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Greggery, Justin --- "Justice for Robodebt" [2023] JCULawRw 3; (2023) 29 James Cook University Law Review 27

Justice for Robodebt

Justin Greggery KC[1]*

I Introduction

It is a real pleasure to speak to the James Cook University students about the tangled mess of politics, self-interest and personal hurt that was the Robodebt scheme.

I experienced a sense of distant familiarity as I drove to the University this afternoon. As you now know, I was student here in the 1990’s, and after graduating, I found my legal feet in the daily application of the law. In preference to the academic study of it. Although, once I started to apply the law to the lives of the people in the cases which came across my desk, I was inevitably drawn to understand the theory which underpinned its application.

Like most law students, I completed the administrative law subject as part of my degree, but it did not regularly feature in my practice.

One of the unexpected moments in the Royal Commission was that it piqued my interest in administrative law because it was a university student who, in 2019, engaged Victoria Legal Aid to challenge the lawfulness of the Commonwealth government’s Robodebt scheme in an application for judicial review in the Federal Court. That challenge had some twists and turns but it, together with a second application, succeeded in late 2019. The end of Robodebt illustrates how the rule of law applied by the courts can be used by the most vulnerable in our society when the enormous efforts made by many others through various avenues had been deflected, rebuffed or completely ignored by those responsible for addressing the flaws of the scheme.

The Royal Commission found that practically everything else failed to stop the Robodebt scheme since it was first introduced through the Federal Budget in May 2015. Sadly, the end of the scheme did not come soon enough. Hundreds of thousands of Centrelink recipients, or former recipients, had money or entitlements unlawfully taken from them, often with distressing and sometimes devastating effects. The Commission heard stories of those who felt shame and embarrassment from the allegation they received Centrelink money they were not entitled to. The Commission also heard stories of those who had to choose between food and repaying the alleged Centrelink debt. And there were also stories told by the relatives of those who took their lives when their spirit was crushed by the political and bureaucratic weight of false debts and its daily impact. The evidence produced during the Commission provided answers that were previously withheld by government departments. The findings identified those responsible for the commencement and continuation of the scheme.

I found my role in assisting the Commission to be both meaningful and challenging. It was an inquiry into how Robodebt came into existence, how and why it was continued despite red flag after red flag from within the government, public media and online commentary. It required a detailed and forensic consideration of material which was not what I had expected. It required close analysis of contemporaneous documents which often revealed more gaps than I anticipated in the conduct of business as usual within the public service. By the time of the inquiry, the events of 2015 were already seven years in the past. Memories undoubtedly faded although there were some claims of memory loss which I regarded with great scepticism given the significance of the scheme at the time and the clear personal investment of those involved with it.

In about 45 minutes time some of you may know all you want to know of what the Commission uncovered during the nine months it existed, others may want to read a chapter in the three volumes of the report on a topic that interests them. It is not possible to even briefly cover the material contained in the report but either way, I hope this leaves you more informed.

II What is a Royal Commission?

Like most things studied by law students, a Royal Commission starts with an Act of Parliament. In this case the Royal Commissions Act 1902 (Cth) which provides at s 1A:

Without in any way prejudicing, limiting, or derogating from the power of the King, or of the Governor-General, to make or authorise any inquiry, or to issue any commission to make any inquiry, it is hereby enacted and declared that the Governor-General may, by Letters Patent in the name of the King, issue such commissions, directed to such person or persons, as he or she thinks fit, requiring or authorising him or her or them or any of them to make inquiry into and report upon any matter specified in the Letters Patent, and which relates to or is connected with the peace, order, and good government of the Commonwealth, or any public purpose or any power of the Commonwealth.[1]

The breadth of the inquiry is regulated by the content of the letters patent.[2] They were issued on 18 August 2022. The scheme was not always known as the Robodebt Scheme; the Letters Patent set out the names given to the various stages of it by the Department of Human Services.

Broad powers are granted by the Royal Commissions Act to require witnesses to attend and give evidence on oath or affirmation and to compel production of documents.[3] The Royal Commissions Act also contemplates that counsel may be appointed to assist the Commission which is the role that I was appointed to, together with four other barristers, Angus Scott KC, Renee Berry, Salwa Marsh and Douglas Freeburn. We undertook the role of drafting or settling notices to give evidence and produce documents. Those notices were issued by the Commissioner, the Honourable Catherine Holmes AC SC, the former Chief Justice of the Supreme Court of Queensland. Those who watched some of the livestream hearings will be familiar with the Commissioner’s unequalled ability to give ‘side eye’ to witnesses who gave incredulous evidence. We also called and examined witnesses and drafts of notices of potential adverse findings and drafts of various sections of the report.

