I have no idea what the current reputation of the OO may be.
What is being revealed during the proceedings of the ‘Robodebt’ Royal Commission is consistent with some other matters in which the Ombudsman has been involved recently, of which matters I am personally aware and in which I have a personal interest. The consistent feature of these matters is the Ombudsman’s acceptance of assertions made by government agencies without any independent verification by the Ombudsman of the accuracy of what is asserted nor analysis of the relevance of what is asserted, even if accurate.
In the case of ‘Robodebt’, the hearings of the Royal Commission so far reveal some things that disturb me about the way in which the Ombudsman’s office went about its ‘own motion’ inquiry into the scheme and resultant report in 2017. So far we have learnt that the Ombudsman simply accepted, at face value, assertions that the way in which debts were ‘raised’ against Robodebt’s victims – given the Orwellian label “customers” - was lawful, and that the Ombudsman’s report was ‘co-written’ with personnel from the Department whose administration was the subject of the inquiry.
As to the substance of the report, it said, among other things:
We asked DHS whether it had done modelling on how many debts were likely to be over-calculated as opposed to under-calculated. DHS advised no such modelling was done. In our view the risk of over-recovering debts from social security recipients should be the subject of more thorough research and analysis.
My moral compass points in the opposite direction to any possible risk of “over-recovering debts” from people who are usually poor and usually powerless. But here we see that the DHS and the Ombudsman knew that the risk existed and the Ombudsman took the view that the appropriate response was for someone to do some “modelling” while the robot continued to spit out debt letters like confetti.
And when I contemplate the concept of “over-recovering debts”, I immediately think to myself: How could that
possibly be lawful? An average second year law student could work out that the Commonwealth engaging in the practise of “over-recovering debts” from a person would either constitute an acquisition of their property on other than just terms, be a tax requiring separate taxation legislation or otherwise be the subject of specific legislation in the unlikely event the compulsory exaction was not a tax. Remember: The ‘robot’ sent debt letters to people who did not, in fact, have the income on the basis of which the ‘debt’ was calculated.
As it turns out, a qualified lawyer in DSS (in 2014), qualified lawyers in Clayton Utz (whose advice DSS requested be left in draft so that DSS could pretend the advice had not been given) and the Commonwealth Solicitor-General all came to the view that the basis on which debts were “raised” against Robodebt’s victims was unlawful. Cue the taxpayer to fork out around $1.8billion in compensation.
If only the Ombudsman had been a little more sceptical and had dug a little deeper in 2017, guided by a moral compass and aided by an average second year law student. Perhaps some of the damage done by the Robodebt juggernaut, including the suicides, would have been avoided.
This is all the product of what I call the weakening of the fabric of government institutions. The Commonwealth Ombudsman used to do a pretty good job as moral compass and fiercely independent investigator of government administration. It helped me a couple of times a few decades ago to take on and win against a mega-department. It’s now a shadow of what it used to be. On what planet would a supposedly independent investigator think it appropriate to invite the agency administering the circumstances under investigation to ‘co-write’ the investigation report? (It seems to me that CASA, Airservices and ATSB have become a mutual protection racket, particularly on airspace matters). Fortunately the current Commonwealth Auditor-General and ANAO continue to defend and maintain true independence, but unfortunately the nature of their audits does not go to these kinds of matters. It’s part of the reason for the collapse of Australians’ trust in democracy and governments. It’s why the calls for a Commonwealth corruption commission could no longer be ignored by the major political parties.