Robodebt royal commission hears ombudsman who investigated the scheme allowed DHS to amend wording of report

A former ombudsman has been accused of failing to run an impartial investigation into Robodebt after his final report did not mention the scheme was illegal.

Key points:

The royal commission into the unlawful debt-raising scheme also heard the department responsible for the Coalition-era program – the Department of Human Services (DHS) — was allowed to submit notes on a final report into Robodebt.

Former acting Commonwealth ombudsman Richard Glenn today took the stand in Brisbane as the mammoth schedule of hearings into the scheme that unlawfully raised thousands of dollars from welfare recipients enters its final days of public hearings.

The royal commission heard Mr Glenn was responsible for a 2017 report into Robodebt, which did not mention the scheme was illegal.

The inquiry heard from another investigator at the Office of Commonwealth Ombudsman earlier this week, Louise Macleod, who had also worked on the report.

She claimed she tried to have the issue of legality raised in the report but a paragraph about the unlawfulness was not included in the final version.

When asked about the issue today, Mr Glenn said: “On the material before me, I was not satisfied we could make a declaratory statement and I chose not to comment on legality”.

“Ultimately, I decided not to include this text in the report.”

But a perplexed Commissioner Catherine Holmes SC said: “It’s frustrating, Mr Glenn, because it’s absolutely correct [the legal opinion from other ombudsman staff] and the most frustrating thing is they [DHS] never went to the [Social Security Act] and looked at what’s permissible but your staff actually did and they were right.”

The inquiry earlier heard Mr Glenn had allowed parts of the draft report to be sent to DHS, who were being investigated, to amend wording before publication.

Counsel Assisting the Commissioner Angus Scott KC said this was not consistent with the obligation of impartiality required by the Office of the Commonwealth Ombudsman.

“You’re effectively handing over to the department [and giving them] an opportunity to assert wording to fit their public narrative?” he asked.

“And therefore, I suggest, potentially compromising the independence of the office,” Mr Scott continued.

But Mr Glenn said he did not “accept that proposition”, but agreed he should have sought independent legal advice “in retrospect”.

Poor practice or maladministration

The inquiry also heard Mr Glenn also did not exercise a power to refer DHS to the Administrative Appeals Tribunal (AAT), despite members of his office calling for it.

He told the royal commission this was because of time and resourcing constraints.

Mr Scott later put to Mr Glenn: “By failing to deal with the question of lawfulness in the report … failing to more squarely deal with the issue of the inaccuracy of averaging in the report and by failing to make a referral to the AAT on the question of law … you failed to demonstrate the level of independence required of your office at the time.”

“I don’t accept that, Mr Scott,” Mr Glenn replied.

Mr Glenn was earlier asked about his views about the department’s decision to rollout the illegal scheme.

“Even putting to one side the complexities you say existed with the question of the lawfulness of averaging, the commencement of the scheme in those circumstances, wasn’t that clearly an instance of maladministration?” Mr Scott asked.

Mr Glenn replied: “I think it’s poor practice, I would wish to reflect on whether that’s maladministration.”

Commissioner Holmes continued the questioning, asking: “Starting a scheme that your advice is unlawful, you wouldn’t see that as maladministration?”

Mr Glenn said it was, but only “in the absence of any other advice”.

‘It appears they didn’t respect the role’

Current Commonwealth Ombudsman Iain Anderson also took the stand this morning and was asked to make comment on the previous investigation.

He said the previous investigation was “extremely disappointing” because DHS had not engaged fully with investigators.

It was revealed earlier this week they had deliberately withheld documents required by the ombudsman’s investigation.

“It appears they didn’t respect the role of the ombudsman, they didn’t respect the questions that they were being asked, they didn’t respect a range of different obligations that they had as public servants under the Public Servant Act, things like that,” Mr Anderson said.

Mr Anderson said he would, in general, consider making referrals to the AAT if it were in the public interest – despite the fact it had only been done twice in the office’s history.

In contrast to Mr Glenn’s evidence, he told the inquiry resourcing would not factor into his decision to do so.

“I would be prepared to find the resources if I thought it as necessary,” he said.

The inquiry continues.