Many notices to produce documents and give evidence were issued. More than 100 witnesses over four public hearings (three of two weeks duration and one of three weeks duration) were called. More than 900,000 documents were produced and were distilled to approximately 8,400 exhibits. The volume of work required by the terms of reference required an extension of the initial time frame to 30 June 2023 and then again to 3 July 2023 to enable the Commissioner to refer individuals to the National Anti-Corruption Commission which came into existence on 1 July 2023.

The result required by the Letters Patent was that a report including recommendations be provided to the Governor-General. The report comprises of three volumes which respond to the subjects set out in the terms of reference in the Letters and sets out 57 recommendations.

As you might appreciate, completing a task of this magnitude in less than nine months requires a lot of dedicated people and resources. I was very fortunate to be involved in a Commission which fit that description. A Secretary of the Commission was appointed, Ms Jane Lye, who headed the necessary recruitment of Commission staff (media liaison, social workers, legal staff, administrative and technical support – almost 40 staff in total over the duration). Gilbert & Tobin were appointed solicitors assisting the Commission. The teams of solicitors that worked throughout the commission were led by two very senior lawyers experienced in the functions and work of Royal Commissions, Andrew Floro and Kate Harrison. During the public hearings, the work required to prepare documents for tender by the solicitors and junior counsel resulted in little, if any, sleep. Their contributions were enormous, and I remain very grateful for it.

Of course, responsibility for the report rested with the Commissioner and that was not a responsibility which she delegated. The Commissioner set the pace early and sustained it. It is truly her report. Assisting Catherine Holmes was a professional experience that I value very highly.

Although I was surrounded by highly capable Commission staff, counsel and lawyers, I admit I felt, quite strongly, in the week before the first hearing that I was not in a position to start calling witnesses. There were too many unknowns, document production was frustratingly complicated and late, and where does one begin to unravel the mysteries of Robodebt? A decision had to be made about whether to start as scheduled. I consulted with the other barristers and came to a decision that we needed to defer the start; we were not ready. I shared my view with the Commissioner, already anticipating the relief that came from the possibility of another week of preparation before we got underway. The Commissioner listened, disagreed and simply said: ‘It’s an inquiry. We aren’t supposed to know everything. Ask questions and press for answers.’

And so, it began.

III Where Did Robodebt Start and What Was It?

The Robodebt story began in 2014. The Commonwealth government had structured its administrative functions so that there were two departments within the cabinet portfolio of the Minister for Social Services; the Department of Social Services (DSS) and the Department of Human Services (DHS). Broadly speaking, DSS had policy and advice functions and DHS had service delivery functions including through Centrelink; an office many university students are familiar with. Each department had a Minister and a Secretary. A Secretary is the most senior level within the Commonwealth public service. Each department had many in-house lawyers and I will briefly touch on their legal advice later.

The fact that there were two departments within the one portfolio did not mean that they had exclusive areas of responsibility. If DHS developed an idea for potential inclusion into the Federal budget, it would be developed into a New Policy Proposal (NPP) which would be presented to the Expenditure Review Committee, a sub-committee of Cabinet, by the Minister for Social Services. As the report concluded, that required a collaborative process between DHS and DSS in order for both departments to have an understanding of the proposal and to advise their respective Ministers. The Robodebt Scheme was developed as a NPP for the budget in early 2015.

Like every government program, Robodebt started with a simple idea that there was a more efficient method to recover Centrelink overpayments. The idea was that overpayments could be calculated according to information provided by employers to the Australian Taxation Office about how much an employee earned. The idea was thought to be better for two reasons: first it would make it easier for DHS (through Centrelink) to calculate overpayments using this approach and secondly, it would calculate a much higher volume of debt which could be recovered. These features, if workable, would make DHS look efficient and financially responsible.

The idea also aligned with the government’s objective of balancing the budget and it appealed to its policy of being tough on welfare cheats (hence the stigma). Despite all the evidence given during the Commission, there was no evidence that any government Minister of DHS or DSS or any government employee asked why, if this was such a good idea, it was not already in place.

The fundamental problem with the idea was that the method of overpayment calculation and consequential debt recovery was unlawful. It involved a method to calculate overpayments which did not reflect the statutory test for entitlement to those repayments. The report set out the detail:

In summary, the Employment Income Matching measure entailed a process of data-matching and debt raising to be applied to some 866,857 instances of possible overpayment for the financial years 2010/11, 2011/12 and 2012/13 identified through a comparison of Australian Taxation Office (ATO) and DHS data. DHS would obtain information from the ATO as to what benefit a recipient’s employers had returned as the income earned by the recipient in the relevant financial year (“PAYG data”), compare it through an automated system with what had been declared to DHS by the recipient, and in the event of discrepancy would require the recipient to go online to explain it.

