Labor’s anti-corruption commission refuses to investigate robodebt corruption

“We’ll find you, we’ll track you down, you will have to pay these debts and you may end up in prison.” That was Alan Tudge, Liberal minister for human services, using the media to threaten welfare recipients in 2016, when the government knew its method of calculating those robodebts was inaccurate and illegal.

In December 2020, Red Flag posed the question “Why is nobody in prison over robodebt?” Three and a half years later, we are still asking this question.

Catherine Holmes, head of the royal commission into the scheme, reported to the governor-general on 7 July 2023. She referred a secret list of six individuals to the National Anti-Corruption Commission (NACC) and other bodies for civil and criminal prosecutions. But the NACC, set up with great fanfare by Labor, refuses to investigate.

Colleen Taylor worked in Centrelink checking debts under the robodebt scheme. One of many workers who repeatedly objected to it, she wrote to her superiors in February 2017, “we are being asked to commit fraud”. On ABC’s 7.30 program on 17 June, she responded to the NACC’s excuse that another investigation might “oppress” those individuals, who Taylor referred to as “monsters”. Recalling the hell their victims experienced, she simply said, “It’s just awful”.

For months, Commissioner Holmes heard heartbreaking accounts from victims of the robodebt regime and investigated the actions of those who initiated and oversaw it. She concluded that the scheme was “an extraordinary saga, illustrating a myriad of ways that things can go wrong through venality, incompetence and cowardice”. Now there’s a clue for the NACC: venality. It means a willingness to accept reward for corrupt purposes. And yet the anti-corruption commission has no interest in investigating.

Are we supposed to believe this was a case of something just “going wrong”? Scott Morrison, the self-proclaimed “welfare cop”, was responsible for robodebt as social services minister from December 2014 to September 2015, and as prime minister from 2018. Holmes concluded: “He failed to meet his ministerial responsibility to ensure that cabinet was properly informed about what the proposal actually entailed and to ensure that it was lawful”.

The scheme overturned the usual presumption of innocent until proven guilty, hounding innocent people to repay debts, burdened with the onus of proof against their accusers, their accusers being the powerful and well-resourced state. Some were charged with owing more than they had ever earned, either at work or from government support payments.

Confused and desperate attempts to track down pay slips and hours worked from seven years earlier, harassed by aggressive debt collectors, sliding into poverty as they tried to repay debts they never incurred, predictably left many anxious, traumatised and too mentally ill to work.

Morrison mocked Holmes’ naivety, saying her findings “are based upon a fundamental misunderstanding of how government operates”. So here we have it from a former prime minister: governments operating illegally, and by any measure of human decency corruptly, is the accepted norm. Which seems to be the case, given the commission found that Morrison, top bureaucrats and other politicians continually denied the scheme was illegal, statements since revealed to be lies.

In early 2015, an executive minute to Morrison warned that the scheme needed legislative change. But a sentence indicating the problem was deleted—inexplicably, according to Kathryn Campbell, then Department of Human Services secretary. Liberal Senator Marise Payne was human services minister at the time the program was being devised. Her 2 February 2015 diary note says “cracking down—what can we do w/o [without] having to legislate[?]” She claimed she didn’t know why that opinion had later fallen “off the radar”.

By 2016-17 there were so many complaints being aired in the media, the ombudsman set an inquiry. It learned that the Department of Human Services, under Secretary Campbell, withheld key documents that cast doubt on the legality of the scheme during its development. Astoundingly, the ombudsman permitted the department it was investigating to influence the wording of his report, which the Coalition government then used to defend robodebt.

In June 2017, an eminent barrister, Peter Hanks KC, warned that robodebt was potentially illegal. Sitting in that room were top bureaucrats and lawyers within the Department of Social Services, including Secretary Kathryn Campbell and chief legal counsel Annette Musolino.

Then, in 2017, in the first of many successful challenges to the Administrative Appeals Tribunal, Emeritus Professor Terry Carney ruled that debts attributed to welfare recipients were being calculated illegally. Because the department chose not to appeal this result, it was kept secret—again under Campbell’s watch. An inquiry in 2017, said to have condemned robodebt, was shelved.

Then, in 2018, the law firm Clayton Utz advised that robodebt was illegal. But its report never left draft form, which meant it did not need to be acted on. Finally, with complaints reaching a crescendo, in September 2019 advice from the solicitor-general resulted in the scheme being shut down.

To ordinary mortals, this sounds like corruption to further party ideology that prioritises demonising the poor and vulnerable. The NACC’s refusal to examine the role of those who ran this scheme demonstrates the problem with relying on such institutions to hold corrupt public officials to account.

Last December Labor Attorney-General, Mark Dreyfus claimed that the newly established NACC “demonstrates the Albanese Government’s commitment to combating corruption and restoring integrity, honesty and accountability to government”. Integrity, honesty and accountability were what was wanted by the half a million citizens whose lives were turned into a living hell because of the robodebt scheme.

