Inside Story

Do the robodebt recommendations go far enough?

We know how to foster a frank and fearless public service. It’s time now for action

Paddy Gourley 14 July 2023 1942 words

From the top: royal commissioner Catherine Holmes delivering her report to governor-general David Hurley last Friday. Mick Tsikas/AAP Image

Those not full bottle on the robodebt fiasco can readily and authoritatively top up by delving into Catherine Holmes’s royal commission report, released on 7 July. There’s plenty to top up from — three volumes and 900 pages with a sealed section naming individuals to be referred to relevant authorities for possible civil action or other proceedings.

To recap. A decade ago a federal minister divided society into “lifters and leaners.” It was a variant on the old “dole bludger” trope that imagined many of the unemployed as spongers needing to be cracked down on, hard. Public compassion had to be tightly rationed and a sense of guilt imposed on those reliant on government support as an incentive for them to, somehow, pull themselves up by their bootstraps. Social welfare was to be as much a source of savings as it was a salve to society’s wounds. The “lifters” should be asked to lift as little as political calculation permitted.

In this nest robodebt was hatched. A minister proud to flaunt himself as a “welfare cop” and ambitiously keen to impress his colleagues was on the hunt for big savings. Obliging officials concocted an automated scheme using tax data to estimate the annual income of welfare recipients to see if they’d been overpaid. Debt notices, inaccurately calculated, were issued to hundreds of thousands.

But the scheme was illegal — and this was known by those developing and advancing it, who between them allowed cabinet to be misled and opinions about illegality ignored or suppressed. Attempts were made to deceive the ombudsman; inconvenient decisions by the Administrative Appeals Tribunal were treated with little respect and the member who made them failed to be reappointed.

The scheme was brought undone in various ways. While it had promised savings of a billion dollars, its resolution has cost taxpayers around twice that, and there could be more.

As the royal commissioner writes in her preface:

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… in presenting any hindrance to the Scheme’s continuance.

How could it have come to this?

In some ways the answers can be found in the obverse of the royal commissioner’s recommendations.

Holmes stresses that developing a public service strong enough to prevent a repeat of something like the robodebt scheme “will depend on the will of the government of the day, because culture is set from the top.” She says that “politicians need to lead a change in social attitudes to people receiving welfare payments,” that “anti-welfare rhetoric is easy populism” not “confined to one side of politics” and that politicians “need to abandon for good (in every sense) the narrative of taxpayer versus welfare recipient.” They must abandon the “lifters and leaners” rhetoric, in other words, which has contributed to unemployment beneficiaries being pointedly designated as “JobSeekers” and the rate of payments kept at an impoverishing level.

In summary: robodebt is a failure of the very political leadership needed to avoid it. Cultural change must happen at the top.

But Commissioner Holmes also understands that cultural change is not a rabbit that can be pulled from a hat. It requires changes in organisational structures, laws, procedures and people.

On organisation, she recommends “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.” It’s likely they are not.

Although the commissioner refrains from recommending Services Australia be made a statutory authority, it makes sense to do so. Where government functions and decision-making need protection from ministers, this is the best form of organisation to protect them. That’s why taxation, public broadcasting and other functions are housed in statutory authorities. The government should give cultural change a big shove and make Services Australia a statutory authority with clearly defined powers, better protecting it from inevitably resurgent political pressures to portray welfare support in “lifters and leaners” terms.

The commissioner recommends many changes to laws and procedures. They include establishing a legal framework for automated government services and a body to “monitor and audit” such services; reinstating a six-year statute of limitations on welfare debts; strengthening the ombudsman’s powers; reviving the Administrative Review Council; giving the public service commissioner powers to investigate the behaviour of former agency heads; providing a legislated code of conduct for ministerial staff; and much more. Curiously, none of the proposed legislative changes were anticipated in the Public Service Amendment Bill touted as a major reform and now before the parliament. Regardless, the commissioner’s legal and procedural reforms should be fully accepted.

But those recommendations don’t go far enough. While making telling observations about “the lengths to which public servants were prepared to go to oblige ministers,” the “lack of independence” exercised by departmental secretaries” and evidence of senior public servants being “excessively responsive to government, undermining the concept of impartiality and frank and fearless advice,” the commission could have done more to investigate why this is so. Yet Holmes says quite reasonably that she had “neither the time nor the resources” to consider wholesale public service reform.

Still, she does say that “the current government has emphasised that the public service must be empowered to be honest and truly independent” and has asked the public service commissioner to see that the performance assessments of senior staff “cover both outcomes and behaviour.” But that’s been the case for decades: the notion that performance assessments would ignore behaviour is absurd, and the commission drolly observes that the government’s instruction “does not go far enough.” Indeed it doesn’t.

