A Rick By The Same Name Smells of Deceit

richard! I said richard!

When I lived in Canberra I met a boy at a party called Richard. We talked most of the night and then we both arranged to hang out the next weekend. There was something there, I thought. A shared universe of interest, perhaps. Maybe more, maybe less; the kind of thing you figure out on a date.

Richard was tall and fit and I smoked 20 Longbeach menthol cigarettes every day. More, if the traffic was bad. More still if the Belconnen owl was visiting me in my dreams. In my then era of cautious flourishing — defined by a willingness to try new things romantically, like turning up — I was seized by a bold notion. Richard runs long distance, I thought, and I’m bipedal. Why not go on a hiking date up the top of Red Hill?

It’s a long story told elsewhere but all you need to know for now is that, fitness levels notwithstanding, a heady alchemy of ego and an incapacity to grasp the contours of a topographical map combined to ruin me that day. I surged ahead of Richard on the path, honking and gurgling like a goose being taken by a feral cat next to a babbling brook. I think I Kerry Packer-ed at least three times up the hill but my desire to not make a fuss is stronger than the pull of death itself. At one point three-quarters of the way up Richard asked me if I was OK and the noise that escaped my person was not of this realm.

It is difficult to pinpoint the precise moment Richard decided there was no romantic spark between us but by the time we’d reached the cafe at the summit — can a hill have a summit? — I knew there wasn’t going to be another date, if this even counted as a first. That night, Richard messaged me very politely and said he’d had a great time and added that, now he’d thought on it, he saw us just as friends.

Yeah, well, the joke’s on me Richard, because I don’t climb mountains for friends.

That was six years ago.

This week, in Melbourne, I was scouting CBD cafes that might make a nice little nook to do some work when I came across one that seemed suitable and ordered a coffee. When the man asked my name for the order I said it was Rick which it is. And then he said ‘whoa, the guy before you was a Rick too what are the odds’ and I didn’t tell him that actually they were not that bad. In any case, I was the second Rick and had to give my last initial to differentiate us. Shortly after, the first Rick came to say hello.

Richard. Tall, fit, mountainside Richard.

Richard.

‘Richard,’ I said through strained chords, ‘you’re a Rick now?’

He was, he said, after he’d spent some time in America and he realised it was just easier because they ‘don’t really do Richard there’.

Name thief, I wanted to yell. Name thief!

For the avoidance of doubt, I am not a Richard. Never have been. I came into this world as a Ricky and, to save time on introductions, dropped the ‘Y’ in primary school. It’s just been monosyllabic Rick ever since; a simple man with a simple name who has, over the subsequent decades, had his naïveté blacksmithed out of him by the hot hammer blows of circumstance and the polysallabic fucks who run this show.

Having defeated me on slopes of Red Hill, Richard was free to absorb my name. Maybe even some of my essence. To the Ricktor go the spoils et cetera. A one-sided affair. It’s not like I would have voluntarily started going by Richard, the mini-van of names, anymore than I might have chosen to adopt a deliberate air of having given up, as opposed to the unintentional one I carried around with me anyway.

Name thief, I wanted to say. But I did not say that. What I said was: ‘Richard it’s so good to see you!’ And it was. Richard is nice and smart and as far as I know never told stories about the noises he heard on Red Hill that day. But he stole my name, in circumstances where stealing his would have been like planning a heist at a dollar store. Some people have all the luck, don’t they?

If we had met at the party, as we did, and he was a Rick and I was a Rick — which, again, I was — then no force on Earth would have compelled me to go on any kind of date with the guy and I certainly wouldn’t have suggested a fucking bushwalk that only went up. I think I was appalled retrospectively at old Ricky-come-lately-in the coffee queue because I wasted a brief window of novelty-seeking behaviour in my life on a guy who would steal my name. You can’t have two Ricks together. It’s a time travel paradox in the present day. If the magicians are both called Roy and Roy, how is the tiger supposed to know which one to maul? Thelma & Louise was a biting, critical success when it was released in 1991 but the film Louise & Louise might have told a fundamentally more boring story about a fishing trip that went just fine actually.

Of course this isn’t a reflection on lovely, intelligent Richard, or even the fact that he declined another date after the hill. I was relieved, to be honest, because dating scares me and I am also very stubborn so by the 7th outing we’d be ascending K2 and I’d have frostbite and snow psychosis. Everything worked out as it had to, as it must, and we are all better people today for it.

