Thread by @maximumwelfare

https://twitter.com/maximumwelfare/status/1586945887376658438

Here is the stream for today.

We're currently hearing from Dr Elea Wurth of Deloitte, who have been commissioned by the Commission to produce a technical study of the Robodebt Scheme.

#RobodebtRC

robodebt.royalcommission.gov.au

It's probably going to be more useful to actually have a look at those, rather than my livetweeting the entire transcript. Process maps, etc. I will convey anything of interest.

They are now going through the Deloitte report.

#RobodebtRC

This is not anything like the PwC report, just to head off several hundred witty remarks in advance.

It's a technical study of every stage of the scheme.

It is provided towards contextualising the various contradictory evidence about the development of Robodebt.

#RobodebtRC

This will be what we're here to hear, today. Two witnesses from the Commonwealth Ombudsman. This has been a long time in the works. There are two more listed for tomorrow.

robodebt.royalcommission.gov.au/publications/w…

#RobodebtRC

Dr. Wurth is explaining that customers who had PAYG data incorrectly matched to them would have been included in the Robodebt scheme, and received debts based on other people's PAYG data. Fucking hell.

#RobodebtRC

Counsel Assisting Renee Berry taking us through an email among compliance officers, about a customer 'freaking out' because she'd had a debt raised against her, based on her twin sisters' PAYG data.

They lived at different addresses, her sister wasn't on Centrelink!

#RobodebtRC

This occurred in mid-2015. Dr. Wurth explains that the subsequent 'fuzzy' and 'tight' matching rules that were introduced wouldn't have prevented this from occurring.

HOLMES: We've also heard of father-son matches at the same address...

#RobodebtRC

From 2019, the ATO only provided 'high confidence' matches to DHS.

HOLMES: As late as 2019...

At this point, DHS began matching PAYG data against their internal customer employment records.

H: Called a 'mass fraud detection strategy'? It's about discrepancies...

#RobodebtRC

Under this 2019 process if an employment period on the PAYG summary was incorrect (such as being for a full financial year) DHS would end up using that anyway, even if it conflicted with their records.

Even though they should've been excluded by rules in the code.

#RobodebtRC

The only categories of people who were excluded from the DHS data-matching panopticon were those who were legally blind, or deceased. Deloitte could find no indicators for bereavement, those affected by natural disasters...just those two.

#RobodebtRC

Again, to be VERY clear: Deloitte were engaged by the Royal Commission to produce this report, to inform their technical understanding of the Robodebt scheme. They were not engaged by DHS. They forensically audited the history of DHS' debt systems and processes.

#RobodebtRC

Berry has found a document that DOES actually indicate there were some filters for bereavement and declared disaster zones.

Wurth hasn't seen it before!

That's because it was NOT anywhere in the technical documents. Wurth says it should have been.

#RobodebtRC

Deloitte's report says 'control for excluding vulnerable customers from the PAYG program appears ineffective'. Wurth says they may have to alter that, relating to the document she's just seen.

Holmes clarifies that the findings on vulnerability probably still hold.

#RobodebtRC

HOLMES: Well, I'm a bit wary of Departmental documents, so I don't necessarily take everything in them literally. It doesn't really show the level of sophistication necessary to exclude those groups, does it?

WURTH: No...

#RobodebtRC

BERRY: If a vulnerable person was sent a letter with an offer of a staff-assisted intervention, if they didn't respond, they would continue along the normal pathway?

WURTH: That's correct. Yes.

HOLMES: In other words, straight to averaging?

W: Yes.

#RobodebtRC

Dr. Wurth is explaining that Deloitte didn't see specific governance documentation for the PAYG data-matching program itself. No risk management or controls framework for its operation.

She recommends that there probably should be some of those.

Quite.

#RobodebtRC

Misuse of ATO data by DHS was raised at the ATO-DHS Data Management Forum and subsequent forums in late 2016, and no-one did anything about it formally. No action items, no follow-up. Oh well!

#RobodebtRC

Deloitte have made recommendations that trustworthy automation must be ethical, lawful and technically robust. When interacting with vulnerable people, specifically, it must be human-centred design.

#RobodebtRC

Wurth makes reference to the Australian AI Ethics Principles. She clarifies that there was no AI present in Robodebt, but the principles outlined there apply to technically-basic automation like in Robodebt. Automation has been used in Government for decades.

