Thread by @DarrenODonovan

Block 4 Day 14 #RobodebtRC Unconvinced.

For painful hours yesterday Ms Macleod spoke to the work of a conscientious investigation team. A report that never was. Why did the office not back her? Answers today.

Initial concept design for the Ombudsman, 1979:

That was gutsy evidence yesterday, carrying that emotion, having wanted it different then having to present it. The best proper officer so far

We have our reasons in some ways: time, lack of resource for aat referral, Commonwealth v Commonwealth. Over to Mr Glenn. #RobodebtRC

‘It was a robust exchange between senior officials’ was how Mr Manthorpe described the 2019 decision to yank the generic comments on legality late last night.
The outcome suggests one side was robust, the other distinctly spongey #RobodebtRC

Btw, I know some of the media coverage around Turnbull had a 'and with that, it's wrapping up...' tone. Today will see 🔥
Even the DSS witness is the 4th attendee of 4 at that key 27 Jan 2015 meeting, where the 'no change...' sentence gets agreed. interesting #RobodebtRC

Haha, Mr Scott, like me, took one look at John McMillan's submission to the inquiry and went...

That's important #RobodebtRC They got him to do up a statement. McMillan noted the importance of leveraging the reference powers to get outcomes in his experience.

Mr Glenn has been delegated authority to release information about the investigation under section 34 of the Ombudsman Act. Ombo evidence could not be compelled, they had to cooperate via that mechanism #RobodebtRC

Scott with the usual contextual openers: Glenn doesn't consider himself a true expert on administrative law, hasn't practiced been public servant for 25 years. #RobodebtRC

Btw, Mr Scott is the pure administrative lawyer in this roadshow. So he takes the Ombo. I'm teaching one of his past case wins this evening in fact: Nona v Barnes (on reviewability). Mr Greggery has a slightly different but #particularsetofskills #robodebtRC

Scott puts the minute that was raised to Glenn, asking for permission to embark on the own motion. Again - it specifically notes that accessing a judicial determination of these debts is unlikely #RobodebtRC

We have arrived at the entry meeting #robodebtRC Watch as the vibe is set by DHS.

Glenn does not recall reference to the PM and Ministers. Does recall them stressing that they were 'investing considerable resources in correcting the public record' #RobodebtRC

"Did you get the sense DHS officials were highly invested in defending the programme?"
G: Yes
Doesn't recall references to politicians' support. Says he didn't feel pressure at the meeting #robodebtRC

He has experienced that type of defensive approach before at DHS.
"DHS tended to be stronger in its advocacy"
#RobodebtRC

Glenn was aware of the media firestorm, and departmental/political pushback in response. Aware 'public position was being advanced"
#RobodebtRC

Scott is putting an 'appearance' about the investigation to Glenn for comment.

Before a text had been developed, to provide a draft outline,
DHS slam that outline, stay up into the late hours doing it #RobodebtRC

Scott noting the sharing drafts of the report for mark up. Do you think, given the way the department was behaving, it might give rise to a 'perception that the office's independence might be compromised'?
Glenn: Rejects. We had a practice of seeking comment
#robodebtRC

"Was it necessary to provide a draft outline of the report, before any text had been developed?"
G: We do so in order to assist the process of developing the report [eliciting information...it had a purpose...it wasn't strictly necessary
#RobodebtRC

The provision of draft report text?
Glenn: fact checking...have we got something wrong? See if there are issues an agency wants to put before us... goes to building an understanding of where the report is going [for recommendations]
#RobodebtRC

Scott: could all that be achieved without allowing the department 'to provide changes in track?'
Glenn: Yes
Scott: you're giving an opportunity to insert words...
Yes
Scott: ...potentially compromising the independence of the office?
G: Don't accept that proposition #robodebtRC

Michael robinson's email now celebrating the:
"opportunity to effectively co-write the report with the Ombudsman office"
Scott: Did it surprise you [saw it only recently]
Glenn: To an extent yes.

