Why is there silence on the fact that the bureaucracy not only ignored legal commentary from an esteemed legal scholar on Robodebt, but has also ignored legal commentary from the same esteemed legal scholar on RoboNDIS?
This question has wide ramifications for the Australian Public Service and government.
In the week since the Australian Public Service Commission (APSC) released its report on the Robodebt investigation, with findings against individuals – some named, most not – with the defensive responses, the closing of ranks, and the friendly defenders presenting a case study of a toxic culture live in action.
There is a sense in the APSC report that Robodebt is done, that it is now in the past and that the inquiry was to address breaches of the Public Service Act and put in place measures to ensure that ‘a Robodebt’ never happens again.
But Robodebt was not a one-off failure of a bureaucracy where leaders ‘lost their way’. To the contrary. What is known is that Robodebt was part of the whole-of-government automation strategy. There was intent and strategy and culture.
Perhaps the silence might be explained by the scope of the inquiry’s terms of reference. But how can such an inquiry make recommendations to ensure that ‘a Robodebt’ never happens again, when the tentacles and impact of the larger whole-of-government strategy – of which Robodebt was but the first offspring – goes un-examined?
And what is the explanation for the sanitising, softening and omission of words. It is noted that the word ‘suicide’ is not mentioned in the report. Why is this?
This word must be said out of respect, because it happened. The absence of the word perhaps is a legal mechanism, not to acknowledge in anticipation of further legal action.
“Tragically, the receipt of an automated debt notice has been linked to incidents of self-harm.”
People suicided over Robodebt. And people have suicided over RoboNDIS; others have died as the funding for services essential for life is cut; many suffer harm; and fear for life. These are their stories.
So, I know that people harmed by Robodebt – and RoboNDIS – would find the following statement utterly outrageous.
“The public service has come a long way. Services Australia and the Department of Social Services have significantly transformed themselves.”
The APSC report is a case study in softness.
It seems that there is some revisionism or at least an unnerving silence on the impact of the whole-of-government strategy of automated decision making. Robodebt was the first in this new game of “common patterns” and “common systems”.
This all sounds good in theory, right up until something goes wrong.
The softness and insufficiency of the APSC report is further seen in the omission of any reference to ‘technology’ or ‘automation’: these words are not mentioned at all. And yet it is only via technology and automation that such harm at population-wide scale is even possible.
This is a fundamental and probably catastrophic omission, particularly in this turbulent era of powerful algorithms and AI, which the APS has shown itself to be dangerously ill-equipped to safely manage.
To reiterate on the unlawfulness of both Robodebt and RoboNDIS. Robodebt was found to be unlawful by the Federal Court of Australia. And the NDIA was found to be operating unlawfully by the Joint Standing Committee on the NDIS (JSCNDIS). This is no coincidence.
There is no separating Robodebt from RoboNDIS from whole-of-government.
NDIA and Robodebt were in the tent together in January 2017, with NDIS emails (evidenced at the Robodebt Royal Commission) between Robodebt architects who were working on staff in the NDIA, and yet were responding to DHS executive using NDIS email, about sensitive leaks about Robodebt.
Those same Robodebt architects continued working on RoboNDIS for years, even during the Robodebt Royal Commission.
Robodebt continues in the NDIA, together with RoboNDIS. Large scale population-wide systems of automated administrative decision making driven by deeply hidden and unexplainable defective algorithms, devoid of ethics, creating risk to life.
Robodebt and RoboNDIS are not two separate coincidental programs. These were administered within the same portfolio, created by the same people, using the same defective methods, during the same period of time.
They were each intentionally designed as part of the foundations of the whole-of-government Digital Transformation Agenda and automation strategy, driven by the Digital Transformation Office/Agency and executed primarily by DHS.
It should be remembered that DHS had been the ‘technology’ provider for NDIA, and for years, spoke for the NDIA at Senate Estimates on technology matters.
Robodebt and robo assessment practices have not stopped. To the contrary. It was the design and intent of the Digital Transformation Agenda, that these practices would be common across government.
Evidence of DTO involvement (emails/documents) and details of the Digital Transformation Agenda was seen in RoboDebt Royal Commission evidence. Specifically, the Digital Transformation Agenda:
“…will produce significant improvements in service delivery along with efficiencies for government…includes creating new digital standards and common services for agencies…The agenda is broad and ambitious … further offsetting savings which may be drawn from efficiencies from adopting the common platforms.”
Any argument that RoboNDIS and Robodebt are not connected is factually flawed.