#RobodebtRC

HOLMES: It'll be a surprise to some people that there was no AI involved...you'll have to explain.

WURTH: AI is a subset of automation. Recent prominence of AI has brought ethical debate to the area, hence principles are named 'AI', but apply broadly to automation.

#RobodebtRC

HOGAN-DORAN (Cth): You used to work at the ATO, in the 2000s?

WURTH: Yes.

H-D: Would you be in a position to consider further material relating to your report, as it has become available?

W: Yes.

[The document we saw earlier, or something else?]

#RobodebtRC

HOLMES: I look forward to the Department explaining what it was called the 'Mass Fraud Detection Strategy'.

HOGAN-DORAN: I will make inquiries.

The Royal Commission takes their morning recess.

Back in ~15min.

#RobodebtRC

They're back. Angus Scott KC has sought leave to tender some exhibits that they forgot to tender on DAY 4 of the hearings, on NOVEMBER THE 3RD 😂

HOLMES: I remember them well. What were they again?

#RobodebtRC

Louise Macleod is affirmed.

She's listed as the former acting Senior Assistant Ombudsman at the Commonwealth Ombudsman. Now working at the Data Commissioner.

She's been delegated by the current Ombudsman to appear. Worked at the AAT, and has a law degree.

#RobodebtRC

SCOTT: You're familiar with principles of administrative law relating to the lawfulness or decision-making?

MACLEOD: I'm familiar, by virtue of my roles, no particular expertise. Never practiced law or been involved in litigation.

#RobodebtRC

[Scott takes us to the minutes of the 26 May 2016 Quarterly Liaison Meeting between DHS and the Ombudsman.]

SCOTT: Appears to be a presentation advising of the launch of the Online Compliance platform, in other words Robodebt?

MACLEOD: Yes.

#RobodebtRC

SCOTT: Omb. queried the application of the 10% debt recovery fee?

MACLEOD: Yes.

S: Subsequent email on 8 Jun, asking a number of questions about the proposal to automatically apply the fee, if the potential debtor doesn't contact the Department?

M: Yes.

#RobodebtRC

SCOTT: 8 Aug, DHS provided the Ombudsman with its response, including legal advice from DSS about the application of the recovery fee?

MACLEOD: Yes.

[They haven't got a copy of the advice yet but it will be provided over lunch.]

#RobodebtRC

SCOTT: These appear to be an action items?

MACLEOD: This is a snapshot of the Ombudsman's 'Resolve' case management system.

S: Were you involved in the work done in response to the information provided by DHS?

M: Would have been occurring in my team, certainly.

#RobodebtRC

SCOTT: 'DHS has consulted with DSS re: recovery fee, and it does appear open to them given the wording of the legislation', what scrutiny was applied by the Ombudsman to this?

MACLEOD: The DSS legal advice was analysed, Social Security Guide, Operational Blueprint.

#RobodebtRC

SCOTT: Is it the case no external advice was sought by the Ombudsman to scrutinise the correctness of that DSS internal advice?

MACLEOD: That's correct.

S: In your experience, would that happen?

M: From the Australian Government Solicitor?

S: Yes.

#RobodebtRC

SCOTT: The Ombudsman's required to be independent from the executive branch of Government, yes?

MACLEOD: Yes.

S: AGS is part of the executive branch, how do you ensure that doesn't undermine the independence of the office?

M: Still the most appropriate provider.

#RobodebtRC

SCOTT: Why is that?

MACLEOD: They're providing advice across Commonwealth agencies and have a high-level of subject matter expertise.

S: What legal resources did they have in 2016?

M: It's a very attractive place for graduates.

#RobodebtRC

SCOTT: Much experience in judicial review litigation?

MACLEOD: Not during the time we're talking about, no.

S: Judicial review litigation, of course, relates to the principles of admin. law relating to lawfulness of administrative decisions?

M: Yes.

#RobodebtRC

SCOTT: Do you have any knowledge of consideration given to the DSS advice?

MACLEOD: Was reported to me by Nikki Quirk and Aimee Meers. I can't recall being specifically involved in that analysis.

S: Would it be normal for you to be involved?

M: Depends, busy area.

#RobodebtRC

SCOTT: This email is the first set of questions developed by the Ombudsman about the OCI scheme? It represents the beginning of the own-motion investigation. If refers to a large number of calls, what does that mean in terms of the calls being received?

