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From Schwartz Media, I'm Ange McCormack. This is 7am.

To make sure that Robodebt or something like it would never happen again, the Royal Commission into the scheme handed the Government 57 recommendations.

Last week the Government delivered its official response, saying it had agreed in full or in principle to all 56 recommendations.

So what happened to the 57th? And why is the government pretending it doesn't exist?

Today senior reporter for The Saturday Paper Rick Morton, on a serious flaw in the response to Robodebt and whether ignoring it could undermine the work of the Royal Commission.

It's Tuesday, November 21st.

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ANGE:

Rick, the government revealed their response to the recommendations of the Robodebt Royal Commission last week, but strangely, no one seemed to be able to agree on how many recommendations there were. What happened?

RICK:

Yeah, I feel like I'm losing my mind on this one. But the government has had months and months, you know, 3 or 4 months to consider their official response to The Robodebt Royal Commission report, which was handed down in July, on July 7, by Commissioner Catherine Holmes. And at the time, the Government lauded the report. You know Anthony Albanese, the Prime Minister, stood up with Bill Shorten, the Government Services Minister, and Albanese was saying that there were many brave people that came forward to allow this illegal scheme to be found out for what it was. And he juxtaposed that to the cowardice and subterfuge and the desire to hide the truth from the, then coalition, government which introduced Robodebt. But now, in responding to the recommendations, you would think that same government, Albanese and down, would put their money where their mouths are. And they haven't quite done that. So let me set the scene just a little bit.

Audio excerpt - Mark Dreyfus:

“This media conference is to deal with the government's response to the Robodebt Royal Commission report, which has just been tabled in the House.”

RICK:

So this is an official government response. Here's what we're going to do for each recommendation made by Commissioner Holmes, and you get the cavalcade of all the senior ministers. So you get Attorney-General Mark Dreyfus. He walks out alongside Government Services Minister Bill Shorten, the Social Services Minister Amanda Rishworth, and the Finance Minister and the Minister for the Australian Public Service, Katy Gallagher.

Audio excerpt - Bill Shorten:

“Robodebt was a cruel and crude mechanism.”

RICK:

And each was completely emphatic that the government had accepted, in full or in principle, but the point was that they had accepted, all 56 recommendations.

Audio excerpt - Bill Shorten:

“The commission, as you know, handed down 56 recommendations across government represented by the ministers here.”

Audio excerpt - Mark Dreyfus:

“The government has accepted, or accepted in principle, all 56 of the recommendations made by the Royal Commission.”

RICK:

And a bunch of media ran with it. They all said the government had accepted all the recommendations, all 56, quote unquote.

Genuinely my jaw was on the floor. Catherine Holmes made 57 recommendations. I was watching the press conference. It's right there in the report in black and white. It says the following is a list of 57 recommendations. It says it more than once, by the way. And Catherine Holmes recommended that the Freedom of Information Act be amended to repeal Section 34, which is the section that includes Cabinet documents in a class of documents that can be exempt from release to the public.

Audio excerpt - Reporter:

“How significant is it to, this change in Cabinet document status, that it would no longer of itself justify keeping documents secret? I mean, everybody just stamps everything with cabinet on it these days. Does it actually significantly change the access of documents to the FOI Act?”

Audio excerpt - Mark Dreyfus:

“The commissioner made a closing comment rather than a recommendation.”

RICK:

And when he was asked about this, Dreyfus said that this apparent 57th recommendation was not really a recommendation at all. But that's just not true.

ANGE:

Right. And so how did you go about clarifying whether this was actually a recommendation or if it was, as Dreyfus said, just a comment? Not really a recommendation, exactly.

RICK:

