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RICK:

From Schwartz Media, I'm Rick Morton, and this is ‘Inside Robo-debt’; a special series from 7am.

We may never get a perfect answer to the question of how Robodebt, a scheme about as clear cut unlawful as government programs get, ever made it out of the lab. I've asked and been asked this question over and over again, and I still can't respond to it properly.

But there is one person I trust to piece together this astounding period of public service fakery.

You see, Robodebt was not uncovered by any government department or any number of government oversight bodies, like the Ombudsman's office, but by a group of people on Twitter, lawyers, journalists and welfare recipients, all of whom found a pattern. And it was these people’s dogged determination that eventually led to the royal commission.

Today, we speak to one of them, administration lawyer and senior lecturer at La Trobe University, Darren O'Donovan, about how he and a bunch of people outside the system built the very first working model of how the public service embraced Robodebt.

This is episode three: The Social Engineering of Shame.

It's Wednesday, July 12.

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DARREN:

So I'm Darren O’Donovan. I'm an administrative law lecturer at La Trobe Law School. My particular passion is Social Security and disability law.

RICK:

So, Darren is kind of this oracle on admin law, but especially on Robodebt. And I've kind of known him now, I guess, for quite a few years. But I’ve never met him.

DARREN:

So my earliest involvement in Robodebt would have been in early 2017, when I was a bit shocked at what was happening. At that point, I realised we were in for a long haul.

RICK:

I've always felt a little inadequate, on Robodebt, I guess, because I was kind of late to the party. But people like Darren were there. They were first on the scene. And, you know, I'd seen his work from a distance, especially on social media. But we didn't talk for the first time until about 2020. But he was always there. From the very beginning, and he's here now at the end.

RICK:

Darren, thank you for joining us. You were among the first to recognise the importance of what was happening with, what we now know as, Robodebt. And I know that you had your admin-lawyer-antennae out. When did you first become aware that something wasn't quite right, in the debt raising and welfare compliance space?

DARREN:

When I walked into my office. And I think for all the big nerd set up you've given me, it boiled down to one of my students upset, looking for an extension on an assignment, just before Christmas 2016.

RICK:

Wow.

DARREN:

And that's the first time I had come across what had been let loose.

It was remarkable. The student just had the initial letter, the ‘21 days to reply, or we do this’ letter something. And I said to the student, you've just got done studying this. You know that they need to figure out your fortnightly income. And they have said, they don't have it. They just don't have it. And that sounds like a very self-aggrandising, a story of ego, right? It's really important to share the, sort of, the next bit, because the student comes back after Christmas with a debt.

And at that point, it's this giant snorting rhinoceros of an assumption, that is being let loose on people's lives. That tells us an awful lot about how the spaces in which this started, the isolation people felt right from the off, the lack of clean dealing. It was extraordinary. And it's staggering, the headspace in which this was created, because the actual story of Robodebt isn't about administrative law necessarily. It's more about post-truth conduct by a government, the ability to disappear facts, to disappear injustice, in broad daylight.

RICK:

And the easiest way to disappear something, is to deny it ever existed. You see, the scheme that had snared Darren’s student that day wasn't always called Robodebt. For years, the most senior public servants even pretended they did not know what this term meant. In fact, there were so many different names Robodebt internally, that few people, if anyone, knew how to ask about what was happening, let alone stop it. First, they called it the PAYG clean up or PAYG intervention. And then there was a pilot of these arrangements and a manual intervention and then a series of other iterations, all with completely new names, all involved the carte blanche use of income averaging.

DARREN:

And it's so important we never forget, the government's got 120,000 debts in before anyone picked it up.

RICK:

The reason we know that all of these schemes are in fact Robodebt is thanks to that amalgam of people like Asher Wolff, Lindsay Jackson, and a person known only as K at Not My Debt, The independent journalists like Ben Eltham and Chris Knaus at the Guardian Australia, or casual observers like IT expert Justin Warren. Together with the unofficial counsel of Darren O'Donovan, everybody bought their piece of the Robodebt puzzle together. And it was only that way that we can really get a sense of what was actually happening and the scale of it.

DARREN:

And without them, there would be no community, there would be no solidarity, there would be people in isolation paying this money to their government. And I think if I give a counter, like if we think about a counterfactual, what if they didn't nominate 1.1 million discrepancies? What if they said, look, we'll do 200,000? It'll give us a few hundred million.

On the pattern that existed for the first year, they could have pulled it off.

