March 2023


Robodebt and the empathy bypass

By Rick Morton
Scott Morrison at the robodebt royal commission
The rolling revelations of the robodebt royal commission reveal much about how the Morrison government campaigned against its critics

Stuart Robert would take meetings with people during parliamentary sitting days while deliberately starving himself. The then minister for government services and the National Disability Insurance Scheme was proud of it, actually. He told anyone who would listen that he ate nothing, sometimes for days in a row, while the nation’s MPs were in Canberra working their longest hours.

“Do you know why?” he said to one person with whom he was meeting in late 2019, before taking the liberty to answer his own question.

“Because I can.”

By this account, the minister’s eyes were so alive with frenzied zeal that meeting attendees left his office disturbed. Not even Stuart Robert, it turns out, could stop Stuart Robert from the punisher’s fervour. Certainly, nobody else stood a chance.

It is no coincidence that the worst examples of retribution and wrath in the former Coalition government have come from powerful men – almost always – singularly possessed of their God’s assurance. Even Alan Tudge, having been so meticulously dissected on the stand at the Royal Commission into the Robodebt Scheme that his failures made Christian Porter look compassionate, claimed in his resignation in parliament not nine days later that one of his greatest legacies was welfare reform. It was a display of a kind of breathtaking audacity that can only come from those abandoned by self-doubt.

Take your pick of Scott Morrison, Tony Abbott, Stuart Robert or Alan Tudge. Each had a particular appetite for vengeance, and each had a role in a scandalous chapter of Australian government history.

“Because I can” was not just a simple rejoinder offered by Robert. It was an entire world view, an animating philosophy shared by senior Liberal figures that eventually drove one of the most injurious crusades by a government against its own people: the illegal hunt for fake “overpayments” to hundreds of thousands of Australians, now known as robodebt.

Over the course of two days at the start of February, the royal commission heard details about just how far its then ministerial overseers and senior public servants were willing to go to keep the scheme alive.

It involved punishment of people, dead or alive, whose cases and complaints made it into media reports. Alan Tudge, the then minister for human services, found there was no bar so low that he couldn’t contort himself and slide under it. He collected the Centrelink files of every single person who complained in newspapers, radio or television, and authorised the release of their data to selected favourite journalists in order to “correct misinformation”.

Tudge resigned from politics altogether, announcing his decision not even midway through the current parliamentary term, disgraced but not even a little contrite. He did not mention his involvement in robodebt.

“My passion has always been in social policy, rather than economic or security policy, the traditional Liberal focal areas. I have always believed that while the economy is the foundation of our society, the social policies determine whether individuals are given the opportunity and responsibility to realise their potential,” he said in the House of Representatives on February 9.

“It is why I have been passionate about working with colleagues in this House to lead policy reform such as ensuring the sustainability of a strong social security safety net with strengthened job search obligations, leading to the lowest welfare dependency ratio in decades.”

Welfare dependency is something of a conservative shibboleth. In practice, the surest way of delivering a low “dependency ratio” is to bully, harass or otherwise brutalise the people who need it. The system does this well enough on its own, but it helps to have a person in charge who is willing to innovate.

As the royal commission heard, Tudge was forced to fly home early from his summer holiday in the United Kingdom on January 9, 2017, after a holiday period filled with increasingly negative media attention rattled the then prime minister, Malcolm Turnbull.

The summer of robodebt was a full-blown crisis, and yet Tudge and his office were preoccupied not with whether the use of income averaging could ever raise a legal debt (or even an accurate one), but with crushing the spirit of people who dared complain.

Tudge had a standing order to his department to send the Centrelink file of every such person to his office.

“It was… it was to counter… there was a lot of misinformation which had been placed out of the media during the previous few weeks, and certainly I was keen to correct some of that misinformation,” Tudge told the commission.

“And with de-identified data [we were] able to point out that while someone is claiming that they were being hard done by, by… the automated debt recovery system, in fact they weren’t, or in fact it was very, very clear that they had simply under-reported or not reported the jobs which they had during the period of time which they were receiving welfare payments.”

Tudge personally worked on several of these “case studies”, which were packaged up and sent to Simon Benson, The Australian’s national political editor. The front-page story ran the next day on January 26, 2017.

One of the key rebuttals, as they saw it, was that some of these debts had not been raised under the Online Compliance Intervention (as robodebt was then known), but a predecessor trial that lasted a year and still had some “manual” oversight by Centrelink compliance officers. However, this system also used income averaging, which was at the very core of robodebt.

