Thread by @DarrenODonovan

#RobodebtRC Block 4 Day 13. Capture.
"... business rules in the OCI that support the debt calculation are comprehensive and accurately capture the legislative and policy requirements"
The Ombudsman. 2017. [2.28]
How far we have come from this milk carton ad from 1982.

It's likely my tweets are going to devolve into 'cranky guy on a park bench' today. The exhibits haven't improved my mood any, cos it isn't just *that* report. It's the issues of interest request, the quarterly liaison meetings. So. many. chances. to. do. something. #RobodebtRC

Best hope are direct exchanges around the drivers here. In the week FOI Commish resigned (tiny media coverage), let's stare at the reality of oversight work. The tied funding, the death of own inquiry, the 'we influence agencies', the 'we are not a policy agency' #robodebtRC

Ms McLeod who is first, was junior, bear it mind.
There's an example in the exhibits:
Anthony Seebach: got nuked by Siewert on garnishee, went highly viral on here in 2019.
He opposed continuing recovery post Amato!
Leon said recovery continues until found.
#RobodebtRC

The Ombudsman may try to say its report simply did not hold itself out as a legal analysis.
The Ombudsman was obsessed with the automation bits. Frankly, they used robodebt to position themselves as 'overseer of choice' for automation. They instrumentalised it #RobodebtRC

Was the report the low point for me?
No
The low point were the lessons learned sessions held in CBD offices, while people suffered hell, cast back onto the horns of DHS' treadmill. They spruiked that 2017 report, they didn't just stay quiet, no reflection.
#RobodebtRC

Ironically, the 'stand' they take in 2019, that causes DHS to object to their draft report, was in a similar vein! It was:
Hey, before you undertake a big tech project, make sure you do due diligence around the legals/pass legislation, reassuring eases delivery
#RobodebtRC

Even if the office didn't see it as appropriate to take a stand: they did nothing. Gave us nothing. No facts
- No stats on information gathering.
- Not how many debts were averaged.
- AAT outcomes
I threw my pen reading that 2019 report. #RobodebtRC

https://twitter.com/DarrenODonovan/status/1145578497491922945

The next two days are going to be something never experienced by this institution. Not sure what we will get: a "not our role" defence? but they'll be annihilated over the power to refer to the AAT and the federal court reference power. Or will we go deep on power? #RobodebtRC

I might as well be blunt from my park bench:
The Ombo walked in in Jan 2017, robodebt was worth $4.5 billion. DHS made sure to say the PM and Ministers were on board. DHS put power in that room.
Is that going to be acknowledged? Too hot to acknowledge perhaps #RobodebtRC

We might get a 'scope of investigation' argument.
Will they say, we messed up right at the start, we set up to investigate "online compliance initiative'.
That was all the stuff that started in 2016. Averaging started in 2015, we took it as read #RobodebtRC

Ombo is increasingly full of people from the APS. Can't be helped: there are limited avenues for a career in pure oversight. A career in social security law? That's eye of the needle stuff. You dance with structures that brung you,assuming a voice of authority #RobodebtRC

We are kicking off with something quite nerdy and dry: Deloitte have built blueprints describing how robodebt functioned for the Commission. Then we'll get to the Ombo #RobodebtRC

Lol, must check if the others are live tweeting this. They have to call this witness, because of the report/maps technical nature and the necessary reliance on Dr Wurth's judgment and the narrative she's providing. #RobodebtRC

Not going to paraphrase this, but all this stuff on impacts of 'fuzzy logic' on families is a substantial vindication of Justin and the NMD tech folk in early 2017. #robodebtRC

Btw, Justin had to fight for over two years to get one basic user specification document for the data matching. Services Australia's pleading s37, s47E(d) was found vague and empty. "document 13" was them running interference on him frankly #RobodebtRC austlii.edu.au/cgi-bin/viewdo…

Obviously a finding that the 'control for excluding vulnerable customers from the PAYG program appears ineffective' is important, even if it got coated in some detailed exchanges #RobodebtRC

Morning break. We will be back with one of the rarest events ever sighted in a common law legal system:

An Ombud brought to account
#RobodebtRC will be serving us a very rare dish indeed. Some ingredients might have to be provided on a voluntary, not compelled basis

