Thread by @chrisrudge

At first blush, this is very well-rounded: 57 recommendations ranging from appointment of chief counsel process changes through to creating a statutory duty to assist in respect of the Cth Ombudsman. #robodebtrc

An obvious rec made is that all NPPs (new policy proposals) should be accompanied by legal advice. This was one of the most glaring problems with the NPP process here, where Ministers Payne and Morrison were able to say no legal advice had been received opposing the program.

The report is beautifully done; the introduction recounts the establishment of DSS in 1939 -- some 8 or so years before the benefits power was established in the Constitution by referendum under Ben Chifley's PMship.

To my personal dismay, the Keating decision -- which is so important in the modern history of welfare -- is only mentioned twice: in quoted recounts of the evidence. It is not subject to any comment. That's a loss for my personal mission. Alas, I read on.

The NPP was misleading, the Commission finds; it 'had the effect of' being misleading. That's a fair measure under an intentional mislead.

As noted, 'The Commission is unable to conclude that either Mr Ryman or Mr Britton intended to mislead Cabinet when they were involved in the removal of the reference to income averaging from the NPP and the
insertion of the “no change” statement.'

But, wait. Mr Withnell is subject to findings of deliberate misleading. That is quite condemnatory.

The Commission, perhaps surprisingly, also make findings about Ms Golightly's knowledge or intentions (Ms Golightly is deceased). In less condemning terms than for Mr Withnell, the Cmsn finds she was aware that the NPP was misleading.

Findings with respect to Ms Campbell's knowledge and state of mind are relatively strong too. She knew of the misleading effect of the NPP but chose to stay silent.

Findings less condemnatory for Ms Payne: she was 'entitled to regard the assurance she received in the NPP as sufficient. There was no reason for her to anticipate that DHS officers intended to implement the NPP by the use of income averaging contrary to the language of the NPP.'

This is the big ticket item. Mr Morrison is effectively found to have facilitated the misleading of Cabinet by failing to make an obvious inquiry (regarding the need for legislative change; ie, whether averaging would need to firmed up by an amendment to the law).

The commission puts this finding in quite unambiguous and what might be called sober, straight, and business-as-usual terms of legal disapproval or opprobrium:

The chapter titles have a bit of poesy to them. One might wryly wonder whether chapter 9 describes a process or a person?

Findings with respect to Mr Tudge regarding the A Current Affair appearance are dismissive, noting that he 'knew that conflation of fraud and inadvertent overpayment [had] occurred' as a result of his appearance.

Chapter 8, including its title, really emphasises the extent to which, from late 2016, the #robodebt train ghad gathered such a pace as to be unstoppable. The Report, perhaps mercifully for Mr Tudge, records that he knew he had been appointed to manage robodebt:

Findings with respect to Mr Porter seem to be set at a very high standard, as one would expect concerning the first legal officer of the Cth. It is unambiguously stated that he proffered information that was 'wrong' in his role as AG:

while the Commission fairly says Mr Porter cannot be criticised as Acting Minister for Human Services, it draws a sharp distinction between that 'immunity' and his other role -- as Mst for Social Services.

The big issues, it seems, with respect to findings about Mr Porter, is that the Report virtually describes his 'satisfaction' as to the lagality of robodebt as either 'irrational' or, if one considers the alternative, non-existent. This, I think, is quite a serious finding.

There are further statements about Mr Tudge in Chapter 6(3). In effect, it is said that his attempts to refine the system were about 'saving face' rather than actually improving the system (or setting aside robodebt):

In Ch 6(8), further is said about Mr Tudge. In general, the Cmsn takes a judicious view of Mr Tudge's position. He was effectively, it seems, the PR manager for the scheme, and this was a condition, it seems, of his appointment. But he still did not consider changing the system.

Ms Campbell is subject to findings in ch 9(2.2) that she did not discharge her responsibility to engage with concerns raised by internal whistleblowers or to consider evidence of false statements being made by the department:

Chapter 9(12) is devoted to the traumatic theme of suicides associated with the scheme. Findings are made that Mr Tudge did not review the scheme as a factor relating to the most unfortunate deaths of two wonderful young people (my gloss):

In ch 9(13), the Cmsn expressly rejects the evidence Ms Musolino, who said she relied on a colleague to collate and provide legal advices. The Cmsn finds that no such request was made. This is quite condemnatory in my view.

Sorry; I have been getting all the chapter numbers wrong; the above was ch 6(13). Working on screen...

The Cmsn makes unambiguously scathing findings about DSS's dealings with the Ombudsman, which go particularly to Ms Wilson's conduct. Dishonesty is called out without caveat.

In a notable run of paragraphs, the Cmsn narrates the relationship b/w Ministers' media appearances/performances and the internal legal analysis at DHS. Basically, bc the AG/Govt position was that robodebt criticism was 'misinfo,' the legal position within DHS had to follow suit!

