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RUBY:

From Schwartz Media, I’m Ruby Jones. This is 7am.

There’s been a delay in the release of what could be the most explosive findings in a royal commission in decades.
The Robodebt royal commission quietly wrote to the attorney general, delaying the publication of its final report.

But this is no bureaucratic delay. There are other reasons behind it, and one of them has to do with when Australia’s new National Anti-Corruption Commission will be open for business.

Today, senior reporter for The Saturday Paper, Rick Morton, on how Robodebt could end up in front of the National Anti-Corruption Commission.

It’s Wednesday, May 24.

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RUBY:

So, Rick, recently you sat through more than two months of Robodebt royal commission hearings, and that follows years of your reporting on the scheme and the devastation that it wrought. Now we're waiting to find out the results of that commission. It's a pretty tense wait, isn't it?

RICK:

It is. It is a really difficult wait, particularly for the people who gave evidence at the royal commission, who were harmed by Robodebt, who lost family members because of Robodebt, because of the pressure that was put on them by, this kind of, fake system of illegal debt recovery. I think they're the ones who are really waiting to see that what they said, what their experience was, has actually been heard. Which is really the value of a royal commission like this, is to put all of that kind of blood, sweat, and tears into a report that shows that somebody listened to them. Because for so long, throughout this whole scheme, the government was gaslighting people by saying, there's nothing to see here, there's nothing wrong with what we're doing, it's business as usual. None of those things were true. They knew it wasn't true. And now we're waiting for the royal commission to get to that point really, that pointy end. And hopefully they will back up what people have been feeling all along.

RUBY:

And the royal commission report, when we do get it, it will be based on what was presented during that nine weeks of hearings. And of course there was hours of evidence. There were mountains of documents put forward as part of that. But tell me, how would you overall characterise the evidence that the commission heard?

RICK:

I don't know that anyone expected it to be quite so damning. Like even people who were following it, right, they knew that it was bad, they knew that it had resulted in some terrible, terrible harms. But I don't think people quite, or maybe, maybe I'm just being naive, but I think a lot of people thought that the government that they had stuffed it. When what was revealed throughout nine weeks of these public hearings — and more than a million documents, 900,000 of which came directly from the Commonwealth — was that this was so much worse, and it didn’t stop. And in fact, people moved heaven and earth to, kind of, bend the laws of what was possible to keep it going, even in the face of that knowledge. And, you know, because of these kind of elaborate cover ups between the two sister departments in human services at the time, and social services, it kind of prolonged the misery of this whole illegal debt collection operation. And it deliberately misled the public and other officials, including the Commonwealth Ombudsman, and in some cases even the ministers were misled. And it saw the weaponisation, in that kind of, 2016/2017 key period where there was heaps of criticism in the media. Ministers in departments weaponised private Centrelink records to, kind of, try and defend the scheme. They use people's records against them if they dared to complain. And there was another statement, under oath, which was an extraordinary admission, under oath that Cabinet solidarity required ministers tell lies. Which is just… you don't get that at an ordinary royal commission, you really don't. Particularly something that goes to the very core of how decisions are made in the Australian government.

I've been able to piece together that Commissioner Catherine Holmes has started sending at least some of the adverse notices and other, kind of, heads up to people who have given evidence or been featured at the royal commission, essentially saying “we intend on making findings about you that are not going to look good for you. And we would like you to respond to those.” This is a really key part of any royal commission, where people who are going to have a negative finding made against them have to be told about it, and they have to be given sufficient time to respond. It's a big deal, because it means that we're into the real, kind of, meaty part of this commission. And it also means that until the final report is revealed, we won't know who has received those notices, because the commissioner has also updated the non publication orders around them. So if you get told that you're on the hook, you can't tell anyone about it until they release the findings.

RUBY:

Okay. So these documents are being sent out notifying people that there could be adverse findings on the way. We don't yet know who is getting these notifications, but the very fact that they're being sent out, it sounds like that's a sign that the royal commission is getting close to the end of this whole process. They're getting close to publication of findings. So when will we know Rick? When will we know how the royal commission has judged those who were involved in Robodebt?

RICK:

Well, we'll know hopefully very soon after July 7, which is the new deadline for the final report to be handed to the Attorney-General, Mark Dreyfus. Now they announced last week the original… they already had one delay. It was meant to be the end of March, I think, and then they had an extension of the report until June 30. And last week there was a very, kind of, nondescript announcement made that they'd ask for a one week extension, and that Mark Dreyfus, the Attorney-General, had granted it. There wasn't really a reason given why, except that it was for administrative reasons.
But what I learned, and confirmed for The Saturday Paper, was that the only reason that that request was made — and the reason why it's worth almost a laughably small amount of days — is because the new National Anti-Corruption Commission does not begin operating until July 1, i.e. a day after the report was meant to be handed in.