Averaging annual tax office income data over the 26 fortnights in which social security payments are assessed could never produce an accurate account unless the person was in stable employment and earned equal amounts. For people on welfare, this was almost never true. And it’s why relying on averaging as the primary evidence in any debt case was not supported by the law.

Tudge and his advisers worried about the law, certainly, but apparently never where it might help welfare recipients realise their rights. The office was concerned that ministers of the Crown should have cover to release private details of citizens to the public.

In each case, the then Department of Human Services chief counsel, Annette Musolino, provided the legal sign-off that meant selected personal information could be used openly by the Commonwealth if it was to “correct” misinformation that might threaten the integrity of the social security system. In at least one case, in February 2017, Tudge went after a blogger who was writing under her own name and released her private Centrelink information to a journalist at Fairfax Media.

“It made very clear that if somebody wanted to criticise Centrelink in public, they were taking a risk,” Royal Commissioner Catherine Holmes told Tudge during the inquiry.

“You can see government going after an individual is not an encouraging look?”

Tudge didn’t seem to follow.

“Sorry, encouraging for?”

Holmes didn’t let the question linger.

“For anybody who might want to make fair or unfair criticism,” she said.

Tudge said maybe his department should have done the corrections, not him.

“If you had a government department going after someone, do you think that would have been an advance on your office doing it?” Holmes asked.

Tudge said that his involvement “elevated” the issue.

We know that Tudge overruled his own staff when the morality of the endeavour was raised. In the case of 28-year-old florist and musician Rhys Cauzzo, who killed himself after being harassed by Centrelink for a debt that arose from the illegal use of income averaging, Tudge’s most senior adviser cautioned against “discussing the wrongdoing [sic] of a person who committed suicide” because it “would be a bad look”.

Tudge’s office did it anyway, backgrounding journalists with information that turned out to be incorrect in order to fight the ghost of a man who was broken by the very system the minister was determined to defend.

It helps to go back to 2014 to really understand what was driving Coalition indifference to human suffering.

As ever, it was money.

Tony Abbott arrived in the prime ministerial suite in late 2013 as he campaigned: with a destructive, singular focus. He had two broad missions. One was to destroy whatever survived of the Rudd-Gillard-Rudd years – the carbon tax, for example – and the other was to turn his rhetoric of a “debt and deficit disaster” into action. Much of this is now a matter of historical record, though the role of one initiative in providing the fertile soil for robodebt has so far been little examined.

On May 2, 2014, Abbott “endorsed” the development of a whole-of-government debt strategy, which was later produced by a cross-departmental committee made of representatives from the tax office, and the departments of finance, social services and, of course, human services, among others. Under this strategy, all Commonwealth agencies were required to “minimise the emergence of new individual debt” by “the use of online platforms and other digital services” and “best practice use of behavioural insights, analytics and modelling in the management of individual debt”.

Robodebt did just that, and then some.

By the time social services minister Christian Porter and treasurer Scott Morrison were briefing the new prime minister Malcolm Turnbull about this strategy they noted that “individual debt to the Commonwealth forms an increasing assets base”.

The senior ministers wrote to Turnbull saying that, as of June 30, 2015, the assets base “was approximately $17 billion. Of this, approximately $10 billion relates to individual non-business related debt with almost 2 million individual debts owed by more than 1.5 million individuals.”

Morrison had just been promoted to treasurer, a role he had coveted since “stopping the boats” as immigration minister. This was followed by a stint in social services where his demands of the public service for more “compliance” interventions in welfare inadvertently or otherwise led to the briefing notes containing the robodebt embryo. These may already have been in development, however, under his predecessor Kevin Andrews, who was appointed to the role by his long-time political ally Tony Abbott.

The duo shared at least some interests.

Within the cult of Abbott’s red-tape reduction push, senior bureaucrats were put under pressure to meet elements of the new government’s “deregulation” agenda. Under the automated debt recovery scheme developed in-house at the Department of Human Services and offered on a platter to Morrison, this KPI was easily met: Centrelink would no longer force employers to hand over payslips.

Instead, that burden would be put on ordinary citizens often living in penury with serious and complex mental or physical health problems.

Robodebt was an exemplar of Abbott’s agenda: it used every trick in the book to recover “debts” owed to the government by individuals, including the dark art of behavioural nudges, and represented a kick to welfare recipients and a boost to business.

This is an important point, hinted at by Tudge in his resignation speech.

To the extent that the former government, in all its guises, was content to go after its enemies – from Bill Shorten to its own Coalition ministers and backbenchers, right down to the poorest Australians – it did so to pursue a core ideology: the paring back of government services and the balancing of budgets.