If the recipient did not respond or provide details which explained the discrepancy, or agreed with the PAYG data, the amount declared by the employer would be averaged across a period of time, which was often whatever employment period the employer had indicated. The system applied some rules which attempted to account for the varied circumstances of income support recipients; however, the basic premise was that the amount declared by the employer would be divided up evenly and allocated into the number of fortnights included in the period being reviewed. (That process was variously referred to income “averaging”, “smoothing” or “apportioning”.)

Where, in any given fortnight, the averaged fortnightly amount exceeded the income the recipient was entitled to receive before reduction of benefit, it would be taken that there had been an overpayment, a debt would be raised accordingly, and steps would be taken to recover it. Where the recipient was still on benefit, deductions would be made from the income support currently being paid. Where the recipient was no longer on benefit, they would be required to enter a repayment arrangement. Debt collectors would be involved if they did not respond, and they were liable to have any income tax refund they were entitled to receive garnisheed. Robodebt began with some pilots in 2015, was rolled out with its online platform in September 2016 and continued in various iterations for four years.[4]

The idea bubbled to the surface of DHS in about mid-2014 and came to the attention of the Secretary, Ms Kathryn Campbell.[5] At that time Senator Marise Payne was the Minister for DHS and Ms Malisa Golightly was a deputy secretary of DHS who was to work closely with Ms Campbell and Senator Payne on the development of the scheme.

Relevant identities at DSS included Mr Finn Pratt, the Secretary who took a ‘hands off’ approach to the idea and left one of his Deputy Secretaries, Ms Serena Wilson, to handle its progress.

In December 2014, Scott Morrison was appointed as Minister for Social Services which was, as I indicated, a cabinet portfolio. He was welcomed to the role by letter from Senator Payne who noted that an arrangement had been made for him to be briefed about DHS by Ms Campell over the Christmas break. That meeting took place on 30 December 2014.[6] Little contemporaneous record of their discussion remained by the time of the Commission. If Ms Campbell had made notes of the meeting she had since destroyed them. Mr Morrison had a senior advisor present at the meeting and he retained his notes.[7] They included the words ‘most excited’ and a short list of matters which included ‘integrity package’. Ms Campbell gave evidence that ‘payment integrity’ referred to payments which exceeded a person’s entitlement.

The report concluded that it was Mr Morrison who was ‘most excited’. Subsequent documents confirmed that Mr Morrison asked Ms Campbell for options to strengthen the integrity of welfare outlays.[8]

On Monday, 5 January 2015, almost most immediately after the New Year’s day holiday, Ms Campbell met with her deputy secretary, Malisa Golightly to discuss Mr Morrison’s request to increase debt recovery.[9] By 9 January 2015, other senior persons within DHS were involved and DHS started to discuss the idea with those at DSS. The early drafts of DHS documents referred to the meeting between Ms Campbell and Mr Morrison and his request.[10]

There was a real sense of urgency which accompanied the development of the idea into a New Policy Proposal (NPP). That reflected the confined timeframes created by the federal budget process. The DSS portfolio budget submission was scheduled to be considered by the Expenditure Review Committee on 18 March 2015, which required NPP’s to be circulated for consultation in February 2015.

As one would expect, it was Ms Campbell’s responsibility to inform her minister of the discussion with Mr Morrison. On Monday, 12 January 2015 Ms Campbell met with Senator Payne. Senator Payne maintained a notebook which confirmed Mr Morrison’s request was discussed[11] and in fact the DHS brief which responded to Mr Morrison’s request was to be provided through Senator Payne. Ms Golightly was the Deputy Secretary responsible for the preparation of the brief and the draft of Thursday, 15 January 2015 confirmed that Ms Campbell was ‘very keen’ get the brief to Senator Payne.

The draft brief was in the form of an Executive Minute. It recorded two things. First how overpayments were currently calculated[12] and secondly that DSS had informed DHS that the proposal required legislative change.[13]

I pause there, what legislative change you ask? I skipped over an important piece of information. In 2014, when the idea was first considered by DHS they sought advice from DSS. That advice was sought from Ms Anne Pulford, a lawyer within the public law branch of DSS. It was prepared by another lawyer, Mr Simon Jordan and approved by Ms Pulford.[14] The effect of the advice was that that the existing legislation required calculation of social security overpayment by reference to the test for entitlement; that is by the assessment of actual fortnightly income. Ms Pulford gave evidence about the effect of this advice.[15]

No evidence was adduced at the Commission that the DSS legal advice was sent to DHS before Ms Campbell’s meeting with Mr Morrison on 30 December 2014, but that did not matter greatly because Ms Campbell and Ms Golightly knew of it from the contents of the draft memorandum of 15 January 2015 and it was reiterated in a series of dot points set out in an email sent from DSS to DHS on 20 January 2015.[16]

What did matter was how, despite that clear legal advice, a NPP which contained what became the Robodebt scheme was approved by the Expenditure Review Committee on 25 March 2015 without reference to the need for legislative change.

