Reflections on 2023

It’s the start of a new year and I would like to use this opportunity to reflect on an important moment in 2023 which served as a vital reminder of the importance of ensuring systems are fair, people-centred and lawful.

In November 2023 the Australian Government accepted or accepted in principle all 56 of Commissioner Holmes’s recommendations following the conclusion of the Royal Commission into the Robodebt Scheme. The government recognised the “human tragedy” of the Robodebt Scheme, and the importance of people-centred policy development and service delivery.

Commissioner Holmes’s findings and recommendations are wide-ranging, but some are particularly pertinent to my office, our role in the National Scheme and the roles of the organisations we oversight. My statutory powers as Ombudsman are derived from the same legislation as the Commonwealth Ombudsman. The Royal Commission specifically considered and made recommendations related to the Commonwealth Ombudsman’s two own motion investigations into the Robodebt Scheme in 2017 and 2019. The Commission’s report summarises:

The Scheme demonstrates the importance of a properly resourced and, more importantly, an independent and robust Ombudsman. It exemplifes the social importance and economic sense of having such a person in the role. The Ombudsman could have played an important part in stopping a poorly thought-through and, worse, illegal program from proceeding at grave personal cost to thousands of individuals and at enormous public expense.

I believe it is vital that we take the time to reflect on the Commission’s findings, and make sure that organisational cultures and processes do not allow events, such as the tragedies of Robodebt, to occur.

Alarming issues the Commission uncovered

Commissioner Holmes made five recommendations specifically related to the role of the Commonwealth Ombudsman regarding the Robodebt Scheme. The key problems identified and their suggested remedies are summarised below. Please read the report in full for further information.

Provision of information to the Commonwealth Ombudsman

One of the Commission’s most troubling findings was that there was evidence of “readiness to conceal and mislead” the Commonwealth Ombudsman in relation to requests for information under s. 8(3) of the Ombudsman Act 1976 (Cth) in both 2017 and 2019. The Commission found that the departments investigated had provided “incomplete” responses to the Commonwealth Ombudsman’s various formal notices, or “withheld key documents” within the request’s scope. The Commission’s report further stated that the Ombudsman’s office had been “deceived” when it had asked questions and sought information related to the number of recipients who had a debt based on averaging, compliance activities and data modelling.

The Commission examined the issues associated with departments deliberately misleading or withholding information during an investigation. It ultimately suggested that “good faith cooperation” could not be assumed and that the Commonwealth Ombudsman requires greater powers in circumstances where a body seeks to deliberately mislead or not comply with an investigation. Commissioner Holmes recommended that:

A statutory duty be imposed on departmental secretaries and agency chief executive officers to ensure that their department or agency use its best endeavours to assist the Ombudsman in any investigation concerning it, with a corresponding statutory duty on the part of Commonwealth public servants within a department or agency being investigated to use their best endeavours to assist the Ombudsman in the investigation (Recommendation 21.1)
The Ombudsman Act be amended to confer on the Ombudsman a power in equivalent terms to that in s. 33(3) of the Auditor-General Act (Recommendation 21.2).

Ensuring appropriate responses to investigations

Commissioner Holmes also recommended that departmental and agency responses to own motion investigations by the Ombudsman should be overseen by the legal services division of the relevant department or agency. The report outlines that this recommendation was necessary because the Commonwealth Ombudsman had reasonably assumed that public servants would properly cooperate with the investigation and adhere to their Code of Conduct. However, those involved in designing the Robodebt Scheme were also responsible for responding to the investigation, and were therefore not ‘disinterested’ in providing the required information.

Communication between the Commonwealth Ombudsman and bodies it oversights

The report also details the Commission’s concern that one of the departments involved in the investigation had influenced the content of the Commonwealth Ombudsman’s 2017 investigation report, which compromised the investigation’s independence. Among other issues, the Commission found that the Commonwealth Ombudsman had provided a ‘draft outline’ of its investigation report to the department with an opportunity to make track changes to the document, leading one department staff member to remark that the department had been given the opportunity to “effectively cowrite” the report. The Commission also found that records were not always appropriately kept of meetings between the department and the Commonwealth Ombudsman regarding the investigation. Commissioner Holmes recommended that the Ombudsman maintain a log, recording communications with a department or agency for the purposes of an own motion investigation.

Key learnings

The consequences of Robodebt continue to be felt, and I acknowledge and recognise those who have been affected by the unlawful and unfair Scheme. I continue to be struck by the courage of those individuals who put their hand up, sometimes repeatedly, to raise alarm about the Scheme. Sometimes it can be challenging for organisations to see complaints as the gifts that they are. The injustices of Robodebt, however, are a devastating reminder of what can happen if concerned voices are not appropriately heard and addressed.

There is much to be learnt from Robodebt and much to be done to ensure Commissioner Holmes’s recommendations are implemented. I’ve highlighted below several important learnings we can take from the Commission’s findings and keep at the front of our minds in 2024:

Ensure all staff have a clear understanding of relevant legislative obligations, including in relation to the powers of the National Health Practitioner Ombudsman and the National Health Practitioner Privacy Commissioner.
Ensure staff members responding to requests for information from the Ombudsman and Commissioner have the appropriate skills, knowledge and separation from the issues under consideration to provide accurate and complete information.
Keep accurate and complete records in line with relevant best practice principles and legislative requirements, including in relation to in-person and verbal discussions.
Cultivate a culture where staff are encouraged to embody values associated with good governance and decision-making. Staff should have the courage to do what is in the public interest, even if it is challenging.
Put people at the centre of the decision-making process, including by considering whether decisions are leading to fair and reasonable outcomes.
Ensure a commitment to continuous improvement, including learning from complaints and being open to identifying and addressing problems.

I will continue to keep you updated on any relevant changes to the Ombudsman Act as a result of the implementation of Commissioner Holmes’s recommendations.

Richelle McCausland

National Health Practitioner Ombudsman

National Health Practitioner Privacy Commissioner