Commissioner Holmes’ Revolution? Robodebt, Transparency and Record Creation
11.09.23
The Final Report of the Robodebt Royal Commission was released on 7 July 2023, in a landmark moment for Australian public administration. The report makes searing findings against senior public servants and politicians. In this post I discuss how, in her report, Commissioner Catherine Holmes AC SC effectively inverts a generation of public service thinking about cabinet confidentiality and the duty to give frank and fearless advice. I argue that the Report’s final two recommendations – suggesting reform to cabinet confidentiality and record creation – are the lynchpins for successful public service reform after Robodebt.
Repealing Section 34 of the Freedom of Information Act
Section 34 of the Freedom of Information Act (Cth) 1982 exempts cabinet documents as a class. The exemption, irrespective of the public interest in the document contents, automatically applies to:
Cabinet submissions that have been submitted to Cabinet, or are proposed for submission to Cabinet, or were proposed but never in fact submitted.
Official records of Cabinet.
Documents prepared for the dominant purpose of briefing a minister on a Cabinet submission.
Drafts of a Cabinet submission, official records of the Cabinet or a briefing prepared for a minister on a Cabinet submission.
Even purely factual material cannot be released if it would reveal a Cabinet deliberation and that deliberation has never been officially disclosed.
In the Report’s final moments, Commissioner Holmes proposes the repeal of section 34. The Commission directly acknowledged the work of ‘committed’ journalists and campaigners as part of the basis for making this recommendation.
In this post I can only briefly sketch the varied efforts to obtain information and secure accountability for Robodebt’s creation and functioning. Many of these floundered upon section 34. The most prominent public example is the now six and a half year long struggle of IT expert Justin Warren to obtain the business case documents and budget assumptions for the programme. Having initially won the release of some documents before the Information Commissioner, Warren lost at the Administrative Appeals Tribunal. The matter is currently before the Full Federal Court. Irrespective of outcome, the efforts of Mr Warren, supported by the Grata Fund and Maurice Blackburn, has highlighted how section 34 frustrated democratic accountability as victims suffered.
In an effort to highlight the need for a Royal Commission, advocates also targeted the 12 February 2015 Executive Minute, an early draft of the policy underpinning the programme. This document, which proved central to the Royal Commission findings, was also blocked using section 34. Even as public controversy raged, Services Australia simply argued that Cabinet’s role in approving Robodebt had never been ‘officially disclosed’.
The Royal Commission Report, at page 656, points out the consequent damaging impacts for political and policy debates about the programme. Robodebt was constantly defended by presenting unlawful income averaging as an unfortunate by-product of people’s refusal to engage with the department. The Executive Minute and other refused documents show averaging was a designed, expected element of the programme: its foundational premise. Media coverage of Robodebt only arrived with its disastrous expansion to full, automated mode in late 2016. Cabinet confidentiality meant that political accountability for Robodebt’s creation, particularly the role of former Prime Minister Scott Morrison, could never be fully explored without a Royal Commission.
In calling for the repeal of section 34, the Commissioner is effectively finding that public servants’ duty to give frank and fearless advice should not be conditioned upon unreflective, ironclad forms of confidentiality that apply to a class of documents, rather than depend on their content. The risks attaching to the section’s removal should not be overstated. The Commonwealth would still be able to easily exempt sensitive security, international, state and federal relations material. Outside of these standard unconditional exemptions, potential release would rest upon a reasoned public interest analysis with full rights of appeal. The Commission is putting forward a measured and balanced path to greater transparency, independent oversight and record creation.
Robodebt: A Control Experiment for Transparency’s ‘Chilling Effects’
The ‘chilling effect’ of freedom of information is often instanced as the justification for public servants massaging advice or giving it verbally. The possible disclosure of written advice may embarrass a Minister or make internal conflicts public. Many, including witnesses before the Commission, argue that this threat of disclosure results in records of firm advice not being created. The 2015 Learning from Failure Report expressed similar concerns by proposing that all policy deliberation should be rendered nearly as impervious to disclosure as cabinet materials. Contemporary coverage of one senior public servant’s support for this is particularly instructive of prevailing mindsets.
The Robodebt Royal Commission, however, represents the ideal control experiment for the ‘chilling effect’ as a primary driver of verbal or weakened advice. The authors of the key Executive Minute and the New Policy Proposals knew those documents - and the interactions sitting around them - fell within the protected cabinet enclave. As if to further neuter the chance of blame being attributed to freedom of information, public servants throughout the timeline were also dealing with legal advice, another ironclad basis for non-disclosure. Even the Royal Commission’s work depended upon the selective waiver of legal professional privilege.
In a key passage of her report, Commissioner Holmes tells us what she saw. Even when she descended to the near untouchable sanctum of the cabinet room:
Nothing I have seen in ministerial briefs or material put to Cabinet suggests any tendency to give full and frank advice that might be impaired by the possibility of disclosure, and the Cabinet minutes which are in evidence are sparing in detail, with a careful mode of expression revealing nothing of individual views.
