Pearls and Irritations

Major General Kathryn Campbell, currently sitting in a fairly empty office in the Department of Defence on a miserly $900,000 plus a year, seems set to become, by acclamation as much as by the weight of the evidence so far available the chief bureaucratic victim of the Robodebt affair.

Indeed, apart from the several hundred thousand poor citizens upon whom her department unleashed, illegally, Robodebt, including several score who committed suicide as a result of their interactions with it, she may end up being the only one.

That’s a result many of her erstwhile underlings may devoutly hope for, whether in Centrelink, the old department of human services, or the department of social security. These were agencies General Campbell controlled as a departmental secretary during her other full-time life as a public service Secretary. At human services, she rather gave the impression to colleagues and the senate that she herself had imagined, devised and sold to the coalition government the very idea of Robodebt. But in her recent evidence to the royal commission she was extremely vague about the subject and could hardly remember anything much about it at all. She has not finished giving evidence yet.

She was promoted to the department of social security under PM Turnbull, some say as a vote of thanks from Morrison for her enthusiasm, and of the savings she (initially) appeared to deliver government from Robodebt’s extortion of the poor. That department set policy for managing schemes of treating all welfare beneficiaries as solely scroungers, fraudsters, skivers and otherwise awful citizens.

General Campbell cannot entirely be blamed for that attitude, which was the policy of the government of the day, and, under Julia Gillard, the government before it. But even allowing that senior public servants must be enthusiastic champions of government policy, it would be hard to find a bureaucrat in departmental history so seemingly wedded to an aim of cutting the social security bill to zero. Good old Pat Lanigan, secretary of the department in the late 70s might have sometimes seemed rhetorically devoted to the idea. But his minister wasn’t and he was simply not in General Campbell’s class, or rank, for persecuting that belief, if genuine belief it was.

My reference to the rank that General Campbell has in the Australian Army Reserves is not a sneer. She deserves some respect for her service, and has been known to say that her experience as a reserve officer made her a better public servant and administrator, and vice versa. She’s allowed to think that, but few of her public service colleagues, and even fewer of her underlings would agree. Her style might suit the command culture of the army – for what, if anything, that culture is worth. But it simply has not worked in an agency where management must be down as well as up, consultative as well as imperious, and involve listening as well as telling. All the more so when, according to any number of witnesses, she established a culture where officials were terrified of delivering her bad news, even when she had to be told it. Terrified and afraid for their careers. And, contrary to her latter-day air of only having vague knowledge of the development of Robo-debt, she had a reputation for excessive micro-management.

Her colleague and successor at human services, Renee Leon was perhaps less than completely sisterly in her evidence to the inquiry. As secretaries Leon initially had the employment department, Brigadier Campbell human services. Leon has said she and Campbell interacted well enough at meetings of departmental secretaries. But then Leon was shifted to human services. This was regarded, by her as well as others, as a demotion, in part for want of aggressive enthusiasm for coalition policies, good or bad.

It soon became clear that there was a certain frisson from the secretary in the senior department. Leon thinks that this might have involved some natural disappointment when systems the brigadier had established were changed. Leon knew Campbell regarded Robodebt as her baby. Leon was also aware that Campbell frequently bagged her (Leon) to colleagues, with criticisms she had never made to Leon. But some of it arose because Campbell and the minister they both served were discussing, behind Leon’s back, the idea that human services might be abolished as a department, and reabsorbed into social security. Leon was sacked by Scott Morrison in 2020.

While Campbell was at Social Security, the Chief of the Defence Force, Angus Campbell (no relation) promoted her to Major General, and put her up for an award for military efficiency. No doubt these were matters for his decision, not the government’s, and reflected her military achievements. But it does tend to underline the fact that the fate of Major General Campbell is as much a problem for the ADF as for the bureaucracy. Even if she escapes royal commission censure, she has no future in public administration.

When the Robodebt music stopped, abruptly, with government having to repay billions, the program’s architect was plucked from the wreckage and sent to head foreign affairs.