Matters which pointed towards an answer included statements made by Mr Morrison in a radio interview on 21 January 2015 where he spoke of the need to crack down on welfare cheats, references to those rorting the system, and the concept of himself as a welfare cop.[17] Again, as you might expect, Ms Golightly and Ms Campbell took notice of the language. Ms Campbell recalled it, more than seven years later, and agreed that the language was significant to her because it indicated the direction Mr Morrison wished to take in his leadership of the portfolio.

There was also the government agenda of balancing the budget. No criticism could be made of that goal, but it should go without saying that a government cannot unlawfully take money from its citizens in aid of that agenda.

A third consideration was that the coalition government required crossbench support to pass legislation through the Senate and many bills were awaiting passage from the previous budget.

The final version of the DHS Executive Minute to Mr Morrison was prepared on 12 February 2015.[18] There had been some to and from between DSS and DHS prior to the final version about the language which identified the need for legislative change. The net effect was a slight watering down of the language but a clear message, that legislative change was required.[19]

Mr Morrison signed the Executive Minute on Friday, 20 February 2015 and it was sent to DHS on Monday, 23 November 2015.[20] Mr Morrison marked the Executive Minute to note his agreement that DHS develop a package of NPP’s which included what became the Robodebt Scheme, that DHS continue to work with DSS to progress ‘consideration of additional policy and legislative changes in relation to payment integrity’ and noted the current arrangements which included the manually intensive process of calculating overpayments according to actual fortnightly income.[21]

He gave evidence that the information contained in the Executive Minute was his only source of knowledge about the calculation of overpayments.[22]

It was in that context, that DHS drafted a NPP by Thursday, 26 February 2015, (within three days) which fundamentally reversed the position that legislative change was required to implement the proposal to state it did not.[23]

This radical alteration to the position was expressly stated in the NPP and there was a notable lack of a clear explanation by any employee of either DSS or DHS about how that came about. Over the next week the draft was circulated to both ministers’ offices and to DSS. Except for one occasion, the draft NPP which contained the ‘about face’ on the question of the need for legislative change was unquestioned. The report concluded that the language used to describe the proposal changed but its substance did not.

The absence of any questioning continued through the NPP consultation process and ultimately was approved by the ERC on 25 March 2015. Present at the ERC meeting were the ministers and secretaries of both departments.[24]

The report makes findings about the knowledge of those who were involved in the idea which became the proposal which became a budget measure and ultimately became known as the Robodebt scheme. I don’t have time to talk to you about those findings. You will have to read that for yourself.

IV The Events of Late 2016 and Early 2017

Returning to the chronology, the scheme increased in scale and automation in late 2016. That led to widespread complaints about the inaccurate calculation of debts. Perhaps coincidentally, the complaints surfaced in the media not long after 5 December 2016, when the media advisor to the then Minister for Human Services, Alan Tudge, liaised with DHS and the Australian to publish an article which extolled the apparent virtues of the scheme.[25] That was followed by Mr Tudge’s appearance on television giving his full-throated endorsement to the scheme.

Mr Tudge took leave overseas during Christmas. Then Minister for DSS, Mr Porter, acted in place of Mr Tudge and publicly defended the scheme. The Report records that by this point, the public chorus of criticism was deafening. Minister Tudge returned from leave after some inquiring WhatsApp messages from the then Prime Minister, Malcolm Turnbull, and continued the public defence of the scheme.[26]

Such was the extent of public concern and adverse media stories about the scheme that the Commonwealth Ombudsman initiated its own inquiry.[27] The inquiry started in early January 2017, and was the catalyst for the acting Secretary of DHS to direct his legal department to obtain legal advice about the issues raised in the media (primarily the inaccurate calculation of debts, or more directly, the calculation and allegation of debts which did not exist or did not exist to the extent alleged). Steps were taken to engage a solicitor at the Australian Government Solicitor (that is external to DHS) to provide an advice. That direction prompted communications within DHS which included an email sent by a DHS lawyer. His advice clearly concluded that the use of income averaging to calculate debts was not permitted under the legislation.[28] In fact, that advice was provided to the senior lawyer within DHS, Ms Annette Musolino, on 23 January 2017, at her request.[29] Ms Musolino gave evidence that she delegated the task of reviewing those advices to another lawyer in DHS but no contemporaneous record of that delegation was produced. Her evidence on the point was rejected by the Commission. Ms Campbell returned from leave before an advice from the Australian Government Solicitor was provided. The report concluded that Ms Campbell directed DHS officers to cease the process of responding to the request for advice.[30]

