Government’s ‘anti-welfare’ robodebt scheme rooted in wicked issues over frank advice

-- News analysis for the The Mandarin | Government’s ‘anti-welfare’ robodebt scheme rooted in wicked issues over frank advice

Robodebt, the illegal Australian government welfare scheme that “made people feel like criminals”, has been described by the final royal commission report as a crude and cruel mechanism, neither fair nor legal.

It was a dark day for everyone in Canberra on Friday with the delivery of the 900-page robodebt royal commission report to the governor-general, and subsequent tabling of the document.

The three-volume final report, with its 57 recommendations, was released to the public just after 11 am and a press conference with prime minister Anthony Albanese and government services minister Bill Shorten followed 45 minutes later.

The PM apologised to victims for the robodebt scheme – a “gross betrayal and human tragedy” that pursued erroneous debts against thousands of people, many of whom did not owe a dime.

“We have arrived at the truth because of the courage of some of the most vulnerable Australians — people who have shown bravery in the face of injustice, hardship and sometimes terrible grief,” Albanese said.

“The courage stands in stark contrast to those who sought to shift the blame, bury the truth and carry on justifying this shocking harm.”

The PM was referring to a long list of ministers and senior bureaucrats who the royal commission said were “startlingly” responsible for myriad of events that “failed the public interest”.

The report found actors had shown little interest in ensuring the legality of the debt-raising scheme and gave little thought to how this would affect Australian welfare recipients.

An especially pointed observation came in commissioner Catherine Holmes’s preface message, expressing her dismay over revelations of “dishonesty and collusion” to cover up robodebt’s shaky legal foundations from becoming known.

The failure of institutional checks and balances, which theoretically should have filtered all the bad aspects of the scheme from ever being approved — least of all implemented — was also disheartening, the commissioner said, lashing agencies including the Commonwealth Ombudsman’s Office, the Office of Legal Services Coordination, the Office of the Australian Information Commissioner and the Administrative Appeals Tribunal, who should have stopped robodebt in its tracks.

Reinforcing the capability of oversight agencies was one of the major recommendations to emerge, including strengthening the APS more broadly, and improving the processes at the Department of Social Services and Services Australia.

“Whether a public service can be developed with sufficient robustness to ensure that something of the like of the robodebt scheme could not occur again will depend on the will of the government of the day, because culture is set from the top down,” Holmes said.

“Politicians [also] need to lead a change in social attitudes to people receiving welfare payments … Anti-welfare rhetoric is easy populism, useful for campaign purposes … largely, those attitudes are set by politicians, who need to abandon for good (in every sense) the narrative of taxpayer versus welfare recipient,” she said.

Never again can a ‘mean-spirited’ government program have such a human toll, PM says

Nothing like robodebt should have ever happened, Albanese said, outlining how the illegal scheme caused stress, anxiety, financial destitution and an extreme human toll.

He admonished the former Coalition government for furthering the harm by ignoring multiple concerns raised by vocal victims, public servants, community organisations and legal experts who advocated for years to have the illegal program dismantled.

“The report goes on to say, ‘What is certain is that the scheme was responsible for heartbreak and harm to family members of those who took their own lives because of the despair the scheme caused them. It extends from those recipients who felt that their only option was to take their own life, to their family members who must live without them’. [It’s] an extraordinary finding from this royal commission,” Albanese said.

Quoting again from the report, the PM said: “‘As to whether the Australian government sought to prevent scrutiny of the robodebt scheme, there is no doubt that there was a constant misrepresentation that the scheme involved no change in the way income was assessed or debts were calculated’.

“When I read that, I recalled the multiple times where we asked questions in the parliament and then prime minister Morrison responded by saying that there were no changes that occurred, [and] that this somehow went back to the period prior to the change of government that occurred in 2013. It makes it very clear that that isn’t the case,” he said.

The robodebt saga was equivalent to four-and-a-half years of the previous government and senior public servants gaslighting its citizens, Shorten said, adding the injury of the fiasco to democracy and trust in institutions was serious because Australians were not helped — they were hurt.

“Today my thoughts are with the victims, the 433,000 vulnerable Australians who were identified in the Federal Court, and tens of thousands of others,” Shorten said.

“They were literally shaken down by their own government; by a government who didn’t have the power to raise debt notices against them, and in fact, [broke] the law. [Robodebt victims] had the onus of proof reversed, they were treated as guilty until proven innocent.

“And for those who had the temerity to complain they were subject to vile political tactics — today is about these victims,” he said.

Consequences for bad faith actors caught in the crosshairs and priming bureaucrats for frank advice

Sanctions and consequences for those most responsible were by far and away the common theme among questions put by the media. It is widely understood that a range of criminal and civil legal options are on the table, including the possibility of prosecution and sackings.

Neither Albanese nor Shorten would be drawn on whether 20 individuals had been named in the sealed component of the report.

Journalists were hungry to know about a sealed dossier, which even Albanese himself has not seen but has been given to PM&C head Professor Glyn Davis, listing those facing adverse findings and referrals. Several questions were put asking what this section meant for those elected officials who had been named and shamed.