Indeed, sometimes attacking its own citizens was the same as balancing the budget because people who need government services are no friend of people who demand smaller government. On rarer occasions, the obligatory demonisation of people on welfare particularly (though not exclusively) by conservatives cost the government money in the short term but seemed to be something of a loss leader; the budget hit was worth more in votes.

Across 2014 and 2015, a policy to reduce the time disability support pensioners could receive payments while travelling overseas was meant to “repair the budget” to the tune of $12.3 million, but ended up costing the government $16 million. It was a blowout that social services minister Morrison reframed as “an integrity measure”. Another supposed “crackdown”, in which disability support pension recipients were sent to government-approved doctors who would review 90,000 cases over three years and cancel the payments of 6900 people, was slated to save $65 million. That policy, introduced when Morrison was treasurer, was an abject failure. Less than 2 per cent of people reviewed – just 555 cases – were no longer qualified for the pension, according to the doctors. In other words, even when it was able to rig the game in its favour, the Coalition still couldn’t make reality fit an internal prejudice.

That budget item cost more than it ever saved, and it was quietly shelved.

It is no small irony that the party most effective at kicking disabled people off the pension and onto the lower-rate dole, despite still having permanent or partial incapacities for work, was the Australian Labor Party. Jenny Macklin’s 2012 impairment-table changes condemned tens of thousands to even greater poverty. Like the Coalition, Labor did it because it was easy. Few people made enough noise to cause any real problems to the entire might of the state.

In 2016–17, about the same time as the Coalition’s already doomed budget measures, two things were happening behind closed doors. Finance minister Mathias Cormann had approached Alan Tudge in the lead-up to the 2016 election, asking if there were more saving opportunities to be had from welfare compliance. Tudge went to his secretary, Kathryn Campbell, who dutifully provided a list of options as new policy proposals, including an extension of robodebt measures. The proposals were announced during the election campaign by treasurer Scott Morrison and social services minister Christian Porter.

Welfare compliance was the well to which ministers from both the Labor Party and the Coalition returned to drink because, as Stuart Robert succinctly described his own power dynamic, they could.

Who was going to stop them?

Sure, the underlying assumptions as to fraud or incorrect payments might be wrong, but that didn’t matter when it came to making announcements. By the time any one particular measure was sunk, or its forecasts looked to be wildly off kilter, there was a new compliance intervention to announce, with new heroic assumptions and yet more budget savings.

The conservative welfare integrity Ponzi scheme needed only one thing to work: a guaranteed renewable resource in gullible and mean-spirited “deserving” Australians. These suckers must be willing to believe that more social security recipients than mathematically possible are hell-bent on milking the taxpayer.

In early 2017, Tudge engaged consultancy firm PwC to review the robodebt system. Meeting notes made by PwC team leaders, including now partner Shane West, recorded senior human services bureaucrat Jason McNamara and colleagues talking plainly about the pressure driving the program.

“The budget process drives actions that might not have been thought through,” McNamara is recorded as saying at a February 17 “kick-off” meeting. By March 10, McNamara is talking repeatedly about the money. He notes that the “pendulum will swing to low risk, manual” compliance interventions but “this will cause a big fiscal issue”. Other meeting notes attributed to McNamara refer to the government announcing measures, and only caring about the money: “They [DHS] have to set this up to save $8bil in fiscal terms, and government doesn’t care what they do with compliance to achieve this. Other than the Dept. doing something politically silly, they don’t care.”

That $8 billion savings figure is very similar to the $10 billion whole-of-government debt said to be owed by non-business individuals in the letter from Porter and Morrison to Turnbull.

Faced with the irritant of tiny voices threatening an engine of budget repair, ministers such as Tudge attempted to destroy them. Staff went through the social media accounts of people who had complained, and the Department of Human Services signed off on the release of private information. The department even wrote to the privacy commissioner, Timothy Pilgrim, to threaten him over a draft statement that would have claimed there was no basis in the Social Security (Administration) Act 1999 for the government to release protected information “to respond to public criticism”.

In March 2018, human services deputy secretary Andrew Wood wrote that the department had even sought “external legal advice provided by one of the most eminent and senior lawyers in the Commonwealth” to prove their point. Not once in the almost three-year history of robodebt, by this stage, had the department of human services ever gone externally to check if its scheme was legal.

Pilgrim never published the disputed finding in his statement, instead releasing a version which found no issue with the department’s approach.

Robodebt, and a government’s bullying, continued.