What DSS did do was to re-engage Ms Pulford, the lawyer who signed off the 2014 advice which confirmed debts could not be lawfully calculated in the manner proposed by DHS. She provided another advice which was both inconsistent with the 2014 advice and wrong at law.[31] The Commission concluded that Ms Pulford’s advice in 2017 was influenced by pressure placed on her by a more senior person in DSS.[32]

Returning to the DHS response to the topic of the inquiry initiated by the Commonwealth Ombudsman, a meeting between representatives of the Ombudsman’s office and persons from DHS was organised for Monday, 16 January 2017.[33] That promoted a pre-meeting between DHS and DSS via telephone on Sunday, 15 January 2017 to review their respective positions. Those who attended the meeting gave evidence of their recollections.[34]

The scheme was not only under attack publicly. In the face of the public criticism Ms Campbell sent an email to DHS employees which asserted there had been no change to the way that DHS assessed income for the purpose of calculating overpayments.[35] That assertion became the catch cry of DHS under Ms Campbell’s leadership. It was consistent with the radical change to the NPP presented to the ERC almost two years earlier, but it was clearly untrue, and Ms Campbell knew it was false.[36]

Ms Colleen Taylor, an employee of DHS who knew how the scheme worked, wrote directly to Ms Campbell in response to Ms Campbell’s DHS email and told Ms Campbell her message to staff was misleading in making that assertion. Ms Taylor’s email to the Secretary was practically ignored.[37]

Other persons reported in online media as whistle-blowers from within DHS contradicted the public position of the Department and the Minister.

DHS and Mr Tudge went on the front foot. Again, they used the national print media to extol the virtues of the scheme. On 26 January 2017, an article was published in the Australian which sought to win the public battle.[38]

On that same day, Rhys Cuazzo committed suicide. His mother Jenny Miller gave evidence about Rhys, how he worked in jobs in Melbourne and did not receive a consistent income. He had debts raised through an early iteration of the Robodebt Scheme. Ms Miller’s evidence was deeply moving. Ms Miller described how when she attended his flat, she saw a picture on the fridge drawn by him. A gun was in his mouth and dollar signs were drawn as though to come out of the back of his head.[39] The response of Mr Tudge and DHS to suicides associated with the Robodebt scheme is addressed in the Report. It is still difficult for me to believe that a government department and its Minister would respond with such a lack of empathy to the assertion of surviving family members that there was a link between the debts calculated by the Robodebt scheme and suicide.

I also examined Ms Kathryn Madgwick, the mother of Jarrod Madwick, who also took his life in 2019 in the context of debts raised by Centrelink.[40] The ability of these two mothers to give evidence about the loss of their sons and their experiences with unsuccessful attempts to get honest answers from DHS made a significant impression on me.

V Senate Inquiries

On 8 February 2017, the Senate referred the Robodebt Scheme to the Senate Community Affairs References Committee for inquiry and report. This was the first of two senate reports into the Robodebt scheme. The second was in 2019. The DHS submission to the 2017 Senate inquiry was published by the Senate on its website together with the submissions received by committee. The DHS submission said this:

In 2015–16 the Government announced the Strengthening the Integrity of Welfare Payments measure. A key element of this measure was Employment Income Matching, which provided resources to expand the department’s compliance activity in this area. This expansion did not change the data-matching methodology nor how the department assesses and calculates differences in income and payments received.[41]

On 8 March 2017 a number of DHS and DSS employees attended the Senate inquiry. The audiovisual recording of the evidence given by the DHS and DSS employees was also published by the Parliament on publicly available websites. Ms Golightly, sitting beside Ms Campbell, gave oral evidence to the same effect as the written submissions, in an answer about a recent meeting with the ATO. That assertion was, according to the evidence of Ms Campbell in the Royal Commission, known to be untrue.