For this reason the commissioner endorses those recommendations of the 2019 Thodey review of the public service that deal with the appointment and tenure of departmental secretaries. She observes, however, that “the extent to which these have been endorsed by the government is unclear.” Too right it is. Incredibly, there’s nothing about them in the current Public Service Amendment Bill, and that self-proclaimed bastion of integrity, the Department of the Prime Minister and Cabinet (encompassing the Office of the Secretary for Public Service Reform) refuses to say which Thodey recommendations have been implemented.

The departmental secretary, Glyn Davis, has recently mused about the need for a rethinking of Westminster guardrails: “How do we reinstate the idea that yes, ministers in the end are the decision makers, but public servants have this really important role about providing detailed advice, getting it right, making sure ministers have information and can tell them when they can’t do something?”

Rethinking? The fundamental failings in the public service’s robodebt advice were well known long before the royal commission reported. Davis and Gordon de Brouwer, the public service commissioner and before that the secretary for public service reform in Davis’s department, have had a year in which to think deeply. If the Public Service Amendment Bill is anything to go by, they have thus far come up empty-handed on the “guardrail” front.

It’s time to put aside exhortations from on high; they only seem to make things worse. And a stopper should be put on the dispiriting flow of modern management jargon, clichés and platitudes with which officials have clothed their thus far modest and in some cases ill-conceived proposals for improvement. It’s time to do something.

So, in addition to considering what should be done to ministers and officials whose behaviour fell so far short during the life of robodebt and thoroughly implementing the royal commissioner’s recommendations about structures and processes, Davis and de Brouwer should be pressing the government to implement Thodey’s recommendations on the appointment and tenure of departmental secretaries, as endorsed by the royal commissioner. They shouldn’t need to do any more “deep thinking” — they were both members of the Thodey review.

They should also turn away from the distracting dead cat dragged across the path by former departmental secretary and Crown Resorts board member, Jane Halton, who has piously said that, “What worries me is that there is a whole cadre of people who don’t understand that [providing frank advice] is essentially their job.” That’s nonsense. Officials who’ve failed with robodebt have likely understood their responsibilities only too well and their failings can’t be mitigated on the basis of misunderstandings.

So why has the commission found evidence of senior public servants being “excessively responsive to government, undermining the concept of impartiality and frank and fearless advice”? There’s no simple answer to that and the situation is befuddled by the character, motivation and working methods of the ministers and senior officials involved.

One thing can be said with certainty: the present laws whereby departmental secretaries can be summarily dismissed and left on the streets with shadows over their reputations does not encourage frank and fearless advice. Officials understand all too well it can be better not to rile ministers and then see their careers and reputations destroyed.

For the thousands of years of public administration, rulers have used intimidation to keep their servants in line. Mostly that has left rulers badly served by corrupt administrations. The great reform movements in Britain in the middle of the nineteenth century tried to stop this rot partly by developing a public service in which the appointment and tenure of officials were based on merit. Their dismissal was regulated by due processes and for stipulated causes because this was thought to provide efficient, effective and stable administration in which officials are better placed to advise ministers free of apprehensions about dismissal.

Australian public services inherited these tenets, but they’ve been progressively abandoned in the federal service over the past thirty years. Secretaries have been summarily sacked without explanation; concerns have grown and been forcefully reiterated by Commissioner Holmes.

Public Service Commissioner de Brouwer says a lack of tenure “doesn’t stop me from doing what I think I have to do.” Well, no one likes to admit to being intimidated, but it’s idle to think it’s not happening and that the intimidation doesn’t seep down the hierarchy. The arbitrary sackings have sent a message that’s been heard.

De Brouwer also says he’s not seen the traditional tenure protection for secretaries as a “core driver,” whatever this might mean. That is, he’s happy to turn a blind eye to what has been fundamental in British-derived public administration for going on 200 years. Yet if it’s not a “core driver,” would he like to open up all public servants to arbitrary dismissal? Or might that be too much for a public service aiming to be what it calls “a model employer”?

Certainly governments should be readily able to move departmental secretaries around, but that should not put them in the JobSeeker queue. As was the case for the first hundred years of the Australian Public Service, every effort should be made to find them other secretary positions or positions of a comparable status and remuneration. This has been a “core driver” — or in Glyn Davis’s language a “guardrail” — of Commonwealth public administration and its restoration would make a serious contribution to avoiding another robodebt. •