The man in charge of the government watchdog responsible for investigating robodebt has conceded launching the welfare compliance scheme against advice that it was unlawful amounted to maladministration.
Former acting Commonwealth Ombudsman Richard Glenn appeared before the royal commission into the failed Centrelink debt recovery scheme on Thursday.
Mr Glenn served in the role between January and April 2017, a period during which the watchdog undertook an investigation into the robodebt program and the Department of Human Services, which is now known as Services Australia.
The commission has been examining why the Ombudsman’s 2017 report identified flaws with the way robodebt was being run by the DHS and the Department of Social Services, but stopped short of declaring the program was unlawful.
The Brisbane-based inquiry, which is holding its final week of public hearings, heard on Wednesday the DHS withheld information from the Ombudsman during its investigation.
The robodebt royal commission is holding its final week of public hearings. Picture: NCA NewsWire / David Geraghty
Mr Glenn told the commission on Thursday he had “doubts” about the legality of robodebt but that he didn’t have a “definitive view” on the matter which contributed to his decision not to refer the DHS to the Administrative Appeals Tribunal.
“If I was to make a statement about that, I wished to be more declaratory about my view. And I didn’t feel confident at that point to do so,” he said.
“My thinking was influenced by the fact that I couldn’t make a clear determination one way or the other about legality.”
However, he said he would have referred the department to the AAT had he known what he now knew about robodebt and its use of “income averaging”.
Mr Glenn also suggested the Ombudsman’s report into the scheme would have turned out differently.
The commission heard the 2017 report was relied upon by Coalition ministers to publicly defend robodebt as controversy over the scheme erupted.
The hearing was shown a media request from journalists asking to know what the legal basis for the program was. In reply, the DHS said it “strongly refutes claims they act inconsistent with legislation” and that the “Ombudsman found us compliant”.
The former Commonwealth Ombudsman has been asked to defend his investigation into robodebt. Picture: NCA NewsWire / David Geraghty
Council Assisting, Angus Scott KC, put it to Mr Glenn that he had he provided those with an interest in defending the program an opportunity to make these sorts of claims by not “squarely dealing” with the inaccuracy of income averaging and the question of its legality in his report.
Asked if he had failed to demonstrate the level of independence his office required, Mr Glenn said: “No, I don’t accept that”.
The commission has heard the DHS and the Coalition government pressed ahead with launching robodebt despite being advised by the DSS in 2014 the proposal could be unlawful and wouldn’t hold up against a court challenge without changes to legislation.
Asked if he thought this amounted to maladministration, Mr Glenn said he thought it was “poor practice”.
Commissioner Catherine Holmes pressed on. “Starting a scheme that your advice (says) is unlawful. You wouldn’t see that as maladministration?” she said.
Mr Glenn replied: “Yes, Commissioner. In the absence of other advice, yes, I think so.”
Robodebt was an automated method of calculating welfare recipients’ alleged debts by matching their reported pay with their supposed annual incomes, which were estimated by averaging data from the Australian Taxation Office.
The scheme ran from 2015 to 2019 until it was discontinued after being found to be unlawful. By this point it had falsely accused thousands of people of owing the government money and been linked to a number of suicides.
The royal commission is examining why robodebt was set up and how it ran until 2019 despite its serious flaws being widely known from 2017.
The program cost the commonwealth nearly $1.8bn in written-off debts and compensation paid to victims who mounted a class-action lawsuit.