When Stuart Robert assumed the role of minister for government services and the National Disability Insurance Scheme in May 2019, he was deep into the power trip of his own redemption arc, having been turfed by Turnbull for a series of questionable dealings, including a “private” business trip to China while minister to “oversee a mining deal” between a Liberal donor and local authorities. Robert had a shareholding in a related company and was found by the Department of the Prime Minister and Cabinet to have “acted inconsistently” with the ministerial standards.

Now, he was in control: of his career, his body (“because I can”) and the wellbeing of a million or so Australians who relied on government support through social security or the NDIS. The NDIS threatened to wipe out the savings being generated by debt recovery through welfare “compliance”, however, and add billions more on top. When a Federal Court decision in May 2020 found that the agency delivering the disability support scheme must fund sex work if it was beneficial to a participant, Robert was incandescent with rage. He gave radio interviews to conservative stations that seemed to be a competitive event for deliberately mentioning the word “prostitute” as often as possible. Robert fed details about other cases – including a mysterious and unsupported claim that an NDIS participant used their funds to buy a yacht – to the media during a series of purposely incendiary interviews. All the while, officials with a direct line to Robert’s office were rewriting the NDIS legislation using language that would severely limit a whole range of support including, yes, sex work.

The woman with a disability who won the sex-work case in the Federal Court did so because she was so profoundly incapable of achieving sexual release even on her own. Touch is a human right; it contributes to wellbeing.

“He used my case to attack me, even if he never knew my name, because he wanted to disguise the other changes he was going to make to the NDIS,” the woman at the centre of the case said after the events. “It was disgusting. He was going to bully thousands of others through me.”

Robert failed in his attempt at wresting more control of the NDIS from a sharing arrangement with the states and territories. Two of the architects of robodebt, Scott Britton and Jason Ryman, helped redraft the NDIS legislation that never made it to parliament. They are still employed as two of the most senior compliance and fraud managers at the National Disability Insurance Agency, the authority administering the scheme.

There are more apparent crossovers between the mass recovery of fake debts in the human services department and the approach of the NDIA in managing appeal matters that threaten to run counter to internal “policy”. The royal commission into robodebt has heard that human services never once appealed a first-round Administrative Appeals Tribunal decision that undermined the robodebt scheme. Even in circumstances where senior lawyers agreed with the legal reasoning of an AAT member, they did not amend or change their policy. Monitoring of early AAT decisions was done within human services and sent up the chain with notes stating that an increase in appeals from 0.07 per cent to 0.28 per cent was “still not considered to be a threat to the program”.

“It is the case that the [AAT] has recently been more strident in its criticism but this is limited to a few cases (which are unpublished),” a report says.

There is another way to keep potential bad news out of the AAT: drag a person there in the first instance and, when it looks like you’re about to lose, settle. On this score, the NDIA has made it an art form. In the most recent data available, from December 2022, there have been 10,621 AAT matters relating to the NDIS that were closed. Of these, just 251 went to a “substantive” hearing with the possibility of being published.

At the robodebt inquiry, former human services chief counsel Annette Musolino argued that the reason they never appealed a decision was because Commonwealth entities are required to have paramount regard to the wellbeing of the welfare recipient involved. At the NDIA, expensive barristers are engaged to scare and menace at even the hint of a challenge.

An argument can be made that the government ought to protect its outlays. It is a requirement of law. But the disability agency’s stratagem of hauling participants to the tribunal before eventually relenting and paying sums eight or 10 times greater in support than it had tried to ram through in the first instance suggests its officials know full well what they are doing.

In one case, for example, a confidential settlement was offered to a woman who the agency attempted to fob off with a $59,000 annual plan. It eventually agreed to $264,000, not out of the goodness of its institutional heart but because the NDIA had a very strong sense the tribunal would find similarly.

The model litigant obligations under the Commonwealth’s own legal services directions make many points about appropriate behaviour when a government is taking on its own people, but one stands out. It “requires that the Commonwealth and Commonwealth agencies act honestly and fairly in handling claims and litigation … [by] not taking advantage of a claimant who lacks the resources to litigate a legitimate claim.”

A certain degree of cynicism allows for politicians to play politics. It’s what they do. But a crucial feature of the robodebt saga is not just that senior public servants were acquiescent, that they were willing to act as moral delegates for the ministers in question.

In January 2017, the Department of Human Services discovered it had accidentally sent letters to 43 people claiming that it would affect their tax returns or other payments if they didn’t pay a robodebt. It did not have the legislative authority to do this (let alone raise the debt in the first place). Deputy secretary Malisa Golightly asked chief counsel Musolino for legal advice about what would happen if they just didn’t tell the customers who had been sent letters in error.

