Wed Jul 5

what can we expect from the robodebt royal commission’s final report?

Written by Darren O'Donovan, Senior Lecturer in Administrative Law, La Trobe University

On Friday, the Royal Commission into the Robodebt Scheme will submit its final report to the federal government, which is expected to release it to the public shortly thereafter.

The report will be the culmination of years of suffering and work by victims to hold their government to account.

So what can we expect?

Conspiracy or ‘stuff up’?

The headline questions the commission will adjudicate are confronting:

Did officials at one Commonwealth department deceive another when removing key legal and policy warnings from the cabinet submission that launched robodebt?
Even worse, did two departments collude to remove references to the unlawful method of averaging?
Did department officials mislead the Commonwealth ombudsman in its 2017 investigation?
Why was damning legal advice left unactioned by officials?

The whistleblowing of true public servants like former Centrelink employee Colleen Taylor ^[1] means the report’s release will not be a dark day for the whole public service.

It will, rather, collapse the established worldview of its senior executive class. A worldview that denies Australians the facts about their government and fobs off independent oversight.

Adverse findings against individuals will not be lightly reached. Hearings, however viral they go, only explore possibilities, but reports make careful findings. Shockingly poor record creation practices in Commonwealth agencies may limit the character of what can be found.

If it recommends further investigation into individuals’ conduct, the report’s release will be tailored to avoid prejudicing any future proceedings.

Standards in political life

Coverage surged for politicians’ appearances at the commission, with many holding out for “who knew what when” moments. In giving evidence, politicians often relied on public servants’ failure to deliver warnings at key moments in the scheme. Ministers who oversaw robodebt consistently used this lack of frank advice to defend their failure to stop it.

The final report will spend time reacquainting our political class with basic expectations of responsible government and standards in public life.

Our public representatives emerged as utterly insubstantial figures, consumed by marketing political images like “welfare cop” and party political combat. They displayed a striking lack of curiosity towards key questions. Adverse information flowed around, rather than through them.

The final report will reflect on standards in our public life and the ethical lows that are plumbed for party political ends: for example, the leaking of private information ^[2] by the office of then-Human Services Minister Alan Tudge to “correct the record” and discourage people speaking out.

It will tackle warped ideas ^[3] of ministerial responsibility and cabinet solidarity that see facts or views suppressed in the name of defending a position.

This commission was fiercely independent, despite misdirected efforts ^[5] by Opposition Leader Peter Dutton to portray it as a “witchhunt”.

It painstakingly examined the history of unlawful income averaging (which was used to calculate robodebts), setting out the fundamental differences ^[6] in investigation approaches over time. It found 2010 documents ^[7] describing the use of averaging as a last resort to close files where evidence was not available.

It uncovered the corners cut ^[8] in remediation, as debts such as these were never paid back. These are the invisible spaces no political slogans ever address, where unapproved practices take root against people who can’t argue back.

Access to justice at the frontline

The governance dynamics that sustained robodebt are not limited to a certain time or place. Consider the unlawfully crude use ^[9] of bank statements by Services Australia when reprocessing robodebts, which was called out by an appeals tribunal in May.

Our social security system is still failing ^[10] to provide people with disability adequate reasons for life-changing pension decisions.

Robodebt used behavioural economics approaches ^[11] to engineer feelings of shame and prevent legal consciousness from forming.

It gamed our administrative law system to overwrite or rapture the debts of those who did complain, while nothing changed on the frontline.

It imposed an administrative burden on those unable to carry it, confident they would triage the trauma and cop the debt.

We must have legal reform to oblige Centrelink to implement tribunal standards of decision-making where it matters: right at the frontline.

Building a culture of accountability

The early signs ^[12] are that Australian Public Service leaders are pursuing a robodebt response that centres on non-binding, internal cultural reforms put forward by themselves.

When it comes to careerism or the pursuit of power, history tells us human nature will not be changed by refreshed seminars on ethics. You need to change the underlying relationships of power and accountability.

Change is always hard. But we know what stops it. Consider a freedom of information appeal handed down in the last week of the royal commission.

Six long years ago, transparency advocate Justin Warren sought the weekly manager reports on robodebt’s disastrous launch. Services Australia refused to hand them over. About 2,220 days later, the information commissioner (who resigned ^[13] in protest recently) had to order ^[14] their release. He found the basis Services Australia thought they could even try denying the documents was “not readily apparent”.

Beware those who offer “cultural” fixes and non-binding reassurances to self-correct. The Albanese government should not fall back on the very institutions who never fully investigated or acted until the political fluke of an exceptional royal commission.

Future scandals will be prevented by the things that stopped robodebt: access to facts, firm legal rights and enforceable remedies for injustice.