This extraordinary summation has received far too little coverage. The ‘chilling effect’ thesis is revealed as a distraction from more troubling and deeply rooted dynamics in our public service. The Australian Public Service – an apolitical institution – perpetrated Robodebt for years without securing a written direction from a politician following a genuine process of written frank and fearless advice. And the Freedom of Information Act played no role in that equation.
Reactions to the report amongst public service figures have been predictable. Some have rejected or ducked the challenge the Commissioner has delivered. Others mourn the loss of a more principled past, instancing moments such as Tony Ayers’ infamous warnings to Malcolm Fraser. A more jaundiced historiography would note such comments were rarely written down. It is the heroic whistleblower Colleen Taylor’s line by line, written exposition of Robodebt’s flaws that carries the simple, if challenging, ethical truth. Knowledge concedes nothing to power.
References to vague notions of ‘building trust’ with Ministers can no longer cloud public service leaders’ thinking. An unambiguous message must also be sent to all future Ministers and their staff: they can no longer expect or lean upon such practices of ‘trust’.
Record Creation: An Unqualified Professional Expectation
Unsurprisingly then, the Report also calls for firm standards regulating record creation (Recommendation 23.8). Commissioner Holmes finds that ‘transparent and considered decision-making requires appropriate records to be kept of significant events, meetings, discussions and of course, decisions'. The Report’s release has also coincided with the separate project of creating a proposed new APS value of stewardship, which also underlines the importance of a written audit trail. Actions and decision-making must be capable of reconstruction well into the future.
This recommendation comes at a crucial and sensitive time in federal public administration. The launch of the National Anti Corruption Commission will act as a further stimulus for reform. Commissioner Brereton recently delivered an important warning against massaging advice to all APS risk professionals – lawyers included. The Royal Commission proceedings underlined written records as the surest way to discharge the firm professional obligations which apply to the provision of all advice. The hearings brought new prominence to statutory obligations such as the responsibilities of Secretaries to warn about risk in section 19 of the Public Governance and Public Accountability Act 2013. Everyday duties of good faith, care and diligence, and the obligation not to make misleading statements were hopefully brought front of mind for many public servants.
The true drivers of change will likely be the next generation of mid-level executives. As the last level before high level political interactions, this hard-working backbone of the public service, tends to end up holding the last piece of paper or stalled warning. Without changed record practices, this class will continue to front inquiries, forced to submit scattered oral recollections for adjudication under the Briginshaw standard. Throughout the Commission we saw the greatest courage in the public service often lay in those lower down the ladder. The full implementation of all the report’s recommendations – not cherry-picking – is what will deliver a supportive ecology for the standard bearers in the public service. We need to protect, incentivise and reward those who state the necessary warnings and do not indulge other dynamics. Important work lies ahead in enhancing job security, culture and performance frameworks. It must commence with not permitting written records to fall out of the decision-making process at the higher levels.
The absence of a firm audit trail of facts shared, and risks stated, can deliver a cone of plausible deniability and a defraying of political responsibility. A profound democratic deficit is produced by committing control of these issues to the opaque cultural practices of public servants. Removing section 34 and unambiguously committing to record creation are twin essentials in squarely confronting and resolving the full balance of interests here.
Building a Culture of Justification
The elevation of confidentiality to conventional thinking amongst the Australian Public Service betrays, in my view, a troubling culture of insularity. To be clear: I have never stood in the true ‘halls of power’. Equally however, public service leaders have rarely stood in victims’ or campaigners’ position. Career public servants have, too often, never had to desperately seek justification from the outside. Or watch powerlessly as crucial facts which would ground accountability are suppressed. Or speak out against the powerful when our political climate sadly often extends to attacks on one’s character or professionalism. A refusal to act on cabinet confidentiality risks an institutional failure to learn from victims’ bravery.
In advocating for this recommendation, Commissioner Holmes drew together two powerful streams of legitimacy. She relied upon her own Royal Commission process: a disciplined, balanced exercise in public interest immunity balancing. It connected with the public in a powerful manner, as a display of true public service. She then instanced the everyday Australians who came together to fight Robodebt.
Victims and campaigners did not sit idly by for administrative lawyers like me to sit in conclave. Or for judicial review actions to commence. They asked for rights and fairness in every forum available to them. They told their stories, highlighting gross inaccuracy and unfairness beyond narrow legal technicalities. They engaged in the highest constitutional act of all: the use of their democratic voice. They were met with laws which obstructed the visibility of, and accountability for, maladministration. Institutions that facilitated secrecy, inaccuracy and personal attacks. Robodebt was far more than an algorithmic overreach or an unenforced technical statutory interpretation. For a nation premised on informed democratic contestation, it is a constitutional moment.
The Albanese Government now faces a fundamental choice. Will it enforce the sealed, conclave vision promoted by public service voices? Or will it stand with those outside to build a culture of justification in government?
Darren O’Donovan is a Senior Lecturer in Administrative Law at La Trobe Law School.
Suggested citation: Darren O’Donovan, ‘Commissioner Holmes’ Revolution? Robodebt, Transparency and Record Creation’ (11 September 2023) <https://www.auspublaw.org/blog/2023/9/commissioner-holmes-revolution-robodebt-transparency-and-record-creation/>