s creation, design, and implementation was to determine how, why, and by whom it was done. She was also asked to look into how risks and concerns were handled, as well as how the government handled complaints and challenges, the use of third-party debt collectors, and the scheme’s effects on both people and the economy.

More than 5,050 pages of transcripts from the 3,030 hours of hearings with 115 witnesses were produced. The tender included more than 10,000 exhibits.

In its 900-page report, the commission concluded that the “cruel and crude” plan was “devised without regard to the social security law” and that it used an unfair averaging method to estimate welfare recipients’ income. This method “treated many people as though they had received income at a time when they had not.”

The designers of robodebt were charged by Holmes with “an obliviousness to, or worse, a callous disregard, of the fact that many welfare recipients had neither the means nor the ability to negotiate an online system” to show proof of their income going back five years.

Although the names are in a sealed chapter of the report that has not been made publicly available, it is unknown how many significant figures have been submitted for civil and criminal proceedings.

Robodebt had “disastrous effects,” according to the report, including “young people being driven to despair by demands for payment, and, horribly, an account of a young man’s suicide.” Families struggling to make ends meet received debt notices at Christmas.

The former prime minister Scott Morrison, the former minister of government services Stuart Robert, and the former secretary of the department of human services Kathryn Campbell all receive harsh criticism in the royal commission’s report. Additionally, it discredits Alan Tudge, who was human services minister in 2017 during the investigation into the robodebt operation.

In her assessment, Holmes criticized Morrison specifically for failing to properly investigate why his department abandoned its 2015 recommendation that income averaging required legislative reform in his capacity as minister of social services.

Robert’s testimony that he tried to stop the plan as soon as possible and had strong reservations about income averaging was almost entirely disregarded by the panel.

Campbell, according to the report, “had been in charge of a department that had created, carried out, and sustained an illegal program. She did not take any significant action after learning of the illegality of income averaging. She missed opportunities to seek legal counsel regarding that practice when they were available.

According to Holmes, Tudge “was not open to considering any significant alteration, or cessation, of processes underlying those fundamental features” and his use of media coverage of social security recipients to deflect attention from and stifle discussion of the program’s flaws constituted an abuse of his authority.

The report contained 57 suggestions.

These included changes to the Freedom of Information Act so that the description of a cabinet document can no longer justify it remaining confidential, the establishment of a body to monitor automatic decision-making processes, the development of a debt-recovery management policy by Services Australia, and a review of the structure of the social services portfolio and Services Australia’s status by the government.

A new legal framework is required for the use of automation in government services, with a clear path for review by those impacted by related decisions. It also recommended that Services Australia should design policies with an emphasis on recipients, which should also avoid reinforcing feelings of stigma associated with receiving government support.

It is unknown whether the report’s critics, some of whom have not yet made public comments, disagree with the conclusions.

Morrison disagreed with the conclusions, claiming that he had “presented thorough evidence to support this position” and had “acted in good faith and on clear and deliberate department advice” that legislation wasn’t required for the scheme.

“I categorically reject all conclusions that are unfavorable to me and that are critical of my role in approving the scheme. They are incorrect, unsupported, and in conflict with the commission’s strong documented evidence, he claimed.

Robert claims that he “has not received a notice of inclusion in the “sealed section” and I understand they have all gone out,” indicating that he is not likely to be one of the individuals selected for investigation.

Similar remarks have been made by Tudge, who claimed that he had not been notified of any referrals and that “neither my legal team nor any third parties have established any basis upon which any civil or criminal prosecution could be brought against me.”

The referrals for civil and criminal action that are contained in the sealed chapter will also not necessarily apply to those who are criticized in the report.

If such prosecutions take place, it may be months before those recommendations are fully investigated and their nature may not be known until the people who have been implicated are charged.

In spite of this, the report does make the observation that “on the evidence before the commission, elements of the tort of misfeasance in public office appear to exist,” which suggests the potential nature of the referrals.

According to the report, “where litigation is not available, the Commonwealth does have a “Scheme for Compensation for Detriment caused by Defective Administration” (which would be a very polite way of saying what happened in the robodebt scheme) where a person has suffered from Defective Administration and there is no Legal Obligation to Make a Payment.

More on that front is not acceptable at this time. Despite the robodebt class action settlement, this seems to imply people impacted by the scam may be able to bring additional claims against the government.

The minister for government services, Bill Shorten, made it plain that while he recognized that some individuals might find it frustrating that the referrals stay confidential, he did not want to do anything that might jeopardize potential charges.