Notes on the Australian robodebt scandal

There are two sources of commentary on robodebt. On one side you have a handful of unhinged journalists and activists who see themselves as crusaders for the victims. On the other side are senior public servants who have reflexively defended their former colleagues and the institution they work for. Alas, being senior public servants, they lack the intelligence which might allow them to proffer a decent defence. So I thought I’d make a few points.

1. Robodebt was principally a policy failure, not an administrative one.

Those who are angry about robodebt are not angry about it lacking a statutory basis. If the relevant legislation had already allowed robodebt, they would still be angry. Or if the crossbench at the time had been a tad less unruly and the coalition had passed the necessary amendments, they would still be angry. Conversely, there was little anger that the federal government was illegally indefinitely detaining a bunch of foreign rapists, because the policy itself was broadly approved-of.

To take a step back, the check in the system against the government doing something illegal is the courts. This part of the system works fine, and indeed worked fine in this case. But this is a fairly inconsequential check to misrule in the Westminster system, because if you form government there’s a good chance you can also get amendments passed. The PM effectively controls both the legislative and executive branches. We do not have the wide-ranging judicial review based off constitutional law that seriously constrains government.

The check against bad policy is the electorate. But they tacitly provided approval of income-averaging by re-electing the coalition government in 2019. Of course journalists don’t want to suggest voters could do wrong, hence the misdirected anger at public servants. No doubt the fact that Australian progressives grew up on the West Wing also means they’re somewhat confused about the importance of courts – which is to say many are under the illusion that the law alone provides an invaluable bulwark against bad policy.

Note that if robodebt had been legal, it never would have become a scandal at all. We have plenty of comparably bad policies in place currently, e.g. billions of taxpayer dollars go to for-profits so that cancer-stricken invalids can be kicked off all welfare payments for missing appointments. But this is legal and so no-one cares. Some journalists might insist they do care, but because they’re invariably closeted communists the broader electorate has lost trust in them. As such bad policy in and of itself receives no scrutiny in Australia and is a much more serious issue than governments occasionally inadvertently breaching the law.

2. The issue was not a ‘lack of independence’.

Some people seem to believe Stuart Roberts really wanted to be misled by the public service about the legality of the proposal. Precisely why, no-one can say. This was a small inconsequential policy that was neither going to win lots of votes, nor raise lots of funds. The coalition didn’t want to risk huge reputational damage here, they accidentally did so due to the incompetence of the APS. A totally dependent but competent APS would have provided the correct advice.

3. The APS has never been independent anyway.

The fact that the Westminster constitution is unwritten has allowed a great many myths to perpetuate. Functionally, the government has wide-discretion in sacking the secretary which is somewhat analogous to the power a corporate board has over a CEO, yet no-one would suggest the CEO is independent of shareholders.

4. And nor should it be.

Obviously in its executive functions public servants shouldn’t be independent. Unelected bureaucrats should not be able to thwart the will of the people as expressed through elections. Insofar as the public service also has an advisory role, it’s not entirely clear what ‘independence’ is really protecting. Advisors have no power, and an advisor who only tells you what you want to hear isn’t useful in any case. In my personal experience, the public service simply isn’t consulted in matters of policy so it’s a moot point.

5. Some of the bureaucratic norms being attacked are good.

The biggest sin committed by incoming secretary Renée Leon was trusting the legal advice provided by the department’s lawyers. People who have never worked in a bureaucracy might wonder why she remained to stubborn in asserting their position in the face of new evidence from other sources. But those who’ve worked in one knows it’s important that: a) facts be established once-and-for-all (i.e. the “department’s position”) and b) the decision is delegated to the relevant experts, in this case senior counsel.

Government departments already creak along very slowly, if you allow the principle that anyone can recontest facts that have already been decided then everything would grind to a halt. A policy might easily take a few years to go from conception to implementation, if anyone in any of those meetings is allowed to say things like ‘hey what if all our lawyers are wrong?’ the entire apparatus will break down.

The principle that we’re supposed to accept is that the departmental secretary is personally responsible for everything that the department does. This is why increasingly departments do nothing at all, as senior management are paranoid that something might happen underneath them which they’ll be blamed for. I’d propose a very different principle: accountability sits with those who’ve been empowered to make the decision. If legal decisions are delegated to lawyers, then they’re to blame when they make the wrong decision. This is a prerequisite for delegation to work, which is certainly required in departments which employ thousands of people.

6. Making an example of mere mediocrity is counter-productive

There is another pattern here which is that midwits seem to believe the way to raise standards in an organisation is by occasionally holding people to exceptionally-high standards that no-one else meets. We know from criminology this is not how effective deterrents work. Moreover a lot of maladministration is unintentional, so this deterrence mechanism cannot even work in theory.

Worse yet, it tends to create an illusion that the very-high standards are typically held, effectively concealing just how dysfunctional government is. If anything, I’d say there’s an inverse relationship between the stated standards an organisation pretends to hold itself to and how it works in practice.

The corollary to this is that anyone outraged by Renée Leon’s doings demonstrably has a high opinion of the public service. I think at least 90% of public servants should be fired for incompetence, especially management. But it’s very hard to make this case when everyone has been told that Renée Leon did something especially bad by trusting the department’s counsel.

7. Activists are trying to make the witch hunt as witch-hunty as possible.

Claiming that x many code-of-conduct violations have been proven by some quasi-judicial body is malicious obfuscation. The motive here is obvious, to make it sound like so-and-so has committed some sort of crime and thereby punish them through public disgrace. But the code of conduct is just vague virtue-signalling, written to maintain the pretence that the APS has high standards.

In most court-cases it’s principally facts that are in dispute. Did so-and-so murder the victim? When you hear that someone has been found in breach of say, s 13(2) of the Code, you may similarly assume some important matter of fact has been substantiated. But s 13(2) reads: “An APS employee must act with care and diligence in connection with APS employment.” In short, when someone has been found in breach of the code of conduct it’s simply a value-judgement by the commission that they didn’t do their job well enough. No more, no less.

Dressing up these value-judgements as some sort of crime is simply unfair to the accused. They can’t contest these findings in any more objective arena because they haven’t actually done anything that would put them in a genuine court.

We should be wary of creating processes which are little more than scape-goating machines. The APSC commissioners and journalists both have an incentive to display how profoundly moral they are by castigating officials for the slightest mistake. All the protections afforded the accused in the adversarial system have been discarded. This of course is doubly-true for a body like NSW ICAC, whose obscene powers are seldom questioned by the scandal-mongers in the print media.

8. So what is to be done?

Firstly I don’t think there is a systemic problem with the government doing things illegally. The courts do an adequate job of finding these occurrences. It’s the bad things that frequently happen which don’t turn into scandals people should be worrying about.

It’s beyond the scope of these notes to fix the APS as a whole, but the APSC is definitely in need of reform. The moral grandstanding after the royal commission has already done the work is unedifying, especially from a body which fails to uphold any standards whatsoever outside of the limelight. I think an obvious reform here would be for the APSC to report to the senate, which would give it a much greater degree of independence from the executive it is supposed to hold to account.