RICK:

Darren lectures on this stuff at La Trobe, and he knows law is contested, but that's not what he saw when he started looking into Robodebt. You know, admin Law 101 is that a decision maker must use the best available evidence to make a decision. When he saw how the debts against people were being raised, Darren sensed something had gone seriously wrong. He and others began pursuing the Department of Human Services for answers as to how, precisely, it was calculating debts. And Darren formed a view that this was an internal project that had gone feral. The murky, tentative beginning of income averaging seems to have arrived around 2010, but even then, this was only as a last resort.

DARREN:

So, this idea of averaging a person's annual earnings was never an approved practice, but one that emerged from frontline decision making. So, at the very front lines, people don't have law degrees, shock horror, and very often practises start emerging that if any lawyer saw them, they would get squashed instantly. And in the years before the launch of Robodebt, the department had started to close files, as a last resort, by averaging annual figures. But one of the things that broke my heart about that last resort averaging was some of the evidence we got about how that last resort averaging, very often, decision makers, sort of, moved towards doing it because Australians would be on the phone to them saying, please don't contact my employer.

RICK:

Yeah.

DARREN:

And that stayed with me, in terms of, you're a frontline decision maker and you have someone who's saying, I'll accept it, I'll take it. I just don't want my employer to think that of me.

RICK:

And so in the middle of 2014, the middle managers in the Department of Human Services Business Integrity Branch, I'm having a good old fashioned brainstorming session in Adelaide. How about, these public servants spitball, how about we use this income averaging stuff to look backwards in time, find the mountains of, so-called, discrepancies that are out there and just send letters to people asking them to pay up? It's framed as a clean up. So these middle managers took this unapproved practice and turned it into something much more dangerous. Policy. It should never have made it beyond the years end.

DARREN:

So around October 2014, the idea starts to form up.

The Department of Human Services say, here's Robodebt, fresh for launch.

RICK:

Get the champagne ready.

DARREN:

And, at some point, they chat to their colleagues in Department of Social Services, who frankly, it seems they regard as, you know, slightly wonkish nerds.

RICK:

The boffins.

DARREN:

Who... yeah. And the Department of Social Services is appalled. They slam it as unethical. Before anyone talks about law, they say it's speculative invoicing. So that's extreme for a bureaucrat. You know, ethics isn't necessarily the language of bureaucracy. You know, the ministers are the ones who make the political decisions. So to get that slammed right out the gate tells you how bad it was.

RICK:

Instantly they recognised what it was.

DARREN:

Instantly. And they went and got legals, and the legals dropped on it like an anvil. Like when I saw the legals, I thought how did this get through. If the professional norms are applied, this thing is dead.

RICK:

Dead on arrival.

DARREN:

Dead.

RICK:

Before arrival.

DARREN:

It's very clear that the view of the Department of Social Services about the law was shared with, at least, some people. And it was said this would be a fundamental change to the way we do things.

This isn't a political story, it's now a human story. It challenges all of us to think about what it means to be a professional, whether we sever our morality from our professional activities. And what's interesting to me is, not just extreme examples of people advocating for Robodebt, but just as interesting are the people who went quiet.

RICK:

This is the first real, ‘oh no’, moment when this initial legal advice is ignored, because everything else that follows does so in the shadow of the state of knowledge it produced. So let's get a handle on it. The Department of Social Services asks its own in-house team for advice in October 2014, That advice is produced by a senior legal officer, Simon Jordan, and second counselled, basically double checked, by Anne Pulford on the 18th of December 2014. Scott Morrison has just been appointed as the Social Services Minister.

Archival tape – Tony Abbott:

“Today I am announcing a significant reshuffle. Scott Morrison will be promoted to be minister of Social Services. He is a very tough…“

RICK:

This idea has been percolating for many months now. The legal advice is damning. In short, it says the proposal to smooth a debt amount over an annual or other defined period, may not be consistent with the legislative framework. In other words, you can't just guess. And remember, the Robodebt brief that contains this new policy idea goes to Scott Morrison two months later. It should have been dead. Instead, what we now know, is that this is the first moment in a series of similar moments where senior bureaucrats either do not grasp what they're told or wilfully ignore it. In the years after this point, we see panic and confusion as those same senior officials, aided by pathologically incurious or deceitful ministers, seek to cover up this scandal.

Archival tape – Scott Morrison:

“It is our instruction that we would hope that all agents of the government, when pursuing the debt recovery option, that they would be sensitive to people’s circumstances.”

RICK:

They mislead.

Archival tape – Alan Tudge:

“I’m not aware of individuals who are completely convinced that they don’t owe money but have been given a debt notice.”

RICK:

They lie. They obfuscate and withhold.

Archival tape – Stuart Robert:

“They were the accepted figures by government to use. And as a dutiful cabinet minister ma'am, that’s what we do.”

Archival tape – Catherine Holmes:

“Misrepresent things to the Australian public?”

