Beyond ‘quiet criticism’: Filling the gaps in government accountability post-Robodebt
18.12.2023
The Robodebt Royal Commission Report, published in July 2023, was a sobering reminder of the dire consequences of ineffective government accountability. The Albanese Federal Government’s recent commitment to adopting all the recommendations of the Royal Commission, at least in principle, represents a potential step towards preventing future disastrous misadministration. However, healing the wounds inflicted by the Robodebt scheme requires more than political promises. It requires substantial reflection and discourse on how public institutions should operate to effectively hold the government accountable.
This article will posit that while the judiciary adequately scrutinised the government’s administration of Robodebt, its dispute-dependency meant that justice was far from immediate. Thus, non-judicial institutions must be adequately empowered to take proactive and rapid action when the government acts unlawfully or against the principles of good government. I advance two suggestions on how this can be achieved. Firstly, imposing a positive duty on the Ombudsman to act when it reasonably suspects unlawful or unprincipled governmental conduct. Secondly, bolstering the protection of non-judicial accountability institutions from governmental interference.
What was Robodebt?
Before discussing the limitations of our public institutions’ response to Robodebt, it is important to outline what the Robodebt scheme was and the sociolegal concerns it raised. The Australian Government provides welfare payments to various subsections of the community. One’s eligibility for, and subsequent receipt of, such payments is managed by Centrelink. The past few decades have seen a rise in anti-welfare rhetoric, particularly the stereotype of the ‘dole-bludger’: the undeserving welfare recipient who willingly depends on government assistance as opposed to pursuing self-sustenance. Such rhetoric foreshadowed the Robodebt scheme: a mechanism deployed by the former Morrison government to determine whether social security recipients were overpaid through a calculation of their average income over a fortnight, as opposed to their actual income. This inaccurate method of verifying welfare payments led to thousands of Australians being issued letters stating that they had been overpaid by Centrelink, and were thus in debt. Such letters had grave impacts on the mental health and well-being of their recipients. For example, the fear of having to repay a debt they could not afford led several towards severe depression and suicidal ideation (Royal Commission Report, 392). By ambushing thousands of Australians with debt notices, the former government failed to uphold the values of transparency and reliability woven into the principles of good government. Alarmingly, the administration of Robodebt was not just a breach of the principles of good government: it was also unlawful. As will be explained in Part III, income averaging was not a lawful means of raising a debt relating to Centrelink overpayments.
‘Quiet criticism’: Our legal institutions’ inadequate response to the misadministration of Robodebt
Since the Robodebt scheme contravened both the law and the principles of good government, public institutions needed to act rapidly. However, the Royal Commission Report and related scholarship revealed that the need for rapid accountability was left largely unfulfilled. This was because the dispute-dependency of the courts was left unaddressed by dispute-independent institutions, and the relatively weak independence of non-judicial bodies limited their capacity to adequately scrutinise the government.
Lack of cohesion
A cohesive accountability suite is achieved when the limitations of one mechanism are addressed by another. Unfortunately, cohesion was not achieved in the context of Robodebt. Although the courts ultimately caused the cessation of Robodebt, it could only act once a legal dispute was brought before it. This limitation could have been cured by the Commonwealth Ombudsman, which had explicit statutory powers to launch an investigation on its own accord per s 5(1)(b) of the Ombudsman Act 1976 (Cth). However, the Ombudsman’s passive investigative approach rendered Robodebt victims dependent on judicial justice (Royal Commission Report, 586).
So, how did the judiciary put an end to the Robodebt scheme? The Federal Court system in Australia has constitutionally enshrined (and legislatively expanded) power to set aside unlawful government decisions, subject to some limits. The Federal Court in the landmark decision of Amato v Commonwealth (Federal Court of Australia, VID611/2019, 27 November 2019) (‘Amato’) did exactly that: it held that income averaging was insufficient grounds to establish that a welfare recipient has been overpaid per s 1223(1)(b) of the Social Security Act 1991 (Cth). Hence, the plaintiff’s debt was raised unlawfully. Although Amato was about the legality of an individual’s debt, and not the Robodebt scheme itself, its function as a test case meant that the judgment had wide-reaching implications. On top of its legal powers, the court system as a highly visible public institution garners significant media attention. Although the judiciary is not inherently a political institution, the public nature of its hearings can foster political pressure outside the courtroom. For example, the Commonwealth’s admission in Amato that its method of raising debts was unlawful rapidly made media headlines. This negative publicity can be damaging to a government, as their survival in the next term is dependent on voter satisfaction. Thus, the magnitude of the legal finding in Amato, combined with the political pressure it catalysed, compelled the government to repeal income averaging even before the orders in Amato were handed down.
While the Robodebt scheme was rolled out in July 2015, the Amato decision was handed down more than four years later in November 2019. Before Amato, hundreds of thousands of Australians received debt notifications, causing significant mental anguish for many. The significant lapse of time demonstrates one of the structural limitations of the judiciary: its dispute-dependency. For the court to grant orders, a real legal dispute must come before it first. Courts cannot adjudge hypothetical matters. The dispute-dependency of the judiciary provided an apt opportunity for the Ombudsman to exercise its ‘own motion’ powers. The Royal Commission Report revealed that the Ombudsman’s office had doubts about the legal foundations of the Robodebt scheme (Royal Commission Report, 586, 589). These concerns would have been sufficient to launch an investigation on its own accord. The Royal Commission report also explicitly highlighted the authority of the Ombudsman to seek legal counsel on the legal foundations of the scheme, and demand the production of documents and witnesses (Royal Commission Report, 574). If the Ombudsman had sought legal advice on whether debts could be raised solely through income averaging, and demanded that officials justify their authority to raise debts in this manner, it may have been clear at an early stage that the entire scheme rests on unlawful foundations. However, instead of taking a proactive approach to responding to its legal concerns, the Ombudsman restricted itself to cosmetic matters such as the design and delivery of Robodebt, rather than probing the more immediate questions: did Centrelink have the right to calculate debts in this way and reverse the onus of proof? Thus, future Ombudsman investigations must utilise the full width of their powers when they suspect unlawful or unprincipled governmental conduct. This way, adequate pressure can be placed on the government without needing to wait for the outcome of litigation.