Mr Finn Pratt, DSS Secretary, is also subject to findings that he failed to make independent inquiries as to the legality of the scheme. I personally thought that Mr Pratt might not face opprobrium given his polite evidence of being unaware; but not so:

Okay; I'm taking a wider view of it now. I want to read it a little more globally. Notably, the report confirms that the Cmsnr did in fact make express request for more time to refer people to the NACC. It contains the request letter.

One irony is that, despite so much said agonizingly about whether the Briginshaw method applied in the AAT with respect to welfare disputes and appeals, Cmsr Holmes, unsurprisingly to admin lawyers, expressly applies the Briginshaw 'standard' as against Ministers et al:

Okay folks; work duties call! I'll have to leave it there for the minute. I am still available for media inquiries, but must attend to other matters off Twitter for a bit.

Briefly jumping back in to underline the Cmsn's discussion of Mr Roberts' public comments -- incl the infamous 'only 0.8 robodebts are real' claim. This was a big claim that totally diminished complaints' cases. Analysis of the claim by the Cmsn finds it untrue and misleading.

Another surprise is that a very well-regarded evidence-giver, Prof Renee Leon, is subject to findings that the 5-mth-long delay in obtaining legal advice from the SG was unjustified and she had responsibility to obtain it in a timely manner.

This is not a criticism but an observation. The #robodebtrc report is not a technical documents. ADEX debt schedules are not mentioned other than in the addendum of the AAT summaries; and the whole question of net versus gross income reporting is unaddressed. Of course ...

..., the Commission could hardly do the homework beyond what was given in evidence, and TORs focused on the performance of people rather than the technical aspects of the calculation methods. But one of the reasons why so many people close to robodebt are saying that this is ...

... not about AI or automation (etc) is not just b/c that is correct (which it is), but because there's a lack of technical detail about how robodebt occurred at the technical level -- using MultiCal, ADEX, EANS reports, and the net-to-gross calculator (from 2017). The ...

... silver lining to this focus, of course, is that the Report clearly makes the question of whether automation was the problem mott in any event, as it focuses on the failure of responsibility at all levels. But for those who are into AI ethics and so forth, it might ...

... not be the most illuminating technical document. Contrary to what some think, my view is that you can speak about the very low-level tools used to calculate robodebts as having some kind of relevant automation component (a 'robot'). But it's more steampunk than digital!

*moot!

Unfortunate typo in the title page for ch 8. They've left out 'on' so that it appears that the title tells the story of the robodebt 'rolling' -- as in, I guess, folding!

Just as I noted the poesy of the titles earlier, it is also notable that the titles are very suggestive of findings that the Cmsn does not even make formally. Take ch 8(4), titled 'Happy Days,' connoting the extent to which PwC were happy with the work they got to do.

And it's not only the titles that have poesy; the body also has poesy -- and drama! From the Closing Observations (and Hamlet, of course... ):

Probably my favourite run of paragraphs so far. 'This series of disparate and unsatisfactory answers would have the makings of a child’s nursery rhyme if it were not so serious.'

Very impressed with the recommendation to repeal s 34 of the FOI Act 1989 (Cth) and underlying arguments for that repeal. That would establish an effective presumption against exemption that would need to be overborne by arguments as to public interest non-disclosure:

Could I persuade those inclined to economic determinism and neoliberalism and its cousins -- and otherwise (or because of that) uninterested in the #robodebtrc -- to read only these two most pithy lines:

It's amazing that, even though the #robodebtrc devotes only two paragraphs to this apex concept, they pay it adequate (if not apex-appropriate) attention. The idea of an 'income-free area' is really what makes many of the robodebts so stunningly mathematically erroneous.

Unfortunately the Cmsn does not really capitalise on its clear knowledge of this concept rto demonstrate how it works in pracrtice. For that, you have to go to page 16 and the evidence of Collen Taylor. There Taylor explains that income averaging deprived recipients of the ...

... operation of the income-free area provisions; this benefit was usually described as an 'income bank benefits' or 'credits.' When you did not earn any income, you earnt credit. This credit could offset reductions that applied if you earnt over the ordinary income-free area.

When a person's income was averaged, and therefore denuded of its rollercoaster up/down lumpiness, it was deprived of the underearning fortnights where credit was earnt that could offset the reductions for high income fortnights. When you averaged, you removed the actual benefit.

For some people, averaging the income did, depending on the total amount of income, put their debt right under the threshold of income credits so that they never earnt any, the whole year, and yet put the income higher than the income-free area, so that there was reductions too.

The lack of earnt credits, combined with the reductions, resulted in a debt that was radically higher, and often completely non-existent, compared to the calculation that would have occurred if the credit/debit system of the ordinary income-free area was applied. This was ...

... really one of the most fundamental reasons robodebts were so glaringly obvious to people who had them attributed to them. A person who worked a lot but only in university holidays was a perfect candidate for the averaged fortnightly figure making their entitlements ....

... much lower than was in fact the case. The calculation made it look like they were not entitled to Youth Allowance for almost the entire year, despite the fact they would have months of complete unemployment while studying during the semester. Very plainly erroneous.