#RobodebtRC

MACLEOD: People could make complaints by telephone, by mail, email, you could attend the office in person. Social security already makes up 2/3 of the complaints, and we saw it almost double between October-December 2016. That's always a red flag for the Ombudsman.

#RobodebtRC

MACLEOD: We've seen it proven time and time again if your customer base don't understand how to engage, or their rights or entitlements, if payments will be affected by changes in policy - you should expect to receive complaints, so let us know.

#RobodebtRC

SCOTT: 5 Jan 2017 email prepared by you to the then-Ombudsman Colin Neave, proposing to conduct an own-motion investigation under the Ombudsman Act. Can you tell us this?

MACLEOD: One the Ombudsman initiates, a systemic investigation, rather than a specific matter.

#RobodebtRC

MACLEOD: A large volume of complaints, unresponsive Department, could also be triggered by an individual complaint that highlights a systemic issue. This was ticking a lot of boxes, DHS seemed very comfortable with it and we weren't sure it accorded with legislation.

#RobodebtRC

SCOTT: 'Seems unlikely these debts will receive judicial scrutiny, as DHS are correcting these decisions without invoking formal review mechanisms'

MACLEOD: When people contacted Centrelink, compliance officers were just going into the OCI and making changes.

#RobodebtRC

MACLEOD: They were never triggering the internal review, DHS was circumventing proper administrative process.

SCOTT: So, they couldn't appeal to the AAT?

M: No, because a formal decision wasn't being made that could be escalated to AAT. They were just tweaking it.

#RobodebtRC

MACLEOD: And beyond that, you're talking about people accessing the welfare system. They don't have the means to take it to the AAT or the Federal Court.

SCOTT: You needed to investigate the matter because of the likelihood of a lack judicial scrutiny?

M: Yeah.

#RobodebtRC

SCOTT: People who are less able to identify their debt was incorrect, and therefore complain to your office...you then sent the notice of the own-motion investigation to Secretary Kathryn Cambpell, outlining scope of the inquiry, legislative authority, accuracy.

#RobodebtRC

SCOTT: Sentence in your briefing for the acting Ombudsman, Mr. Glenn, referring to seeking access to Budget papers, and legal advice?

MACLEOD: We wanted to see the Strengthening Integrity of the Welfare System NPP.

S: Did you end up seeing it?

M: I think we did.

#RobodebtRC

HOLMES: Remember anything of it? Did it answer any questions for you?

MACLEOD: From memory, it raised concerns for us. We talked about it in the outline we provided to DHS on 30 January. I can have a look at that.

[We're having a look at that.]

#RobodebtRC

MACLEOD: It was something around...this was going to create savings because automation of the information-gathering process because there would be a reduction of the 'regulatory burden' on third-parties, banks and employers.

#RobodebtRC

HOLMES: Do you also recall it conspicuously omitted all mention of averaging?

MACLEOD: I don't recall that, no.

#RobodebtRC

[Scott takes MacLeod through the NPP draft with the tracked changes, where the references to averaging were removed by DHS.]

SCOTT: And you can see the NPP that went to Cabinet contains no reference whatsoever to averaging?

MACLEOD: Hmmm. Yes.

#RobodebtRC

SCOTT: And this is the Executive Minute that went to Minister Morrison in February 2015. Do you recall your office noticing the requirement for legislative change? And then subsequently discovering legal advice from DSS in 2014 dealing with averaging?

MACLEOD: Yes.

#RobodebtRC

SCOTT: Here are the comments that DSS made on the brief to Minister Morrison, which were before it went to him.

[McLeod is having a look at it.]

S: The comments are quite critical of the proposal, including that the method doesn't accord with legislation.

#RobodebtRC

SCOTT: Was the Ombudsman's office provided this document, or any draft of the NPP such as I showed you just before?

MACLEOD: This is the first time I've seen this document. We only got the final draft.

[That's big. Commonwealth Ombudsman confirms they were misled.]

#RobodebtRC

SCOTT: If you'd received these documents, would that have altered your investigation?

MACLEOD: I would like to think so. There would have been a 'please explain what this is about', and calling out publicly that this was enough to say it was unlawful in the Report.

#RobodebtRC

The Royal Commission has adjourned for lunch.

We'll be back in 90mins.