Archival tape – Catherine Holmes:

“Some royal commissions carry out their functions over years. This is not one of them.”

RICK:

And Commissioner Catherine Holmes is nothing if not fastidious.

Archival tape – Catherine Holmes:

“It will be necessary for the commission to operate briskly and efficiently, in order to fulfil its tasks in the time available.”

RICK:

And from what I understand, wanted to make sure that all of the I’s were dotted and all the T’s were crossed. And if there was going to be this new anti-corruption watchdog, which there is, and if she was going to probably, maybe, possibly, potentially, make findings about potential corrupt behaviour, then it would make sense to her to actually make the referrals herself. And you can't refer something to a corruption agency that technically doesn't yet exist. So that's why it's gone from June 30 to July 7.

It's incredibly technical, but it also tells you a great deal about what this commission is thinking, how they're moving through the evidence, and how broad some of the referrals they might be making in that final report are. Because Commissioner Catherine Holmes has a long and storied career in the law. She's formidable. Everyone I've ever spoken to who has worked with her, has just showered her with praise, and also doesn't take any bullshit from anyone.
And she's making sure that every last inch of this inquiry is referred to where it needs to go, and actually gets there, and it carries the weight of that royal commission, that kind of imprimatur of Commissioner Catherine Holmes saying, “you, the new anti-corruption watchdog, you should really look into this. And here's why.”

RUBY:

Yeah, I suppose what this delay really indicates is just how serious the commissioner, Catherine Holmes, is taking the Robodebt scandal.

RICK:

Yeah, And that's, you know, one source who was quite familiar with this whole process said to me that, you know, to them, this shows you how serious she is.

They said the commissioner's nailing down every last element of this inquiry. And I guess when you've waited for that for so long, if you're someone who was affected by Robodebt, and you've sat through years of government, just lies, and then you've had a class action which didn't really deliver any compensation, and then you had settled federal court cases that didn't disclose, or didn't turn up half of the information that we've had in the first day of this royal commission. When you've done all of that stuff you want to see in your commissioner, in this case, Commissioner Catherine Holmes, you want to see someone who's taking that job seriously.

And that letter to Mark Dreyfus indicates to me that Catherine Holmes is acutely aware of the burden of doing her job thoroughly, fairly, and with no stone left unturned.

RUBY:

We'll be back in a moment.

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RUBY:

So, Rick, it seems like the NACC, the National Anti-Corruption Commission, will be coming into existence at the very same time that the Robodebt royal commission is handing down its findings. Raising this very real possibility, it seems at the very first thing that the NACC could look into is Robodebt. So, can you tell me a little bit more about the NACC, and what it's actually supposed to examine, what its remit is?

RICK:

Yeah. And you know, you're correct. It may well be that the Robodebt referrals are the very first referrals made. Having said that, as far as I know, anyone can make a referral to the National Anti-Corruption Commission, and I think there are a lot of people rightly, and in some cases more, just as a sense of political brinkmanship, kind of, watching and waiting for the NACC to begin so they can make their own referrals. So there's going to be a lot of sifting for the commissioner. And I think, certainly, as one other person put it to me when I was putting this story together, if Commissioner Catherine Holmes does make referrals to the corruption watchdog, the corruption commission, two different commissions, there was a bunch of hurdles that need to be stepped through before anything significant comes of it. They can choose to dismiss the referral straight away, which you might imagine would apply to maybe a member of the public who hasn't attached any information. But then the commissioner can decide to hold a preliminary investigation. They can decide to hold a closed door investigation. They can refer the matter to a public agency, another agency to handle, which again, I wouldn't imagine would fly when you've got multiple agencies that have been so manifestly implicated in Robodebt’s illegal activity. Or you can do a public inquiry. So there's all these different hurdles, right, for the corruption commissioner before something may come of it. But also royal commissions, they're not courts of law. And in fact, under the royal commission legislation, none of the witness evidence, and none of the documentary evidence turned up for a royal commission, can be used in a court of law. It doesn't preclude anyone else from going any other investigative body with the power to do so , to go and get that information, and to go and get extra testimony and find those documents and put those in a court of law. But the royal commission can't do it themselves. There are fact finding body. And so it's important for a commissioner to make that referral to other agencies, so that the process can be followed, because there will be more connections that the NACC can dive into that the Robodebt royal commission technically had the time, or the terms of reference to do. So what we'll be looking at is this definition of corruption, which just to kind of clarify you, it's that, you know, any behaviour that impedes or adversely affects the honest and impartial performance of any public official, of their duties or their functions as a public official. It also calls out any conduct of a public official that constitutes or involves a breach of public trust, and any conduct of a public official that constitutes, involves, or is engaged in for the purpose of abuse of the person's office as a public official. So you can get a sense for the kind of broad definitions that have been used. And that I think, I think will have a lot of people on edge, who may have not necessarily conducted themselves with complete honesty and integrity.

