Journalist Rick Morton has extensively covered the robodebt scandal from the very beginning he believes there is enough evidence mounting for Commissioner Paul Brereton to step down.
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00:00It's a small relief for them, but it should never have got to this point, according to
00:06parents of people who killed themselves and people who had robodex raised against them.
00:11They expected the NAC to actually investigate the first time around. They had an open and
00:15shut case, they thought, and the NAC, after sitting on it for 11 months, said nothing
00:20to see here. So this is now a back-to-square one moment for them, but it's better than
00:24the alternative, which is the caravan of justice moving on without them.
00:28How does this decision today reflect on the processes that the NAC used on this decision?
00:35I think it's terminal for them. I think it shows that they were fundamentally deficient.
00:39You know, the error of judgement, which Paul Brereton was found to have engaged in by not
00:44properly recusing himself from the entire decision-making process, was a pretty significant
00:49one for a former Supreme Court judge, where it's not enough to take yourself out of the
00:56room for the three minutes a decision is made. You have to actually remove the perception
01:00of any conflict throughout the entire process. And as the inspector found, he was comprehensively
01:07involved before, during and after the October 19 meeting, where a decision was made to do
01:13nothing about the six referrals from the Royal Commission, and in fact, allowed the media
01:20statement to be partially rewritten by the person about whom he had a conflict through
01:27their lawyer, and then accepted those amendments. It's a real problem of perception at this
01:34point, and perhaps even more.
01:37But this report or statement today says there was nothing intentional here.
01:41Correct. There's nothing intentional, but they do also... So basically, what Gail Finess
01:46found was that Paul Brereton engaged in official misconduct, which under the NAC Act is not
01:53a breaking of the law. It's not an intentional impropriety. It's an error of law or fact.
01:58But it's also not the slip-up, they say, that he kind of made it out to be. It was substantially
02:06kind of significant in terms of the decisions that were made. It wasn't just an issue of
02:11process and form. And so it's somewhere in the middle, where it's serious enough for
02:15the inspector to intervene. In fact, it's not just the inspector. Gail Finess, she got
02:19an independent review herself by a former federal court judge, Alan Robertson, who made
02:24his own inquiries and came to these conclusions.
02:27Okay, so now let's now focus on the people affected by the Roboteat scheme. What does
02:32this mean now? An actual NAC investigation is still not guaranteed?
02:38No, it's still not guaranteed. Essentially, the issue is now remitted back to the NAC
02:44through an independent person, whoever that might be that they choose to appoint, to then
02:49re-examine the issues. And what we do know is that Paul Brereton was the one who engaged
02:54legal advice internally through the NAC to look at the merits of this decision. And what
02:59that internal legal advice came back with, from what we can tell in the published documents,
03:03is that the findings of the Royal Commission were pretty substantial. They were mostly
03:09solid, but they were not free of doubt, which is, of course, true of any findings that you
03:12might make in a Royal Commission. And they also seemed worried that any decisions that
03:17were made about potential corruption or breaches of public trust would be litigated by the
03:22individuals to the nth degree, which is, of course, no excuse not to press ahead with
03:26something. So now we're back at, will they or won't they? But again, I think the real
03:31issue here now is the focus or the pull that has really fallen over the entire institution,
03:36that we could have these decisions made, you know, through these deficient processes and
03:42would never have found out about them were it not for the public blowback and the complaints
03:46that were made to the NAC inspector, somehow being kind of waved away as a simple mistake.
03:52It's not quite true. And I think we now need to look at the Attorney General and whether,
03:57you know, the Parliamentary Oversight Body could do something about the NAC because it
04:00has lost whatever imprimatur it had through really rookie mistakes, I think.
04:07So do you have an opinion on whether Commissioner Paul Barreton should step down?