Ms McLeod
Any experience in the practice of law?
No
Never involved in judicial review litigation

This goes to the office's capability when they are tasked with making recommendations relating to the law under your statute #RobodebtRC

Worth noting that the own motion report before robodebt, conducted under Colin Neave as Ombudsman. It examined vulnerable youth income management, did not shy away from findings relating to law. #RobodebtRC

The Office of an Ombudsman receives a briefing on the OCI from Britton at a QLM May 2016 (before this witness' time at the office). They ping the 10% fee in question time, but not the averaging, according to the minutes #RobodebtRC

The Ombud ends up of recommending DHS write to everyone who cops a penalty under OCI and offer a review.
Oh. And helpfully observe that 'only a court' can tell us if the penalties were lawful. A subsidiary abnegation of responsibility #RobodebtRC

August 2016, Ombud position on the penalty:
"it does appear open to DHS to do this".
It'll be colourful when we get to the final report in April 2017 so #RobodebtRC

Scott: "To what extent does the Ombudsman have [regard to the law] in investigations?"
MacLeod: It's one of many issues the Ombudsman's office would look at. #RobodebtRC

"To what extent ... was external legal advice sought by the [Ombud during investigations]"?
MacLeod: depended on particular investigation, but sure we'd use AGS and internal legals #RobodebtRC

Lol Scott brings up independence. AGS is part of the executive, how do you avoid...
MacLeod: practice was use AGS "the office needs to get legal advice from somewhere. I think it is appropriate...they're familiar and provide advice across the Commonwealth" #RobodebtRC

Says Ombud would check it, have discussions with them about it. Consider and discuss internally whether the advice is helpful #robodebtRC

What legal advice resources did the Ombud have internally in 2017
MacLeod: can't say how many people were in the legal team, but legal qualifications were extremely common across the office
#RobodebtRC

Scott many people of a professional background who have taken judicial review? You can see the picture Scott is sketching here. I mean that's general administrative law, he's not even asking about social security law... #RobodebtRC

MacLeod
"the team at the time was small...and the volume of complaints...2/3s of complaints are about social services"
#RobodebtRC

20th of December 2016. internal Ombud email reports surge in complaints, media etc #robodebtRC
They do up the ol' section 8 request for info (they've got a bunch of preliminary view type powers)

I'm enjoying the description of the formal "threshold for an own motion' investigation. Cos the informal one, as you can see from the Office's website, is resources. They don't invest in it any more #RobodebtRC

MacLeod: we were concerned about legality going in. DHS totally comfortable with their approach in pre Jan 5 meetings. #RobodebtRC
Ohooohoo internal minute asking for own motion tick:
"It appears unlikely these debts will receive judicial scrutiny"
'Cos DHS corrects in appeal.

Lol, MacLeod is saying not on appeal, it was dealt with by informal reassessing. DHS nipping it in the bud, outside the formal review pathway! #RobodebtRC

Ombud were concerned about people who can't refer to the AAT or make the Federal Court.
If only there was an entity, with the power to help them get answers in those fora.
Oh wait.
It's you.
The Office of the Ombud
#RobodebtRC

Letter announcing the investigation states baldy, legislation will be considered. Scott is himself, attempting a pre-emptive handling of any 'the law wasn't central, it wasn't our role, the scope was' defences #RobodebtRC

Alas poor Colin, leaves us. An Acting Ombudsman ascends, Mr Glenn. Who we will meet tomorrow.
First job: stay independent in a pressure cooker with two departments arc-ed up to defend #RobodebtRC

Macleod says when they read the NPP they had concerns. Should note that everyone should accept they were misled at points. But the fundamental was: averaging lawful or not? That was not clouded by the cavalcade of stuff they got back. #RobodebtRC

We are watching the Ombud, in real time, being shown the 'game' played with the averaging in the NPPS in 2015. #RobodebtRC Did they see the final or just draft? Referenced in the Minute in the final report, sort showing they thought the thing never changed

We should all be grateful to Ombudsman for putting foonote 8 into its final report. Was very handy for drafting FOIs, senate orders for the production of documents. Hansard would say it caused the commission, gave a bit of 'movement' to things in 2020, 2021 #RobodebtRC

The ombudsman office never got the January 20th email from DSS slamming the proposal
At first they can't say if they got the NPP. Seems to think they got the final NPP.
#RobodebtRC

