The recent sessions of the Royal Commission into the Robodebt Scheme have been disillusioning. Only one Minister has accepted any responsibility for the program. Public service administrators, lawyers and staff have revealed their knowledge of doubts about its legality which, however, they did not press with their superiors.
No one expressed any ethical judgment of the scheme or considered it relevant to their work. The detached way in which they all saw the program contrasted jarringly with the anguish of those were its victims. The evidence given so far to the Commission has disclosed a disregard for the rule of law by those responsible for administering it and a larger insouciance about its importance in society. These failures are ominous at a time when governments will surely draw more extensively on artificial intelligence to help shape policies and their administration.
The history of Robodebt is worth recalling. It was first introduced to assist the Budget by reclaiming money from those who had defrauded the Government though claiming benefits to which they were not entitled. Initially it involved Department staff checking their benefit claims against their income and sending letters to reclaim the benefits. That campaign led to the fateful trust in a computerised program to check the income recorded by the Tax Office over the past two months, to extrapolate from that the yearly income, and where there were discrepancies, to send letters demanding repayment and a penalty for the false claim. The onus was placed on the recipients to disprove the claim, a heavy burden on people with physical or mental illness and on low incomes.
This method proved successful in lowering costs and raising revenue, but was catastrophic in its effects on many people affected, some of whom took their own life. The method of assessing repayments due was flawed because the access of the Department to information about income from the Tax office, limited by law to two months, did not allow a valid assessment of yearly income. Many people worked at many jobs or received remuneration that fluctuated over the year. This defect soon became recognised by many people in the Department and arguably in Government as the effects on people harmed by the process was widely publicised and questions about its legality were more insistently asked.
In a democracy, it is vitally important that Government respect the rule of law in its dealings with its citizens. The rule of law is the inoculation against tyranny. In the case of government benefits the law is codified in bills that prescribe both the extent and limitations of government power. Adherence to these limitations is the first line of defence of the rule of law. A second line of defence lies in the right of citizens to appeal to courts or administrative tribunals against decisions made by government departments which they believe to be unfair or illegal.
The argument that the Robodebt process was illegal relied principally on three claims. First, the process contravened the explicit provisions of the Law governing the conditions under which the payment of benefits could be demanded. Second, the process disregarded the law in not providing those affected with personal communication informing them of their penalty. Third, it placed on the person accused of defrauding the Government the burden of proof, and not on the Department.
'These failures of attention and of priorities do not just reflect a failure in administrative procedures. They also witness to a lack of ethical sensitivity.'
As complaints and appeals multiplied the response of Department and Government was to disdain the rule of law by ignoring the question of the legality of its actions, declining to appeal Administrative Board decisions that found against it, and withdrawing from Court appeals that might find it illegal. When finally a Court decision found the scheme illegal, the Government declined to appeal it and compensated its victims.
The Royal Commission will no doubt pass judgment on the responsibility of different Ministers and public servants for the approval of the project, the failure to attend to, pass on, heed and act on the many warnings of its illegality, and for the attempts to stifle public criticism of it. Even more important, however, are the larger questions behind the fact that the dog did not bark. Why did Government ministers not attend to the human consequences on vulnerable people receiving automatically generated letters based on automatically generated judgments of their behaviour? And why did they consider adherence to the rule of law concerning benefits of less importance than the continuance of the program?
These failures of attention and of priorities do not just reflect a failure in administrative procedures. They also witness to a lack of ethical sensitivity. Governments and their agencies must respect the humanity of the people whom they serve. In this case they imposed penalties on people and impugned their behaviour without considering the human consequences of such accusations and penalties, without establishing the guilt of the persons affected, and without allowing an effective appeal. The collection of revenue and the perpetuance of the program came to be more important than respect for the human rights of the people affected by it and for the rule of law. Why could this come to seem just or rational behaviour, a properly human service by Services Australia?
The answer to this question perhaps lies in a more general corruption of Government and administration most evident in the treatment of people seeking protection from persecution. Governance in this area was reduced to the power to enforce policy regardless of the effects that the use of that power had on its objects. Effectively one group of human beings was seen to be of lesser worth and to demand lesser respect for their humanity than others. Its members were consequently regarded as liable to demeaning and prejudicial treatment designed and inflicted in order to secure other policy goals such as deterring others. They were seen as lesser human beings, and so not to require respect for their shared humanity.
In refugee policy this reduction of the role of administration to the power to ensure that the will of the government to act as it decides towards lesser human beings was evident. It inevitably blunts ethical reflection, and so easily spreads to policies towards other groups of Australians who are unpopular.
It is perhaps too simple to draw a straight line of corruption in governance between Australia’s treatment of refugees under a policy of deterrence and the treatment of people who have claimed benefits. The animus against people who are unemployed and receive benefits is long-standing. It is born in a distinction between the worthy and the unworthy poor, and the consequent policies that mistreated those considered unworthy.
It may be no more than a coincidence that that Scott Morrison, the minister under whom the abuses of processing on Manus Island and Nauru took firm root under the doctrine of deterrence, also became the minister for social services responsible for announcing the policy as an attack on crime. Whatever of that, the animus against people who are unemployed and survive on benefits underlies both the political rhetoric that ostracises them and the punitive legislation under which they suffer. It is understandable that politicians and ministers should welcome Robodebt as an efficient way both of collecting revenue and of correcting misbehaviour by the undeserving, should fail to notice its human effects, and should see cavils about its legality as soft-headed and so to be ignored.
The experience of Robodebt has implications for the future. In it the adaptation of a totally automated system of detecting, judging and penalising people suspected of wrongly claiming benefits was accompanied by lack of responsibility, lack of due attention to the effects on the people affected by it , and lack of respect for the rule of law. When more sophisticated technology involved in artificial intelligence becomes available for the designing and administration of government programs, how will government ministers and public servants feel and be held responsible for these programs to the people and the society whom they serve?
Andrew Hamilton is consulting editor of Eureka Street, and writer at Jesuit Social Services.
Main image: Robodebt Royal Commission (Twitter)