To some extent, the PM and Shorten shared this frustration – the moment of reckoning today’s report tabling was meant to represent has been undercut by the strong desire for due process to follow.

The government services minister reminded people that for proper accountability to land, proper processes needed to be played out. This meant not rushing to fire some of those named in Holmes’ sealed chapter.

“When I first read commissioner Holmes’ letter [referencing the sealed section], I had conflicting emotions,” Shorten said.

“I know lots of people out there who feel ‘Will anyone ever get punished?’ but … to the people worried about that, there are adverse findings, there are bodies who have now been asked with a brief of evidence to look at these matters. There will be accountability,” he said.

The sealed section may not remain out of bounds forever, but the government has not taken advice from the Attorney-General’s Department on this issue.

Avoiding prejudice was an important aspect of the next steps, Albanese said, and proper processes and procedures must be followed.

“We need to make sure as well that you don’t prejudice action, and I think people want action as a result of this,” the PM said.

“We will take the appropriate legal advice there as well; agency heads have received that element of the report [and] they are empowered, of course, to take action, including the potential suspension as an act to ensure proper processes.”

A number of ministers embroiled in the robodebt scandal, including Alan Tudge, Stuart Robert and Scott Morrison, released statements of their own throughout the day.

A partner at embattled firm PwC was also announced among the first to face professional consequences in the wake of the report landing. The Mandarin confirmed the news on Friday.

In terms of curing the toxic elements of the APS exposed by robodebt, including cultural transformation, the PM said there had been a marked change to how the government dealt with the public service since Labor took office last May. He reiterated previous statements about the mission to put “humans back into human services” and service delivery.

“I lead a government that has proper orderly processes; that has cabinet meetings where you have co-ord comments from departments, where ministers go and visit the departments and talk, not just to their departmental secretaries, but right throughout their departments as well,” Albanese said.

“It is a different approach that this government has towards all of these issues,” he said.

In answer to a question about the overuse of cabinet-in-confidence processes, Albanese challenged the view, arguing it was an essential part of receiving frank advice from public servants.

Better government policies and their outcomes could only be achieved if there was a safe environment for bureaucrats to deliver robust advice to their political masters, he said, and robodebt was a “wake-up call” to better facilitate this.

“You want public servants to have the confidence of giving clear advice to government. If it is all out there, you will end up having more verbal advice.

“You will undermine the capacity of the public service to give frank and fearless advice,” Albanese said.

Questions about compensation for 526,000 robodebt victims remain

Responding to questions about how adequate existing compensation arrangements were for robodebt victims, Shorten said commissioner Holmes had also addressed the question. He noted that the royal commission reached the view that a general compensation scheme for victims was not feasible.

“What she identifies is that there were different people who suffered different harms,” Shorten said.

“[The commissioner] does raise the question of whether or not there is a tort of public malfeasance and I think that is something that we’ll no doubt look at further.”

Peter Gordon, a senior partner of the law firm that initiated the federal court class action against the commonwealth, and which reached settlement in 2021 for about $1.8 billion, also issued a statement. He said the royal commission report vindicated an already long-held view that robodebt was a “shameful chapter” for the Coalition government led by Morrison.

“Today’s findings have been a long time coming,” Gordon said.

“Hundreds of thousands of everyday Australians’ lives were stuck by this unlawful scheme. They should hopefully feel a sense of justice.

“[Our firm] was proud to achieve a strong outcome in the class action. But that was just the first step.”

Gordon thanked all the robodebt victims, whose strength and self-advocacy paved the way for a royal commission to be held to examine the complex web of public maladministration.

The lawyer also flagged that the firm would consider whether there was scope to pursue other legal remedies on the basis of Holmes’ findings.

“This royal commission was vital in understanding how something so atrocious could occur and, ultimately, who was responsible,” Gordon said.

“We are grateful to all those who contributed to bringing this unlawful system down, including minister Shorten and the lead applicants in the class action, Kathy, Felicity, Elyane, Shannon and Stephen.”

“We will review this thoughtful and detailed report with the time and consideration it deserves, including whether further claims or actions can be brought on behalf of the hundreds of thousands of victims.”

Praise for victims and those who raised the alarm 

A separate joint statement from Albanese, Shorten, public service minister Katy Gallagher, social services minister Amanda Rishworth and attorney-general Mark Dreyfus simply quoted slabs of the report’s scathing assessment of the illegal scheme.

The senior ministers highlighted this choice excerpt from page 29 of the chapter “Overview of robodebt”.

“Robodebt was a crude and cruel mechanism, neither fair nor legal, and it made many people feel like criminals.

“In essence, people were traumatised on the off-chance they might owe money. It was a costly failure of public administration, in both human and economic terms.”

Establishing the royal commission to unravel how the punitive robodebt misery came to be, why it was permitted to become operational, and which political and public service decision-makers were to blame, was an election commitment Labor made in 2022.

This complemented another key election pledge to establish a federal National Anti-Corruption Commission (NACC). The watchdog has been operational for a week.