1430AEST/1530AEST/1230AEST, for more Commonwealth Ombudsman.

#RobodebtRC

Lmao, obviously that last one is AWST. Imagine if you could edit anything other than individual tweets not in a thread. Or if I could tweet from the mobile app at all without it crashing for the past three days. Imagine making this your job at this point in history.

#RobodebtRC

It's been a source of low-level anxiety that we wouldn't make it to the end of the Commission before Twitter collapsed in a technical and/or business sense. Outages have, blessedly, not coincided. Two days left after today and I can grab the archive.

Lunch time 🥴

#RobodebtRC

Something to look out for in the next few days - I'm hopefully going to provide a couple of reports to @4zzznews before I head back to Sydney on the weekend.

Tweets are good, but I consider the coverage I've provided to community outlets more important in many ways.

#RobodebtRC

Livetweeting is one aspect of what I do. I've come up here to keep networking and promoting conversations more broadly among the community, with my focus on affected witnesses and frontline workers.

There is much work to be done.

gofundme.com/f/robodebt-roy…

#RobodebtRC

Been retweeting a lot of Darren's thread this morning for obvious reasons...this is the highlight. You're investigating DHS *because* you know they're playing games, you simply have to keep probing. Otherwise, what's the point of you?

https://twitter.com/DarrenODonovan/status/1633297050900271106?s=20

#RobodebtRC

Happy International Women's Day to all the women who suffered, resisted, fought and ultimately dismantled Robodebt, exposing themselves and their families to incredible risks in taking on the Commonwealth of Australia, for it was first and primarily women who did so.

#RobodebtRC

The Royal Commission is back for the afternoon session. Here is the stream again:

robodebt.royalcommission.gov.au

#RobodebtRC

We're going through the statutory provisions by which the Ombudsman can make requests. It's an offence not to comply with their requests, under section 8.

#RobodebtRC

legislation.gov.au/Details/C2021C…

SCOTT: Have you formed a view about whether DHS participated in the investigation in good faith?

MACLEOD: I've been shown documents before we broke that I hadn't seen & suggest they didn't participate in good faith, weren't forthcoming with all relevant information.

#RobodebtRC

SCOTT: Do you think the Ombudsman's conclusion that they had sufficient evidence to make reasonable conclusions, with the benefit of hindsight, is one you'd make now?

MACLEOD: I wouldn't hold that now. That conclusion was based on the material we were provided.

#RobodebtRC

SCOTT: Did you feel like DHS and DSS participated in good faith at the time?

MACLEOD: It's an interesting question. Was frustration on both sides. DHS would feel 'here's the Omb. again, I wish they'd go away', and Omb. would feel 'we're investigating DHS again'.

#RobodebtRC

MACLEOD: They would always try to limit the questions we asked and manage the Ombudsman's office. I've often heard the Ombudsman descried as a 'mosquito in the ear'. We are annoying.

SCOTT: How would they manage the Ombudsman's office?

#RobodebtRC

MACLEOD: Designate specific contact person, make us put everything in writing, that sort of thing.

SCOTT: Agencies would take various steps to manage flow of information to Ombudsman, to ensure the agency's message was the only message they were getting?

M: Yes.

#RobodebtRC

SCOTT: You asked, under Section 8 of Ombudsman Act 1976, to provide any legal advice they held about the averaging of income. They were bound by law to provide those documents, weren't they?

MACLEOD: Yes.

#RobodebtRC

SCOTT: Do you recall Annette Musolino? You had contact with her during the investigation?

MACLEOD: Lots of contact.

SCOTT: Here she is provided with the analysis by Glyn Fiveash [which states annual amount cannot simply be divided by 26].

#RobodebtRC

SCOTT: Is this relevant to the legal advice request in the Section 8 notice? Should it have been provided?

MACLEOD: Yes.

S: Does this illustrate they've not engaged in good faith?

M: Yes. It annoys the heck out of me, to be honest.

[I would be somewhat stronger.]

#RobodebtRC

Ms. Hogan-Doran lightly accuses Mr. Scott of being a less-than-prolific Act reader, so we're getting that straight about the powers to issue the notice, and the penalties resulting. Macleod describes Sect 9 as equivalent to powers of Royal Commission, used sparingly.

