The final report of the robodebt royal commisison detailed when frank and fearless advice was given by public servants and, tragically, ignored.
It’s worth noting the anonymous public servants throughout the commission’s report saying they felt silenced when they voiced their own concerns, with some ending up leaving the public service altogether.
Department of Human Services (DHS) customer compliance branch assistant director Tenille Collins, in 2014, expressed reservations at the policy proposal stage that it was being put forward with no testing with “policy, legal or external stakeholders” (page 29). DHS director Jason Ryman shared Collins’ reservations, but felt under a time pressure to push the proposal forward (page 29).
The Department of Social Services (DSS) acting director of the rates and means testing policy branch David Mason, in an email from November 2014, said they would not support the proposal as it was “flawed as the suggested calculation method (averaging employment income over an extended period) does not accord with legislation, which specifies that employment income is assessed fortnightly” (page 41).
In January 2015, DSS policy capability and evaluation branch manager Murray Kimber said using income matching data would require legislative change (page 58). In other words, implementing the scheme without changing legislation would be unlawful.
The same month, DSS acting group manager Andrew Whitecross informed DHS in an email that their department did not support the proposal, given the likelihood it was unlawful, its inaccuracy and was “counter to the policy rationale for assessing employment income on a fortnightly basis, which is to ensure that income support payments are made when income support recipients are most in need” (page 62).
Serena Wilson, deputy secretary at DSS, emailed her concerns about the “smoothing process” in the same month (page 64).
Later in January, Kimber drafted an email which said the proposal “fundamentally changes the assessment of income within the social security system and is not supported by current policy or legislation (page 73). This language was later edited down.
In early 2016, DHS compliance officer Colleen Taylor began correspondence with her supervisor and the Compliance Help Desk, concerned using the averaged income data would raise a debt where there was one. She wrote “we are being asked to ignore evidence that no debt exists and to ‘collude’ in raising a debt where none should exist. That is, we are being asked to commit a fraudulent act.” (page 127).
The ATO wrote to DHS in December 2016 over its concerns of the department’s use of ATO data under the scheme (page 455).
In January 2017, the Ombud’s social services, Indigenous and disability branch director Louise Macleod proposed ombud Colin Neave conduct an own motion investigation into the scheme, based on stakeholder feedback and media coverage (page 575).
After being asked to review progress on the online compliance program, in January 2017 the Digital Transformation Agency (DTA) had concerns over its engagement, namely it had a four day period to complete its work rather than a four week deadline. The DTA said: “therefore, the
DTA’s involvement in this work should not be portrayed as an endorsement of any proposed changes to the user experience at this stage” (page 228).
Starting in February 2017, the CSIRO’s Data61 produced a report on the accuracy of ATO data including “error-rates” (page 229). The commission noted the report itself is of limited use because there was an inadvertent error in the data provided to Data61.
In the same month, Taylor grew concerned her secretary Kathryn Campbell was being misled about the scheme, emailing her to say “there has been a very dramatic change within the last 18 months to the way in which compliance assesses income and calculates and recovers debt” (page 171).
In July 2017, ATO senior director smarter data group Tyson Fawcett wrote to a DHS officer that “ the ATO is seeking an assurance on the use of its exchanged data provided to DHS, on how it is being used, with any future bulk compliance approaches (lessons well documented). I am seeking an urgent discussion (next week at the latest) on this, otherwise I ask that you cease and desist, the usage of the data, until we have your assurance around the data use” (page 455).
On 20 July 2017, administrative law barrister Peter Hanks presented a paper at the Australian Institute of Administrative Law conference that income averaging was unlawful (page 241). DHS general counsel Maris Stipnieks, an attendee at the conference, passed on a summary of what Hanks said to secretary Campbell.
In March 2019, the Australian Government Solicitor (AGS) said that the Masterson legal case “does not appear to be hopeless” (page 290). Holmes noted that was “a roundabout way of saying that it had prospects of success”.
The solicitor-general, in September 2019, advised Services Australia that: “apportioned ATO PAYG data cannot, without more, support a conclusion that a person has received benefits to which they were not entitled” (page 305).
The Mandarin has previously reported on the role of oversight agencies like the commonwealth ombud’s office, the Office of Legal Services Coordination and the Office of the Australian Information Commissioner.
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