“Upon receipt of the royal commission’s final report, the government has decided to release it to the public immediately.

“The government will now consider the recommendations presented in the final report carefully and provide a full response in due course,” the statement said.

As an indication of the speed with which the PM wanted to see the report disseminated publicly, he ran his press conference making reference to freshly tabbed notes on Holmes’ key findings.

Albanese extensively quoted verbatim from the report, and said this was in part with a view to give the media time to digest the mammoth three-volume tome but also generally in the name of transparency.

Labor has badged the robodebt fiasco as a Coalition problem, cooked up as a Budget savings measure and implemented in 2015.

“For almost five years, Liberal ministers dismissed or ignored the significant concerns that were raised, over and over again, by victims, public servants, community organisations and legal experts,” the statement read.

“The robodebt scheme only came to an end in 2020 after the Federal Court found that it was unlawful in late 2019.”

But the commissioner’s report also warned that one of the enablers, which saw the public service respond to the policy intent of the government of the day just a bit too well, was the way politicians wielded rhetoric about welfare recipients, demonising them as problems to be dealt with. This was not a feature of any one side of politics, she said.

The senior ministers also thanked the team of public servants who worked to see the gruelling work of the royal commission accomplished, calling out their dedication, professionalism and forensic efforts.

“Throughout the royal commission process we have seen courage, leadership and ethics on display from victims, their advocates and whistleblowers.

“We also acknowledge the individuals, researchers, stakeholder groups, expert witnesses, government and non-government representatives who gave evidence by way of hearings and submissions. This evidence has helped inform the royal commission’s report and recommendations.”

Robodebt has stained the reputation of the public service but its eventual reckoning shows a system capable of countering itself

--An analysis for the The Mandarin | Robodebt has stained the reputation of the public service but its eventual reckoning shows a system capable of countering itself

 The illegal robodebt scheme besmirched the reputation of the APS long before the royal commission began in late 2022, meaning institutional leaders had years’ of notice to transform itself and do better.

While everybody waits for retired Queensland Supreme Court chief justice Catherine Holmes to hand her final report to the government, and the document to pass through the various protocols before it can be made public this morning, it is safe to assume that there will be a lot of rot to dissect in the royal commission’s report.

But it is also worth noting on this sombre day that a report surmising the full, sorry mess of the scheme is delivered, that a team of hard-working public servants at Victoria Legal Aid, along with some internal whistleblowers helped to eventually unravel the wicked scheme.

The lawyers of VLA’s economic and social rights program in Melbourne helped to run early test cases challenging the legality of the federal welfare debt-collecting program. This was instrumental in kicking the can down the road to get to a series of royal commission findings, and ultimately led to a class action settlement worth at least $1.8 billion for debts against 433,000 people and wrongful recovery from 381,000 people.

It cannot be said comprehensive justice has been delivered yet, or that the chips of accountability will fall on the right heads. It would also be very fair to say that whatever the outcome at this point, the consequences are too little, too late.

Given the devastating fact at least two known robodebt victims who were hounded by commercial debt collectors to repay erroneous sums they were told they owed died by suicide, there hardly seems recompense adequate enough to fix the damage that has been caused.

Official data reveals many others also died after receiving illegal debt notices, nearly a third of whom were classified as “vulnerable”.

The scheme also disproportionately impacted people with mental health issues or who spoke English as a second language.

The contrition of current public service heads is already on the record.

According to new APS commissioner Gordon de Brouwer, the only way public servants can learn from when mistakes are made is to be honest about them. He called for accountability to be embraced with searing honesty and empathy, by APS leaders in particular.

The commissioner told the IPAA ACT podcast in April (one month before his appointment to head the APSC) that the position of the secretaries board on the robodebt saga would be apparent once the final report landed.

“It’s talked a lot around the service and it matters to people. People see others who acted with courage [and spoke out] through that process. They also see just how easy it is to be the frog in the boiling pot — if you get a bit of pressure for asking questions, if there’s a bit of discussion or view [around] the nature of hierarchy,” de Brouwer told Work with purpose.

“Is hierarchy a way to enable people to do their job and take responsibility and make decisions? Or is hierarchy a device to control, tell people, and direct them? Those discussions really matter. Setting the tone and having continual conversations [about these issues] is really important,” he said.

The secretaries board is a powerful group of top bureaucrats who have spent months – published documents suggest at least since early 2023 (but presumably much earlier than that) — mulling over the various aspects of the royal commission that will affect the APS.

At around about the same time as de Brouwer’s podcast where he apologised to the community for the robodebt fallout, we know the secretaries board were considering how to handle the complicated, delicate process of procedural fairness and risk to individual reputations.

The commonwealth, via the Attorney-General’s department, had made a submission to the inquiry about how things might be handled in the event the royal commission made some adverse findings against people in the ranks of the public service.

The public pillorying some in the community want, as well as those victims most injured by the illegal scheme, may not materialise in the fashion the mob might prefer.

Rebuilding trust within the APS about its own capability and purpose, and across the wider community will also take time, de Brouwer told the podcast.