This is a bit like saying that the UK Post Office IT Scandal, just affected one post office branch (which was the argument originally put) – and not the entire network of post offices.
In the Robodebt Royal Commission Report, Commissioner Holmes refers to the opinion of law expert and former Administrative Appeals Tribunal member Professor Terry Carney, emeritus professor at the University of Sydney Law School, who had written an academic paper about the lack of lawful basis for income averaging under the program.
In investigating referrals from the Robodebt Royal Commission, the Australian Public Service Commission found amongst other things, Campbell:
“…failed in 2017 to investigate legal issues raised in a public forum, namely the annual meeting of the Australian Institute of Administrative Law, about the Scheme…” and
“…failed in 2017 to ensure that her Minister was fully informed of academic and legal criticisms raised in that public forum in respect of the Scheme…”
Professor Terry Carney, whose opinions and articles held weight at the Robodebt Royal Commission, has also raised legal and ethical questions about the use of algorithms by the NDIA.
The article, “Decoding the algorithmic operations of Australia’s National Disability Insurance Scheme” written by Professor Carney with fellow scholar Dr Georgia van Toorn, raises potential legal ramifications of the connections being observed between Robodebt and the NDIA’s use of algorithms.
The commentary in the Carney/van Toorn article, presents a clarion warning as to the shifting legal minefield in the era of algorithmic decision making, which cannot be ignored.
The Carney/van Toorn article refers to these as subterranean systems, “because their workings are neither publicly known nor amenable to legal rectification…”
This is all very relevant to the context of the APSC Robodebt report.
The statement from the Public Service Commissioner when releasing the report, establishes a positive obligation on all public servants:
“Public servants have a duty to consider whether a decision is ethically sound. The question cannot be confined to whether a decision is legally and technically possible but also whether it is, in fact, the right thing to do, no matter how hard that may be. It is not open to a public servant to manufacture contrivances, to selectively choose evidence to justify a line of action, or to simply turn away.”
Against this statement, the recent amendments to the NDIS Bill are observed. The Bill was pushed through the Parliament via political deals, notwithstanding universal objections and concerns about risk to life from legal and human rights experts, from healthcare and advocacy groups, and the serious concerns of the Parliament’s own Human Rights Committee.
The Carney/van Toorn article on RoboNDIS was provided to parliamentarians and many bureaucrats. Those in authority cannot claim ignorance over this Robo warning.
And of course, the NDIA chief executive, NDIA executives and other APS officials would all be covered by the Public Service Commissioner’s statement of positive obligation. So, what have they done? What inquiries have they made?
As I stated in my recent submission on the NDIS Bill:
“Does the NDIA now have knowledge of the growing number of cases of algorithmic decision making in other jurisdictions leading to harm, risk to human life, and suicides, as documented in the report ‘United against algorithms: a primer on disability-led struggles against algorithmic injustice’.”
Remaining silent and getting on with the job is not an option.
The culture that created a deadly RoboGovernment
Robodebt and RoboNDIS were created at the same time, by the same portfolio, by the same people, under the whole-of-government automation strategy.
Of course, RoboNDIS encompasses far more than automated debt raising, but there should be no doubt, that these are twin spawn from this strategy. Strategies that have directly led to deaths.
I was the Head of the NDIA Technology Authority at the time that Robodebt was being created by DSS and DHS, as part of a whole-of-government automation strategy.
NDIA systems were delivered by DHS. So, my observations are not only about RoboNDIS, but about the whole-of-government automation landscape at that time, which gave rise to both Robodebt and RoboNDIS. This fact cannot be ignored.
For those interested in what it was like on the ‘inside’ at the time, you can read about it in my book “Nadia: Politics | Bigotry | Artificial Intelligence”.
I was vilified and ridiculed for pursuing the Nadia project at the very time that RoboDebt was exploding in the bureaucracy. I was told to choose DHS or choose NDIA, and I chose NDIA (not least because I have family with disability). But even with all my skills and experience, I was expendable.
And for choosing NDIA – for not being ‘loyal’ to DHS at this critical time (Robodebt) – I would not work in government again in Canberra.
The vilification would go on for years, and I still hear the whispers. I therefore have no sympathies for those who have findings against them.
This perverse ‘closing of ranks’ behaviour that has been exhibited in recent days following the APSC Robodebt report is a symptom of a systemic culture of deviance. This is a culture that is explored in the insightful book “The Challenger Launch Decision” by Diane Vaughan.
To truly understand the culture that gave rise to Robodebt and RoboNDIS, there is much to be learned from the examination of the influence of culture on the normalisation of deviance at NASA.