04:13I think he should. And again, it wouldn't be because it would be an admission of him
04:17having done anything intentionally wrong. But, you know, at every step of this process,
04:22you know, he has attempted to kind of manage the conflict, but he hasn't gone the whole
04:26hog, so to speak. And, you know, the media statement itself that was put out to explain
04:34this decision is part of the problem here, because it contained, according to the inspector
04:38and Alan Robertson, the former federal court judge, it contained misleading statements.
04:43You know, they said, oh, we don't want to duplicate processes and the Australian Public
04:47Service Commission is looking into this and they've got sanctions they can attach.
04:50But none of the people, or very few of the people that were referred to the NAC,
04:55who were also being looked into by the Public Service Commission, would ever have attracted
04:59sanctions because they were former public servants. And so that was misleading. And
05:04it was misleading as well to say that, you know, there wasn't anything they could do.
05:09And that, you know, a minister who was referred to them could also be found accountable to the
05:15Public Service Commission. So there are these real gaping holes in their rationale. The reasoning
05:20was specious. And I think Paul Barreton should do the honourable thing and stand down and give
05:29the NAC a chance at redemption, because at the moment, it will limp along until someone puts
05:34it out of its misery. And this body is just too important?
05:39Well, it is. And people fought for this for a very long time, because at the federal level,
05:42as you know, there was no national accountability or transparency body. And of course,
05:46the politicians never really wanted to do a complete carbon copy of the New South Wales
05:51Independent Commission Against Corruption. But that is what the public wanted and expected,
05:55for some level of accountability and scrutiny, you know, to be re-injected into the national debate,
06:01ironically, because there was so much to, you know, write home about, which came from the
06:05journalists, you know, people breaking stories about misuse of public funds, you know, sports
06:10frauds, the sale of land in the Leppington Triangle, you know, on and on and on and on
06:17these scandals went. And we had no real agency with any teeth. And in fact, the Royal Commission
06:22into Robidette itself found that the accountability bodies that we did have, the Commonwealth
06:27Ombudsman, the Australian National Audit Office, the Information Commissioner, even the Senate,
06:32as much as some individual senators tried, none of them were able to lay a finger on Robidette.
06:36In fact, some of them were misled deliberately and allowed themselves to be misled by the public
06:42servants that were meant to be keeping in check. And so the knack was meant to be that thing. And
06:47it is thoroughly disappointing because already it was allowed to have carte blanche in terms of
06:53whether it wanted to hold secret hearings and never release, you know, too much information
06:57to the public. And their public statement about the Robidette investigation was exactly that.
07:01They said, here's what we've decided. The decision's been delegated to a deputy commissioner.
07:05We're not going to tell you who it is. And also, we're no longer going to take any questions about
07:08it. And they wanted us to all move on. And thankfully, that has not happened.
07:14So what's known about the detail of the allegations against the six people referred
07:18to the corruption watchdog by the Royal Commission?
07:21Yeah, so this is where it really gets interesting, because we get some hints at what the legal
07:25advice at the knack has come to understand about the Royal Commissioner's findings. And they say
07:30that some findings are stronger than others. Some are based on inferences, because there is a lack
07:35of documentary evidence in some cases, particularly as it relates to the minister. Now, we don't know
07:40who the minister is that was referred, but, you know, there is a real gap in what, you know,
07:45the lawyers might need to defend, you know, the label of corruption. But they also say that
07:51there's no argument that, you know, corruption couldn't be found in these cases. And so already,
07:57there's an open question about, you know, well, should we go on and investigate? And of course,
08:02they decided not to because they thought that there would be no public interest in it. What we
08:06do know about some of the individuals that were referred, based on the documents we got today,
08:14is that they're having difficulty, they think, proving an abuse of public office,
08:21because some of the offences, quote unquote, offences were not offences of proactivity,
08:27but of omission. So not making sure the legal advice was up to scratch, not necessarily telling
08:33cabinet about the shaky fundamentals of Robert, i.e. the fact that they had legal advice saying
08:39this thing was not lawful. And so there seems to be some interpretation going on there about what,
08:44you know, how do we prove an offence of omission, as opposed to an offence of commission?