Dr de Brouwer said some of the structural changes which had been made to address this included an overhaul of the performance management of SES-level staff so that both delivery and behaviour measures were given equal weight when it came to career development and promotion opportunities.

“The way you perform with both delivery and the behaviours you exhibit matter to your position in the service, your promotion, and actually whether you stay in the service,” de Brouwer said.

“Most people, if the culture says ‘delivery and behaviour matters’, the vast majority of people will respond very enthusiastically to that. That’s the starting point, but you also need a performance management system that formally assesses it and, frankly, screens people out who can’t engage on that.”

There were many examples of actors in the robodebt saga who emerged during the bloodsport of the royal commission hearings as examples of bad apples – such as the late Department of Human Services deputy secretary Malisa Golightly, who died in late 2021.

The inquiry heard recounts of her shouting at staff, making personal comments and losing her temper. It also heard that she denied “incoming smoothing” was taking place, and if it was as a matter of last resort.

Golightly had the primary carriage of the scheme. It serves nobody, least of all the truth, that her side of the story will never be aired.

But the systemic failures, which saw the scheme snowball to become what Federal Court Justice Bernard Murphy would call a shameful chapter in the administration of the commonwealth social security system and a “massive failure of public administration”, cannot possibly sit on the shoulders of one person (it should be noted Golightly later moved to take a deputy secretary role at the Department of Home Affairs).

Much more powerful decision-makers — ministers and secretaries — wear the shame of the punitive scheme. The extent of that will be made clear in Holmes’ final report.

In conversation with The Mandarin last week, the commissioner shared that many of the expectations about workplace behaviour were fairly garden-variety hallmarks of how to respectfully deal with others and as an adult.

“That’s where the stewardship idea, frankly comes in as a value,” de Brouwer said of the changes made to the Public Service Act in June.

“I can say this actually is an empirical statement because we know from the feedback that this is what most people think in the public service — Most people want to take responsibility for where their workplace is, and they want it to be good and effective now, and they want to leave it better off when they leave.”

To illustrate how the concept was easily applied to a concrete scenario, de Brouwer gave the example of an APS3 public servant working at Services Australia. The aim was to get government employees to understand that they represent something beyond themselves – they represent institutions that people want to be able to trust and rely on, he said.

“If you’re doing data inputting, and then you’re doing that with someone who needs the services; you want to make sure that your records are accurate. That’s part of your contribution to making that system work — your records are accurate, and the person who comes in can easily access and understand what you’re doing,” de Brouwer said.

“Similarly … when a member of the public is dealing with you as a public servant, or Services Australia or ATO employee, they generally don’t see you as a person. They see you as ‘Services Australia’, or ‘the ATO’ or a public servant.

“You’re really representing your workplace, your institution, the public service, the government to the public — stewardship [in this case] is that people trust the service more, people trust the public sector more, and they trust government more from your interaction,” he explained.

Indeed, the submissions from public servants working for the affected agencies released by the royal commission this week, outline a whole cohort of staff who felt disbelief, outrage, and a sense of having been lied to or duped concerning the robustness of the scheme.

Some public servants shared disgust when they realised they were working for an organisation that had such disrespect for natural justice and quit. Others expressed frustration about the feedback they were receiving from victims not being taken seriously by leaders. Some retired earlier than they had intended because they could not cope with the stress of the situation.

Centrelink senior complaints officer Judith Stolz told the royal commission:

“All of us were staff of long-standing and knew how to read the Act and that this new process was illegal,” she said of the robodebt’s rollout.

“However, no discussion could move anyone from their view that robodebt was perfectly legal.”

According to de Brouwer, the only way to sustain public service delivery was to have the right behaviours underpinning them — in this way, being able to meet ministerial wishes but stay within the bounds of the bureaucracy’s values, principles and code of conduct should not be challenging.

“You can do both — it’s actually not that hard,” de Brouwer said.

“They’re not contrary distinctions, they’re not alternatives — they go together.

“When it comes to things like integrity, it’s not a woke concept; it’s actually the law — a basic legal requirement for you doing your job. Understanding means you can do the delivery, all of that, but with integrity,” he said.

Recovering from robodebt’s moral shame and political blame will be a long road

--A news wrap for the The Mandarin | Recovering from robodebt’s moral shame and political blame will be a long road

Time for the Australian Public Service to buckle up and get set on the journey to ‘continuous improvement’, but with a clear eye fixed in the rear-view mirror.

It was the government program that spawned the biggest class action in Australian legal history, exposed some uncomfortable truths about broken agency culture in the social welfare portfolio, and tipped fuel on an already roaring bin-fire of community cynicism about a system that couldn’t care less for society’s most vulnerable.

Robodebt has become the modern-day moniker for government policy failure and maladministration. It hangs around any mention of the Department of Human Services (DHS) — which later became Services Australia, the Department of Social Services and Centrelink like a foul stench.

The scheme undermined the very objectives of public service.

It made ordinary people needlessly suffer. More than 850,000 citizens were affected.