Says it mischaracterises a consultation #robodebtRC

Now to Macleod's email before a meeting with DHS, where she raises the possibility of threatening the 10A reference to the AAT
#RobodebtRC
Glenn: there were concerns about lawfulness...I was looking for an avenue to inform myself better.

Glenn does not recall the AAT reference being the subject of discussion with DHS #RobodebtRC

No recollection of using the AAT as leverage, and no recollection of the specifics of the phone call #RobodebtRC says most chats were about access to information, where they were with the investigation.

Describes the timeliness of the provision of information as "pretty good", but there were times we'd have liked it to be faster...
Right. #RobodebtRC

Commissioner asks if DHS were running the clock down.

Once Glenn declared his timeline, DHS clicked into gear in my view. Never do that #robodebtRC

Scott noting again how this was not just any ol' question of law, it was a seismic, near generational in size question of law.
Why no referral?
#robodebtRC

Glenn: referral would need to be fully argued - he took it to be counsel to ventilate.
I was concerned about the cost. and time. that would take.
And the report delivery timeline.
#RobodebtRC

"I was also mindful of where the report could be most impactful"
Which was 'matters of administration' not 'legality'

Ok. Ok. Battling feelings here #RobodebtRC

Glenn's response for me reflects his vision outlined at the 2016 National Conference of Administrative Law, no not that one, the year before. opening page, oversight over compliance #robodebtRC

austlii.edu.au/cgi-bin/viewdo…

"The resourcing question was a live one"
"A range of functions, the need to balance ...the resources across the functions...
Jeepers.
#RobodebtRC

"On the state of knowledge I have now, I might have made a different one"
What's new now?
"A greater understanding of the extent of the legal challenges associated with the OCI system...the S-G"
#robodebtRC

"I was influenced by the fact I couldn't make a clear determination one way or another about legality"

Getting provoked here. What does your statute task you with? #RobodebtRC

"There were doubts".
But nothing was said remember. The report didn't say doubts.
But we'll get to that, the reference is just the start
#RobodebtRC

"Wasn't there a strong prima facie inference there was no legal advice supporting the programme"
That's not the inference I drew...
We couldn't 'land a crisp contrary view'
"I took a path that focused on implementation"
Scott is going to grapple him #RobodebtRC

He moves to "on the basis of discussions we had in the office, I didn't achieve a certain view" #RobodebtRC
Scott trying to pin him down: what were your views on their legals. How could you give them status. #RobodebtRC

Glenn didn't focus on the sequence of events. The common sense fact that they had no legals at birth.
"Wasn't that clearly an instance of maladministration"
"I think it's poor practice, I don't wish to reflect on if its maladministration!"
Mr Scott well done. #robodebtRC

Commissioner intervenes to get him to concede the inevitable, yeah, it's maladministration
The team we met yesterday were apparently, ultimately 'equivocal' on the law, and he wanted to be more 'declaratory" #robodebtRC

He accepts he could have sought legal advice.
"the issue in effect was I was turning my focus towards other issues"
Says the Ombo is subject to the Legal Services Direction (?!) #robodebtRC

Commissioner intervention:
"Not very independent if you have to ask them for advice about what they are doing?"

She is descending on him now. Look out #robodebtRC

Commissioner: "it mattered enormously whether people were being forced to pay these debts on a lawful basis"
Glenn: In retrospective I should have

There we go, inevitable admission. #RobodebtRC

It's not likely to cool here for a little bit. Because now we get to:

Why not at least signal your doubt in the final report?
Why stay silent? even on your account so far?
#RobodebtRC

The law was not a side issue, it was not something to park, defer, leave to others, when that report came out we all tore through it looking for the law.

Nothin' #RobodebtRC

We are on the draft that was done up by the four women on that investigation team.
First: the attack on accuracy, the direct recommendation for modelling levels of overcalculation
Final report: watered down
#RobodebtRC

Even if you were focusing on implementation, that was an implementation issue no? Accuracy. like literally what the debts were #RobodebtRC
"What objective standard did you have when you adopted the [best information available position]?

