There was a time when Australia’s principal statutory review agencies – such as the Commonwealth Ombudsman and the Human Rights Commission – 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. Recent events have demonstrated that the “independent” Ombudsman has apparently become a tame lapdog, unwilling or unable to look into even the most egregious breaches of the rights of disadvantaged members of our society.
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 Commonwealth 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!
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.”
Records of the Royal Commission reveal that it 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.
The email included this advice, “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.:”
Royal Commission counsel suggested to Mr McNamara that the email was saying that 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 formal investigation report. “I think we can definitely put material to them,” Mr McNamara responded.
Mr Scott replied, “It’s not just put material to them, it’s cut and paste tranches,” said Mr Scott. Mr McNamara answered: “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.”
Further evidence from Mr McNamara demonstrated how out of touch he and his Services Australia colleagues were. He claimed in effect that the public were too stupid to understand robodebt, forcing him to design a flyer describing the concept of computerised income averaging based on tax office records, upon which robodebt was based. A number of legal academics and journalists have since noted that such averaging, has since been shown to be an unlawful way to estimate income, something the government was forced to admit after being taken to court.
The Ombudsman’s final report made only mild criticisms of robodebt, apparently unaware of, or ignoring evidence that the scheme was illegal. The subsequent proceedings at the Royal Commission show the degree to which the Ombudsman is in danger of becoming just a mouthpiece for government ministers and bureaucrats. At time of writing, the Ombudsman’s office is hesitating about deciding whether to provide evidence before the Royal Commission, claiming that it is “not compellable.”
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. This included requiring them to produce payslips for periods of up to six years, a daunting task almost impossible for most welfare recipients. The government has since settled court action with some $1.8 billion in compensation, and even 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 both 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.
Peter Maywald
Peter Maywald worked in senior commonwealth and state administrative positions (Ombudsman and human rights) for over 15 years and was Secretary to the Government of Norfolk Island for 7 years.