Unfair, illegal suffering caused by an experimental and poorly designed system that used incomplete data to reach a false conclusion that some individuals owed money to the government. Then the system, aided by commercial debt collectors, hounded them to recoup erroneous sums and added hefty penalties if it thought these people were actively avoiding engaging with Centrelink.

In the year robodebt was introduced, the number of potential debts the government could raise increased by more than 50-fold to 20,000 letters every week.

During the time the scheme was operational, at least two young men — Jarrad Madgwick, 22, and Rhys Cauzzo, 28 — robodebt attempted to extract money from died by suicide. A senate inquiry into the scheme said it was unclear how many other deaths may be linked to the program.

“The committee passes its deepest condolences to the families of those two young men and acknowledges that the acute and enduring impacts of this program on the mental health of many Australians remain undocumented and unacknowledged by the government,” the inquiry report read.

The years-long saga to unravel the disastrous, unlegislated scheme and pin some accountability on the right parties, culminated in a breathtaking royal commission over 2022-23.

The inquiry pulled back the curtain on a circus lineup of anticipatory political boot-licking, finger-pointing turned wilful ignorance, outright bullying, and lame departmental escalation processes.

The royal commission hearings shone sunlight on some tightly held documents marked cabinet-in-confidence.

It also queried why steps to wind up the debt collecting were not made by Services Australia for months — even after the federal government made a decision to end the practice of recovering money based on income-averaged debts.

Similarly, it highlighted examples of DHS and Centrelink skirting oversight rules with investigators of commonwealth ombud after a throng of complaints about robodebt hit the desk of the watchdog.

The Community and Public Sector Union has long been vocal about how the systemic issues caused by robodebt were a sign of an under-resourced workforce.

Within six months of being voted to power, the new Labor government announced the royal commission. Former Queensland Supreme Court chief justice Catherine Holmes was picked to lead the work, and prime minister Anthony Albanese promised Australia that it wanted to put the “human” back into “Human Services”.

The hearings were a banquet feast for voyeuristic vultures and parliamentary opponents of those responsible for the establishment of the scheme — former ministers and prime ministers left their fingerprints all over the program — but for public servants, this was the stage for political masters to step aside and throw a number of mandarins under the bus.

“The idea that I would have assumed that they [senior public servants] had advice and weren’t giving it to me, is inconceivable in my knowledge of those individuals, and surprising,” former PM Scott Morrison told the commission last December.

“I relied on the department. I had great faith in the department,” he added, describing the concept that advice was not shared with him about the scheme’s legality as “distressing”.

The royal commission heard admissions key decision makers were more concerned about the optics of the scheme and public relations of the government agencies than the legal integrity of the program itself.

And later, a number of senior department officials painted a tangled picture of the pressure they faced to gloss over or downplay genuine concerns for critical aspects of the robodebt scheme.

The frustrating opacity throughout the hearings stuck with where and by whom the decision was made to ignore advice to legislate the changes. Did it happen at the department or cabinet level?

It is hard to believe that at least some people — mid and high-level public servants among them — will be able to avoid the barb of an adverse finding. All eyes are on what the final report will say about that.

Former DHS secretary Kathryn Campbell adopted a clearly technical position in all her responses to the royal commission with respect to her departmental responsibilities. But she maintained, in her testimony, that she did not know who decided robodebt did not require law reform so that a debt could be raised on the basis of a different burden of proof: requiring welfare recipients to disprove they owed a debt.

Counsel assisting the royal commission Justin Greggery KC flagged on the final day of the royal commission hearings that a proposed timetable had been drafted. It outlined the timeline by which he expected notices of proposed adverse findings would be issued to the lawyers of the parties in question, as well as the time their responses were due.

Robodebt’s legacy is one already marred with shame and moral turpitude. We didn’t need a royal commission to confirm this — it had already been objectively determined by:

• A commonwealth ombud report in 2017 triggered by an own-motion investigation following an influx of public complaints, that warned transparent and open decision-making processes were essential for good public administration.
  “This principle continues to apply when decision-making is automated. Our investigation revealed DHS’ initial messaging to customers through its letters and in the system itself, was unclear and did not include crucial information such as a contact phone number for the DHS compliance team. Many complainants did not realise their income would be averaged across the employment period if they did not enter their income against each fortnight,” the report said.
  The report also slammed the department for poor service delivery and communication and went on to suggest that many of the robodebt problems could have been mitigated with sound project planning and risk management from the outset. “A key lesson for agencies and policymakers when proposing to roll out large scale measures which require people to engage in a new way with new digital channels is for agencies to engage with stakeholders and provide resources for adequate manual support during transition periods,” the report said.
• Federal Court orders made by consent in the 2019 test case brought by Victorian Legal Aid on behalf of Deanna Amato, which noted there was no material capable of supporting the conclusion a debt had arisen under the relevant act — during this time, then-government services minister Stuart Robert spun the case outcome as a mere “refinement” of the robodebt process and refused to apologise or admit there had been any mistake on the part of authorities.
• The 2020 robodebt class action on behalf of 443,000 individuals, led by Gordon Legal, which saw the commonwealth settle for a more than $1.7 billion price tag ($751 million in refunds and $268 million in compensation for invalid debts) before the case proceeded to trial. The government made no admission of liability in settling the matter.
• An ombud report in 2021 that described the department’s failure to take the next steps as to whether it would revisit and potentially re-raise debts that were refunded as not being “sufficiently transparent with individuals” concerning possibilities on the table for robodebt payments. DHS accepted seven of the ombud’s nine recommendations.
• A 2021 Federal Court judgement that found the case had “exposed a shameful chapter in the administration of the commonwealth social security system and a massive failure of public administration.”
• A senate community affairs reference committee, which in a 2022 report, characterised the robodebt income compliance program (ICP) as the cause of “devastating emotional and psychological harm” that “undermined many people’s financial security as well as their willingness to engage with and trust government services”. In the view of the senate committee, robodebt was a “massive failure of public administration”, ruining people’s lives and causing them breakdowns, anxiety, depression requiring medication, sleeplessness, stress causing physical illness, and fear.
• A submission by the commonwealth ombud to strengthen the investigation powers of his statutory office in light of the fact that DHS withheld crucial information from his team, and amid claims department officials “did not act in good faith” with the watchdog.

