The robodebt royal commission report has shown for the first time how two Coalition government scandals intersected to create an unrelenting attack on the welfare of Australia’s most vulnerable.
In so doing, it has revealed the true impact of the Coalition’s all-out assault on the independence of the Administrative Appeals Tribunal (AAT), and its allied moves to nullify the work of a once-powerful independent body that had oversight of the tribunal. The actions destroyed the mechanisms of accountability for government decisions, even as the government enforced an unjust regime of accountability on welfare recipients.
Buried deep in the 1000 pages of the robodebt report delivered by royal commissioner Catherine Holmes last week, we learn the story of how the AAT was rendered impotent as an effective guard on the rights of social welfare recipients. This was due in part to actions tracking back to former prime minister Tony Abbott.
Abbott can be grateful that so far it is one of his successors as prime minister, Scott Morrison, who has taken nearly all the heat from the robodebt scandal.
As the royal commission report chronicles, the Abbott government took an early decision to disband a body called the Administrative Review Council (ARC), which had the function of watching how the administrative law was being applied and advising the attorney-general.
The council, had it not been abolished after the Abbott government’s “efficiency review”, would have been in a position to raise the alarm on robodebt’s illegal use of income averaging to calculate debts. The key flaw in the robodebt scheme was revealed in decisions made at the AAT from 2016 onwards. However, the government systematically ignored those findings and then moved on the AAT members who made them.
What happened to the ARC?
The Administrative Review Council was established under the legislation that created the AAT. It brought together a powerful collection of human rights guardians and accountability experts, eight members in all. They included the Commonwealth ombudsman, the president of the Australian Law Reform Commission and the Australian information commissioner.
Gillian Triggs, then president of the Australian Human Rights Commission — and a constant Abbott government target — was a statutory member of the council. She had previously served as dean of Sydney University’s law school. Triggs told Crikey in 2019 that she had been “very honoured” because the council had “such an important role as a check and balance … on government behaviour”.
Triggs recalled that nothing happened for the first few months after her appointment. When she asked the head of the attorney-general’s department why she hadn’t received any information about meetings, she was told: “Oh, don’t worry, it hasn’t met for a long time. And we don’t have any plans to meet in the future.”
The robodebt royal commission found that the council had been defunded and “effectively discontinued” in the 2015-16 budget, as part of the smaller government initiative of the Abbott government, which Abbott billed as an attack on government red tape. Holmes noted that this was the same budget that brought robodebt into being. The government never repealed the legislation; it simply allowed the council to die quietly in the dark.
The royal commission has recommended that the ARC or a body with similar membership and functions be reinstated, “with consideration given to a particular role in review of Commonwealth administrative decision-making processes”.
The AAT’s heroes
The killing of the ARC is but one part of the story.
A former AAT member, Professor Terry Carney, who made an early finding on robodebt’s flaws in March 2017, was made to pay for his actions. Later that year, Carney found himself out of a job when his contract came up for renewal. Carney is one of Australia’s most highly regarded social security law experts, but that didn’t save him as the federal government moved to install its political friends in key positions throughout the AAT. Carney was never given a reason for his removal.
Carney later wrote: “It surely behoves us all to reflect on why it should be that taxpayers apparently receive a higher quality of justice than do social security clients. For the rule of law supposedly applies equally to all.”
Carney was to become a public face of all that was wrong with robodebt and the AAT. Less well known is that others were also forced out as the government accelerated its push to appoint its friends and ideological fellow-travellers to the AAT division responsible for robodebt.
As Crikey detailed, the body count included Carney’s colleague Dr Andrea Treble, who also concluded in March 2017 that there were flaws in Centrelink’s calculations. By September that year she too was gone.
In 2019 the government moved on the most senior member of all: James Walsh, division head and deputy president of the AAT since 2015. Walsh was a career expert on the ins and outs of social security law and had spent close to 20 years on social security appeal tribunals. Before that he had been a lawyer with Centrelink.
Walsh was ultimately replaced by a former Liberal senator, Karen Synon, who had no comparable experience in social security law. Synon was appointed by then-attorney-general Christian Porter. She was later promoted to a $500,000-a-year role at the AAT.
Synon was later counselled by the AAT for publicly supporting the reelection campaign of former treasurer Josh Frydenberg for the seat of Kooyong in 2019, apparently in contravention of the AAT’s code of conduct, which stipulated political independence. Synon repeated the offence in the 2022 elections by displaying a Frydenberg campaign sign outside her house.
The AAT was intended to be the low-cost, independent umpire to give vulnerable people a voice against government overreach. But as the royal commission report shows, the degradation of the AAT aided and abetted robodebt long after it should have been halted.
The Albanese government put a stop to that particular rot soon after taking office last year by moving to replace the tribunal altogether.
