The basics
What is robodebt? Robodebt is a compliance program which asserted that welfare recipients owed debts to the commonwealth on the basis of assumptions including using their annual income to estimate their average fortnightly income.
What was wrong with robodebt? Since debt notices were initially automated and generated at scale from 2015, whistleblowers came forward warning the system was unfair and effectively reversed the onus on welfare recipients to prove they did not owe a debt, including in the earliest reporting of the scheme by Guardian Australia in December 2016.
In 2018 Prof Terry Carney, a former senior member of the administrative appeals tribunal, warned that income averaging was not a lawful basis to establish a debt.
The government admitted this in a federal court action in late 2019, abandoned the use of “income averaging” and settled a separate class action at a cost of $1.8bn in robodebts that were wiped or refunded.
Why is there a royal commission? In opposition, Labor promised a royal commission into robodebt, which it established in August after it won office in May 2022.
Who is the commissioner? Catherine Holmes.
Who has appeared at the royal commission? Several ministers including Scott Morrison, Alan Tudge and Stuart Robert, top public servants including Kathryn Campbell and Renée Leon, advocates, whistleblowers and many victims.
What is happening on Friday? Holmes is meeting with the governor general on Friday morning to submit the report, which is expected to be tabled and made public shortly after.
Six things to look for
1. Will there be referrals?
Royal commissions are empowered to make referrals to other bodies including police, prosecutors, professional accreditation bodies and the National Anti-Corruption Commission.
The robodebt royal commission, which was due to report by 30 June, received a one-week extension to 7 July, which will allow it to make referrals to the Nacc, which was established on 1 July.
However, the commission has made an order which directs that communications in the report’s confidential chapter not be published, which suggests that some or all of the referrals will not be public knowledge on Friday when the report is tabled.
The order states that it does not prevent “individuals who have been the subject of a communication … from disclosing the fact that they have been referred to their professional advisers, managers, employers, associates or any other person”.
2. Will there be adverse findings?
This will be known when the report is released.
While only Commissioner Holmes can make such findings, the evidence to the commission has raised eyebrows in government.
The government services minister, Bill Shorten, has said the royal commission had “exposed a soullessness and hollowness in parts of the public service and ministries which shocked us”.
The foreign minister, Penny Wong, representing the prime minister, told a Senate estimates hearing in May that what had been heard at the commission had “been beyond what we might have envisaged” and was “quite substantial”.
The former Department of Human Services secretary Kathryn Campbell told the royal commission in March she accepted federal cabinet was misled when the robodebt scheme was approved.
Campbell admitted to a “significant oversight” when a submission to cabinet falsely said there was “no change” to how debts would be assessed under robodebt but rejected suggestions it was deliberate.
3. What did Scott Morrison and other ministers know and do?
Ministers said they were never briefed by the public service about robodebt’s legal issues until late 2019.
That includes Morrison, who ordered the scheme be established in 2015, and Tudge who oversaw it under the most scrutiny in 2017.
Conversely, Robert told the commission he had serious concerns and pushed to end robodebt (despite publicly defending it) when he was minister in 2019. Public servants flatly disputed this.
Holmes will have to test those claims, and may also offer a view on whether ministers were too passive and should have asked more questions about the program, particularly when it was shrouded in controversy and top legal minds were raising concerns.
Legality aside, there is the crucial question of why ministers allowed the scheme to continue despite reported suicides and other complaints from victims and advocates.
4. Deception, collusion, a public service cover-up?
Two departments were responsible for robodebt: social services and human services.
Based on the evidence, Holmes will have considered whether officials knowingly launched an unlawful program by deceiving counterparts from another department – or whether the two departments colluded to get the proposal up, and if so whether this could have been due to direct or implied pressure from ministers.
Then there is the question of whether there was a cover-up: the commission heard both departments received legal opinions that robodebt would be unlawful. Yet the “draft” opinions were not finalised, often kept from superiors and apparently not shared with ministers.
5. What sort of further repercussions are there?
According to evidence in January the Coalition government was warned that persisting with the unlawful scheme could put them at risk of civil claim for misfeasance in public office.
Misfeasance involves a public official exercising a power in an invalid way or lacking lawful authority with an element of “bad faith”, which can include “reckless indifference” as to whether the act was beyond power.
In April Shorten noted that there could be disciplinary consequences for public servants if they were subject to adverse findings.
“I’m sure the secretary of prime minister and cabinet and the secretaries committee of the government will be working out what to do about current public servants either in existing positions or who might have moved to other positions within the public service,” he said.
6. What could it all mean for victims and other welfare recipients?
The government has said a crucial objective of the commission is to ensure robodebt is never repeated.
Holmes is likely to make recommendations for Centrelink processes, the broader public service and potentially also the commonwealth ombudsman and other watchdogs that were found wanting during the hearings.
In theory, royal commissions can also recommend redress. Robodebt victims have received refunds and some interest payments, though the latter was not compensation for other harm caused.
Watch out, too, for any commentary from Holmes about the role of the media and politicians in perpetuating damaging “dole bludger” rhetoric.
• In Australia, the crisis support service is Lifeline 13 11 14. Help is also available at Suicide Call Back Service 1300 659 467; Kids Helpline 1800 55 1800; MensLine Australia 1300 78 99 78 and Beyond Blue 1300 22 4636
