July 20, 2023

Unpacking the Robodebt Royal Commission

Introduction

The Albanese Labor Federal Government appointed the Royal Commission into the Robodebt Scheme in August 2022 honouring an election promise and long expressed concerns about this Scheme while in Opposition. The Royal Commission released its report in July 2023.

The Royal Commission was chaired by the Honourable Catherine Holmes AC SC, retired Chief Justice of the Queensland Supreme Court who had previously chaired, the Queensland Flood Commission of Inquiry (2011-2012). The full Report can be found here.

The Royal Commission on Robodebt cost $33.6 million.

What are royal commissions?

Royal commissions are appointed by – and only by – executive government under specific legislation – for the Commonwealth this is the Royal Commissions Act 1902. It gives royal commissions extensive coercive powers of investigation to call witnesses, procure files and require witnesses to answer questions even if self-incriminatory. It also protects witnesses giving evidence and royal commissioners from defamation actions or reprisals.

Royal commissions are in demand because of their extensive investigatory powers and perceived independence from government exemplified by their:

  • external membership
  • open processes of public hearings
  • public release of reports
  • the evidence collected.

Importantly, royal commissions, even if chaired by a current or former member/s of the judiciary, are not courts of law. They are executive government bodies. They have different rules of evidence than the courts, and are NOT “judicial inquiries”. They cannot make binding decisions like courts. They make recommendations for executive government and its agencies to decide to accept or reject.

Since federation to 2023 there have been 139 Commonwealth royal commissions and many state and territory ones. Important areas of public policy covered include: pensions, health, taxation, drugs, land rights, television, and issues of corruption, maladministration, and calamitous events. Numerous joint federal-state royal commissions have also been established.

Two current Commonwealth royal commissions are due to report this year:

  • Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability
  • Royal Commission into Defence and Veteran Suicide.

Background to the Robodebt Scheme

The scheme, Online Compliance Intervention or the Robodebt Scheme was an automated system to check income of welfare recipients. It was about checking  welfare recipients’ income and thus, their eligibility for benefits. By matching information from the Australian Tax Office with that of the Department of Social Services, and the use of averaging overpayments could be automatically identified. Recipients would then be notified regarding their repayments.

While some elements of these processes had been used before, it had not been used to this scale, nor had these processes gone back over such long periods of time or as automated.

Issues emerged following cases in the Administrative Appeals Tribunal, complaints to departments and the Ombudsman. A threatened class action and a Federal Court ruling made the former Coalition Government close down the Scheme in 2020, accept it had been illegal and that mistakes were made, and to reimburse 381,000 affected individuals some $746m and to write off $1,751 billion in debts.

So why a royal commission?

As the Robodebt Scheme had been closed down and compensation paid, some thought that a review was not needed.

However, royal commissions are often appointed following disasters, calamities and some perceived scandal like the maladministration of a government program. Previously, there had been the Commission of Inquiry into the Compensation arising from the Social Security Conspiracy Prosecution (1984) and the Royal Commission into the Home Insulation Program (2013).

Even though the program in question has been closed down and issues largely resolved, royal commissions are appointed to provide an independent assessment to:

  • Clarify the facts about what caused the problem
  • Allocate responsibility ie who or what should take responsibility
  • Learn lessons from the disaster so it will not be repeated
  • Make recommendations concerning administrative reform and legislative change.

And so, given the costs involved in the Robodebt Scheme – over $1 billion, the number of people affected – some very adversely – then this Scheme was a disaster requiring answers to the issues highlighted above.

What was the Robodebt Royal Commission asked to do?

A royal commission’s tasks are detailed in its terms of reference listed the Letters Patent (instructions) by the Governor-General based on advice from the government.

In summary, the Robodebt Royal Commission was asked to identify:

  • Who was responsible for the Scheme and why?
  • What were the policy and administrative in its development and approval?
  • Was its legality checked (and when did the government know)?
  • How was it implemented, risks identified, complaints handled, and complaints and legal challenges handled?
  • Was scrutiny of the Scheme prevented or inhibited?
  • What were impacts on individuals, and,
  • What were the total costs?

Clearly, the actions of the previous government were a major focus of the Robodebt Royal Commission.

What did the Robodebt Royal Commission find?