Macleod says the nature of the 20 Jan email is such, it would have made a difference.
"We would definitely have been asking question of the departments"
"Calling out...this was enough to say it was unlawful...in a report"
that's on those APS who misled them.
#RobodebtRC

Ombud did have that Executive Minute though... which gave the state of play at one time #RobodebtRC and then you got legals dated 2017... the ante will be upped post lunch, that was the easy bit

Prolific readers of Acts will know that misleading the Ombudsman is a serious matter under statute. The Office did suffer something perverse in their engagement here. Victim phase will be exited at a point however #RobodebtRC

I'll be honest and say I'm very open to a corporate 'senior leadership' call was made on Ms Macleod here. I don't like how she has to go first here, unpack it all. You can see how they were heading in 'to do the law' off the documents. What happened? #robodebtRC

Lol, Scott is trying to bank a few more section 8 breaches here. The final report will be...a read #robodebtRC

Ms Macleod underlining they have a 'catch all please include any relevant information' built into section 8 notice.
Lol, Macleod says she now doubts the good faith participation of the departments ... it was 'quite evident' there were problems even in 2017
#RobodebtRC

How were these people were getting away with it even after the class action! #RobodebtRC

My god, Macleod's statement accepts Ombo went ahead on an evidence base they knew was lacking some documents. Watchpuppy stuff.

"My experience of dealing with DHS...fair to say there was frustration on both sides. Here we are we're having to investigate DHS again...they would always try to limit the questions we asked...[but you saw that across governnment] #RobodebtRC

"I've often heard the Ombudsman office described as a mosquito', annoying. "We weren't seen as a friend"
I'm lapping this stuff up tbh
#Robodebt

Macleod outlining how DHS managed the ombudsman, low grade stuff like no phone calls, put it in writing, insist on notice...
Sounds like clock chewing by people with more resources, typical stuff #RobodebtRC

Scott is going to put the McNamara and Robinson stuff to her now I bet #RobodebtRC

We're looking at the initial response by DHS for legals underpinning robodebt. They send over the three they have that are robodebt linked. The April one is car crash one that ignores averaging and does some random blah blah about good principles #RobodebtRC

Miraculously the Glyn Fiveash email, which says 'no' averaging, is not produced by DHS. #RobodebtRC

Scott: was that relevant under section?
Macleod: yes.
"It annoys the hell out of me, and it's really disappointing...they weren't participating in good faith'.

MacLeod confirms they used section 8 not section 9. But Scott takes her to section 36.
Which is the ballgame here. Probably best for it to be clear for the public, I haven't been heaving it onto social media
#RobodebtRC

Scott is spending time banking 'and the Ombudsman itself agrees' for the final report here. Useful, but I'd like to see some answers from this watchdog.
#RobodebtRC

"I don't recall that we narrowed our request..."
Scott: would you have referred to the AAT if you had these documents
Macleod: Might not have.
She thinks they'd have gone straight: unlawful, never mind the reference #RobodebtRC

I am enjoying all this speculation about a hypothetical Ombudsman which sets out to nuke robodebt but

....
we need to arrive at the reality #RobodebtRC

Macleod did due diligence on the possibility of a section 10 referral to the AAT!
Reached out to them!
What did Chris at the AAT tell them?
#robodebtRC

Scott now giving us "Great Moments in Administrative Law History". Green v Daniels, Hanks' landmark win, went up to the AAT. But it was one of two. And Ms Macleod had no operating procedure for the use of the section #RobodebtRC

Justice Duncan Kerr, President of the AAT said they would want written submissions from both sides and a full hearing....

#RobodebtRC

You know what might be useful in this situation? An Advocate General, who can commission VLA into this task?
#RobodebtRC
Macleod told Glenn she was working on a referral just before he was chatting to DHS over phone. Did Glenn threaten 'em with it?

This is so broken, Ms Macleod did her job like, and this is before they spot the executive minute!!!! #RobodebtRC

Scott "if there was unlawfulness, it was unlawfulness on a massive scale against vulnerable people"...when else would you use the referral power?
Macleod: it should have been used.
Good for her, a long awaited admission #RobodebtRC

Macleod nominates pressure of time. It was clear to us it needed to be finished by April.

whhhhhhhhhyyyyyyy.... the rule of law does not run based on some political egg timer. #RobodebtRC

"If we wanted to have an impact...we needed to act quickly...the issue can become staler..."