A question I have been asked is why didn’t the evidence obtained in the Senate inquiry feature in the Royal Commission. The answer to that question is simple. Despite the broad powers granted by the Royal Commissions Act, s 16(3) of the Parliamentary Privileges Act 1987 (Cth) provides that:

(3) In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:

(a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;

(b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or

(c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.[42]

A Royal Commission is a court proceeding within this section, and the Senate inquiry was a proceeding in parliament. It was not lawful for the Commission to adduce evidence of what was said or submitted to the Senate inquiry for the prohibited purposes in s 16(3)(a) or (b) questioning the credit of any person or drawing the prohibited inferences in s 16(3)(c).[43]

So, although the material adduced in the Senate inquiry was publicly available, it could not be used by the Commission.

The prohibition on the use of material obtained by the Senate inquiry likely did not limit to any large extent the ability of the Commission to make its findings. Had this evidence been available for use by the Commission, it would have only been used to try to establish that those present in the Senate hearing were so committed to ensuring the scheme continued (despite knowing it alleged debts which did not exist) that they were prepared to positively mislead the committee by the written submission of DHS and silently acquiesce while Ms Golightly gave evidence which they knew was untrue. The material produced to the Commission was sufficient evidence to establish that very senior public servants in DHS and DSS worked to inhibit the public knowing the true facts about the scheme and frustrate or misdirect the inquiry by the Ombudsman.

Once the Ombudsman released its draft report to the DHS and DSS as part of its natural justice obligations, DSS were quick to seize on the misrepresentations by DHS that the scheme had not changed the way income was calculated and debts were assessed and that it produced accurate results. The published report was then relied upon by the DHS, DSS and the ministers to maintain the ‘nothing has changed’ line in the continued defence of the scheme.[44]

Many of those who suffered because of the scheme had hopes that their experience would be vindicated by the report of the ostensibly independent inquiry of the Ombudsman. The Commission heard evidence that the Ombudsman’s report crushed those expectations.

For this reason, the Commission was very interested to know about the dealings between the departments and the Ombudsman’s office. The chapters which address this inquiry, its shortcomings and the role played by the office generally are both fascinating and disheartening.

The report described how 2017 was a watershed moment that ought to have led to the cessation of the scheme.[45] Instead, it was a watershed moment because DSS, DHS and their ministers successfully defended the attacks on the scheme from all angles. I found it remarkable that such a coordinated and successful defence could be mounted on so many fronts. To my mind, that approach required a complete disinterest in the welfare of those who relied on the welfare system for basic living standards.

Another point worth mentioning is that the Commission uncovered evidence of the practice of obtaining legal advices in draft form and not finalising them if they appeared to be adverse to the Department’s purposes. I pause there to note the staggering unspoken assumption of this evidence; that is, the department’s purposes are more important than complying with the law. That is the antithesis of the obligations on public servants under the Public Service Act 1999 (Cth).

VI Legal Challenges

The Australian Institute of Administrative Law held its national conference in Canberra in mid-2017. The keynote speaker was barrister Peter Hanks, an eminent silk from Melbourne. His paper ‘administrative law and welfare rights: a 40-year story from Green v Daniels to Robodebt recovery’ was adapted from an advice he provided to Victoria Legal Aid earlier in 2017 following Victoria Legal Aid’s engagement with many people who had false debts alleged against them.[46]

A number of lawyers from DHS and DSS attended. They heard Mr Hanks explain why, in his opinion, the way in which Robodebt calculated debts was not permitted by the legislation. By this point you will not be surprised to learn that his points were dismissed by Ms Musolino (the most senior lawyer in DHS) in her advice to Ms Campbell.

There were many applications for review of alleged debts in the Administrative Appeals Tribunal. Volume 3 of the report contains a summary of those cases.[47] Some made it as far as the appeal division in the Administrative Appeals Tribunal. None reached the Federal Court.

Ms Masterton was the university student I spoke about in my introduction who sought the assistance of Victoria Legal Aid, Mr Hanks was briefed. Ms Masterton was the second witness I called on the first day of the hearings. Ms Masterson’s evidence included the uncertainty she felt in being the litigant in proceedings against the Commonwealth. It was not a small step for her and took courage.

In early 2019 Victoria Legal Aid filed an application for judicial review in the Federal Court, on behalf of Ms Masterson.[48] The Applicant sought declarations which went to the fundamental question of the lawfulness of the scheme. After the affidavits were filed, DHS recalculated Ms Masterton’s debt as it accepted it had double counted the same income in calculating the debt. That left a relatively small, recalculated debt of approximately $700 which was then, administratively, reduced to $0.[49] Arguments ensued in the Federal Court about the utility of the declarations sought by Ms Masterton.