#RobodebtRC

[We're going through every relevant document on legal advice that wasn't provided to the Ombudsman and see if that annoys the heck out of MacLeod or not, I guess. I'm down. Draft instructions to the AGS? Yup.]

MACLEOD: I don't recall that we narrowed our request.

#RobodebtRC

MACLEOD: I think all of these documents would have been enough for us to say something publicly.

SCOTT: You'd done so in the past?

M: We had an individual complaint about the National Rent Assistance Scheme where we called out DSS for not according to legislation.

#RobodebtRC

SCOTT: There's a provision for the Ombudsman to make a referral to the AAT on a question of law?

MACLEOD: Yes, Sect 10A.

S: And there's never been a referral in history under 10A?

M: No.

#RobodebtRC

MACLEOD: A phonecall with Jonathan Hutson regarding raising the prospect of a referral under this section.

SCOTT: Was this a strategy to influence DHS into engaging, given there's never been a referral?

M: Yes.

S: But you were considering a referral?

M: Yes.

#RobodebtRC

SCOTT: Given the massive scale of potential unlawfulness, if there was ever a case to make a referral to AAT under 10A, surely it was this?

MACLEOD: I think so. We were under time pressure. We had to report by April, pressure from media, independent MPs.

#RobodebtRC

SCOTT: Why April 2017 in particular?

MACLEOD: Time was of the essence. If we wanted to have an impact on the scheme, we had to act quickly. The longer it takes, the more entrenched programs and issues can be, the less ability to influence.

[More a rush, than haste]

#RobodebtRC

SCOTT: Influence being a concept that's used a lot in the Ombudsman?

MACLEOD: Yes, it reflects that we can't make binding decisions on agencies.

S: You can only get the agency to agree to recommendations, and that capacity diminishes?

M: Yes.

#RobodebtRC

HOLMES: But against that, the Ombudsman has massive power, to publicly point out the wrongness or illegality as the case may be, of something that a government Department is doing?

MACLEOD: That's right, Commissioner.

#RobodebtRC

SCOTT: One approach might have been to proceed with the report in the form it ultimately took, but then separately deal with the issue of lawfulness by AAT referral?

MACLEOD: That's one option. The AAT wouldn't have power to make precedents...

#RobodebtRC

HOLMES: [Yes, but any decision would then be made in court]

H: Was there some sort of camaraderie between DHS and Ombudsman? Or perhaps not going up against them in court was novel, were you scared?

MACLEOD: Perhaps we were. We hadn't done so in a long time.

#RobodebtRC

HOLMES: The couple of advices DHS had that you did get from them were so hedged that they weren't much to bolster the program on...

#RobodebtRC

SCOTT: The advice from DSS provided to you answers the question of whether averaging could be used as a 'last resort'?

HOLMES: Well, it purported to...

S: And this was the subject of particular attention among your team?

MACLEOD: We had some doubts.

#RobodebtRC

HOLMES: You're talking in that email about the Secretary's obligations, I don't see how that section has anything to do with it. Neither the Secretary or any delegate of the Secretary expressed any state of satisfaction...

#RobodebtRC

SCOTT: Had you formed a view as to whether DHS were using averaging as 'last resort'?

MCLEOD: Everything pointed to them using averaging, & as the default position.

HOLMES: I have to say Ms. McLeod, I don't understand how anybody ever found this vaguely plausible.

#RobodebtRC

SCOTT: This email opens with the words 'I could drive a truck through the holes in this advice'?

HOLMES: A very sound sentiment, I have to say.

S: Did you agree with that sentiment?

MCLEOD: Yes.

#RobodebtRC

SCOTT: Here's the email with DSS explaining how they came to rationalise their 2014 legal advice with their 2017 advice.

HOLMES: You could drive a convoy through that rationalisation, couldn't you? If you looked at the Executive Minute, that's clear.

MCLEOD: Yes.

#RobodebtRC

SCOTT: One reading of it is an attempt by DSS officers in a self-serving way to justify that a program was kicked off contrary to legal advice?

MCLEOD: With the benefit of hindsight, yes.

S: What about at the time?

M: At the time, thought DSS no longer concerned.

#RobodebtRC

SCOTT: It didn't raise any alarm bells with you, in the context of a media storm and an Ombudsman's investigation?

MCLEOD: We thought they'd made changes.

S: To what?

M: To the process in the OCI.

HOLMES: But how? It just cant be true, to look at the Minute...