In assessing any royal commission focus on the actual report itself rather than just media, government, political party and interest group comments. Appreciate their limitations.

The Royal Commission made 57 recommendations.

This summary focuses on the public administration and policy rather than the more intricate, though important program detail issues. Andrew Podger’s (former Commonwealth Departmental Secretary and Public Service Commissioner) Report to Robodebt Royal Commission) is essential reading as his report addresses many of the public administration issues about the whole scandal.

In essence, the Robodebt Royal Commission found:

  • rushed decision making in developing the policy
  • income averaging was a poor methodology based on limited evidence to determine welfare entitlements
  • little effort to determine the legality of the Scheme at the outset
  • rushed implementation
  • an over compliant ‘responsive’ public service to oblige ministers’ wants
  • dishonesty and collusion to prevent the Scheme’s illegality being known
  • weak institutional checks and balance (including the Ombudsman and others)
  • inter-departmental and structural issues
  • little thought about the impact of the Scheme on recipients
  • elected officials’ attitudes to welfare recipients
  • recommendations for further action (disciplinary or otherwise) against a number of individuals (this is in a sealed section of the Report)
  • improvements in budget processes to ensure issues of legality and other issues clearly identified
  • improved training and induction systems for public servants in key roles
  • front line service experiences for senior staff
  • better recording of decisions
  • strengthening of oversight bodies eh AAT/Ombudsman/Legal Services
  • review of social services portfolio structure
  • clarification of agency heads responsibilities
  • changes to Freedom of Information laws concerning Cabinet documents so that:
    •  “confidentiality should only be maintained … where it is reasonably justified for an identifiable public interest reason”.

Public administration issues of concern

The Royal Commission raises many public administration issues. Importantly it highlights the risk of posed when the Australian Public Service (APS), and its counterparts around the States and Territories, are not empowered to deliver independent, frank and fearless advice.

Andrew Podger’s Report to the Royal Commission highlighted these public administration issues and are referred to by the Royal Commission (see Report Section 7: Improving the Australian Public Service):

  • loss of permanent tenure for senior departmental secretaries and use of contracts (since 1994)
  • decline/abolition of strong central personnel agencies (i.e., the Commonwealth Public Service Board 1987)
  • growth of ministerial staff, powers and interference
  • over-reliance of non-APS advice and delivery mechanisms

In summary, Podger said (page 2):

“… over the last 35 years, there has been a significant shift towards closer Government (political) control … These concerns include whether it has led to excessive responsiveness by APS leaders (both Secretaries and the SES…) to the wishes of ministers, undermining ‘frank and fearless’ advice … public confidence …(and) contributed to a loss of capability in the APS.”
 

Want to know more about Royal Commissions and other forms of public inquiry? Check out the full-recording of our Mastercraft Seminar delivered by Dr Scott Prasser. 

 

By Dr Scott Prasser, IPAA Queensland Councillor

Scott Prasser is a public policy consultant and commentator. He is the editor of the recently released book New Directions in Royal Commissions and Public Inquiries: Do we need them? and provides regular analysis is print, radio and television media. He has held senior policy and advisory roles in state and commonwealth public services, and served as ministerial advisor to three federal Cabinet Ministers.  He holds undergraduate and postgraduate qualifications from the University of Queensland and Griffith University. Dr Prasser is also a IPAA Queensland Councillor.

Further reading

Holmes, C., (Chair), Royal Commission into the Robodebt Scheme, Report, Canberra: Commonwealth of Australia, 2023

Grattan Institute, New politics: A better process for public appointments, Melbourne, July 2022

Halligan, J., Politicisation of public services in comparative perspective, Sept 2020

Mulgan, R., “How much responsiveness is too much or too little?”, paper prepared for IPAA Roundtable, Public Service Independence and Responsiveness, 2008

Podger, A., Report to the Royal Commission into the Robodebt Scheme, February 2023

Prasser, S., (ed), New directions in royal commissions and public inquiries: Do we need them? Connor Court Publishing, 2023

Victorian Ombudsman, Politicisation of the Public Service, Issues paper, May 2022 (t requested by Vic Legislative Council and conducted by Professor J. McMillan, former Commonwealth Ombudsman and ANU law Professor) and is due to report soon.