Life on the West Island - A watchdog without bark or bite

There was a time when the West Island’s principal statutory review agencies – such as the Commonwealth Ombudsman, the Human Rights Commission and the Auditor-General – were fiercely independent and effective agencies protecting individuals from the excesses of executive government and promoting the democratic rights of all citizens.

The Human Rights Commission has long since ceased to be a genuine watchdog, weakened by appointments of political activists and starved of resources. Events this week have demonstrated that the “independent” Ombudsman has become a tame lapdog unwilling or unable to look into even the most egregious breaches of the rights of disadvantaged members of our society. And even the Auditor-General is not above being influenced by bureaucrats to modify unfavourable findings.

This came to light in evidence before the Royal Commission into the illegal Robodebt scheme, when Jason McNamara, former general manager of the integrity and information group at Services Australia (the lead agency administering Robodebt), was the first witness before a new two-week block of the Commission's public hearings, as it investigates the way the unlawful scheme was designed and implemented.

Counsel Assisting the Commission, Angus Scott KC, questioned him about assisting with a 2017 ombudsman investigation into Robodebt, asking if Mr McNamara saw an opportunity to get the Ombudsman to make findings that aligned with the department's narrative".

Well, it's useful if the ombudsman has the correct reflection," Mr McNamara said. Criticism of the agency was not invalid, but it was useful if someone else independently looked at the data, looked at the issue and came to the same conclusions we had, that was useful. If we could influence them to do that, it was definitely part of what we wanted to do. To put it mildly, this was a creative use of the term “independent,” from an officer of the agency under investigation!

ABC reported that Mr Scott then asked: "So the ombudsman is an independent statutory investigative body and it would be useful if the ombudsman would make findings that were consistent with the department's messaging?" Mr McNamara replied: "Yeah, and with the facts.”

The Commission was shown an email from Michael Robinson, from the legal services branch of the Department of Human Services to Karen Harfield from Services Australia's customer compliance division, dated January 30 2017, which attached documents from the ombudsman's office and discussed formulating an initial response.

In the email, Mr Robinson wrote: "Karen, having read the report outline I think the department has been given a great opportunity to effectively co-write the report with the ombudsman's office." (Emphasis added.) Given the time pressure they are under, any suggested wording you provide in response to their dot points will enable them to do a quick copy-and-paste in many instances where there is general agreement or at least not totally opposing views.

Mr Scott suggested that the email was saying the ombudsman was under significant time pressure to complete the investigation, and the department could cut and paste tranches of its own wording into the ombudsman's report. "I think we can definitely put material to them," Mr McNamara responded. "It's not just put material to them, it's cut and paste tranches," said Mr Scott. Mr McNamara replied: "Yeah, but the ombudsman's an independent statutory office holder. If he wants to reject our words, it's up to him. But there's nothing wrong with suggesting wording, this is fairly normal practice with both ombudsman and Audit Office reports.”

The Ombudsman’s final report made only mild criticisms of Robodebt, and ignored evidence that the scheme was illegal. The startling evidence at the Royal Commission shows the degree to which the Ombudsman has become just a mouthpiece for government ministers and bureaucrats. In that context, further evidence from Mr McNamara demonstrated how out of touch he and his Services Australia colleagues were. He claimed that the public were too stupid to understand Robodebt, forcing him to design a flyer describing the concept of computerised income averaging upon which Robodebt was based. Bernard Keane of Crikey noted that averaging, it turned out, was an unlawful way to estimate income, something the government was forced to admit after being taken to court.

Much evidence before the Commission has already established that government ministers and department heads knew well in advance that the Robodebt scheme was unlawful and that it shifted the burden of proof onto welfare recipients to establish that their supposed debts were not due for immediate payment. The government has since settled court action with over $1 billion in compensation, but that figure is probably underestimated.

So, how have we come to the situation where the supposed “watchdog” agencies have knuckled under to government pressure and thus failed to protect citizens’ rights? The key answer is that, although they are established under statute law, they do not have genuine independence. All fall within ministerial portfolios and suffer from budget cuts which limit their ability to investigate serious abuses of power. The Morrison government, in particular, nobbled them with huge restrictions on their resources, subjected them to public humiliation by disputing their findings and watered down their investigative vigour by making political appointments at senior levels.

As well, their primacy has been weakened by the proliferation of other non-independent “ombudsman” bodies paid for by the industries they are supposed to regulate (for instance, banking and telecommunications) and the appointment of advocates for economic sectors and calling them an “ombudsman” (such as the small business ombudsman).

Overall, this has left the West Island’s administrative review system in serious disrepair and turned the supposed fierce watchdogs into toothless lapdogs. It’s time to return to the original Scandinavian concept of an ombudsman as a completely independent public official reporting publicly and direct to parliament, with a guaranteed share of budget funding. Only then could we avoid the embarrassing and inappropriate boast by bureaucrats that they can “co-write” reports from our “independent” watchdogs.