A royal commission may be unable to fully scrutinise the commonwealth ombudsman’s crucial role in the robodebt saga unless the watchdog voluntarily agrees to cooperate.
The ombudsman’s actions were brought into focus on Monday when the inquiry heard Department of Human Services (DHS) legal branch official Michael Robinson believed the department had the chance to “effectively co-write” a key report the watchdog was preparing on the robodebt scheme.
There has been no confirmation the ombudsman’s office will provide “information voluntarily” after the royal commission heard in late October there was no “indication” it would do so. The ombudsman’s office says it can’t be compelled.
On Monday, the royal commission heard DHS officials were twice given the chance to “mark up” a draft version of its investigation report. Documents shown to the inquiry showed one DHS official later stated in a job application he had “shaped” the ombudsman’s report.
That official, former DHS general manager Jason McNamara, said it was common for the ombudsman to seek feedback and noted the watchdog could reject any of the department’s proposed language.
The ombudsman’s final report was published in April 2017 after months of controversy and it gave the central premise of the scheme the green light. It appeared to incorporate some of the department’s proposed language changes, including removing the phrase “inaccurate debts”, but rejected other suggestions.
In a statement, the ombudsman told Guardian Australia it provided draft reports to agencies in order to ensure “procedural fairness” and the final report was a matter for the watchdog.
The ombudsman’s actions have come under scrutiny at the royal commission. The inquiry has previously heard the ombudsman received conflicting versions of internal departmental legal advice on the scheme, including a 2015 advice suggesting the scheme was likely unlawful, and a second piece of advice suggesting it was.
But its final report did not raise questions about the legality of the robodebt scheme. This was seized upon by the Coalition government and DHS at the time.
Senior counsel assisting the commission, Justin Greggery KC, said in his opening address on 28 October there had been “no indication that the ombudsman will, in fact, assist the commission by providing information voluntarily”.
That followed an exchange of correspondence between the commission’s lawyers and lawyers for the commonwealth representing the ombudsman, who said the watchdog could not be compelled.
Greggery noted the ombudsman’s report was relied on as a “stamp of approval for the legality of the scheme in the face of subsequent public criticism”.
The commonwealth ombudsman’s office told Guardian Australia in a statement last month that, according to the Ombudsman Act, it was “not compellable” to “appear before and give evidence to the robodebt royal commission”.
“The robodebt royal commission is investigating very serious issues of public policy and administration,” the statement said.
“The ombudsman is, and has always been, willing to consider what assistance he can provide to the royal commission voluntarily (under s 35A of the Ombudsman Act). The ombudsman is actively engaging with the commission as to the preferred form of assistance.”
But doubt remains over whether the ombudsman will formally agree to participate by providing a statement or documents sought by the royal commission.
No one from the ombudsman was named as a witness for this fortnight’s block of hearings, despite the royal commission’s inquiries focusing heavily on the ombudsman’s report.
The ombudsman did not respond directly when asked by Guardian Australia whether it would provide a statement to the royal commission on the matters aired on Monday. It was also asked whether it had formally agreed to make a statement or provide documents.
The ombudsman’s office said in a further statement on Tuesday morning: “The ombudsman continues to actively engage with the commission as to how we can assist.”
The NSW ombudsman recently told the disability royal commission it was not compellable for that inquiry.