08:50Again, this is all something that could be, you know, battled out. In fact, you know, the
08:54Inspector Gail Finesse found that, you know, there was never any concern about having duplicate
09:00inquiries, possibly coming to different findings, because as she pointed out, the Australian Public
09:05Service Commission did exactly that. They had no problem doing it. The NAC shouldn't have had
09:09any problem doing it either. They just didn't appear to want to press ahead and potentially
09:14have the people that were making findings against litigate. And remind us of the human cost of the
09:21robodebt scheme and exactly what it was. Yeah, I mean, they came up with an algorithm to
09:28wrongly attribute earnings to people on welfare, past and former, past and current welfare recipients.
09:34And essentially, they divided tax office income by 26 and said, you owe us money, when in many of
09:40the cases, there was no money owed at all, or the debts were vastly inflated. And they knew this,
09:45they knew it was mathematically wrong. They had legal advice from December 2014, saying this does
09:50not accord with social security legislation, i.e. it's illegal. And they went ahead with it anyway.
09:56And even in 2015, and then from 2017, the event horizon beyond which many of the public officials
10:02involved can no longer deny they knew about the serious faults in this scheme. There was public
10:08opprobrium, there were eminent legal minds saying this is unlawful, this does not accord with the
10:13way things are done. People are suffering, people are killing themselves. And people lost family,
10:18they lost jobs, they developed psychiatric conditions, they were unable to keep the
10:25employment they had, because they suddenly had this massive debt hanging over their head, they
10:29had their tax returns swiped by the government. Welfare details of private individuals were
10:35leaked by the former Human Services Minister Alan Tudge, in what the Royal Commission found
10:39was an abuse of his office. It was an horrendous scheme that lasted for four and a half years
10:46before the Federal Court of Australia was able to find, or at least by admission, a case was
10:53brought where the Commonwealth finally had to admit that it was unlawful. And now, of course,
10:57through the Royal Commission, we have all this evidence of the fact that at every turn,
11:01very senior people in two departments, at least, and potentially the ministers as well,
11:06knew significant details or should have known significant details about what they were doing,
11:12that pointed to them needing to ask more questions and they didn't do it. And there
11:17are other potential cases like, you know, two law firms are investigating misfeasance in public
11:22office, which is a really hard thing to prove, but it was last proved in the live export trade
11:27case where the former Agriculture Minister Joe Ludwig suspended the live cattle export trade
11:32to Indonesia for six months and catastrophically, you know, ruined half the cattle trade in
11:37Australia. And that was an abuse of public office, the Federal Court found. So a similar
11:42case is being contemplated in Robodet. And so what's your perspective on what is still needed
11:47to appropriately compensate people and to hold people to account? So there was a class action
11:54into Robodet, where again, the Commonwealth admitted it was unlawful, but they settled.
11:59And I think they settled strategically and early because that class action never got the key
12:04documents that would have allowed us to see this was not a mistake of public admin, but actually a
12:09conspiracy at several stages throughout its birth. And the people, there was a $1.8 billion
12:15settlement through that class action, but it was to repay $700 million that was recouped from people.
12:21So to give them back the money the government stole from them. There was $112 million in interest,
12:26which is again, money that people were owed. And then the government waived the rest in
12:32debts that it hadn't yet recouped. But there was no financial compensation for damages, economic,
12:37psychiatric, for loss, and otherwise injury. So there has never been injury, loss or compensation
12:46for people, even people who managed to, you know, submit their pay slips and do what the government
12:50asked them to do. It was at significant personal cost, because they had to suddenly do the
12:54administration that used to be done by an entire arm of government. And they had to do it themselves,
12:59and they had to do it under significant stress. And so a misfeasance in public office case were
13:03to make it as a class action could potentially remedy that and, you know, at least give some
13:10semblance of justice to the people who were hauled through the wringer on this one.