The royal commission found Campbell had been “responsible for a department that had established, implemented and maintained an unlawful program”. It found that she knew all along that a change in the law was needed to implement the scheme, “but did nothing of substance” to so advise the government.

Turns out Dreyfus’ threat, “I would want people to be afraid if they’ve engaged in corrupt activities”, was a load of hot air to get those campaigning for an anti-corruption watchdog off his back.

Why did so many go along with an illegal policy of such cruelty?

In Holmes’ view, Campbell knew Morrison wanted to “pursue the proposal and that the government could not achieve the savings” that were promised without it. Only after this damning report became public did Campbell resign—unlike unknown numbers of lower grade public servants who resigned in distress and disgust rather than implement the inhuman scheme.

The commission found that Morrison clearly communicated to the public and departmental bosses that his approach to the portfolio was to “crack down” on welfare cheats “rorting” the system. “In doing so, Mr Morrison contributed to a certain atmosphere in which any proposals responsive to his request would be developed”, Holmes concluded.

Colleen Taylor told ABC’s 7.30 that the workers knew the amount of fraud was massively overstated. From their experience, they thought it was only about 2 percent, definitely not more than 5.

It’s not that difficult to see why Labor aren’t pushing for the NACC to investigate. They share these politics of victimising the vulnerable. When might they want bureaucrats to carry out an unjust scheme to further their agenda? And they benefit from a culture of impunity for politicians, which seems to be more important to them than taking this chance to skewer their rivals.

Labor’s promises that the NACC would hunt out corruption by public officials were clearly hollow rhetoric. Who, among the elite of politicians and public servants, wants a clear definition of corruption, or to know they can be held accountable, even penalised?

Adding insult to injury, the names of those referred for civil or criminal investigation are secret—unlike the wrongly accused welfare recipients whose details were leaked to the media. Rachelle Miller, senior media adviser for the then Minister for Human Services Alan Tudge, recounted that Tudge demanded and received details of everyone who spoke to the press about their harassment. Those details, with comments to slander them as welfare cheats, were leaked to the Australian, which dutifully published it all. Tudge devised this scheme to counter an “orchestrated campaign” in what he regarded as “the left-wing press”. “This would send a clear message ... that maybe consider it [going to the media] twice. There were less people speaking out in the media, which was our intention”, testified Miller.

Miller also told the royal commission that she received feedback from the office of Prime Minister Malcolm Turnbull, that darling of the liberal middle class, that the narrative of “cracking down on welfare cheats” was playing well in marginal “key” seats, like those in western Sydney.

Holmes commented, “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”.

Those maligned and damaged by the robodebt scheme are entitled to know if Labor’s much-touted NACC thinks that knowingly implementing an illegal and unjust scheme is considered corruption. There was much enthusiasm for an anti-corruption commission during the last federal election campaign, from the Greens and independents, but its establishment has so far only fuelled the cynicism and distrust of politicians it was meant to remedy.

The response of rank-and-file public service workers provides a glimpse of an alternative way to make corrupt officials answer for their crimes. It relies on the decency of workers rather than a state institution like the NACC.

In January 2017, independent MP Andrew Wilkie wrote to the commonwealth ombudsman about numerous concerns raised with him by such workers. They had daily debt enforcement quotas, and management made staff compete for the most enforcements. Those who showed sympathy to robodebt victims were forced out of the department.

“Officers are discouraged from looking too closely at complex cases and have been managed out of debt recovery if too many questions are asked”, Wilkie wrote. “Officers have been penalised for actively suggesting [repayment deferral] to customers as an option.”

Colleen Taylor told the commission that she wrote to DHS Secretary Kathryn Campbell in January 2017 following an all-staff email assuring workers there was no change to the way the department was calculating debts. She told Campbell there had been a “dramatic change” between the previous manual assessment of payment and income discrepancies, and the new system that relied heavily on income averaging.

She told the hearing that one of her colleagues quit over the scheme, while others discussed how they could stop it. “There was a lot of discussion of just how unfair it was, and sympathy for the information that was out there in the media”, Taylor told the commission. Even in a case made incorrect by an employer’s typo, “I argued the point and they said, ‘well, if you don’t like it, you can just go’.”

Given that the NACC’s definition of corruption includes when public officials “breach public trust”, “abuse their office”, or “misuse information”, you might think some one, two or more should end up in jail. But I wouldn’t hold my breath.

Is Labor likely ever to admit its anti-corruption commission is designed to protect the privileged?

Rather than campaign for an anti-corruption body, our energies would be much better spent rebuilding decent unions, building a left that organises to fight, to use our collective power to force governments to back down.

There were workers who bravely tried to stand up to their bosses rather than carry out fraud. If they had been organised into a collective fight, they would have offered a better chance of stopping robodebt than relying on an institution like the NACC. Such outfits will always be headed by bureaucrats who invariably share the values exposed by Catherine Holmes. Why would we rely on them to hold any of the elite and powerful to account?