Unable to nominate his basis for adopting that principle.

these were words that got hammered into every press release for the next two years. Hank and co installed them into every piece of coverage #RobodebtRC

He's pivoting to the fact they got a 'information gathering' recommendation in.

It was a mercy discretion in exceptional circumstances Mr Glenn, they used it 1000 times including AAT ordered, that's like what 200-300 people tops #RobodebtRC

Accountability has arrived now.
Scott: putting the original draft which pronounced averaging as of uncertain legality

Macleod and team also nicely hammered DHS thinking it was authorised by the Guide to Social Security Law.

This would've put DHS on their heels. #RobodebtRC

Can you explain?

Glenn: "It comes to the [earlier one]...on material before me I was not satisfied that we could make a declaratory statement on legality"
#robodebtRC

Just makes a declaratory statement of: ultimately I decided not to there. I wasn't satisfied. And you just want to ask
why
why
why
why
Because this was everything for people like.
#RobodebtRC

Commissioner: "It's frustrating Mr Glenn because it's absolutely correct"
#RobodebtRC
Your staff were right...
there's no actual defence here like

"do you now accept that by not squarely dealing with the inaccuracy...and the question of lawfulness...you provide those with an interest in defending [robodebt] an opportunity [to run a narrative]? #robodebtRC
He regrets phrasing of quote I led with yesterday

He regrets not saying
"I am not dealing with the legality question"

I mean volunteering another failing.

#RobodebtRC

A question for fairness

You failed to display the level of independence appropriate to your role

Glenn: rejects.
#RobodebtRC

We have had Mr Glenn and Mr Manthorpe (a temporary and former ombudsman). Both failed, ultimately, to reference doubts they held in reports.
Mr Anderson, our current Ombudsman next to address structural issues arising, I imagine #robodebtRC

How many of you know of Mr Anderson folks?

Exactly the way governments [of all stripes] like it.

Google Deborah Glass or Emily O'Reilly for alternative figures #robodebtRC

As Mr Hardiman showed last week, coming from the APS doesn't mean you won't fight. This is a chance for Mr Anderson to cut to realities now, on a platform the office has not had for some time. #robodebtRC

I'm showing my Irishness with the Emily O'Reilly reference. The equivalent of such an appointment in Australia would be making Kate McClymont Ombo. Skills to achieve cut-through. #RobodebtRC
ombudsman.europa.eu/emily-oreilly

I like my regulators to be in their last job or have a fall back, flexible about background
I like them to have a seconded secretariat- fighting for budget for your beloved staff weakens you
Ombo can do good work, but pure enforcement?
Think: Hanks with a title #RobodebtRC

Mr Anderson, the Commonwealth Ombudsman, has made a submission on "learnings". Can recommend the section of any university library marked: "Regulatory Capture"
#RobodebtRC

"Extremely disappointing"
Anderson: notes they used section 8, not the formal compulsive powers.

Comments lately seem to indicate tension over whether section 8 is covered by the words "required in pursuance to the Act" used in Section 36...
#robodebtRC

Ombo wants to get direct access of IT systems similar to the Auditor General, think there's a lacuna in the Act
It's nice you came with a shopping list Mr Anderson, what do you have to say the people. The people you were meant to serve?
#RobodebtRC

The Ombo is charged with investigating our most powerful enforcement agencies.
They got done over by the *motley* crew in who held that January 15 meeting.
Those who've watched this, know:
That's.
Devastating.
#robodebtRC

How many own motions you doing these days Mr Anderson?
#RobodebtRC

Mr Anderson will be here until 2027. He won't have a better moment to speak on the broad theme of
'unleashing a new era of enforcement to meet a generational failure of governance'

Standard 'chastened regulator reflects' fare so far, even DHS 2017 would nod along.
#RobodebtRC

"I have a budget...budgets are always tight..."