When we said our goodbyes at the cafe I wished him well.

‘So lovely seeing you, Richard,’ I said.

He walked out and I was the only Rick left, alone, again.

Observations

Overheard in Melbourne

I finished writing this newsletter in a cafe at the State Library of Victoria where one very loud young man insisted on having a video call on his laptop while everyone else was working away quietly. It as obnoxious but also, in the end, rather funny and I transcribe for you here just one part of the conversation that I overheard:

You are living your artsy life in Sydney I love it. Can you hold up the zine to the camera so I can see?

[On seeing the zine]

Philosophy, yes! [four finger snaps] spiders, coffee, yesssss. Oh my God, I have to join you in the zine making thing. At first I was cautious because I didn’t know how much community there would be but now I want get into it.

Philosophy! Spiders! Coffee!

Here We Go Again

On Friday you might have noticed the Australian Public Service Commission released its independent taskforce review into the public service code of conduct breaches by officials involved in the Robodebt scheme. It both was and wasn’t that big of a deal. No one was sacked, all of those who could have been had already left the public service and despite the laughably specious argument from the National Anti Corruption Commission the APSC inquiry was essentially an HR employment investigation with as narrow a scope as that implies.

That said, public servants take this kind of thing extremely seriously and if you read between the lines of the final review report there was a lot of behind the scenes argy bargy where all manner of ‘finger-pointing’ and gormless procedural literalism took place. Former secretaries attempted to argue that they couldn’t be the subject of findings at all and, according to the Australian Public Service Commissioner Gordon De Brouwer, the agency was threatened with years’ worth of court battles if they tried to slap so much as a faulty sticker on them without a change to the legislation. So, thankfully, we got a clarification to the legislation to make those powers explicit. The APSC promptly decided to name the two former secretaries, both of the then Department of Human Services, in its final report. They are the only two named. The headline is that 12 current and former public servants breached their obligations 97 times. Kathryn Campbell was breached 12 times over six broad areas of allegation and Renee Leon 13 times, over four broad areas of allegation. Campbell, in a planned public relations salvo, teed up this front page splash in The Weekend Australian which I won’t link to but here’s the gist of it:

Honestly, the less said about it the better.

What I want to draw attention here to is the behaviour of the public servant class in rallying around Renee Leon who, yes, was a very good and professional bureaucrat for much of her career but who made serious mistakes in 2019 when she inherited the Robodebt mess. I don’t draw attention to her comments here because I think she is in anyway comparable to other officials in this long-running saga but because, unfortunately, she has, it appears, put deliberate misinformation out into the public sphere that is contradicted directly by the Robodebt Royal Commission. Now, ever since I embarked on writing the book about this, I have been essentially lobbied by senior figures about how they thought the RC had been very unfair to both Leon and Finn Pratt at DSS (Pratt, notably, didn’t get any adverse findings made about him at the APSC). This has been a long time coming. So I will go through Leon’s statement line by line. What I wish to emphasise is that, by the end of it, you may still wish to argue the realpolitik of her situation — that she felt stuck between a rock and a hard place — but you will not be able to argue, as some have, that she did nothing wrong and then seek to undermine the entire APSC process because you support Leon.

That is precisely the kind of bending of convention that helped pave the way for Robodebt and other abysmal public policy failures and which will continue to allow things like that to happen. So, let’s begin with Leon’s statement in italics and my response in regular text.

Robodebt was a failed policy, developed without a proper legal basis, that caused enormous pain for some of Australia’s most vulnerable people. I regret the significant human toll of the program and remain proud to have played a key role in ending Robodebt.

This is technically true, though the criticism Leon attracted was for how long it took her as Secretary to act on the various advices that were coming her way. Still, you can make an argument she wanted to be sure. So far, nothing outrageous here.

I am disappointed with the way the Australian Public Service Commission has come to its decision and I stand by the actions I took to get definitive legal advice and bring the Robodebt program to an end.

I guess you’re allowed to be disappointed.

Robodebt had already been in operation for two years when I became Secretary of Human Services. When legal doubts were raised, I sought definitive advice from the Solicitor-General.

Again, nobody argues Leon didn’t seek further legal advice. But the length of time was criticised. She came to the DHS in October 2017 and as briefed on the scheme and, despite much in the media, was told all was hunky dory. OK. But by April 2018 the law expert and former AAT member Terry Carney had written an academic paper about the lack of lawful basis for income averaging under the program. Leon sought advcie from her chief counsel Annette Musolino, the same one who served Kathryn Campbell, and was told everything was fine. No shade here, but these little niggles are adding up and a Secretary would be well aware of the community concern and the crescendo of legal criticism. Which they will keep in mind as further developments come.