The scheme was immoral. It was wrong. It produced a long dossier listing all the things not to do in public administration.

On Friday, some sense of the robodebt reckoning will be clearer when the royal commission’s final report is handed to government, and the loose ends of this terrible chapter can start being tied.

The reform journey to heal the damage of this fiasco is only getting started. First, some accountability.

Robodebt: Can the APS value of stewardship help reform the rot that saw a social welfare program go to the dogs?

--A feature story for the The Mandarin | Robodebt: Can the APS value of stewardship help reform the rot that saw a social welfare program go to the dogs?

Dr Gordon de Brouwer has been left holding the mop to clean up all the things the Royal Commission into the Robodebt Scheme has shown must change in the public service.

Having been appointed by the new Labor government to focus on public sector reform as a secretary within the Department of Prime Minister and Cabinet shortly after an election won, with a promise to the Australian people that it would set up the royal commission into the illegal scheme, the need for some internal tetris to get the APS back on track and focused on all that it can be has been a known element of his job description.

The 2019 Thodey review, of which de Brouwer and the now-boss of PM&C Professor Glyn Davis were expert panel members, is an oft-cited blueprint for what an effective, responsive APS of the future can and should be.

Public service minister Katy Gallagher made her immediate reform priorities known to de Brouwer when he was appointed last year: she wanted to build an APS that delivered better outcomes for the community, acted as a model employer, and contributed to building a fairer and more inclusive Australia.

“Public service is one of the critical pillars of political integrity — it must be empowered to be honest and truly independent, to defend legality and due process, and to deliver advice that the government of the day might not want to hear just as loudly as the advice that we do,” Gallagher told an audience of public servants last October.

“My intention is to implement enduring reforms that would require a conscious and public decision should any future government want to wind them back. At its heart, this is about restoring the public’s trust and faith in government and its institutions — in the APS,” she said.

It would be fair to say that these goals and the aspirational vision of Thodey for the APS run counter to the kind of decision-making and obfuscating going on within the Department of Home Affairs (DHS) – now known as Services Australia — which permitted the robodebt fiasco to run rampant for three years, and with a long period of denial and cover-up to follow.

DHS became Services Australia in May 2019, falling under the ministerial responsibilities of former government services minister Stuart Robert. At the time, then-prime minister Scott Morrison declared he wanted to see the MOG bust the congestion of “bureaucratic bottlenecks” by making better use of technology and better-integrating service delivery across different portfolios.

‘Integrity’ and ‘stewardship’ have become lightning-rod concepts for Gallagher’s APS reform agenda. Given the long shadow that robodebt cast on the reputation of all public servants, even before the royal commission, it’s safe to say that is no coincidence.

The government’s commitment to establishing a National Anti-Corruption Commission (NACC), which is now operational, is also a significant driving force behind this pro-integrity thinking.

Dr de Brouwer’s mission as a much-needed reform guru sharpened when he took the reins of the Australian Public Service Commission from Peter Woolcott in May.

He recently apologised to the community about the role of the public service in allowing the punitive measures of robodebt to affect hundreds of thousands of Australians, using an episode of IPAA ACT’s ‘Work with purpose’ podcast to express contrition about systemic failures in giving advice and integrity and accountability shortcomings.

Any worthwhile reflections about robodebt should put integrity and empathy front and centre, de Brouwer told the podcast.

“[To the people who are directly affected by the [robodebt] policy, I am personally deeply sorry for what the public service did to them.

“Once the findings and recommendations [of the royal commission] are out — and when we know what the judgments are, what the call is — that the public service can take responsibility for what it did, that we seek the learnings and we make the changes since we look to the future.”

The commissioner noted that robodebt exposed how the public service had “lost its soul” to a degree, as well as its focus on people. He said the royal commission’s inquiry called for a reexamination of how public servants discharged their legal and ethical responsibilities, as well as leaders at the highest level.

