Well, here we go.
Day one of the Royal Commission into Robodebt has started in Brisbane.
Looking forward to seeing some ex-ministers finally having to answer questions.
Yes indeed.
Government departments failed to obtain high-level external legal advice about Robodebt despite their own lawyers questioning the legality of the scheme more than a year before it was implemented, a royal commission has been told.
âOne such advice obtained by the Department of Social Services from its internal legal department in December 2014 concluded and I quote: âThe proposal to smooth a debt amount over an annual or other defined period may not be consistent the legislative frameworkâ.â
Which is what I predicted upthread in March 2019.
If the decision and those responsible have wrapped it all inside âCabinet In Confidenceâ can the RC override that and have the documentation of who and how the decision was made produced?
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Of course ex-ministers could decline to answer questions citing cabinet confidentiality.
But the cabinet documents relating to Robodebt could be released to the RC anyway.
The precedent for this happened when the new Coalition Government led by Abbott released the old Labor Governmentâs cabinet documents to the RC looking into the âbotchedâ roof insulation scheme.
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Exactly. As the reigning government, basically all the documents (whether cabinet or otherwise) are available to it.
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Well this is going to be interesting then. Were any smart enough to keep their (metaphorical) fingerprints off the papers, or at least their signature? Did any record their dissent but keep schtum in public?
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And this is a good precedent? While I do not necessarily agree with the lengthy period of Cabinet confidentiality, I have a problem with a partisan decision to override it for âthe other guysâ but not âourselvesâ.
I also have a problem with politically motivated Royal Commissions such as that regarding the roof insulation. (The current RC is absolutely necessary.)
The slope is slippery.
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Well, when the public servants hand the documents over to the current government, we will know.
Indeed. It is difficult to avoid the conclusion that having a Royal Commission, as distinct from some other investigatory process, is designed solely to score political points i.e. to gain political advantage for the government of the day.
The use of the powers of government to further the interests of the government of the day certainly has precedent, both here and overseas, but it is a bad direction to be going in.
My own personal view is that we are having too many Royal Commissions period. It is becoming an overused mechanism, and thereby loses some of its impact. Perhaps each (3 year) term of parliament should have a quota of one RC that it can initiate. Therefore use it wisely. 
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Perhaps if we have an adequate federal ICAC it wonât be necessary. Such a body takes away the trigger from the party machine(s) which seems a popular reason to worry about having RCs.
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âŠwith the powers to investigate the basis for which a Royal Commission was established?
There are actually some useful Royal Commissions, but unfortunately a fairly large proportion of their recommendations gather dust.
31 years after the final report in 1991, the deaths have not slowed.
Royal Commissions are incredibly expensive and resource-intensive. It would be nice to know that my money was not simply being used to score political points.
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Possibly a standing corruption commission will be more cost effective as it doesnât need to pay the overheads of setting up and taking down an organisation for every investigation like a RC.
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RCs are commissions of inquiry. Called for by Governments.
They are not about investigating corruption. They are not about prosecuting criminal activity.
They have the powers to call for evidence by testimony and documents that some may want to not freely give. Not unlike the powers of courts, but not involved in criminal cases.
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Ministers swear to well and truly serve the people of Australia. In common law it is an offence to cause or incite others to break the law. So if a Minister requires the public service to act contrary to the law that is not corruption?
Any lawyers reading here please jump in.
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There could occasionally be overlap between âcorruptionâ and the subject matter of an RC but why not start with the above-linked RC as a test case? Where is the âcorruptionâ in Aboriginal Deaths in Custody?
With a suitably corrupt definition of âcorruptionâ maybe you could get there but really they are two different things serving two different purposes.
Depends which people though.
You canât well and truly serve all of the people all of the time. Sometimes the interests of one group of Australians are in irreconcilable conflict with the interests of another group of Australians. You as the government have to make a decision and with certainty at least some Australians will be unhappy with the decision.
For sure sometimes Ministers genuinely fall short. That isnât necessarily criminal and it isnât necessarily corruption.
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The Robodebt methodology used was found to be unlawful, that is not supported by laws prescribing that the particular method used being sound and to be followed.
It was never illegal, that is breaking any laws that would proscribe such methodologies.
There is no crime to be investigated.
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A bit of a digression but ⊠this could easily lead to the conclusion that the only thing the former government did wrong was not amend the laws to specify that this is one of the valid methods for assessing a welfare recipientâs income.
So it could still lawfully happen in the future if a legislative amendment is forthcoming. (That of course has nothing to do with the âroboâ aspect of this.) And the messaging and counter-messaging for such an amendment are really really obvious.
They could even have gone further and specified that the income for welfare purposes is to be taken as the maximum over each of the valid methods.
One possible first step in making this lawful could be to take it out of the legislation and put it in regulations (less fraught to amend) or, typical government, take it out of both and make it ministerial discretion within the limits of âany reasonable methodâ for determining income.
Or they could go the whole Part IVA and say that the relevant government department or agency can determine your income to be whatever they like even if that departs from reality.
Does that mean there was no corruption?
I think there is an excellent chance they were told it was wrong as the legislation stands and should either abandon the plan or amend the legislation. They did neither. We will find out fairly soon.
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It depends on your definition of âcorruptionâ. For my definition of âcorruptionâ, no, there was no corruption.
Many criticisms are possible but applying âcorruptionâ too widely does not help.
Or, more precisely, they had one or more legal opinions as to whether it was consistent with the law. Unless it actually goes to court there is no finding either way.
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We have been down this path before. I doubt that Joe Citizen would agree that a Minister directing officers to go against the wording of the Act and precedents of decades would agree.
This issue has gone to court and to tribunals (SSAT and AAT at least) that stand in place of courts in many ways, and that have their own lawyers, many times. The public service keep precedents on such matters going back the to establishment. Clients have disputed their overpayments many times and, as far as the interpretation of the method of calculation goes, the tribunals and courts have always sided with the departmentâs interpretation of the Act.
So implementing a system that reversed all that and hoping to not be challenged in court was a very courageous decision Minister.
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Yes but that is always after the fact. In terms of âthey were told it was wrongâ, it had not gone to court.