Within weeks of those arguments, a second applicant, Ms Amato, engaged Victoria Legal Aid and a similar application was filed in the Federal Court.[50] The facts in Ms Amato’s case did not permit any recalculation of her debt to zero and the arguments about utility did not arise. Ms Masterton’s proceedings waited the outcome of Ms Amato’s proceedings.

The Commonwealth was forced to confront these legal challenges. DHS sought the advice of the Solicitor General.[51] Legal professional privilege was waived by the Commonwealth and the Solicitor General’s advice was the first exhibit I tendered on the first day of public hearings. The advice confirmed the unlawfulness of the scheme.[52] Shortly before the hearing of Ms Amato’s matter, the Commonwealth conceded. Its concession and the reasons for the concession marked the end of the Scheme. Almost 400,000 Australians had been affected.[53]

Before concluding, I want to also mention that the Commission also heard evidence from dedicated and passionate members of not-for-profit organisations such as the Australian Counsel of Social Services, and community legal services which were overwhelmed with requests for help from those who were victim to the scheme. Their evidence is a timely reminder of the importance of adequately funding these community legal organisations, which are often the only available service for people who are in the most vulnerable socio-economic strata of our society. There is a section in the report on advocacy groups.

There is so much more in the report than this brief skim across the surface. There is a chapter on automation and data-matching which includes automated decision making. An area which will only increase in its relevance to lawyers involved in the area of government decisions.

VII Recommendations/Where to From Here?

The report contains 57 recommendations. They are directed to key failings in the systems and structures which were overcome by the willingness of individuals to circumvent the existing checks and balances. No doubt they are under active consideration by the government.

Those of you who followed the inquiry and have read the Commissioner’s letter to the Governor-General on the first page of the report will also know that there was an additional chapter of the report which was sealed. It was not included in the published report. It contained recommendations for the referral of individuals for civil action or criminal prosecution. Before I am asked any questions, I cannot disclose anything about the sealed section or who is the subject of it.

There were reports in the media about potential causes of action for those affected by scheme which were not resolved in the class action.

To conclude, justice for those affected by the Robodebt scheme is ongoing. It did not finish with the Commission’s report. I quote from Commissioner Holmes’ preface to the report:

At the outset of my inquiry, I had anticipated that the Commission would uncover how such a patently unreliable methodology as income averaging, without other evidence, to determine entitlement to benefit could become part of an Australian Government debt raising and recovery scheme. What has been startling in the Commission’s investigation of the Robodebt scheme has been the myriad of other ways in which it failed the public interest.

It is remarkable how little interest there seems to have been in ensuring the Scheme’s legality, how rushed its implementation was, how little thought was given to how it would affect welfare recipients and the lengths to which public servants were prepared to go to oblige ministers on a quest for savings. Truly dismaying was the revelation of dishonesty and collusion to prevent the Scheme’s lack of legal foundation coming to light. Equally disheartening was the ineffectiveness of what one might consider institutional checks and balances – the Commonwealth Ombudsman’s Office, the Office of Legal Services Coordination, the Office of the Australian Information Commissioner and the Administrative Appeals Tribunal – in presenting any hindrance to the Scheme’s continuance.[54]

Despite those disheartening and dismaying aspects of the evidence, I found it worth the highly demanding workload to uncover those things. The matters uncovered by the Commission vindicated the belief of those who were affected by the scheme. Their beliefs about their unfair treatment were denied by politicians and public servants. Their vindication mattered. The Commission gave also gave them a voice, a voice which was not shouted down by the departmental mantras and manipulated media. I was privileged to have played a part.

VIII Postscript

On 12 November 2023 the Attorney-General tabled the Government Response to the Report of the Royal Commission into the Robodebt scheme in the House of Representatives.[55]

The Government Response adopted the Report and accepted, or accepted in principle, all but one of the 57 recommendations made by the Commission. The recommendation which was not adopted related to the repeal of s 34 of the Freedom of Information Act 1982 (Cth).[56] The full terms of the recommendation were:

The Commonwealth Cabinet Handbook should be amended so that the description of a document as a Cabinet document is no longer itself justification for maintaining the confidentiality of the document. The amendment should make clear that confidentiality should only be maintained over any Cabinet documents or parts of Cabinet documents where it is reasonably justified for an identifiable public interest reason.[57]

It was my experience in assisting the Commission that DSS and DHS marked documents ‘Cabinet in Confidence’ which did not properly attract such a marking. That marking was used as a basis to decline requests under the FOI Act for access to government documents which were, but for that marking, accessible. Public access to the documents related to the Robodebt scheme was inhibited during its lifespan in this way. What is difficult to understand about the Government Response is that it refused to acknowledge that there were 57 recommendations in the Report, asserting that there were only 56.