I.
am.
deceased.

At least we're getting answers. I emphasise she is speaking for the Office. #RobodebtRC

Scott picks up the 'ability to influence' as a concept

No, no, no, no. Ms McLeod, no, nooooooooooo

We know you're not binding, we know that. But the public would back you. See literature on 'Mobilisation of shame' #RobodebtRC

Scott: "...got to engage in a level of persuasion to get agreement on recommendations..."
mc: Yes

Commissioner: but the Ombudsman has 'enormous power'.
#RobodebtRC

"Based on my experience as a registrar at the AAT..."
"I'd often heard comments about the AAT from DHS"
"It's merit review"
"it doesn't hold the same power, doesn't hold the same weight"
This is so hard to listen to. #RobodebtRC

Commissioner: but a finding by the President, a judge, surely not?
Macleod: DHS would have treated it with 'some level of contempt'

Victims were denied an effective remedy by internalised defeatism by a beaten down regulator #RobodebtRC

Macleod's view was it 'would have been a good option'. But once she saw the level of prep and resources in the hearing from the AAT president, she was less positive
"a viable option"
#RobodebtRC

Glenn doubted that a four person investigation team could deliver the reference. And the pressing nature of concluding the investigation.

Concerns about pitting Commonwealth against Commonwealth
#RobodebtRC

Last concern was generalised in the office.

Commissioner: what is the provision for if not exactly that?

Great question. I'm genuinely heartbroken by this. If our administrative law institutions wouldn't act. #RobodebtRC

Holmes: was there some sort of camaradarie that drove this refusal to take them on
Macleod: Rejects that
Holmes just wants a reason, any reason
#RobodebtRC
Macleod nominates 'the time consideration'

"And the level of expertise within the office"
Commissioner: scared of doing something so novel
Macleod: hadn't done this in a very long time
#RobodebtRC

Amie Meers in the office, nailed the April DHS legal advice flaws. 20 February so goes to McLeod and says, it doesn't cover the system. It just doesn't support it #robodebtRC
Macleod: "we had doubts"

They go to DSS and say 'got anything?'. They release the Pulford legals (and follow with the 2014 Jordon ones) #RobodebtRC

I thought Ms Macleod was going to window out to Mr Glenn as the decision maker, want to clarify she didn't do that fully. She collectivised the decision-making at points, so responsibility does attach to her (I amend my 'did her job' comment...to a point) #robodebtRC

This is now full on brutal for the Office as predicted.
Holmes just annihilating the Pulford legals as 'purported' advice.
My god: the Ombudsman signed up s79, and Macleod admits it wasn't a last resort, but 'the norm', 'the default'

Brutal. #robodebtRC

Commissioner on the Pulford legals:
"I don't understand how anyone found this vaguely plausible"
Macleod: "for us it raised some doubt" on their view it was unlawful

Accepts they thought DHS knew what they were talking about.
DOD: Cult of APS authority #RobodebtRC

Amie Meers, well done
"I could drive a truck through the holes in this advice"
Commissioner: A very sound observation if I may say, was that your view
Macleod: Yes (quite weakly)

Brutal brutal, how can the office be trusted in social security #RobodebtRC

I don't have all the details on banking royal commission and ASIC. But have we ever seen a regulator have a view and not defend to this extent? Abandon it's stakeholder like this? Because 'time'

#RobodebtRC

Commissioner, on the chronology provided by DSS about what changed from Executive Minute to the eventual launch:

" you could drive a convoy through that rationalisation couldn't you?"
#RobodebtRC

She keeps saying 'we' here. then when asked her personal view, often goes against the position.
#RobodebtRC

Scott: they've come at you with 2017 legals for something that went to cabinet in 2015. Any alarm bells.
Macleod: we had concerns

It was a decision for the Acting Ombudsman
See the dynamic?! I'm struggling with it, she's junior, and really inconsistent on it. #RobodebtRC

At a certain point, we might as well just pull right out of the detail and say:

The ombud absolutely failed hundreds of thousands of people. you can't defend not acting. All you've got is something something, time pressure, we seek to persuade
#RobodebtRC

Macleod says she never overcame her doubts on the law.