Systems in the APS would need to be strengthened, de Brouwer added, along with improving workforce-wide training and performance management.

“We’ll need to examine and act … to ensure that what we’ve seen so far isn’t repeated,” he said.

That was four months ago, in April.

It shows that the optics of the robodebt royal commission have been so bad for the APS that a seasoned leader like de Brouwer knows contrition and accountability needed to be forthcoming sooner rather than later.

Three months before Catherine Holmes’ final report was handed to the government, in fact. The report is due to land on Friday.

But the commissioner took things a step further — he suggested the issues raised by robodebt were not unique to DHS, now Services Australia, but across the public service.

It was an astounding admission for someone who works with the group of federal department leaders — the secretaries board — so closely.

Dr de Brouwer said the issues highlighted by robodebt were known problems, although not quite “intrinsic” ones, and reinforced the need for reform.

“What robodebt has captured are things that people can see across the service in general.

“It comes down to the nature of how you provide advice — ‘how much do you have to deliver?’ as opposed to thinking about ethical issues — those sorts of elements,” he said.

Dr de Brouwer was careful to be seen as a champion of the public service, stressing that many mandarins took their job very seriously and acted with the utmost integrity.

“It’s an existential thing. The things that define a public servant, that differentiate them, are often that they’re deeply driven by public value and public purpose, and they do that with integrity,” he said.

Speaking to The Mandarin, de Brouwer said the pros of having a body like the NAAC to foster a pro-integrity culture and codified values was that they served as enablers for people who were minded to do the right thing. These measures were not regarded as extra burdens or could be easily disregarded as optional considerations.

“They’re actually an enabler of sustained delivery, rather than a constraint or something to stop you or, or a negative force,” de Brouwer said.

“Most people — the vast majority — will want to do things with evidence, they want to provide evidence based-policy, they want it to be open, they want it to draw in a range of views, they want to engage and talk with people with respect, they want to be treated with respect,” he said.

Drawing a comparison to the way risk management tools helped public servants navigate complexity, these tools were intended to facilitate and make integrity decisions easier.

“It helps you do your job, and it’s a way of doing it. And it’s the same with risk — when people talk about ‘how do you identify risk?’.

“Risk management processes aren’t all a way to stop you. They provide guidance of ‘what are the things you need to manage in order to achieve an outcome?’. Risks can highlight where the perils are, what the pitfalls are, and [help you] manage and engage with that to ensure you’re getting the outcome that you want,” he said.

The commissioner, an economics wonk, is a mild-mannered strategist and would much rather discuss matters of substance and his long list of things to get done than air any aspects of his own personality which make him so committed to the cause.

His appetite to transform the APS’s robodebt legacy into a learning opportunity is apparent. The guy is a thinker and a doer, and has already set in motion the kind of high-level and granular conversations with APS leaders and everyone down to the frontline of service delivery.

Runs on the board for de Brouwer’s reform agenda include legislative changes to the Public Service Act to include stewardship as a sixth APS value, a five-year vision for the APS in the form of a purpose statement currently going through consultation and to go to a staff vote in August, regular insights reports commissioned by the secretaries board, and a laser focus on capability and workplace conditions to emphasise — just to name a few.

Delivering his first address as commissioner in June, de Brouwer warned a public service audience that the reform journey was never-ending. Getting the bureaucracy to a standard that meant it was fit-for-purpose would also take at least 10 years, he added.

“We get things wrong at times, and sometimes seriously bad. There’s a long history of reports and some recent ones underway, like the robodebt royal commission, that show big failures and mistakes,” de Brouwer said.

“We have a lot to learn from these events, especially leaders — not just leaders, but especially leaders — and we’ll need to come to grips with the consequences.

“But these events do not undermine my own belief that the vast majority of public servants are good, decent people and want to do their job well,” he said.

This week in the APS, the soul searching continues.

Kirby: chances of global nuclear disaster greater now than ever

--A short news item for the April 2019 edition of the Law Society of NSW magazine LSJ | Kirby: chances of global nuclear disaster greater now than ever

The world’s nuclear non-proliferation regime is under threat and, according to experts, we may not have enough time to solve the problem.

Former High Court Justice Michael Kirby and former Australian Foreign Minister Gareth Evans spoke on the issue at a special event hosted by the Lowy Institute in March. Reflecting on the way geopolitics had changed since the 1980s, Kirby said progress had been slow. In fact, there are more nuclear weapon states today than there were during the height of the Cold War.

“The increase in the number of states that are nuclear armed is particular worrying, because some of them, particularly North Korea, [are] a very unstable ... And we have also come to know more clearly the dangers of accidents and mistakes,” Kirby said.

“We have to have a serious sense of urgency, otherwise nothing will be done. And if nothing is done, I think it’s a real question as to whether our species will still be on this planet in 100 years’ time – or maybe 20 years’ time.”

With the global tally of nuclear weapons totalling about 14,500, Evans said that in his view it was a matter of “sheer dumb luck” that a more serious incident had not already wiped the world out. One of the main reasons being that approximately 2,000 nuclear weapons are on “hair-trigger alert” – a military term meaning capability for rapid launch.

