Life on the West Island - Covering up Robodebt

Following the stunning failure of the National Anti-Corruption Commission to take up referrals from the Robodebt Royal Commission, many West Islanders believed that nobody would be held to account for the shameful treatment of vulnerable citizens, who were illegally accused of obtaining social welfare payments by deception.

But this week, Attorney General Mark Dreyfus made clear that the case was far from closed and that it would have severe ramifications for those advising governments on policies and legislation.

Dreyfus said that top public servants and their senior executives could soon face potential criminal sanctions for impeding or obstructing investigations and inquiries by authorised oversight bodies.

They will face liability for stonewalling or obstructing probes into the bureaucracy under new laws to ferret out recesses where public service misbehaviour can fester. Of course, in the case of Robodebt, it was likely that much of the misbehaviour occurred in ministerial offices, which will not be covered by the proposed changes.

In a document that will likely send shudders through the upper echelons of the APS, a raft of statutory oversight offices, including the Commonwealth Ombudsman, will receive new compulsive walk-in powers of entry and production of evidence akin to the Inspector General of Intelligence and Security. The powers include remote access to documents and information.

While the Oversight Legislation Amendment (Robodebt Royal Commission Response and Other Measures) Bill 2024 is being marketed as implementing the government’s response to ensure Commonwealth agencies are subject to stronger and more rigorous scrutiny, the explanatory memorandum for the bill reveals a crackdown on the APS much wider and stronger than expected by many.

There’s an eye-popping provision in particular, and in terms of terms of remediation, it’s as ironic as it is sublime. After creating an illegal “shakedown” scheme based on fictitious debts and questionable methodology that forced everyday people to disprove that they owed the government money, public servants will now instead have to disprove they are hiding something or obstructing probes if investigators can’t get their hands on the evidence they are seeking access to.

This follows the Royal Commission’s discovery that nobody could ever find the paper trail that said Robodebt was legal. Similarly, the Commission found that the Commonwealth Ombudsman was led into believing that there was legal advice that Robodebt was perfectly proper. Put simply, the bureaucracy will now have to suck up similar treatment to what it meted out to more than 400,000 people who were hounded for fake debts.

The new provisions contain a whole section on the “reversed evidential burden” containing the explanatory memorandum’s breakdown of the amendment’s “human rights implications”.

“Reversal of the evidential burden may amount to a limitation of the right to a presumption of innocence,” the explanatory memorandum states. “However, under international human rights law, a reversed evidential burden will not necessarily limit the presumption of innocence provided the law is not unreasonable in the circumstances and maintains the rights of the accused. The purpose of the reverse onus provision is relevant in determining its justification.

“Items 4 and 9 of this bill would include defences to the respective offences of failing to provide reasonable facilities and assistance to the Ombudsman when exercising powers to access documents or records remotely. These offence-specific defences would apply where providing reasonable facilities and assistance to an authorised person exercising remote access powers would pose an unacceptable risk to the security of any of the documents or other records held in electronic form, or otherwise to the system where the documents or other records are stored. The defences would operate in addition to the general defences available at criminal law.”

The explanatory memorandum goes on to say that “to the extent that reversing the evidential burden for the defences would limit the presumption of innocence, limitations are reasonable, necessary and proportionate to a legitimate objective of facilitating the timely and effective access to information relevant to an investigation by the ombud, provided this can occur in an appropriately secure way”.

The amendments also cast a wide net in terms of the oversight bodies included that will soon impose a statutory duty on agency heads and their staff to use their best endeavours to assist the Ombudsman and the Inspector General of Taxation in the performance of all their functions.

The explanatory memorandum states that the intention is that the new and enhanced duties and powers contained in the bill will apply to all statutory offices held by the Ombudsman under the Ombudsman Act.

That includes those for Defence, Immigration, the postal industry, law enforcement, VET student loans, overseas students, and private health insurance. The private health insurance industry will be especially concerned about the new powers, given the recent hammering it received after the Medibank Private ransomware hack.

The amendments also raise a logical question as to whether ‘industry-sponsored’ — that is, industry-funded — ombudsmen also require similar powers. That includes energy, water, telecommunications, banking and finance, produce and grocery, fair work, and some public transport areas.

Given the damning evidence of senior public servants before the Royal Commission, the proposed legislation will send shivers down the spines of many West Island mandarins. Most of those relied on the “I cannot recall” strategy or submitted that “no paper trail could be found” when facing probing questioning about why a clearly illegal scheme had been allowed to proceed or whether or not ministers had been informed about what legal advice had been received. If the new legal provisions come into effect and are properly enforced, perhaps future data-matching Robodebt type schemes will never see the light of day on the West Island.