I acted as expeditiously as possible to convince a government that was wedded to the Robodebt scheme that it had to be ceased. When Ministers delayed, I directed it be stopped. Two weeks later, my role as Secretary was terminated by a government that did not welcome frank and fearless advice.

OK, so what does expeditious look like? On 4 February 2019 Madeleine Masterton challenged her debt in the Federal Court of Australia. Leon was kept briefed on all these developments. On 22 February, just weeks later, the Commonwealth Ombudsman followed up a 2017 investigation into Robodebt (which it totally squibbed, by the way) and came checking on the implementation of its recommendations.

It also proposed to do what it didn’t do in 2017 and that was include a section discussing the legislative basis for Robodebt. The Ombudsman explicitly mentioned the Masterton proceeding as the basis for why it was seeking to inquire into the legal basis of the scheme. On 1 March Leon, on the advice of her senior officers, told the Ombudsman that the Department absolutely did not think the Ombudsman should be talking about any legal justification or otherwise while a case was before the court.

On 5 March, the Australian Government Solicitor provided draft prospects advice to DHS about the Masterton matter which was passed to Leon as Secretary. Two things are important here. The AGS had been briefed that the department did not want to have the Federal Court rule on the legality of the Online Compliance Initiative (Robodebt) and, secondly, that according to the AGS advice Masterton’s case was ‘not hopeless’. Not. Hopeless. To quote the Royal Commissioner Catherine Holmes:

This aspect of the advice was significant. What was, in effect, a legal challenge to a fundamental feature of the Scheme – that is, the use of averaging to determine social security entitlement - had been described by AGS as not appearing to be hopeless; a roundabout way of saying that it had prospects of success. While the 5 March 2019 advice did not descend into any analysis of those prospects, it should have been clear at this time to Ms Leon and other readers of the advice that the legality of the Scheme was far from certain.

Despite this, on 8 March, Leon wrote to the Commonwealth Ombudsman to formalise her opposition to his investigation discussing the legal footing of the compliance regime. She wrote: “Our position is and remains that the legal position in relation to the program is not uncertain. Accordingly it would be premature for your report to suggest the legislation needs amending. I am concerned that your comments clearly imply that there is doubt as to the legality of the… system.”

This could not have been true on that date, after the AGS advice, but even if you wish to mount an argument that ‘not hopeless’ is not strong enough to knock your assessment into ‘uncertainty’, the following events leave no such room for debate. The Ombudsman agrees, a week later, to scrub any reference of legality of the compliance regime. Again, Commissioner Holmes:

As to the motivation for Ms Leon’s pressuring of Mr Manthorpe: by this stage, public and political criticism of the Robodebt scheme had been raging for some years. Commentary by the Ombudsman that suggested frailty in the legal foundations of the scheme would have undoubtedly added fuel to that fire. The risk of this further public scrutiny and political pressure is a far more likely explanation for the desire to have it removed than a misplaced concern for the integrity of a judicial process. n the Commission’s view, Ms Leon’s request to Mr Manthorpe to remove comments concerning legality from the Draft Implementation Report was not borne of any genuine concern to preserve the integrity of the Court’s decision-making processes in the Masterton litigation. Rather, it was designed to avoid public and political scrutiny of the Scheme. Ms Leon’s representations to the Ombudsman about the possible effect of those comments on the Masterton litigation were misleading and made without any proper basis.

The matter gets worse from here.

On 27 March, the AGS provided the draft advice for the Masterton case (as advanced from the prospects advice being ‘not hopeless’). This was devastating to the whole of the Robodebt scheme: ‘There is no statutory basis in the SSA, or related legislation, for deeming apportioned fortnightly income to be accurate or provide a sufficient basis on which to raise and pursue a debt’.

That is game over. On 29 March the advice made it to Leon. The same day a final draft of the new Ombudsman’s report was received in the department and neither that day nor any other did Leon or anyone in her department go back to the Ombudsman’s Office and update their previous firm position of utter certainty on Robodebt by informing them of this seismic and fundamental shift. Commissioner Holmes found: “Having adopted the position consistent with the representation to the Ombudsman that the legal position of the Scheme was “not uncertain,” it was incumbent on Ms Leon to correct the record when that position changed.”