I was actually a little bit surprised that I needed to clarify it at all. It's there in the report. I had a really good source at the Royal Commission who confirmed, off the record, that this was exactly the intention of the commissioner, that this was a recommendation. There is no two ways about it. It was written as a recommendation and it was included in the report for the reason that it was incredibly important. And that it ought to be responded to by the government. And again, off the record clarifications are not that useful in the long run when people have started to muddy the waters. So eventually later on that night, I realised I had to get someone on the record. So through a somewhat circuitous route, I managed to get a hold of the senior counsel assisting the Robodebt Royal Commission, Justin Gregory KC. He's basically the lead guy on this inquiry, and I got him on the phone just very briefly. They don't want to be political. right? And so all I said was, I just want to clarify what this is all about. And he said there are 57 recommendations. The last recommendation is number 57. It's contained in the closing observations chapter, and that is that Section 34 of the FOI Act be repealed. And so, you know, that seemed pretty definitive to me. But I wanted to see the government, and particularly the public service, were willing to now acknowledge, even if you grant them that they had misread it, which I don't. But even if you grant them that, I wanted to see if they were willing now, with that clarification from Justin Gregory, to acknowledge that there are, in fact, 57 recommendations. So I sent questions to the Attorney-General's Department and the Department of Prime Minister and Cabinet. Now Mark Dreyfus’ people got back to me with frankly something that resembled spin. And then every single department that I asked suddenly declined to respond and said, oh, we've got nothing further to add. Now, the reason I asked specifically for a departmental response and not a government response, was because technically and again, it is only technical, but technically public servants are not allowed to lie. And I suspect very strongly that all of their summary materials pointed out that there were 57 recommendations, and that this political decision was made above them. But the fact that they wouldn't even respond tells me quite a lot about what was going on behind the scenes here. And it says nothing good about this government's orientation towards transparency.

ANGE:

And Rick, if it was all there in black and white, you know, the 57 recommendations, why would the government try to say that there were only actually 56? What's the point of them trying to, kind of, equivocate on that?

RICK:

It's very odd. Now, Dreyfus’ people responded to my very specific question, again in lieu of anything from the department, and said that in the final report of the Robodebt Royal Commission, Commissioner Holmes lists 56 items which begin with the word recommendation. So what they are saying is that rather than listening to anything else in the report, they're just going to go by whether something has the word recommendation in front of it. What I discovered in the course of investigating this story is that Dreyfus' interpretation was not always the position of the government. A political decision was made to excise the last recommendation to make the government response more palatable. What they wanted to do was to come out with a press release, to come out all guns blazing, saying Robodebt was a shameful chapter, we've accepted every single one of the commission's 56 recommendations, knowing full well that that is not true because there is a recommendation they disappeared. Frankly, it does not take Einstein to figure this out. If you go back to the day the report was released, you got Bill Shorten standing up on July 7, saying out loud that there are 57 recommendations.

Audio excerpt - Bill Shorten:

“There's a lot in this Royal Commission. I appreciate it's 900 pages. There’s a lot to read. There's a lot… 57 recommendations. Will the government set up a task force? We're going to look at how we do all of that. That's crucial.”

RICK:

And not only that, but for months afterwards. But something changed after October. I managed to speak to a Labor staffer who agreed to talk only on the condition of anonymity and they said to me, we knew there were 57 recommendations and we knew we weren't going to touch that one. And they said, I don't know who made the call, but suddenly 57 became 56 and we wanted a clean 56.

This is pure magic. It's an administrative trick responding to Robodebt, which was, frankly, an administrative trick. And it was a political decision. And so the government is responding by making, I would argue, some very serious and grave mistakes about what they think the lessons are from Robodebt.

ANGE:

Coming up after the break, why the 57th recommendation is so controversial for the government.

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ANGE:

Rick, we're talking about this 57th recommendation of the Robodebt Royal Commission and why the government is refusing to acknowledge it. You said it was a political decision. Why would this one recommendation be so politically controversial for the government?

RICK:

It's simple in that it lessens the ability for government to be secret and to hide things. No one in power wants to give up more information than they have to, because information is power. So what’s ended up happening with this interpretation of cabinet confidentiality is that it just keeps getting bigger and bigger and, you know, expanding to keep secrets. You know, to be exceptionally clear, what happened under Robodebt and in similar cases is that you've got public servants who are deciding to rubber stamp a document as cabinet incompetence, even when it might not actually be a cabinet document. So suddenly you've got all of this paper trail that with, almost literally, you know, a rubber stamp, or at least the digital version of a rubber stamp, suddenly becomes invisible to you and I. And they're doing that well beyond, well beyond the scope of what was ever envisaged for cabinet confidentiality. And the commissioner, I should say, saw this happening and saw the pernicious effects of this. And that is why she made a specific recommendation in her report. And that is why the government has gone to great, and I would say absurd, lengths to pretend that it doesn't exist.