#RobodebtRC

HOLMES: None of this makes any difference to the lawfulness of anything, doesn't affect where the scheme falls under the Social Security Act? You don't seem to have been very cynical about this.

MACLEOD: We had doubts. We didn't like what we were being told.

#RobodebtRC

HOLMES: Well, how were those doubts overcome?

MACLEOD: I don't think they were overcome...

[Yeah this is just about going as predicted, not a good look. Not a good look at all.]

#RobodebtRC

SCOTT: Do you think it'd be a good idea for officers of the Ombudsman to have mandatory formal training for conducting formal interviews in exercising their powers?

MACLEOD: Yes, I think so.

S: This was your first own-motion investigation?

M: First and last, yes.

#RobodebtRC

SCOTT: Did you believe this 'bridging advice' about the 2014 and 2017 advices, were the actual advices themselves?

MACLEOD: It was hard to tell. It looked like they'd been cut and pasted, we wouldn't know what parts.

S: I'm going to show you the actual 2014 advice.

#RobodebtRC

SCOTT: Given the puported explanation in Ms. Hughes' email on 1 March 2017, and your email to Hughes and Stephen Avery requesting all legal advices, do you feel misled by not having that provided to you?

MACLEOD: Yes, I suppose I do.

#RobodebtRC

SCOTT: Would that have impacted your investigation at all?

MACLEOD: Yes. It's another piece of evidence we could have put to the acting Ombudsman and said, 'here is DHS doing something wrong'.

#RobodebtRC

SCOTT: Can you offer some observations as to why the draft report, and the final report in April 2017, did not use direct language that averaging was unlawful?

MACLEOD: Myself and the team couldn't convince the acting Ombudsman.

S: You made attempts?

M: Yes.

#RobodebtRC

SCOTT: Did you want more direct language than ultimately found its way into the report?

MACLEOD: It would have been nice to have that section in the report. There was a section we did on examining whether there's legislative basis for averaging.

#RobodebtRC

[It says 'the circumstances in which averaging is authorised by the Social Security Act are narrow']

SCOTT: What did you mean by 'narrow'?

MACLEOD: Referring to different types of income...

HOLMES: Yes, for income like pensions you determine it annually.

#RobodebtRC

['While we understand DHS has used averaging for some time, to our knowledge its lawfulness has never been determined by a court']

SCOTT: Why wasn't this included?

MACLEOD: I couldn't convince the acting Ombudsman.

S: Any reasons?

M: I don't recall.

#RobodebtRC

HOLMES: Amie Meers made some good points here.

MCLEOD: She's a good egg, Amie.

#RobodebtRC

[Looking at the final report]

SCOTT: One reading of the language that's used here, is that it emphasises the accuracy of the system subject to qualifications on recipient engagement, without acknowledging the consequences if those qualifications aren't met?

#RobodebtRC

MACLEOD: Yes.

SCOTT: The tenor of the language is reasonably positive. There's even a suggestion that the risk of over-recovering debts from recipients should be the subject of more thorough research and analysis?

M: Yes.

#RobodebtRC

SCOTT: Consistent with your view, perhaps, that there would be inaccurate debts, but again not explicitly acknowledged, would you agree?

MACLEOD: Yes.

#RobodebtRC

SCOTT: Minister Tudge has then taken advantage of the positive words in the report, untethered from any qualifications or negatives.

MCLEOD: It's definitely unfortunate that the Minister's office cherry-picked the report to spin it in a media release.

#RobodebtRC

SCOTT: And that would apply to how he represented the report in this letter to @ACOSS?

MCLEOD: Yes.

#RobodebtRC

HOLMES: The statement in the report that 'the business rules in the OCI are comprehensive and accurately capture legislative and policy requirements', that was also subsequently used to claim the OCI met legislative requirements. What were you thinking of there?

#RobodebtRC

MACLEOD: The business rules re: how information was gathered.

HOLMES: You're talking about the data-matching process, essentially?

M: Yes.

H: The Ombudsman ended up complaining about that use...

S: You weren't meaning to claim that *averaging* was lawful?

M: No.

#RobodebtRC

SCOTT: How relevant would this information on the number of debts being raised based solely on averaging, if provided, had been?

MACLEOD: Very relevant.

HOLMES: It doesn't look very 'last resort', does it?