Foreign affairs and trade was a field in which she had no background. It was at a time of high tension in foreign policy, and with a minister lacking clout. Her position at DFAT did not survive the federal election last year, to no-one’s surprise but her own. She had told colleagues she had a good relationship with incoming minister, Penny Wong. But the incoming prime minister seemed determined to deal with her correctly, rather than by arbitrary sacking. Simple dismissal without trial was the method Morrison adopted with public servants who displeased him. She is now ostensibly giving the defence department critical advice about opportunities afforded Australia from the AUKUS arrangements. No one seems interested in whatever she has to offer, but at least she is not suffering financially, as many of the victims of her policies did.

Scott Morrison, briefly Minister for Social Security, was a firm believer in the condign punishment of the poor. If only, it sometimes seemed, for the purpose of liberating larger sums of money which could be handed out, without accountability, transparency or any sense of mutual obligation to mates, cronies and party donors in the private sector. Those in business (or cultish organised religious sects) were, are all, entrepreneurs, builders, lifters and job creators, unlike the sick, the lame, and the old, who were simply spongers on society’s prosperity. Campbell, at human services, seemed to have a rolled up plan for greatly increasing the department’s compliance activities, designed to ensure that not a single person got a dollar more than relevant legislation required. It turned out that the initial plan was not as perfect as they originally imagined, in part because of legislative barriers, but by the time the idea of the turd had been polished, reshaped, and placed in the marketing mix-master, everyone seemed to have forgotten that lawyers had pronounced that the scheme could not go ahead without amendments to legislation.

The basic idea was that one could use taxation income data to make estimates of fortnightly (sometimes yearly) income for welfare beneficiaries. One could then compare this with the department’s own data of welfare payments, and from that make educated guesses, and estimates, about whether there had been overpayments.

Among the practical difficulties of the idea was the fact that averaged tax data gave no true impression whatever of actual income during a fortnight over which a person had been paid a pension or welfare benefit. As an obvious example, a person might have been unemployed for six months before finding a job (and going off the dole). One could not simply add up the fortnightly income from six months of working on a wage, and six months of getting the dole, divide the result by two and use the answer to calculate “over-payments”. Yet that is just what the department did, initially as a prima facie “proof of overpayment” in its own right, and, later, after some of the absurdities emerged, as an “indicative income” to be used until the contrary was proved.

There were a few problems. First, there was simply no legal basis, in any of the relevant Commonwealth legislation, for averaging in this way. There were ample provisions for dealing with overpayments, whether by accident or fraud, but doing so depended on proof.

Even worse was that the department suddenly changed the onus of proof. It fell on welfare beneficiaries to prove that they were due what they had received, right down, if necessary, to retaining copies of all pay slips for six years or more. The department sent hundreds of thousands of threatening letters to “clients.” General (then Brigadier) Campbell was to insist in a senate hearing that these were mere requests for “clients” to ring up the department and discuss their situation, but thousands of people took the letter as making findings of fact. Moreover those who failed to respond in time (perhaps because they simply could not get on to a human being on the department’s impossible 1300 number), were deemed, in effect, to have admitted owing the money. Soon they would be approached by debt collectors. Some people with no hope whatever of repaying the thousands of dollars they were said, usually wrongly, to owe, committed suicide.

Campbell’s department had squads of legal advisers. None seemed desperately overworked. One of the senior lawyers in her flotilla, for example, had sufficient time to threaten me with defamation proceedings on behalf of Brigadier Campbell, though, as far as I am aware, any action the Brigadier may have had, if any (it was not followed through) was a private and personal right, not one flowing out of her job, or, properly a matter to be taken up by lawyers in the public service.

Occasionally doubts would arise about the fundamental legality of the Robo-debt scheme. But most senior departmental lawyers simply did not want to know, and, if by chance, they learnt of anything which ought to have made the issue clear, they ran a million miles from it. It is difficult, in reading royal commission transcripts to sort between genuine lapses of memory, uncertainty and deliberate lying, but there was plainly a lot of lying, and from a number of lawyers, about their amnesia. Departmental lawyers ought to be on particular notice for this, given that they are recognised, at least since 1984, as detached professionals, responsible for their conduct to the ACT Law Society, rather than in the agency’s ordinary administrative stream, able to be told what to think or what to do.

Campbell hated receiving bad news, and her underlings seemed to have been terrified of telling her Robodebt was fundamentally illegal.