Archival tape – Stuart Robert:

“I wouldn’t, respectfully, put it that way.”

RICK:

So what actually made people ignore the implications of what they were doing and just proceed anyway? And to really understand that, you need to understand the nature of bureaucracy.

DARREN:

A bureaucratic job has a certain nature. And Zygmunt Bauman, who wrote on what makes a bureaucracy of bureaucracy, he said one of the defining features of a modern bureaucracy is, it’s multi-final. Fancy word, right? Multi-final. What he means is, you're in charge of your little bit of the process, and the next person does their role, and the next person does their role.

You know, you can justify it yourself and say, Oh, look, I just put it to the minister, the minister said yes. Or, I just pushed it up the line and they kept it moving. I thought people would respond to the notices. And there's this fragmentation of responsibility, and this disappearing of people, that is almost inherent in a complex bureaucracy. And unless we have moments where people can be brought to account, institutions can be brought to account, like this royal commission, we never get the ethical confrontation. Because there's always someone to blame; the person who was here previously, the other person who I sent that email to, There was no one taking responsibility at this royal commission. Though the commissioner will dole out responsibility. But it's important to see that a primary driver of Robodebt was the way no one took responsibility when it mattered.

RICK:

We'll be back after this.

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RICK:

So Darren waded through the, deliberately opaque, nooks and crannies of the public service, to paint as clear a picture as anyone could about Robodebt, in the years before this royal commission. But the Department of Human Services wouldn't disclose if they asked for legal advice, let alone whether it was received or what it said. They gave away nothing. Everything was either marked cabinet in confidence or kept out of the public domain by means of spurious interpretations of freedom of information law. Sometimes the department straight up lied and said documents did not exist when they did. Well, the royal commission found those documents and declassified them, so to speak.

There was one document in particular that Darren wanted to see published by the royal commission. It was an evaluation of the pilot program that became Robodebt; the trial. That document, Darren reasoned, would demonstrate the promise the department saw in the scheme and what it was trying to achieve. What did they want out of it? And it would prove that Robodebt wasn't an accident. It was designed to be harmful.

DARREN:

And another key document, that I had been wanting to see for years, was the pilot for Robodebt, and that found that 60% of people who got these ridiculous letters did not contact the department.

RICK:

And they noted that.

DARREN:

And they celebrated it.

RICK:

Yes.

DARREN:

Frankly. And they used it as a basis for upgrading the budget assumptions. So that pilot, which couldn't be got at because of Cabinet confidentiality, was always going to tell the tale because it was 60% won't reply. Those who do reply, 50% of them will accept it, because our letters are so bamboozling. They don't know what we're doing. They won't recognise it as averaging. And only 2% will appeal. And by the way, that appeal rate is below all other debt raising in the department, and that's noted in the report. So, at point of when this thing was launching, being launched, it was all centred on, how will people behave when these figures are put to them. They will accept it, they won't contest it, they won't have the legal consciousness to know that the department can't do this.

RICK:

I want to be perfectly clear what this means. In the legal sense, it demonstrates what they call a state of knowledge. Not only did public servants know that people would not contact the department, and therefore not be able to challenge their debts, they wanted that outcome. They counted on it, quite literally. It was so important, Darren says, because the bureaucrats knew how difficult it was to gather evidence of income. They, with all of their power, had failed to gather up enough evidence for years, and now they were putting that responsibility on to people without those powers, without a knowledge of the system, and who they knew would not contest their debts. Officials had, in other words, figured out how to count cards at the casino, and then they bet big.

DARREN:

When the department used to gather, on people's behalf, it came up short. And now we are asking people six, seven years later, to go chase pieces of paper from employers who are out of business, employers who abuse them, in one heartbreaking case, people being thrown back into abusive work environments and that being an expectation.

RICK:

It's something that the entire Commonwealth used to do, has been put back onto an individual.

DARREN:

The entire Commonwealth struggled.

RICK:

Struggled.

DARREN:

The entire force of the state's struggle to do. Like if you had an employer who gave you rubbish payslips, who didn't pay when you were meant to be paid. If you had any of that, you were struggling. You were… I met someone very early on, like it was absurd, like he was trying to prove he wasn't working, at a TAFE, over Christmas. The department wasn't accepting that TAFE... There were no TAFE classes on Christmas Day.

RICK:

Yeah.

DARREN:

And he was trying to insert logic into our government at that level.