She did not do so.

I acted with integrity and in accordance with the standards of the public service I served for 30 years. I testified before the Robodebt Royal Commission, which found that I acted in good faith, and which did not refer me to the APSC or the National Anti-Corruption Commission or any other investigative process.

OK, this statement contains a flat out and demonstrable untruth and at least two deliberate misleads, all of which are only apparent if you read the Royal Commission final report.

There is indeed a very specific moment, when the DHS decides to recalculate Madeleine Masterton’s debt and disappear it altogether by reducing it to zero, thus knocking the case out of the courts. In this matter the Robodebt Royal Commission states it ‘does not ascribe any bad faith to Ms Leon in the making of this decision’. Here’s the full context so you can see it for yourself:

Please compare how Leon uses the sentence I testified before the Robodebt Royal Commission, which found that I acted in good faith to what is actually said about one moment in her tenure and in the context of a final report which made adverse findings about her misleading the Commonwealth Ombudsman and taking too long to get Solicitor-General advice. These are not small matters.

Look at the delay in briefing the Solicitor-General, five months, from when the AGS draft advice casting significant doubt over the scheme and recommending the advice of senior counsel be obtained. From the Royal Commission report:

On 27 March 2019, Ms Leon had been provided with the Draft AGS Advice, which while expressing the view that Ms Masterton had good prospects of succeeding her claim based on averaging, recommended that, before any decision about the implications for and the steps to be taken in respect of the Scheme as a whole, senior counsel’s advice, possibly from the Solicitor-General, be obtained.

On 1 April 2019, Ms Leon met with a number of officers, including Mr Ffrench and Ms Musolino, to discuss the Masterton case. During this meeting, Ms Leon asserts, she asked that DHS officers proceed with obtaining the Solicitor-General’s advice. However, it was not until 27 August 2019 that the Solicitor-General was briefed to provide advice on the Scheme.

A further misdirect in Leon’s statement is that the Royal Commission did not refer her to the Australian Public Service Commission. She wasn’t, that is true, but not because she didn’t have a case to answer. Leon, unlike Campbell at the time, was no longer a public servant and Commissioner Holmes was explicit that she only referred people to the APSC if they were current public servants because only current public servants attracted the potential for sanctions. The APSC, out of procedural fairness, drew Leon back into the frame. It was right to do so.

I remain a strong believer in the importance of public service. Senior public servants play a vital role in improving and protecting the lives of Australians through sound policy development, efficient service delivery, and upholding the integrity and accountability of government operations. People who have blatantly done the wrong thing should be held to account. However, I believe the steps I took, under significant pressure, were consistent with the principles of public service to which I have unstintingly devoted my professional life.

I think Leon is entitled to make this argument, and have remained more sympathetic to her situation purely because her minister at the time was Stuart Robert. But what I cannot abide is language like the above about ‘integrity and accountability’ when we have such disingenuous statements as these and where real, serious mistakes were made by the secretary of a department who was not some spring child of an APS6. What has angered me even more than her statement has been the words of others who should know better who have called the APSC findings ‘absurd’ or charged it with ‘losing the plot’.

Get a grip. These people are undermining the only other institution apart from the Robodebt Royal Commission to make findings — or even, really, to do their jobs — because they can’t read a report. These are people who should know better but either don’t or have chosen to ignore standards and values like integrity and accountability because someone they know and like and otherwise respect has been swept up, not accidentally but by their own actions, in the ill of Robodebt.

As I said earlier, one can make an argument, even if others disagree, that Leon did the best she could in the circumstances. This does not equate to argument that she did nothing wrong and made no mistakes. And to think this, truly, marks you as part of the problem.

Robodebt thrived on such horrid rationalisations.

The final word I leave to the Royal Commission again:

As to the suggestion that Ms Leon was occupied with other “time critical” matters, it is difficult to conceive of a matter more critical than this. In light of the unambiguous opinion from AGS that the component of Ms Masterton’s claim relating to the lawfulness of averaging had “good prospects of succeeding,” it should have been clear to Ms Leon that the legality of the use of averaged PAYG data to establish a debt was in serious doubt. If that was correct, it followed that DHS was demanding and recovering money to which it had no lawful entitlement. The cohort from which it did so included many who were socially and financially vulnerable. Given her position as secretary of DHS and then Services Australia, it was Ms Leon’s responsibility to ensure that the Solicitor-General was briefed as a matter of urgency.