Musolino wrote back on Friday, January 20: “Noting advice from [social security] that there is presently no legislative authority for the monies to be garnisheed by the ATO [and] noting that the department does not intend to act on the letter, and has no legislative support to do so, I cannot identify any meaningful legal risk for the department in failing to immediately advise affected customers that the information in the letter is inaccurate … The letter recipients will either take steps to repay the debt they do in fact owe, or not take any action on receiving the letter.”

Never mind fairness in litigation; the administration of government was rigged against its citizens.

Few among the Coalition’s ranks could hate as industriously as Scott Morrison. A senior press gallery journalist tells The Monthly there were many bullies and haters in the Coalition ranks across the Abbott, Turnbull and Morrison governments “but with him [Morrison] it was almost like an extension of his personality”.

Morrison’s staff, as an extension of him, stalked the corridors of Parliament House to the press gallery tucked away in the Senate wing to leave what Andrew Carswell, a former Daily Telegraph journalist who was then Morrison’s media director, called “breadcrumbs”.

“Carswell was here all the time,” says one journalist, “dropping hints and clues about what they wanted followed up. He would say things like, ‘So-and-so is good at picking up on the breadcrumbs.’”

These briefings, amorphous enough that they could be defended, served a singular purpose under the prime ministership of Scott Morrison: to vanquish bad news and, if needed, enemies. In this way, the PM’s staff gave selected gallery journalists and newsrooms a heads-up before Morrison went into parliament to call for the resignation of Australia Post chief Christine Holgate after she had gifted four Cartier watches worth $20,000 to executives who had just closed a $200 million deal.

At the time, Morrison was dealing with his own party’s corruption scandals. It would be unfair, perhaps, to single him out. What made the past decade of Australian governments so powerfully broken – and ultimately costly – was the succession of characters who seemed to openly despise whole swathes of the nation. It started with asylum seekers. But from there it was a steady creep to the horrors of the recent government shakedowns and resulting cover-ups.

The boundaries of what we accept shift by degrees and then all at once.

Since 2008, Australians have been treated to a conservative political class whose principal actors have walked out on a national apology to First Nations people; who criticised ministers for flying the grieving families of asylum seekers to mainland Australia to attend the funerals of loved ones killed in a shipwreck off Christmas Island, and then oversaw appalling conditions that led to the deaths of people held in offshore detention; who prosecuted whistleblowers such as Witness K and David McBride, and then charged the lawyer representing the former, Bernard Collaery, and dragged him through largely secret court proceedings; who, when faced with “mouthy” women even on their own side of politics sought to undermine or destroy them – think Julia Banks, Bridget Archer, Fiona Martin and even Bridget McKenzie when it looked like she would not survive the sports rorts scandal; and who, suffering at the hands of women who experienced rape and sexual assault, sought to brief against them too, or cut them out of policy designed to prevent child sex abuse. There was also a politically motivated royal commission, but it wasn’t the robodebt one, which has been run meticulously by Commissioner Catherine Holmes – she does not brief anyone. The Royal Commission into Trade Union Governance and Corruption, headed by now disgraced sexual predator Dyson Heydon, regularly spoonfed evidence against Bill Shorten before he was due to give evidence and defend himself. As with its wrong-again dogma concerning disabled pensioners – they never did find all that supposed fraud – the Coalition’s best laid plans for a loaded union royal commission to finally expose a network of influence and wrongdoing did nothing more than reveal worker interest groups who had as much political sway as the small business lobby and a great deal less than the Business Council of Australia.

At best, it was an inquisition that found hearsay and not heresy.

Not that it mattered. Ministers and party leaders continued as they had started, tipping journalists off to Australian Federal Police raids on union offices, ABC offices, and even the home of a journalist. Under increasing pressure, Morrison would go so far as to hit back at a Sky News Australia question in a press conference by publicly ventilating a rumour he had heard about a News Corp Australia workplace incident.

“Right now, you’d be aware, in your own organisation, that there is a person who has had a complaint made against them for harassment of a woman in a women’s toilet, and that matter is being pursued by your own HR department,” Morrison said in March 2021.

It is telling that, in a career so riven by animosity and conflict, Morrison has sought to apologise for none of it. Not the damnation of asylum seekers, not his role in the creation of robodebt, not the clandestine and frequently appalling behaviour of his sanctioned political operatives. All opponents weaker than he represented a silent confirmation of the Stuart Robert mantra: because I can.

Morrison did apologise on this day, however, because this time his “victim” was News Corp Australia.

It is easier to muster empathy when you can see yourself in the other.

Rick Morton

Rick Morton is an author and The Saturday Paper’s senior reporter.

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