The recommendations of the robodebt royal commission, by commissioner Catherine Holmes AC SC provide a substantial program of reform within the Australian Public Service (APS). But even if fully implemented, they would do nothing to stop a repeat of what unfolded between late 2014 and 2019.
Robodebt was the result of bureaucrats eager to be “responsive” to a new minister, one who saw getting legislation to make an illegal scheme legal as just too damn hard. They worked with him to mislead cabinet and other agencies. According to the Holmes report, Scott Morrison, former head of the human and social services departments Kathryn Campbell, her deputy secretary the late Malisa Golightly, and Human Services SES officer Mark Withnell were all party to this deception. Other officers also either failed to do their jobs properly or deluded themselves about the legality of the scheme.
The result: a policy disaster, multiple deaths, the infliction of misery on hundreds of thousands, and years-long efforts by the Department of Human Services to cover it all up, which included senior public servants and subsequent ministers abusing their powers.
To this day, perpetrators of our role in the Iraq debacle insist they weren’t lying about Saddam’s non-existent weapons of mass destruction, just mistaken. Here, there isn’t even that fig leaf. There is clear evidence the perpetrators of robodebt knew the scheme was illegal, misled colleagues and cabinet about it, and tried to cover it up afterwards. It’s the blackest episode for the public service in decades.
Holmes’ recommendations cover better policy design and greater internal and external consultation within what is now Services Australia, tightening management of legal issues within the budget process (including fixing a common misapprehension that the question “Is legislation required?” in new policy proposals doesn’t mean is legislation required to implement the policy), reviewing data exchange between the Australian Tax Office and Services Australia, addressing problems in automated decision-making and improving debt recovery processes, significantly lifting standards and training for in-house lawyers within the social services agencies (and ending the practice of line areas asking for legal advice, not liking the draft advice they are offered and telling their lawyers not to finalise it in case it becomes embarrassing), and improving APS standards.
In turn, Prime Minister and Cabinet (PM&C) head Glyn Davis and public service commissioner Gordon de Brouwer have told public servants they’re establishing a taskforce of PM&C, Attorney-General’s Department and the Australian Public Service Commission (APSC) “to support ministers in preparing the government’s response”. The APSC has also asked former commissioner Stephen Sedgwick to look at whether public servants named in the report have breached the APS code of conduct.
So far, so good. But the central problem behind robodebt remains unaddressed.
For decades — with the exception of Malcolm Turnbull, who not merely didn’t feel threatened by competent public servants but valued them — the Coalition has politicised, disempowered and degraded the public service. But robodebt required more than cowed bureaucrats eager to please a minister at any cost. It required a particularly malignant political personality.
That Morrison lied to voters and deceived his colleagues as prime minister is already well established. But his willingness to deceive colleagues, it appears, went back much further, to taking a proposal to the Expenditure Review Committee in 2015 that was misleading on a crucial point — whether it was even legal or not.
The Holmes recommendations don’t particularly address the politicisation of the APS. And they certainly don’t address the toxic potential of a minister willing to mislead cabinet combining with public servants happy to enable him to do so.
That is, the APS-minister relationship remains a system that relies on people of good faith operating within it. It is not a system that is resistant to people acting in bad faith.
Holmes’ report has a section called “Why was Mr Morrison not given the legal and policy advices?” It begins with Morrison in the commission hearings being “invited to consider possible contributing factors for the failure to clearly advise him of the legal position during the development of the NPP [new policy proposal]”.
Morrison professes ignorance as to why public servants would do such a thing, and laments that it is “distressing”. Holmes then goes on to explain in detail how the “contributing factor” was Morrison making it clear to public servants he wanted savings, and he didn’t want to have to do it with legislative change.
The advice provided by DSS to DHS in the development of the executive minute did comply with the duty to give full and frank advice about the need for legislative change.
The candour of that advice stopped, at least on the part of DHS, after Mr Morrison instructed DHS to develop the NPP by signing the executive minute which specifically advised of the need for legislative change.
Mr Morrison made clear to DSS that he wanted the DHS proposal progressed by way of NPP for the upcoming DSS portfolio budget submission without legislative change.
It’s easy for public servants to talk about the need for “frank and fearless advice” (though it’s hilarious that former department head Jane Halton, of “kids overboard” fame, has the chutzpah to complain about public servants not giving it, and blames freedom of information for “chilling” it). But after decades of politicisation, the power dynamic between ministers — and their extensive taxpayer-funded, unaccountable private staff — and bureaucrats directly curbs such advice.
Until that power dynamic is altered, the system will remain open to abuse by toxic, deceitful politicians and the bureaucrats who want to appease and enable them.
Does anyone really think we won’t see such politicians in future?