ANGE:

So why does this secrecy provision of cabinet confidentiality exist in the first place, and is there a good reason not to change that?

RICK:

When you've got all the ministers of the government, or the ministers in cabinet of a government, around the table, they need to be able to speak freely because, you know, at the end of the day, they're going to make a decision, and everyone in that government has to back that decision publicly. And it's going to be very awkward if suddenly you come out backing a decision and someone says, but actually in cabinet, you argue the opposite. It's meant to be about stable government. And that's an important principle and nobody, not even, you know, people who campaign for transparency, think that that needs to go by the wayside because then you'd have bedlam. But what it doesn't protect, or what it shouldn't protect, is factual information that goes to cabinet, ie. what is Robodebt? Nobody knew. The budget measure didn't describe what Robodebt was, it just said strengthening the integrity of welfare payments. The first Senate inquiry designed to inquire into what Robodebt was named the wrong budget measure, because they had no idea what they were looking for. This thing was so amorphous and so nebulous that they couldn't even lay hands on what the title of the damn thing was, let alone get access to the documents that would have allowed them to fight it. Now, Section 34 was used repeatedly and throughout the seven years, essentially, that we've been fighting to get answers on this scheme, to keep these documents out of the public domain. Now, were it not for the Royal Commission with its powers of compulsion, we would never have seen the executive minute, the brief that went to Scott Morrison. When you read the commissioner's report, the reason she's making this recommendation is precisely because she saw the efforts that advocates and transparency warriors went to to try and get information, and the length to which they were completely blockaded by successive coalition governments. And the commissioner saw that had FOI been more amenable to transparency, then Robodebt may well have been stopped in its tracks. And what the government has done, and this is what really is maddening about this whole situation, what the government has done is to do exactly to recommendation 57 what the FOI Act allowed to be done to critical information about Robodebt, which is to disappear it. To keep it out of the public imagination. To remove any power that it might have. And in this case, they're just pretending this recommendation doesn't exist.

ANGE:

So finally Rick, when we step back and look at the government's response here, it has accepted 56 of the 57 recommendations. But I suppose ultimately, what everyone wants to know is whether that's good enough to prevent something like Robodebt and the cover up that followed, from ever happening again.

RICK:

We have been waiting… Well, not we. I came to this story late, right? But there are people who have been fighting this thing for years and years and years. There were more than 450,000 people who were affected by Robodebt. This thing was a boil on the flesh of good administration in this country. And Robodebt, the Royal Commission, was about lancing that boil. Because even with the federal court class action, the judge failed to grant public access to some of these documents because he didn't think it was worth it. Only Commissioner Catherine Holmes did. Now, when rubber hits the road, and we've got the recommendations and the commissioner has done an incredible job in an incredibly short time period, to deliver us recommendations, they put one of them in the bin. And not only that, but on Friday, the Department of Prime Minister and Cabinet released its Louder Than Words, an APS Integrity Action Plan, which is an impressive document in that it manages to say almost nothing. But this is an entire, as they call it, an action plan about integrity. And, you know what they allude to in here? Is that the fact that the FOI Act may be reviewed. Not to make it more transparent, but because they want to make it tighter. They actually think that the existence of freedom of information, the fact that people could get access to information about government decisions, removed the leverage that public servants had to be frank and fearless in their advice. So they think that the reason public servants started acting surreptitiously and not documenting really critical decisions, was because people like me could launch an FOI and potentially gain access to that information.

And I don't care who you are and what values you hold and how much integrity you think you have. If you don't have five eyes on something, you are going to, at some point, recreate the evolution of robodebt. It will happen again.

ANGE:

Rick, thanks so much for your time.

RICK:

Thanks, I appreciate it.

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ANGE:

Also in the news today…

Optus CEO Kelly Bayer Rosmarin has resigned, less than two weeks after the nationwide outage that left 10 million Optus customers without service.

The CEO of Optus’ parent company SingTel, says Optus needs to regain customer trust.

And,

Foreign affairs officials say 31 more Australians have safely left Gaza through the Rafah crossing into Egypt, bringing the number of Australian citizens, permanent residents and family members who have evacuated Gaza since October 7 to 62.

Meanwhile, Gaza's health authorities say the death toll in the Gaza Strip is over 12,000, including 5000 children.

I'm Ange McCormack and this is 7am. We’ll be back again tomorrow.