RUBY:

And so was their evidence, Rick, given during the royal commission that could go to those definitions of corruption. So allegations that that public officials misused information, or breached the public trust, or abused their office.

RICK:

I will answer that question in a roundabout way - I mean, here's what we know, right, I mean, just take the first day of evidence. Justice Greggery KC, he's the senior counsel assisting the Robodebt royal commission.

Archival tape – Royal Commission Official:

“The Royal Commission into the Robo Debt scheme is now in session, please be seated.”

RICK:

He gets up. He does his opening address.

Archival tape – Justin Greggery:

“The Department of Social Services and Services Australia sought and obtained advice from their internal legal departments about aspects of the scheme before and during its implementation.”

RICK:

This is when they've still got documents still coming in. Like after this week, there was another 100,000 documents turned up. And then after that week, another 250,000, like there was still… they were doing this on the fly, right. But even in that first opening address, Justin Gregory KC, gets up and he is able to say that they have found the legal advice from the Department of Social Services, in October 2014, that unequivocally showed that Robodebt was not legal.

Archival tape – Justin Greggery:

“That advice at the very least raised significant questions about the legality of the scheme.”

RICK:

That the scheme was not consistent with the Social Security Act, that is the only thing they needed to know, and as we all know now, of course, it began as a program run by the government seven months later.

Now, that's just on the first day, right. And we also heard later on evidence of what seems to be, certainly the allegation from all the findings being put to people from Justin Gregory, was that there was a pattern of behaviour by public officials to mislead the Commonwealth Ombudsman, to deliberately omit any references to income averaging, which was the key illegal concept in Robodebt. From briefings from walkthroughs, from external investigative sources that basically had a pattern of cover up, and lies, and deceit. And we got that all in the first address, and then it just got worse and worse and worse as the weeks wore on. And certainly, you know, one of the submissions to the royal commission from the Commonwealth Public Sector Union just had tons and tons of first hand accounts from public servants who were all typically low ranking or middle ranking, who had no power over this program, but who were told by those senior executives and managers, you must do this. And they all knew it was wrong. They all knew, and many of them, according to this submission, tried to speak up internally.

So the commissioner is now in the box seat in terms of going through the things that don't add up. And there are a range of ways of looking at the evidence that has been given, in terms of who was telling the truth at the time. You know, were people acting honestly in their positions in 2014, 2015, 16, 17, 18, 19, because that's how long this thing went on for. But also were they being honest on the stand, were they being honest to her, and that is where things are going to get really interesting, I think. And I would hesitate a million times to prejudge that. But I imagine the final report will have some things to say.

RUBY:

The stage seems to be set, Rick, for some fairly damning findings - whether or not referrals are made to the National Anti-Corruption Commission, all signs are really pointing to a condemnation of Robodebt. Is that how it seems to you?

RICK:

It's true. I mean, we're getting set, I think, for some pretty significant findings, and some pretty significant referrals. Now, again, Commissioner Holmes has not said for sure that she's going to be making referrals to the corruption watchdog. But the fact that she has asked for that ability, and had a one week extension to the commission to do that, indicates that they're taking this very seriously, and that they are looking at all avenues of potential wrongdoing, potential moral and legal misconduct. And basically, throwing a net over the entire saga, and making sure that people don't wriggle out of it.
Now, we're not talking small scale things either in some circumstances. We're talking about, you know, the very core of decision making in the Australian Government, and people who, according to the evidence we have heard, misled other agencies, the Australian public, even ministers in some cases, or who deliberately omitted key information about the illegality, or the use of income averaging under Robodebt. And now that all of those things are in play, and knowing what we know about Catherine Holmes and her fidelity to the law, I think we can expect a broad and sweeping account for everything that was so scandalous about Robodebt.

RUBY:

Rick, thank you so much for your time.

RICK:

Thanks Ruby, it’s always a pleasure.

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RUBY:

Also in the news today…

Offshore processing on Nauru will cost taxpayers 485 million dollars this year, despite there being only 22 refugees and asylum seekers detained there.

The figure was revealed at Senate Estimates, with the Department of Home Affairs justifying the spend as a quote ‘contingency’ cost for maintaining the facility.

AND
Victoria will bring forward the end native timber logging to the end of the year, according to budget documents released by the state government.

The move puts an official end to an industry long- criticised by environmental groups.

The announcement includes a fund to help support workers transitioning out of the industry.

I’m Ruby Jones, this is 7am. See you tomorrow.

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