Robodebt royal commission recommends prosecutions, reform and an end to arbitrary cabinet secrecy

The robodebt royal commission has suggested individuals be referred for prosecution, alongside dozens of recommendations for the public service and federal government to clean up its act.

“I am confident that the commission has served the purpose of bringing into the open an extraordinary saga, illustrating a myriad of ways that things can go wrong through venality, incompetence and cowardice,” commissioner Catherine Holmes wrote in the report released Friday. 

The public won’t immediately get to know the identities of the individuals Holmes has said should be referred for civil and criminal prosecution, nor the authorities she has contacted. 

“I do not propose to name the entities to which I have made referrals, because it would only lead to speculation about who had been referred where, which would almost certainly be wrong,” she wrote. 

The report’s 57 recommendations aim at “strengthening the public service”, improving processes at Services Australia and the Department of Social Services (DSS), and “reinforcing the capability of oversight agencies”, Holmes wrote. 

The recommendations were grouped under 13 headlines in the report:

Effects of robodebt on individuals

• Services Australia should focus on the people it’s meant to serve, including by not stigmatising individuals who require government support. It should also use plain language, make sure it’s easy to deal with the agency, and be sensitive to financial stress experienced by welfare recipients. 

The concept of vulnerability 

• Services Australia should make sure to identify vulnerabilities that would mean a person isn’t capable of engaging with compliance activities.
• It should make sure staff engage with a recipient before removing a vulnerability indicator from their file, and not do so until the person confirms that vulnerability is no longer relevant.
• It should consider the categories of vulnerable recipients who may be affected by a program while designing it.
• And it should ensure there is clear documentation of criteria for people meant to be excluded from a compliance process.

The roles of advocacy groups and legal services 

• The government should make it easier for advocacy groups to engage with Centrelink, consider creating a customer experience reference group, and consult peak advocacy bodies before modifying the social security system.
• When the government reviews the National Legal Assistance Partnership, it should consider the importance of community legal centres and legal aid commissions. 

Experiences of Human Services employees 

• Services Australia should create processes for genuine consultation with frontline staff when designing new programs, and put in place better feedback processes.
• It should also create more options for “face-to-face” customer service support options. There should also be increased social worker support for both recipients and staff. 

Failures in budget process

• The rules for the budget process should require all new policy proposals to state whether they require legislative changes in order to be legal. The rules should also require any legal advice to be included in all versions of the portfolio budget submission circulated to other agencies and ministers. 
• In those cases the policy proposals should include a statement as to whether the Australian government solicitor has reviewed and agreed with the advice. The checklist for new policy proposals should make clear what advice is being provided, and by whom. 
• When developing compliance budget measures, Services Australia and the DSS should document the basis for the assumptions used, and what sources are being relied upon. When seeking agreement from the Department of Finance for the costing of those measures, Services Australia and the DSS should make those assumptions and sources available so that they can be properly investigated and tested. 

Data-matching and exchanges

• The government should seek legal advice as to whether the current data exchange processes between Services Australia and the tax office (ATO) are lawful. The ATO and the Human Services Department (DHS) should take “immediate steps” to review governance practices that apply to joint data-matching programs, including making sure all operations are properly documented and legally compliant.
• The existing framework documents for current or proposed data-matching programs, the operations of the ATO/DHS consultative forum and the ATO/DHS data management forum, and the existing head agreement/s, memoranda of understanding and services schedule should all be reviewed. 

Automated decision-making

• The government should consider legislative reform to make sure all automation in government services follows a consistent legal framework. When making automatic decisions, there should be a clear way for affected people to seek review, government websites should plainly explain how the process works, and the algorithms used should be made available for independent expert scrutiny.
• The government should also consider creating a body to monitor and audit automatic decision-making processes to make sure they avoid bias, are usable by clients, and so on. 

Debt recovery and debt collectors

• Services Australia should develop a comprehensive debt recovery management policy, which should incorporate guidelines from the Australian Competition and Consumer Commission (ACCC) and the Australian Securities and Investments Commission (ASIC). The policy should also ensure any debt recovery action is ethical and transparent, treat all recipients fairly and with dignity, avoid clawing back money while a debt is being reviewed, and respond appropriately to cases of hardship. 
• The government should reinstate an effective limitation period of six years for bringing proceedings to recover debts. 

Lawyers and legal services 

• The selection panel for appointing chief counsels for Services Australia and DSS should include the Australian government solicitor. Services Australia should regularly train its lawyers on its legal practice standards. The DSS should develop its own legal practice standards, and regularly train its lawyers in following those. The DSS should always document the reasons for deciding draft advice doesn’t need to be provided in final form.
• Services Australia should only leave legal advice in draft form if there are remaining questions to be answered. The Legal Services Directions 2017 should be simplified. The Office of Legal Services Coordination (OLSC) should offer more extensive feedback to help agencies navigate the significant legal issues process.
• The OLSC should keep records of inquiries made and responses given by agencies, issue guidance material on obligations to consult on and disclose advice, and be properly resourced to deliver those functions. 
• The charter governing the OLSC should place a positive obligation on chief counsel to ensure the Legal Services Directions 2017 are complied with. A revised bilateral management agreement should set out a requirement to consult on and disclose legal advice between the agencies. 

The Administrative Appeals Tribunal (AAT)

• Services Australia should have a system for identifying AAT cases that raise significant legal and policy issues and bring those to the attention of senior bureaucrats. Services Australia legal officers who are responsible for preparing advice in relation to AAT decisions should be trained in the requirements of the standing operational statements in regards to referral to DSS, and other obligations.
• DSS should establish a system for identifying all significant AAT decisions and make sure the secretary is aware of them. The new body that will replace the AAT should create a system for publishing significant decisions on a readily accessible platform. A body similar to the Administrative Review Council should be reinstated to review government administrative decision-making processes. 

The Commonwealth ombudsman

• Top department and agency bosses should have to ensure the bodies they represent assist the ombudsman in any investigations. The Ombudsman Act should be amended to give that office equivalent power to those in the Auditor-General Act.
• Department responses to ombudsman investigations should be overseen by the legal services division of the department. The ombudsman should maintain a log of communications with departments for the purposes of own motion investigations.
• The Ombudsman Act should be amended to make sure the office has the power to refer cases to the new body replacing the AAT. 

Improving the Australian Public Service (APS)

• The Australian government should review the existing structure of the social services portfolio and make sure it, and the “status of Services Australia as an entity”, are both optimal.
• The Australian Public Service Commission should deliver a whole-of-service induction on knowledge that’s essential for public servants. Services Australia and DSS should have a “fresh focus” on customer service. The Administrative Review Council, if reinstated, should train APS staff in the Commonwealth administrative law system.
• The government should explore whether it’s feasible to establish an “internal college” within Services Australia to train staff. Senior executive service staff at Services Australia should spend time in frontline service delivery roles.
• The Public Service Act should be amended to make clear the APS commissioner can inquire into the conduct of ex-agency heads and to allow for disciplinary declarations to be made against them. The APS Commission should also develop standards for documenting important decisions and discussions. 

‘Closing observations’

• The Commonwealth Cabinet Handbook should be changed so that a description of a document as a “cabinet document” is “no longer itself justification for maintaining the confidentiality of the document”. Confidentiality should only be maintained over cabinet documents when “it is reasonably justified for an identifiable public interest reason”.