The terror of giving bad news to public service superiors seemed little to the terror those superiors had in informing ministers of emerging doubts about the legality of the scheme. It is in this area that public servants, at all levels, will be found particularly blameworthy. They placed a higher premium on pleasing the minister than on telling the truth or obeying the law. Some can rationalise their conduct by obfuscating what they knew or read, but the overall pattern is clear enough.

As Leon pointed out, this failure to inform ministers of problems is counter-productive for government. Giving unwelcome advice if necessary “is not only the right thing for the public service to do, it’s the right thing for the government to know. That’s so that the government doesn’t fall into the situation it did fall into, which is administering a program that was unlawful and that then was bound to be [found] unlawful in the courts. That caused harm to hundreds of thousands of people and for which the government had to raise the money. It’s the kind of risk that a government should have been told about.”

Leon said that coalition ministers would sometimes stop speaking to some secretaries. “Secretaries were told to move deputy secretaries to other roles if ministers thought that deputy secretary was unhelpful, even though ministers are not supposed to have any say in the deployment of public servants…

“It is fair to say that we knew that secretaries who were more responsive to the government’s policy agenda were rewarded for that.” She instanced the promotion of Kathryn Campbell to Foreign Affairs and Trade, “seen as a reward for being very cooperative with the government, not only about this [Robodebt] but about a range of matters.”

I expect that the government is waiting for the commission’s report before it acts against anyone. But, given the general timidity of the Albanese government, and its complete want of spine, purpose or ministerial or administrative leadership in public administration matters, I am not expecting condign punishments. Perhaps they might judge the humiliation of the report enough, assuming that any of those involved had the sense of shame to resign. The only bureaucratic victim so far is Renee Leon, now vice-chancellor at Charles Sturt. Most of the rest continue to do their inadequate best on the public payroll, when they can remember.

The behaviour of departmental lawyers was cowardly, negligent and incompetent. Most, like their superiors, say they can’t remember what they knew, read or did unless the evidence proves otherwise.

If the law society has any spine (which I do not expect) not a few of the agency’s lawyers should be being invited to show cause why they should be retained on the legal rolls. Amnesia or no amnesia, the legal work performed by these folk often fell below what could have been expected from a competent legal practitioner, to the detriment of their “client.” If the client was to be regarded as the agency, one might say that the in-house lawyer was providing an out-house service. If, as I think, the “client” of any government lawyer is ultimately the public and the public interest, the negligence and incompetence was appalling, and the public needs protection. Negligence, I should say, includes a common human services practice of offering confident legal advice without checking its basis, assuming that agency practice was the sure guide to what the law provided, or telling a superior that a finding by a tribunal that the scheme was wrong was misconceived without examining its rationale.

I wrote several weeks ago of one of the ways the legal section of the department avoided facing the truth. Many people appealed Robo-debt assessments to the AAT. Increasingly, some judges upheld the appeals, holding that the scheme was fundamentally illegal. Did the department appeal such decisions, or look for clarification of the legal position? Far from that, they had an active policy of continuing with existing policies, and debt raising, as though the AAT judgment was wrong, while dropping any cases where the AAT had ruled against them.

Many a departmental lawyer knew of the adverse decision, but almost all claim not to have read the actual judgment and to have not been aware that the tribunal had found basic flaws in the Robodebt scheme. Of course, if they were, it would invite questions whether, as lawyers, they were doing what they were professionally obliged to do. Thank God there is no professional or ethical duty, whether for lawyers or public services, to read material arriving at their desks. (Of course, the email trail establishes that they received the information, but not that they actually read it. Likewise, it is no doubt a complete coincidence that one of the tribunal members, a professor of law, who several times found the scheme illegal were not re-appointed, probably on departmental advice, when his fixed term expired.

I have entirely neglected the role of ministers in this terrible scandal. Individually and collectively they deserve most of the blame, not least for the attitude of mind they brought to punishment of the poor. At the moment, it is still difficult to apportion blame, and I think I will forebear until we have heard from them all, including some of those, such as prime minister Malcolm Turnbull whose indirect role is not clear. But this disaster could not have occurred had the bureaucracy not been enabling the ministers. That is the lasting, and the unforgivable scandal.

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