It explains how deviance was transformed into acceptable behaviour, which directly led to the space shuttle Challenger disaster. A catastrophic event that was decades in the making and rooted in politics, culture, design and decision making
In the Challenger case, design and manufacture was heavily shaped by political influence and this resulted in the need for O-rings joining sections of the rocket boosters that had been brought together following manufacture in geographically dispersed electoral areas. It would be the O-rings that would fail catastrophically.
Compounding the design compromises, were decision makers ignoring technical advice regarding risk to launch. The night before the Challenger launch, the engineers provided advice to NASA management that the forecast temperature in the morning was for ice and was too cold for launch. This would almost certainly cause O-ring failure, the engineers said.
In an environment of intensifying political and budgetary criticism, the technical advice was over-ridden by NASA management which proceeded to launch, resulting in the catastrophic loss of the space shuttle and its crew.
Diane Vaughan’s extraordinary examination of the Challenger disaster proposed that:
‘…to locate the cause of the tragedy only in production pressures is to oversimplify and, indeed, distort what happened. Other factors, which received less attention in post tragedy accounts and thus disappeared from public memory, figured importantly in the disaster.’
These other factors included sociology, culture and:
‘…how deviance in organisations is transformed into acceptable behavior’.
Vaughan revealed “…how and why NASA insiders, when repeatedly faced with evidence that something was wrong, normalized the deviance so that it became acceptable to them…This powerful work explains why the Challenger tragedy must be re-examined and offers an unexpected warning about the hidden hazards of living in this technological age.”
In my many writings, including in the Nadia book, I examine how algorithms and Automated Decision Making (ADM) are examples of such hazards in today’s technological era.
By closing ranks – as evidenced by comments on LinkedIn and in the media – the APS as an institution rejects the warning signals, fuelling and cultivating a culture that has normalised deviance and transformed it into acceptable behaviour.
The challenge for the Public Service Commission
There can be no learnings, accountability or justice from the Robodebt Royal Commission alone. The learnings will only come when the combined common Robodebt + RoboNDIS malfeasance is confronted, and people are brought to account for both.
Robodebt and RoboNDIS are not simply separate unrelated “projects” gone wrong.
The technical unlawfulness once dealt with, does not make the hazard go away. And that is the challenge for public administration, and why the APSC report is inadequate.
Indeed, the full reach of the perverted whole-of-government machinery and culture of deviance that facilitated the Robodebt catastrophe, is yet to be reckoned with both in terms of perverting lawfulness and the scale of the harmed caused to Australian citizens, including children and people at risk.
I personally do not believe that the Australian Public Service Commission has scratched the surface of the full extent of the perversion of public administration brought about by the ruthless application of automated decision making by a bureaucracy utterly devoid of skills, operating a tick-and-flick world of make-believe ethics.
In delivering its report and findings, the APSC perhaps unwittingly delivered a trigger for the RoboNDIS Class Action. In any event, it seems that the APSC report has triggered a revisit of the RoboDebt Class Action, with RoboDebt victims appealing the settlement with the Commonwealth on the basis of “damning new evidence” and claims senior public servants who administered the scheme engaged in “misfeasance in public office”.
The RoboNDIS Class Action campaign is similarly investigating misfeasance (and potentially malfeasance) in public office. Given these twin programs, it is difficult to see how the misfeasance that created these catastrophic programs is severable.
A final word on the sealed section
The sealed section of the Robodebt Royal Commission Report must be unsealed. For transparency and for justice for the hundreds of thousands of people harmed.
Unsealing it would lay bare the perverted culture that turned deviance into acceptable behaviour: revealing all the connections, common behaviours, and common practices across both Robodebt and RoboNDIS. The Australian community must know the full truth.
In recent days, Jennifer Miller, the beautiful mother of Rhys Cauzzo who died by suicide after receiving two robodebts, has called for the Robodebt sealed section to be unsealed.
“It’s been almost eight years since she lost her son and she never dreamed that she’d still be fighting this battle, not just for him, but for every Australian affected by robodebt.”
“‘I wish I could turn the clock back, and it never happened. I really, really do,’ Miller said of her son’s death.”
As a mother of family with disability, I am haunted over what has happened. I have been fighting for 10 years for a just and safe NDIS. And it will never be safe for anyone until the full story of what has happened is exposed.
With the community, I will fight to stop what has happened and what is happening so that no other mother, father or family suffers as we have.
This we CAN do.
If you or anyone you know needs support, call Lifeline on 131 114 or Beyond Blue on 1300 224 636.
Do you know more? Contact James Riley via Email.