The robodebt royal commission report is an indictment on the way Australia was governed, but who commissioner Catherine Holmes holds most to blame for the unlawful scheme is slightly obscured by her deference to due process.
Holmes chose to make the findings and 57 recommendations public while sealing the referrals for potential civil action and criminal prosecutions in a confidential chapter.
Agencies including the national anti-corruption commission and Australian federal police have sections asking them to investigate or consider charges against individuals. The individuals themselves were told in notices of an intention to refer.
The Coalition ministers Christian Porter, Alan Tudge and Stuart Robert were quick off the mark: “not us”, they cried.
The roll call of Coalition ministers responsible at various times for aspects of the scheme – eight all up in the portfolios of social, human and government services across its five years of life – gives the impression that robodebt was passed like a hot potato up the line, each inheriting the assumption from their predecessor that income averaging was lawful.
The report found the Department of Human Services secretary Kathryn Campbell knew of both the intended use of income averaging and the department’s advice that legislative change was needed, but did nothing to change the policy proposal that went to government.
It found she didn’t act because she knew the then social services minister, Scott Morrison, wanted to “pursue the proposal and that the government could not achieve the savings” that were promised without income averaging.
Morrison also cops a pasting for having “failed to meet his ministerial responsibility to ensure that cabinet was properly informed about what the proposal actually entailed, and to ensure that it was lawful”.
Holmes found Morrison had “allowed cabinet to be misled” because he did not make the “obvious inquiry” about why his department had changed its view on whether legislation was required to change social security law. “He chose not to inquire.”
Morrison denies any wrongdoing: it was the public service that initiated robodebt, not ministers; he was entitled to rely on advice that legislation wasn’t required; and there’s no evidence he pressured anyone to do it that way.
But Morrison and Campbell are in good company in Holmes’s bad books, because once the scheme was in motion, very little was done to stop it.
Perhaps the most shocking line of the robodebt royal commission report is that the “unfairness, probable illegality and cruelty” of the scheme was apparent from the beginning of 2017. It persisted until late 2019.
The government seemed willing to accept a cruel scheme – to “double down” as the report said – targeting people presumed not to deserve fair treatment because it branded them welfare cheats.
Media, of which Guardian Australia was first and went hardest, reported the scheme was flawed, harsh and appeared to be generating incorrect debts. The royal commission found the government responded through Alan Tudge’s “abuse” of his power releasing information about welfare recipients in the media to discourage criticism, a finding he rejected.
We also reported in 2018 when Prof Terry Carney, a former senior member of the administrative appeals tribunal, warned that income averaging was not a lawful basis to establish a debt.
But the government was undeterred. Draft legal advice from Clayton Utz was not finalised. Campbell ordered the DHS to stop processing a request for legal advice from the acting secretary, Barry Jackson, made while she was on leave in early 2017.
Publicly, the department persisted with the claim there had “been no change to how we assess income or calculate and recover debts”, which the report found Campbell knew was false.
Last in the line was the government services minister, Stuart Robert, who the commission said made “statements of fact as to the accuracy of debts, citing statistics which he knew could not be right”.
It rejected his claim that cabinet solidarity required him to defend robodebt while the government awaited conclusive legal advice, noting that “nothing compels ministers to knowingly make false statements, or statements which they have good reason to suspect are untrue”.
On Friday Robert painted himself as “the minister that worked hard to get the legal advice and close down the income compliance scheme”.
Robert credits himself, but the commissioner “rejects Mr Robert’s claim to have acted to end the robodebt scheme quite as promptly as he professes”, instead crediting the departmental secretary Renee Leon.
Robodebt ended not with a bang but whimper, when Robert claimed only a “small cohort” would be affected by ending income averaging to raise debts. In fact, the class action resulted in $1.8bn of debts being wiped.
In the rogue’s gallery that handled robodebt it can be easy to lose sight of gradations of responsibility and blame.
Unless agencies take up the commissioner’s invitation to seek civil and criminal consequences, we may not know for some time who comes off worst.