MACLEOD: I find it upsetting. That's 76% of the debts.

#RobodebtRC

[Ms. McLeod is given a 5 minute break, as she's found that quite confronting. She had said she was told by DHS that they didn't have any data on that. We will hopefully find out who that was shortly.]

#RobodebtRC

[The Royal Commission has returned.]

HOLMES: You were personally told this by someone at DHS?

MCLEOD: There was an email, I think we looked at it earlier, where it listed the information. We were told in writing. It may have been their comments on the draft report.

#RobodebtRC

HOLMES: Do you want to say anything about your emotional response about this?

MCLEOD: I feel a bit like a failure.

H: Why should YOU feel like a failure? You clearly raised a lot of important issues that weren't taken up.

M: I couldn't convince others.

#RobodebtRC

HOLMES: Well, I've spent most of my life not being able to convince others, of lots of things.

[❤️]

#RobodebtRC

SCOTT: Mr. Hanks has given evidence to the Commission that he wrote you an email ahead of the AIAL conference, do you recall that?

MCLEOD: I don't recall, I did have a phone conversation with him while he was on leave. He let me know he'd be critical of our report.

#RobodebtRC

MCLEOD: He telling me what DHS were doing was unlawful, and I was like, 'yep. I know.'

[Far out. What a shitty position to be in. Scott has completed his questioning.]

#RobodebtRC

Ms. Hogan-Doran is confirming that a footnote in her team's contributions to the Ombudsman's report identifies the relevant case law about the onus of proof (McDonald vs. Director-General of Social Security [1984], for any prolific case-readers)

#RobodebtRC

HOGAN-DORAN (Cth): It's a hypothetical, but what if this passage that they ought to have sought AGS advice made it into the report, what would have happened?

MCLEOD [faraway chuckle]: They would have pushed back. They were pushing back on all of it.

#RobodebtRC

Commissioner Holmes makes one more point that Ms. McLeod is quite possibly being too hard on herself, and thanks her for her time.

She is excused.

Michael Manthorpe PSM, the former Commonwealth Ombudsman, will be the final witness for today via videolink.

#RobodebtRC

Mr. Manthorpe is affirmed.

He was the Commonwealth Ombudsman from May 2017 through July 2022. He's now retired from the APS, but continues to be involved through his consultancy.

#RobodebtRC

SCOTT: Do you recall coming across an article by Terry Carney about the Robodebt Scheme? And a similar article by Peter Hanks?

MANTHORPE: Yes. In general terms.

S: And the Carney article led you to commenting on the legality of averaging in the Omb. 2019 report?

#RobodebtRC

MANTHORPE: The Carney article was certainly one input in my thinking, among others.

SCOTT: Where the Ombudsman has a concern on legality, where there is no judicial basis for doing so, what is the process?

M: There were a number of options available.

#RobodebtRC

MANTHORPE: Given the inability of Ombudsman to make binding decisions, I envisaged that the matter would be resolved through the judicial process. When it became that wasn't progressing, I wanted to understand the issues. I then felt a duty to take that up with DHS.

#RobodebtRC

MANTHORPE: I had a discussion with Musolino and Deputy Secretary Cross in May 2018, where we specifically raised the question of the legality of averaging. The DHS officials pressed back very strongly, and proffered various arguments against us and Prof. Carney.

#RobodebtRC

SCOTT: Did Ms. Musolino represent to you a high degree of confidence in the program?

MANTHORPE: All the DHS officials did.

S: What options are available to the Omb. in that situation?

M: I wasn't asserting the scheme was unlawful, I was testing, raising doubts...

#RobodebtRC

MANTHORPE: A few options, we sent a follow-up email to Musolino to continue this, Ms. Hinchcliffe raised doubts about the averaging. Received a reply that again argued strongly, refuting Carney's arguments. At that time, we had the 2019 implementation report on foot.

#RobodebtRC

MANTHORPE: I thought the 2019 report might be a good vehicle to also raise these questions of legality, and comment on the concerns we had at the time.

HOLMES: Was Ms. Hinchcliffe a lawyer? Did she find DHS' arguments compelling?

M: Yes. We both felt doubtful.

#RobodebtRC

HOLMES: 'Doubtful' might be putting it mildly...

MANTHORPE: Yes, I certainly appreciate that based on how today is going.

