The attorney-general has ignored a ‘lynchpin’ recommendation of the robodebt royal commission, claiming it is not a recommendation at all. By Rick Morton.

A serious flaw in the robodebt response

Ministers Mark Dreyfus, Amanda Rishworth, Katy Gallagher and Bill Shorten.
Ministers (from left) Mark Dreyfus, Amanda Rishworth, Katy Gallagher and Bill Shorten.
Credit: AAP Image / Mick Tsikas

The Albanese government has been caught deliberately dropping a critical recommendation from the robodebt royal commission so it could engineer a “positive” response to the final report and avoid scrutiny over a refusal to pursue greater transparency in government.

Commissioner Catherine Holmes, a former chief justice of the Supreme Court of Queensland, delivered 57 recommendations in her report to the government on July 7. Four months later, the government has chosen not only to ignore the last recommendation but to pretend it does not exist.

The recommendation, to amend the Freedom of Information Act and the Commonwealth Cabinet Handbook “so that the description of a document as a Cabinet document is no longer itself justification for maintaining the confidentiality of the document”, was made in response to the abuse of secrecy provisions that allowed key documents in the robodebt scheme to be kept from the public for seven years.

Were it not for Holmes’s royal commission, these documents, including an executive minute from the Department of Human Services to then social services minister Scott Morrison, would never have seen the light of day. These documents are not necessarily cabinet material but can be classified as such, granting automatic protections. Had the documents been released under freedom of information at the time, it is possible hundreds of thousands of people could have been saved the illegal campaign of fake debt-raising that destroyed and in some cases ended lives.

On Monday, Attorney-General Mark Dreyfus helped release the government’s response to the robodebt inquiry report alongside Minister for Government Services Bill Shorten, Social Services Minister Amanda Rishworth and Finance and Public Service Minister Katy Gallagher. Each was emphatic that the government had accepted, in full or in principle, “all 56 recommendations”.

Asked about this number, Dreyfus claimed the 57th recommendation was not really a recommendation. “The commissioner made a closing comment rather than a recommendation. We will not be amending the Freedom of Information Act.”

Senior counsel assisting the robodebt royal commission Justin Greggery, KC, told The Saturday Paper “there are 57 recommendations and the last recommendation is number 57, that is that section 34 of the FoI Act be repealed”.

When The Saturday Paper put this confirmation to Dreyfus via his office, a spokesperson doubled-down on the incorrect claim.

“In the final report of the Robodebt Royal Commission Commissioner Holmes lists 56 items which begin with the word ‘Recommendation’,” the spokesperson said in a statement.

 “Immediately following that is a final item listed as ‘Closing Observations’. That is Commissioner Holmes’ terminology, not ours and we have matched this with our response.”

Recommendations in the report are named after each chapter in which they appear. The final chapter, titled “Closing observations”, contains the recommendation to amend the FoI Act and reminds readers that all recommendations are also contained in a list at the start of the report. It also features in a handy drop-down menu of all 57 action items on the royal commission website.

The Saturday Paper can reveal Dreyfus’s newfound interpretation was not always the position of the government. A political decision was made to excise the last recommendation to make the government response more palatable.

“We knew there were 57 recommendations and we knew we weren’t going to touch that one,” a Labor staffer concerned by the approach taken, and who spoke on condition of anonymity, said.

“I don’t know who made the call but suddenly 57 became 56. We wanted a clean 56, a good news story.”

This appears to have happened in late October.

On the day the report was released to the public, Bill Shorten told reporters there were 57 recommendations.

Government talking points delivered to MPs when parliament resumed in August continued to cite the correct number. Mary Doyle, the Labor member for Aston, told parliament on August 1: “The government will now carefully consider the 57 recommendations presented in the final report. To those who shared their stories with the royal commission and who campaigned tirelessly to raise the alarm about the gross betrayal that was the robodebt scheme, I thank you.”

Labor MPs were still using the correct figure in speeches to parliament as late as October 16.

Rex Patrick, a former independent senator, told The Saturday Paper “there needs to be a secrecy exorcism across government leadership”.

“Cabinet confidentiality has one purpose, and one purpose alone – to support collective responsibility and cabinet solidarity so that confidence in government is maintained,” he said.

“It’s an important doctrine, but a very narrow one. It is not designed to protect the information that goes to cabinet, just the difference in the position and opinion of the ministers that sit around the cabinet table.

“Unfortunately, the doctrine falls victim to the broken transparency culture that exists inside government, a culture which has either the tacit, or active, blessing of ministers and senior officials.