RICK:

One of the things that has interested me throughout this whole saga of Robodebt is the concept of shame, because I know what that shame feels like to owe someone money, and to feel like you've done something wrong. And it's almost always the working class, the working poor, people who are reliant on welfare, who feel those things most keenly because of that bludger narrative that we saw take fire. And it leveraged what the bureaucrats knew about people, that they wouldn't contest those debts, that it was hard to retrieve the evidence and that people felt shame, so they would just pay up. They plugged that understanding into this new system, and they used those behavioural nudges to socially engineer a budget saving. And it was all built on the back of shame.

DARREN:

Coming back to the, how did it keep going?

RICK:

Yes.

DARREN:

This was the social engineering of shame. That's what this was. That people would not challenge the debt. And if they did challenge the debt, the department would issue a new one with the evidence the person provided us. So you're rapturing your actions. You never have to speak to your actions because you can what about them. So, what about if you give me your payslips? Well, we'll have an accurate debt then. But hang on. What about the garbage you just stuck on me? The value of Robodebt was the department was trying to stop legal consciousness forming. They're able to analyse people at the emotional level. So when we say this was the engineering of shame, I'm not saying that in a vague way. There's an exhibit which is at DHS Population Insights. And in that DHS Population Insights, they analyse people's reactions to the letter, and they say if people feel a sense of moral obligation to pay, if we can generate that feeling in them, it will lower the costs of our program.

RICK:

That is a monstrosity.

DARREN:

But that is nudging. That is behavioural economics.

RICK:

And I knew they were using the behavioural nudges borrowed, you know, and the expertise, quote unquote, borrowed from the Department of Prime Minister and Cabinet, but as a gateway to shun people into doing this, but I hadn't, I didn't know that it was as explicit as that.

RICK:

Darren has spent years just trying to reverse engineer Robodebt, like how did they make it work? What went into it? And now, after having his own worst fears confirmed by the Royal Commission, he can't help but think that there is so much more work to be done. You don't discover all of this and then, you know, just stop. But now everyone has to figure out what it means for the future, what it means for them. How do we fix this?

DARREN:

I, and people like me, in community legal centres or legal aid. The one thing that we're trying to generate is a sense of your rights, a sense for your right to ask a question, to call out incorrect decision making. In that moment when you receive something, stay calm, look up where this is coming from, try and work through it. In those crazy moments when a life changing debt falls on you and you're looking at your kids and they're playing and everything is flashing before your eyes. These are really small moments. What the unethical application of behavioural insights can do, is prevent that consciousness forming through really simple things. How do you disclose averaging? Do you say you did it? Do you give that nudge, that generates the feeling of shame, that sees people pay? Reading the debt collection scripts, the micromanaging of, what do we say to get what we want? All of that points us in one direction, which is; we've got to put more power in the arm of the people affected. They have got to have more rights to challenge these decisions that they're experiencing. So much of our Social Security system is governed by your ability to narrate yourself into the magic language of their policy. Your ability to hang on the phone line and complain your way to an outcome and Robodebt bet that even if a fraction, even if 2% of people complain, we can manage that. We rewrite the evidence base for decisions. What matters is the 98% who’ll accept it or who are too exhausted, are triaging their health, their family, to call us out. And it's a very confronting… It's the most dangerous form of government power I've ever encountered. This was about how easy it was for politicians to divide us, and how easy it was to disappear people from the debate. But our public sphere is such that those people got talked over, put on hold. Our politics was a Centrelink phone line.

And whatever change is going to come, it's not going to be with the APS, like what are they going to do at this royal commission? Well, I've read their submissions. They are going to internally reform themselves. This is a cultural issue, Rick. And they have given us, as a society, that wonderful word, Robodebt, which for me stands for people's right to interrogate their own government. To say, I know what you're doing, you have to justify yourself.

And as well, I think, the commissioner will find the facts, but it's on us to find the meaning of this. The only justice is it never having happened yet. But we have to make it mean something, in terms of change.

RICK:

And that project starts now.

RICK:

So yeah, we've got names now, right?

And we've got senior public servants who have had adverse findings made against them. Certainly dozens of others, who might be subject to some kind of internal disciplinary action for, what you might describe as minor infractions, but which I would describe collectively as wilful ignorance.

Some of them will be sacked, but I think the vast majority of them, and this really depends on the government, I guess, they will continue to go to work. They will keep their jobs, they'll be in the same departments, making similar decisions, about similar people. And you’ve got to wonder, what changes, if that is the case. I’m not one that usually bay’s for blood or vengeance, but I do think that, sometimes, you've got to put a head on the stake. You've got to make people aware that this isn't business as usual. You don't get to keep doing this and just go back to life as it was.

RICK:

Tomorrow you’ll hear from the media adviser who helped to defend Robodebt.

Rachelle Miller worked inside the office of minister Alan Tudge, as he waged a PR war against the victims of Robodebt.

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