And 'it didn't go any further'

So again, we bounce back to, issue was raised and nixed by higher ups. I think it's driven by the fact she is 'proper officer' rather than a personal appearance.
#RobodebtRC

Scott: why not do a formal interview
I mean the office has absolute armoury in its possession like, it's got the powers of royal commission effectively.

But oversight isn't about formalities...
#RobodebtRC

"This was my first and last own motion investigation"

Some people get courts, those in social security get this. #RobodebtRC

Scott now showing her how DSS emptied the legals they handed over of the surrounding context, including the question/instructions #robodebtRC
hopeless like, the Ombudsman absolutely dunked on

This has been a jawdropping hour. We knew there were failures,

but to have reached out to the AAT, to have had doubts, to have had that 'I could drive a truck through..." assessment

And do nothing.

It's worse than even I felt it would be at the start of the day #RobodebtRC

Scott getting Macleod to admit that initially there were direct language on the accuracy of averaging that got removed.

Her team 'could not convince the Acting ombudsman...that there was an issue"
#RobodebtRC

hope people can read the body language there. Save some fire for tomorrow.
#RobodebtRc

And there was a section on averaging attached to an email on the 28th February

It got nixed by the Acting Ombudsman on her account #RobodebtRC

Section marked Relevant Legislation and Policy

The exact section everyone howled for when this thing came out.

"It is also uncertain...[if averaging can be used]"

It's not nothing folks. We got nothing. #robodebtRC

Aha, I'm seeing a footnote directly referencing McDonald!!!!

Someone tell the Commish! That's how you call out onus!! #RobodebtRC

Later section talks about averaging as not having been tesed by the court, and gives the same language as they applied to the penalty in the finding.

Tudgey ain't giving interviews if that comes out folks.
#robodebtRC

Acting ombudsman said no. And she cannot recall the reasons given. #RobodebtRC

I like Amie, let's make Amie ombudsman, She'll lie down on the road and stop some trucks

Boy it’s going to be an interesting chat tomorrow #RobodebtRC

That was coming. Ms Macleod is not the villain, focus on the institution #RobodebtRC

And tomorrow

Just devastating really. It was all there, they asked the questions, formed the views. Hard day for victims again.

I’m so angry that the misuse of my opening quote for the day was complained about by the Ombo. Hank’s team rammed that down our throats, why not complain publicly? Supine. Not to Defend even your work #RobodebtRC

And she agreed with Hanks it was unlawful over the phone, what a…

No pile on from me, pile on the office, pile on for change #RobodebtRC

I will back again tomorrow for the real leaders in this “effort” by the office #RobodebtRC

And obviously the strength of my views on what went down here are implicit in my call for a new regulator. Based on Mr Scott’s improved training question, think we aren’t getting one. Sector asked for more ombo funding. #RobodebtRC

At least Ms Macleod got this moment #RobodebtRC this was the heart of today. It was about tomorrow, and the institution. She answered every questions unlike others

https://twitter.com/lukehgomes/status/1633355218254704640

I've been doing daycare runs and dinner, but yes, Mr Manthorpe is on, and is about to speak to the removed section on legality from the 2019 report. Even worse now we know the 2017 background. #RobodebtRC

Confirms they never got the 'catastrophic' legals. Of course, they do receive Stepnieks 'stuff' as part of that second go round... that is swiss cheese and name calling Terry #RobodebtRC

Couldn't livetweet that, but Manthorpe delivered a perfunctory 'in a better world' defence. What a soldier to the cause #RobodebtRC Goodbye

https://twitter.com/maximumwelfare/status/1633367145466970112?s=20

A little bit of spine there, and they don't pull that nonsense recalculation in the Masterton matter. Oh well, guess all's fair in war and Ombudsmanry.
#RobodebtRC

I’m a bit annoyed Manthorpe got the lower profile shift if I’m honest.

I’m also replaying that 2017 conference where Macleod had everything she wanted to do, everything she believed said to her.

Oh man. At least Holmes reassured her. Bit of healing I hope #RobodebtRC

Two women in that team making all the salient points, one feeling like a failure and breaking down. Ms Macleod just needed support. Carrying the can.
#RobodebtRC