30 January 2023

Lawyers scared of department boss, Robodebt royal commission told

| Chris Johnson
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There was a reluctance to deliver bad news to Kathryn Campbell, then secretary of the Department of Human Services. Photo: Supplied.

Advice outlining the unlawfulness of the Robodebt scheme sat with government lawyers for months because they were too scared to pass it up the line to departmental secretary Kathryn Campbell.

The royal commission into the ill-fated scheme heard evidence that Ms Campbell, then secretary of the Department of Human Services (and later the Department of Social Services), was so feared that lawyers wouldn’t tell her things she didn’t want to hear.

The department’s former principal legal officer, Anna Fredericks, gave evidence to the inquiry that she was uncomfortable in 2018 with the department’s culture under Ms Campbell’s leadership.

A reticence to deliver unwanted news pervaded the department.

“Colloquially, there was a commentary no one wanted to give her bad news,” Ms Fredericks said.

She said there was “definite pressure” from above about what the legal team should advise the secretary.

Ms Fredericks said a “siloed type of culture” reigned over the department and that the legal team was regularly avoided.

“You were responsible for what you were responsible for; you stayed within those bounds,” she said.

READ ALSO APS Commission seeking employee views directly

Former assistant director of payment integrity at the DSS, Kristin Lumley, also gave evidence last week, saying her attempt to advise of the illegality of the scheme was blocked by a departmental boss – but she said she couldn’t remember who that was.

“It wouldn’t be good news to share,” she said of the legal advice.

“It would damage the department’s reputation, the minister’s reputation.”

Ms Lumley said she saw draft legal advice from law firm Clayton Utz that the scheme was unlawful, but that advice was not acted upon.

She said the department had advice that there were whole-of-government implications that could see the issue taken to the Federal Court.

Asked if she felt there was inaction from her superiors to act on the legal advice, Ms Lumley replied: “Yes, I did.”

Royal Commissioner Catherine Holmes suggested there had been a “certain passivity” from the department’s legal section while it was meant to be providing advice on the Robodebt scheme.

Branch manager of payment integrity, Allyson Essex, said she had raised the legal advice with the department’s deputy secretary, Nathan Williamson, who agreed that the scheme was clearly illegal.

She also said the department did not act in relation to appeals over the scheme’s automatic debt notices.

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According to evidence before the commission, Ms Campbell wasn’t happy with how many appeals were being dismissed by the Administrative Appeals Tribunal.

She raised the requirement for handling appeals from the EL2 level to Band 2 of the Senior Executive Service.

The Robodebt scheme was a method of automated debt assessment and recovery for Centrelink payment compliance that was put in place in 2016.

It erroneously calculated overpayments by data-matching Centrelink records with average income data from the Australian Taxation Office.

It was the cause of widespread condemnation and the cause of significant mental health harm for many debt recipients.

It was scrapped in 2020, with then-prime minister Scott Morrison promising that wrongly issued debt notices would be repaid.

Federal Court Justice Bernard Murphy condemned the scheme as illegal in 2021 and approved a $1.8 billion debt repayment settlement.

In August 2022, Prime Minister Anthony Albanese established the Royal Commission into the Robodebt Scheme, which must report to the government by 18 April this year.

Hearings continue.

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kant komplain5:49 am 20 Feb 24

The Fish Rots from the head down .

We were all scared of her.

Me too. Different department, early 2010s, but me too.

HiddenDragon7:15 pm 31 Jan 23

A very sad tale, but the equally sad truth is that governments of both persuasions have, for a very long time, been happy to be served by hard-as-nails head-kickers when (as it so often is) pragmatism is more valued than principle.

Far more often than not, the head-kickers survive and prosper, leaving a trail of wreckage and time bombs behind them as they eventually head off into a very comfortable retirement.

It will be so interesting to see if anything more than some stern finger-wagging and selective scapegoating results from this Royal Commission.

This enquiry is uncovering so much that’s gone wrong with APS culture over the decades since Howard. I hope there’s some consequences, there has to be.

It really shouldn’t be hard for people who want to do their jobs well and conscientiously, but it is. Everything is political and that is not just in the public service, but more broadly. These days it is dangerous to tell the truth in many workplaces, as punishment too often follows.

Organisations that are run this way are not successful in achieving their objectives, as too much time is wasted worrying about how people will react to the facts or the work you do. Honest open communication is often unwise and is discouraged.

Personally, I’d rather work with organisations where their objectives and agendas are clear, as work effort is more productive. Rewards are easier to obtain when you know what to do and are not afraid of unexpected agendas and unpredictable punishments.

What you are saying is true just not of politics or the public service but society in general.

And I blame the very medium that allows us to have this discussion right now. Im not referring to the RiotACT specifically but the internet, social media and sites like this.

Whereas in the past to have a voice heard in public you would need a letter published in the newspaper these days all it takes is one story and a raft of negative comments on reputations can be ruined.

As a result decisions these days are made with public perception being a factor and the internet being used essentially as a propaganda tool in addition to the traditional newspapers.

Another one with her hands all over that scheme was Malisa Golightly. Staff were also terrified of her. I sat in a meeting with her in a different department where she had a lot wrong about a contract problem (not related to Robotdebt) and she tore shreds of a junior officer trying to correct her. When I asked my Group Manager about it afterwards (after watching him cowardly sit by and say nothing) he said that it was normal. Even quite senior officers found it easier to let her be wrong than to try to correct her. That’s the culture the Public Service rewarded.

Jenny Graves2:23 pm 31 Jan 23

I remember Malisa Golightly too and I can confirm that people were terrified of her!

Stephen Saunders5:31 pm 30 Jan 23

Well put, Psycho. Both Campbell and Pratt got AOs. Least they could do is hand them back. Even Heydon did that.

It’s obvious, that lacking any Sense Of Shame is no impediment, to high-level promotion in today’s APS.

A female Greens pollie, reports of bullying, a female department head, people fearful. A trend hear, not involving males

So the secretary was protected and the department was protected, whilst the public went unprotected. That’s not public service at all. And it’s certainly not ethical or legal. The question is whether there’ll be any consequences for the secretary, the department and those involved.

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