“No one gets a gold star for releasing information. Equally, no one gets punished for refusing or delaying the release of information. I refer to the wise words of Joseph Pulitzer, which have been shown accurate by past scandals and robodebt: ‘There is not a crime, there is not a dodge, there is not a trick, there is not a swindle, there is not a vice which does not live by secrecy.’ ”

Briefs to ministers are not ordinarily considered cabinet documents. They are produced at volume in every department. Morrison’s robodebt brief, the so-called “executive minute”, included the key advice from the Department of Social Services that “legislative change would … be needed to implement this initiative”. No such legislation was ever contemplated and the phrase disappeared from the new policy proposal that eventually went to cabinet.

The fight to produce this document continued even after the Federal Court of Australia upheld its erroneous status as a “cabinet” document. Other documents, such as the business case and budget assumptions for robodebt, sought by IT expert Justin Warren, were repeatedly withheld from public view despite a six-and-a-half-year battle through the courts to secure their release.

La Trobe University lecturer in administrative law Dr Darren O’Donovan said many of these access attempts failed on account of section 34 of the FoI Act, which Commissioner Holmes recommended be repealed and which the Albanese government has contorted itself into leaving unaddressed.

“Section 34 frustrated democratic accountability as victims suffered,” O’Donovan wrote in September, two months before the government released its response.

“To be clear: I have never stood in the true ‘halls of power’. Equally however, public service leaders have rarely stood in victims’ or campaigners’ position.

“Career public servants have, too often, never had to desperately seek justification from the outside. Or watch powerlessly as crucial facts which would ground accountability are suppressed. Or speak out against the powerful when our political climate sadly often extends to attacks on one’s character or professionalism. A refusal to act on cabinet confidentiality risks an institutional failure to learn from victims’ bravery.

“Commissioner Catherine Holmes AC SC effectively inverts a generation of public service thinking about cabinet confidentiality and the duty to give frank and fearless advice. I argue that the Report’s final two recommendations – suggesting reform to cabinet confidentiality and record creation – are the lynchpins for successful public service reform after Robodebt.”

The federal government has accepted the recommendation to “develop standards for documenting important decisions and discussions, and the delivery of training on those standards” within the Australian Public Service but it has not said it will make the adoption of those standards enforceable or subject to code of conduct breaches where public servants deliberately avoid documenting key decisions.

There are seven recommendations the government accepts only “in principle”, including other critical elements of a response that would ensure robodebt or something like it could never happen again.

Commissioner Holmes said the Commonwealth should “reinstate the effective limitation period of six years for the bringing of proceedings to recover debts” under the Social Security Act. This limitation was removed in a bipartisan vote of the Coalition and Labor in 2016, alongside a suite of other measures designed to expand robodebt. Nevertheless, the government will not act immediately on the recommendation to reverse this, saying, “Any reform to the approach of raising and recovering social security debts should be undertaken in a systematic way, with careful consideration of the unique circumstances of social security debtors”.

Similarly, where the royal commission calls for an “increased number of social workers” and “more face-to-face customer service support options”, the government carefully sidestepped any commitment to additional numbers. It also declined to set up a customer experience reference group despite accepting, in principle, the recommendation that one should be established.

A recommendation to “undertake an immediate and full review to examine whether the existing structure of the social services portfolio, and the status of Services Australia as an entity, are optimal” was also put on ice.

Shorten told reporters on Monday he was confident Services Australia, formerly the Department of Human Services, could be “re-humanised”.

“There’s nearly 30,000 people who work at Services Australia. Many of them were traumatised, as they were required to carry out really morally bankrupt instructions from their senior leadership and the then government of the day,” he said.

“What we’re doing is putting the human back into human services. Literally thousands of ongoing public servant positions will be created.”

As for the transparency of government, a key question posed by robodebt expert and administrative lawyer Darren O’Donovan has now been answered.

“The Albanese Government now faces a fundamental choice,” he wrote in September.

“Will it enforce the sealed, conclave vision promoted by public service voices? Or will it stand with those outside to build a culture of justification in government?”

The nation’s chief law officer, Mark Dreyfus, didn’t just reject the commissioner’s final recommendation; he disappeared it. The sealed, conclave vision remains intact.

As proof of how little has changed, both the Department of the Prime Minister and Cabinet and the Attorney-General’s Department refused to answer questions about whether they provided the advice on which the attorney-general now relies.

This article was first published in the print edition of The Saturday Paper on November 18, 2023 as "The robodebt response".

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