Save for this qualification, and it is a significant one, I am hopeful that the reforms addressed in the Government Response together with the public nature of the hearings will improve the transparency of and accountability for the conduct of the Australian Public Service.

* Justin Greggery KC was called to the Bar in 2000 and took silk in 20[1]7. He has broad trial and appellate practice and is highly sought after as an advocate in complex matters. In September 2022 Justin was appointed Senior Counsel Assisting in the Royal Commission into the Robodebt Scheme. Justin is affiliated with 31 Sturt Chambers and 8 Petrie Terrace Chambers. The original text of this paper was a speech delivered by the author at James Cook University on 26th October 2023.

[1] Royal Commissions Act 1902 (Cth) s 1A (‘Royal Commissions Act’).

[2] Royal Commission into the Robodebt Scheme (Report, July 2023) vol 1, x-xi (‘Royal Commission into the Robodebt Scheme’).

[3] Royal Commissions Act (n 1) Part 2.

[4] Royal Commission into the Robodebt Scheme (n 2) xxiv [1]-[3].

[5] Ibid 49, [9] (n 113).

[6] Ibid 49, [7] (n 105).

[7] Ibid 50, [3] (n 117).

[8] Ibid 50, [3] (n 120).

[9] Ibid 57, [1] (n 1).

[10] Ibid 57, [2] (n 3).

[11] Ibid 60, [1] (n 18).

[12] Ibid 60, [6] (n 24).

[13] Ibid 61, [1] (n 26).

[14] Ibid xxxiii, [2] (n 47).

[15] Transcript of Proceedings, The Royal Commission into the Robodebt Scheme, Wednesday 2 November 2022 at 9.30 AM (AEST) Day 5, 176.

[16] Royal Commission into the Robodebt Scheme (n 2) 65 (n 57).

[17] Interview with Scott Morrison (Sky News Radio, 21 January 2015).

[18] Royal Commission into the Robodebt Scheme (n 2) 78 (n 165).

[19] Royal Commission into the Robodebt Scheme (n 2) 78, [5].

[20] Ibid 26 (n 14).

[21] Ibid 80, [3] (n 179).

[22] Ibid 80 (n 180).

[23] Ibid 86, [1].

[24] Ibid 96, [1] (n 291).

[25] Ibid 140, [4].

[26] Ibid 160, [3] (n 45).

[27] Ibid 214, [1]-[5].

[28] Ibid 40, [3].

[29] Ibid 187, [8] (n 301).

[30] Ibid 189.

[31] Ibid 215, [4]-[6].

[32] Ibid 209 (n 22).

[33] See above n 17.

[34] Ibid 210-211.

[35] Ibid 171, [6] (n 150).

[36] Ibid 174, [3].

[37] Transcript of Proceedings, The Royal Commission into the Robodebt Scheme, Tuesday 7 March 2023 at 9:28 AM (AEST) Day 43, 4583.

[38] Simon Benson, ‘Debt scare fires back on Labour’, The Australian (Australia, 26 January 2017).

[39] Royal Commission into the Robodebt Scheme (n 2) 338, (n 144).

[40] Ibid 339–340.

[41] Australian Government Department of Human Services, Submission No 66 to the Senate Community Affairs Reference Committee, Design, scope, cost-benefit analysis, contracts awarded and implementation associated with the Better Management of the Social Welfare System initiative (2019) ii.

[42] Parliamentary Privileges Act 1987 (Cth) s 16(3).

[43] Ibid.

[44] Commonwealth Ombudsman, Centrelink’s Automated Debt Raising System (Report No 1, April 2019).

[45] Ibid.

[46] Peter Hanks, ‘Administrative law and welfare rights: a 40-year story from Green v Daniels to ’robot debt recovery’ (Conference Paper, Australian Institute of Administrative Law, 20 July 2017).

[47] Royal Commission into the Robodebt Scheme (Report, July 2023) vol 3.

[48] Royal Commission into the Robodebt Scheme (n 2) 288, [1] (n 8).

[49] Ibid 288, [6] (n 13).

[50] Ibid 298, [1] (n 49).

[51] Royal Commission into the Robodebt Scheme (Report, July 2023) vol 2, 545 (n 183).

[52] Ibid.

[53] Royal Commission into the Robodebt Scheme (n 2) x.

[54] Royal Commission into the Robodebt Scheme (n 2) iii.

[55]Australian Government, Government Response Royal Commission into the Robodebt Scheme November 2023, Government Response (2023).

[56] Freedom of Information Act 1982 (Cth) s 34.

[57] Royal Commission into the Robodebt Scheme (n 2) xxi.

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