Lack of independence
Non-judicial accountability institutions must not only have the imperative to act, but must also be adequately protected against government interference. Amato illustrates how the constitutionally protected independence of the judiciary enabled it to adequately scrutinise the legal foundations of Robodebt. The independence of the judiciary is constitutionally protected by preventing the politicised removal and sanction of judges. Such structural insulation enabled the court in Amato to make public a judgement which found the government acted unlawfully. The court’s adherence to legal reasoning and open justice even when the government had a vested interest in the outcome highlights the critical role independence plays in achieving effective accountability.
The importance of political independence becomes more apparent when it is compromised. As discussed, the Ombudsman’s Report restricted itself to how the system could be better run, rather than questioning its lawfulness. More concerningly, almost every recommendation for improvement is closely followed with praise for the government. This relatively soft scrutiny of the government raises concerns about the Ombudsman’s capacity to make independent conclusions without executive intervention. The findings of the Royal Commission into Robodebt demonstrate that these scepticisms are well-founded. In 2019, a government department member was able to read a draft Implementation Report arising from the Ombudsman’s investigations and suggest that comments about legality be deleted (Royal Commission Report, 597). This level of executive intervention is unacceptable for a public institution that advertises itself as an independent investigator of administrative matters. Ultimately, weak independence played a key role in diluting and restricting the capacity of the Ombudsman to detect contraventions of both the law and principles of good government.
Beyond ‘quiet criticism’: A post-Robodebt accountability system
The fundamental flaw exposed by the Royal Commission Report was that the dispute-dependency of the judiciary was left unaddressed by the dispute-independent institutions within our accountability suite. In other words, our legal accountability suite was incohesive because a gap was left unfilled. Thus, moving forward from Robodebt requires reflection on how dispute-independent institutions can be compelled to actively detect and rapidly respond to contraventions of law and the principles of good government.
To this end, the Ombudsman must not only have its ‘own motion’ powers, but have a duty to exercise them when required. This is because the Ombudsman’s wide investigative powers are futile unless actively exercised. Tireless activism from gender equality activists and scholars has led to the Sex Discrimination Act 1984 (Cth) being amended to impose a ‘positive duty’ on organisations and businesses to mitigate and eliminate sex discrimination connected to the workplace. I propose that the Ombudsman Act be amended similarly to impose a duty on the Ombudsman to launch an investigation when it reasonably suspects a contravention of law or principles of good government has occurred. The term ‘reasonably’, by analogy with tort law, would mean that the Ombudsman could have actual knowledge of the contravention (as it did in Robodebt), or that it ought to have known of the contravention (compare Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 [143]). Imposing a high standard on the Ombudsman is one way we can ensure that legal institutions align with community expectations, and cannot masquerade under the veil of ignorance. Importantly, this positive duty must be accompanied by adequate funding so that the Ombudsman has the resources to conduct statutorily required investigations. As the Victorian integrity agencies suggested in a 2022 report, the funding of integrity institutions must be determined by an independent body. This prevents the Ombudsman’s funding from being ‘at the mercy of the government of the day’. Applying the concept of a ‘positive duty’ also demonstrates one of my favourite parts of law reform: the ability to exercise creativity and borrow different elements from different fields of law. It is a skill that I believe is critical to the legal profession.
Moreover, heightening independence is fundamental in ensuring that non-judicial institutions can adequately scrutinise government administration. The Commonwealth Ombudsman currently has an Audit & Risk Committee which provides independent assurance of the Ombudsman’s financial and performance aspects. The role of the Committee is detailed in the Audit and Risk Committee Charter. This Charter could be amended to explicitly require the Committee to regularly audit the Ombudsman’s political independence. In terms of how this audit would be performed, one could look at how conflicts of interest and independence are monitored in the corporate world. Although corporate risk controls are not bulletproof, they provide a salient blueprint through which a political independence audit could be designed. In addition to regular audits and assurance, ethical walls could be implemented to prevent information regarding Ombudsman investigations from reaching Government departments. The issue of independence provides an apt opportunity for cross-disciplinary research between the legal, commercial, and technological professions, and I encourage more research and scholarship in this area.
Conclusion
There were two overarching flaws in our legal institutions’ response to the Government’s unlawful administration of Robodebt. Firstly, a lack of cohesion within our legal accountability suite left the limitations of dispute-dependent institutions uncured and Robodebt victims dependent on judicial justice. Secondly, a lack of independence in non-judicial institutions permitted unacceptable executive interference with the Ombudsman’s functionalities. Imposing a positive duty on the Ombudsman will fill the gap left by the dispute-dependency of the judiciary, aiding the cohesion of our legal accountability suite. Requiring the Ombudsman’s Audit Committee to screen for political independence, and implementing ethical walls to prevent data transmission are viable methods of securing the independence of non-judicial institutions in the absence of constitutional protections.
Ruchira Abeyratna is a Juris Doctor candidate at the University of New South Wales. His advocacy and academic work focus on institutional reform and social justice.
Suggested citation: Ruchira Abeyratna, ‘Beyond ‘quiet criticism’: Filling the gaps in government accountability post-Robodebt’ (18 December 2023) <https://www.auspublaw.org/blog/2023/12/beyond-quiet-criticism-filling-the-gaps-in-government-accountability-post-robodebt>