Posted 20/07/2023 by Philip Hamilton
The report of the Robodebt Royal Commission (the RC) was handed to the Governor-General on 7 July 2023. The report contains 57 recommendations, most of which can be implemented by the Executive branch of Government through administrative actions. Recommendations expected to require legislative changes are listed below under the relevant Commonwealth Act (where possible).
Administrative Appeals Tribunal Act 1975 (or successor legislation)
20.5: Administrative Review Council[i]
Re-instate the Administrative Review Council or a body with similar membership and similar functions, with consideration given to a particular role in review of Commonwealth administrative decision-making processes. [pp xix, 476, 484, 565-566 and 642].
Freedom of Information Act 1982 (FOI Act)
Section 34 of the Commonwealth FOI Act should be repealed
This was not framed as a formal recommendation, and so did not have a number.
Section 34 of the FOI Act exempts Cabinet documents, as a class, from disclosure. This reflects the convention of Cabinet confidentiality and the principle of collective ministerial responsibility. The RC recommended that:
the Government should end the blanket approach to confidentiality of Cabinet documents [as] the mere fact that a document is a Cabinet document should not, by itself, be regarded as justifying maintenance of its secrecy. … The wide range of class and conditional exemptions in the FOI Act is sufficient to protect the public interest in relation to Cabinet documents. [p 657].
Members of Parliament (Staff) Act 1984 (MOP(S) Act)
Legislated code of conduct and statement of values for ministerial staff
This was not framed as a formal recommendation, and so did not have a number.
The Thodey Review and the Jenkins Review both recommended that the MOP(S) Act be amended to include a legislated code of conduct for ministerial staff and a statement of values that clarifies their distinct role from that of the [Australian Public Service] APS (and the Parliamentary Service); and that the code clarify that such staff do not have authority to direct the APS. The Commission supports this recommendation, and understands that it will be implemented by the Parliamentary Leadership Taskforce. [p 647].
Ombudsman Act 1976
21.1: Statutory duty to assist
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. [pp xix, 573-576, 581-582, 583, 586, 588, 589, 594, 597-598 and 599].
21.2: Another power to obtain information
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 1997. [pp xix, 573-576, 581-582, 583, 586, 588, 589, 594, 597-598 and 599].
Subsection 33(3) requires the occupier of Commonwealth premises entered by an authorised official of the Auditor-General to provide the official with all reasonable facilities for the effective exercise of their powers.
21.5: Powers of referral
The AAT is soon to be replaced by a new administrative review body. Section 10A [which allows the Ombudsman to refer a question about the taking of an action to the AAT] and section 11 [which allows the Ombudsman to recommend that the Secretary of the Department being investigated refer a question about the taking of an action to the AAT] of the Ombudsman Act should be amended so as to ensure the Ombudsman has the powers of referral and recommendation of referral in respect of that new administrative review body. [pp xx and 588-590].
Public Service Act 1999
23.7: Agency heads being held to account
The Public Service Act should be amended to make it clear that the Australian Public Service Commissioner can inquire into the conduct of former Agency Heads. Also, the Public Service Act should be amended to allow for a disciplinary declaration to be made against former APS employees and former Agency Heads. [pp xx and 644].
Social Security Act 1991
18.2: Reinstate the limitation of six years on debt recovery
The Commonwealth should repeal section 1234B of the Social Security Act and reinstate the effective limitation period of six years for the bringing of proceedings to recover debts under Part 5.2 of the Act formerly contained in s 1232 and s 1236 of that Act, before repeal of the relevant sub-sections by the Budget Savings (Omnibus) Act (No 55) 2016 (Cth). There is no reason that current and former social security recipients should be on any different footing from other debtors. [pp xvii, 137, 143, 364 and 508-509].
Unspecified Commonwealth legislation
The RC also made recommendations relating to automated decision-making in government.
17.1: Reform of legislation and implementation of regulation
The Commonwealth should consider legislative reform to introduce a consistent legal framework in which automation in government services can operate.
Where automated decision-making is implemented:
- there should be a clear path for those affected by decisions to seek review
- departmental websites should contain information advising that automated decision-making is used and explaining in plain language how the process works
- business rules and algorithms should be made available, to enable independent expert scrutiny. [pp xvi and 488].
17.2: Establishment of a body to monitor and audit automated decision-making
The Commonwealth should consider establishing a body, or expanding an existing body, with the power to monitor and audit automate[d] decision-making processes with regard to their technical aspects and their impact in respect of fairness, the avoiding of bias, and client usability. [pp xvi and 488].
[i] The RC’s numbering system indicates the chapter in which each recommendation appeared.