#RobodebtRC

MANTHORPE: I considered if I got external legal advice, they would continue refuting it based on the advice they had, and we wouldn't have got much further.

SCOTT: Did you consider an AAT referral?

M: I wasn't sure about it. It would be a significant step.

#RobodebtRC

MANTHORPE: I considered we needed to be very sure before taking that step, considering my predecessor had decided against it, and that the 2019 investigation would advance us there.

#RobodebtRC

SCOTT: This part of the 2019 draft report, if included, would have been an explicit acknowledgement that it was considered in compiling the 2017 report. There was an acknowledgement of 'the benefit of hindsight', recommendations on when to get legal advice.

#RobodebtRC

SCOTT: This was provided in draft form to DHS for comment?

MANTHORPE: It may have been. Don't recall by who...

S: And Secretary Leon pushed back on including that in the report?

M: That's what the email says, yes.

#RobodebtRC

SCOTT: She said 'our position is and remains that the legal position is not uncertain'. Were you aware that the Masterton proceedings had begun?

MANTHORPE: Yes, in fact it's in that section of the draft report.

#RobodebtRC

SCOTT: Do you think the position advanced by Ms. Leon is tenable in that context?

MANTHORPE: I suppose if they'd won, it could have been...

S: Reflect on whether it was tenable?

M: Turned my mind to whether I should make a comment like this re: litigation on foot.

#RobodebtRC

SCOTT: Would it influence your answer at all, if I were to tell you the AGS had already preliminarily advised DHS on the prospects of Masterton? They 'weren't hopeless'?

MANTHORPE: That they might have some hope? It might have, if I'd known. I did not know that.

#RobodebtRC

SCOTT: Did you form a view on Leon's comments about whether the Ombudsman could prejudice the litigation?

MANTHORPE: I'd raised the concerns. I didn't think it likely my publishing those comments would make any difference to their ignorance.

#RobodebtRC

SCOTT: One view is an Ombudsman commenting may have influence in some cases, but wouldn't realistically prejudice any proceeding in the Federal Court, could you comment?

MANTHORPE: Not with depth. I just felt it was the correct course having regard to the courts.

#RobodebtRC

HOLMES: What's stopping you from saying 'there's an issue'? There was lots of public commentary out there already.

MANTHORPE: Reflected on it since, possible other actions available.

H: DHS misrepresented your 2017 report quite cheerfully...

M: I see the irony.

#RobodebtRC

HOLMES: In the absence of anything to the contrary, they were able to maintain their position.

MANTHORPE: In a perfect world, I wish it had been otherwise.

#RobodebtRC

I'm sorry, but we are now an hour and a half over time. This is a bit fucked. I'm not carrying all of this.

#RobodebtRC

There has been no indication that hours would be extended, nor that we are finishing any time soon. This is a bit silly. I've been the only reporter here for some time.

#RobodebtRC

[Anyway. Scott is showing Manthorpe the 2018 draft Clayton Utz advice sought and discarded by DSS.]

SCOTT: Given what Secretary Pratt said in his letter to Mr. Glenn, would you have appreciated being made aware of this advice?

MANTHORPE: Yes, I would have.

#RobodebtRC

SCOTT: Given the concerns expressed in the letter to DSS by the Ombudsman, and given Mr. Pratt's response, should they have provided this?

MANTHORPE: Yes. I would have appreciated more transparent engagement.

#RobodebtRC

SCOTT: DSS' letter to you in responding to your 2019 requests for that report contains no reference to the Clayton Utz advice, nor averaging in any sense?

MANTHORPE: It does not.

S: That's the evidence, Commissioner.

[Michael Manthorpe is excused.]

#RobodebtRC

The Royal Commission is, finally, 100 minutes after the listed finishing hours, adjourned for today.

I have no problem with staying here over-time.

I do have an issue with no-one mentioning it, and important things going unreported after evening deadlines.

#RobodebtRC

I'm only disappointed as the standards are generally so high, and being around has really improved my work and been such a great experience.

I'm glad I hung around in the end, but I'm grimly committed to a degree that worries my therapist 😅

#RobodebtRC

They went so far over that they had to kick me out of the media room so I'm finishing up from the lobby.

See you 1000AEST tomorrow for more deeply-depressing tales from the office of the Commonwealth Ombudsman.

[spooky theremin music]

#RobodebtRC

*why it was called that...