It's not estimates Mr Anderson, for heavens sake. Be more Hardiman. #robodebtRc

"understand I have the appetite to push back'
433,000 had their lives changed by the government, and we're getting this 'investigative mindset' system talk.
#RobodebtRc

Scott: Where there is a contested issue of law...[what'll ya do]

"that's certainly one option...that's one option I'm willing to go down if necessary..."
A soaring reassurance there
#RobodebtRC

Worth noting that post 2017 the Ombudsman has not referred anything it has encountered, but six years later, are volunteering this willingness to do so #RobodebtRC

Mr Anderson did not take the opportunity to proffer an apology on behalf of the institution
#robodebtRC

For many people that was the only interaction with the Ombudsman they will ever have their lives. Chains of fobbing off back to DHS accompanied that main report. A toxic legacy #robodebtRC

Mr McBride is saying the NPP did not ask for authority to do averaging through legislative change

This will get questions.
What did he think they were trying to do....

#RobodebtRC

I've been utterly bamboozled by Mr McBride's train of thought. How can you think it's not averaging indeed #RobodebtRC

Like this is what, the 15th witness, that has been through this 'isn't it averaging' cycle. Signs of exasperation amongst the Commission.

They've spent more time with these 2015 policy documents than their friends for the last few months.
#RobodebtRC

The Sun has dawned
The penny has dropped
It's averaging
Holmes says it's lunch
#RobodebtRC

Mr McBride has no recollection of the meeting the RC has positioned as 'key'. Exasperation adjourned, but will now resume. #RobodebtRC
He refers to the NPP as a 'relatively minor measure', which Greggery jousts with him over.

Greggery is like: this is the meeting where legislation needed becomes the no legislation needed. What happened #RobodebtRC
"I've gone through the records and I saw mostly final copies"

Keep any notes?
"If I did they'd be in diaries long since destroyed since I left DSS"
No recollection, the cupboard is bare #RobodebtRC

This is tortured. Mr McBride on his own evidence, was unaware of the first 100,000 averaged debts. Unaware of interim manual. #RobodebtRC Now concedes:

"You may well be right"
"Perhaps I was mistaken"

McBride accepts DSS did not ask questions of the NPP. "We weren't forensic'. Insists they didn't acquiesce to averaging though
He didn't think they were seeking authority for averaging, he invested in the fig leaf sentence of 'no change..'
#RobodebtRC

Then. says in the intervening 18 months, until January 2017, he was unaware of averaging and 'to his knowledge' no-one in DSS had knowledge of averaging.

Obviously you place that alongside the evidence of Wilson, that forum with the sticky note etc #RobodebtRC

" more digital and sophisticated way".

No,
It's a circle of annual data being smashed into 26 square fortnightly holes. #RobodebtRC

“It was a very busy year”
Looks at Holmes…
“I know you look at me incredulously”
Says he doubts they even remembered the executive minute a few months later
#RobodebtRC

Mr McBride stepped right in front of the absolute avalanche of work the commission has done here. Justin Greggery is amazing in full flow #RobodebtRC

Commissioner rounds off the overarching theme that saying something is not your “active responsibility” ultimately culminates in acquiescence
#RobodebtRC

Been travelling to teach a class but Mr McBride was a cypher for the “DSS were had” theory. The pressure applied reflected the work of four blocks all flowing right at him. The alternative theory of DSS 2015 acquiescence was also put. Final report will rule #RobodebtRC

Even separate from that there was a clear aiming at “on paper responsibility”. Mr Greggery secures the DSS office floorplan to underline respectfully that “moving” roles is not an ethical fallback #RobodebtRC broader lessons for APS

That Britton presentation at that Forum continues to be unanswerable for DSS attendees. McBride could only say he didn’t process it at the time, couldn’t explain how it didn’t set alarm bells ringing #RobodebtRC

Pleased Mr Kerr Brown from the ATO didn’t cop anything further, he spoke honestly 1st time around. Smoke continues to issue re state of satisfaction underpinning the initial data Match. The ato bits will be the last read on report release but will still be hot. #RobodebtRC

Indeed people could see Mr Kerr Brown and Mr Fawcett having genuine human emotions on that First Dog email. We welcome those #RobodebtRC