“We have learned over and over again, as the archives are unopened from the Cold War years, just how close we came,” Evans said.

“My judgment is that it is just sheer dumb luck rather than anything to do with statesmanship or inherent stability of the system that we have survived as long as we have.”

Evans urged the international community to address the issue of nuclear weapons with more vigour, noting the potentially “catastrophic” consequences of a nuclear disaster due to human or system error.

“The truth of the matter is that nuclear weapons are the most indiscriminately inhumane weapons ever invented and they do have capacity to destroy life on this planet as we know it.”

Kirby, who is a supporter of the Treaty on the Prohibition of Nuclear Weapons (the ban treaty) that currently has 70 signatories and 22 State parties, said delegitimising nuclear weapons was an important moral stance.

“Those who oppose the ban treaty have got to say what they will put in its place,” Kirby said.

Those in favour say AI

-- A feature story for the March 2019 edition of the Law Society of NSW magazine LSJ | Beyond the jargon: what does AI mean for lawyers? 

The case for artificial intelligence (AI) in legal practice is no longer pie-in-the-sky science fiction. The future is here and all kinds of lawyers are using AI-assisted technologies. Here's why AI is relevant for you and your firm.

Popular culture will have you believe that evil lurks in the pseudo-soul of the artificial intelligence (AI) machine. With AI capabilities, formerly innocuous technologies can become scary realities like self-navigating bombs and autonomous weapons. And that’s where so many mainstream headlines about the power and possibility of AI fall: in the realm of a terrifying, uncontrolled dystopia.

In 2017, the late Stephen Hawking told Wired magazine he feared AI may replace human beings altogether, citing self-improving systems as the main reason. Julia Shaw’s new book, Making Evil, which comes out this month, references the notion of “artificial evil”. First coined by philosophers Luciano Floridi and Jeff Sanders in 2001, the “artificial evil” label is meant to describe the wrongdoing of autonomous, non-human agents. While Shaw has a problem with the argument that “artificial evil” can be made by, and understood with, mathematical models, she considers the response to an AI chatbot that Microsoft released in 2016, where things went wrong quickly.

The chatbot named Tay was designed to engage with people in “casual and playful conversation”. She was meant to sound like an American woman between the ages of 18 and 24, and learn from interactions on Twitter to develop into a functional and conversational online robot.

“Tay tweeted a huge amount in the one day she was active, generating approximately 93,000 tweets,” Shaw writes.

“Almost immediately, people began tweeting racist and misogynistic comments at Tay, who learnt how to echo these sentiments. It took less than a day for Tay to go from tweeting, ‘Humans are super cool’ to ‘I f*****g hate feminists and they should all die and burn in hell’ … People online had made an artificial intelligence into an artificial evil. Tay was terrifying and was quickly shut down.”

If this is all you read about AI and its capabilities, you may be horrified or feel threatened by the dark future it represents. But guess what? AI is already here, you are probably already using it.

Many of the conveniences AI-assisted technologies have brought to human lives are already deeply integrated into legal practice, with simple innovations like the predicative text suggested for finishing your sentence in Gmail or a quick search of case law in a database.

So, what exactly is AI and how can you think about its best uses for your own advantage?
AI already touches much of what we do

Dev Mookerjee, the Asia Pacific Chief Technology Officer for IBM Watson Solutions, is of the view that many of us fail to realise just how pervasive AI technologies are. So much so, we do not realise that we already use AI technology daily, in our jobs and at home.

“All good technology should be like that,” Mookerjee says.

“AI is a set of technologies which is not discrete or separate. It is infused in what we do. Lawyers are using it already and that’s a good thing.”

Internet searching is a common, everyday task most lawyers of all levels would do. The basis of being able to complete that task relies on AI technology, Mookerjee explains.

“If you look back 20 years, when the internet wasn’t everywhere and internet search was in its infancy, you had sole practitioners who would do their research in a very different way. They would call up people, they would go to libraries and there were massive leather-bound books on shelves behind them. They knew exactly which book to open and what to actually search for. That’s gone,” Mookerjee says.

“That story has changed because AI has helped internet searches become so much easier. The main point you need to take away is that AI is not a black box that stands alone in the corner making noises.”

A recent survey of legal operations professionals by US data analytics company OpenText found that 34 per cent of 95 respondents working within in-house legal departments use AI technologies. Meanwhile, another 66 per cent of respondents indicated that spending on AI would increase in 2019.

For Mookerjee, who flies around the world speaking with international clients and partners about how AI can offer a solution to their business problems, the language surrounding the technology can make a big difference. He prefers the term “augmented intelligence” to AI, which puts the emphasis on technology augmenting human intelligence.

“AI is something that is new and different, it causes us to think twice about what this alien thing is. Whereas, if you call it ‘augmented intelligence’, then the word ‘intelligence’ is about the human being,” Mookerjee says.

‘Narrow AI’ is good and it probably won’t take your job

AI can perform tasks such as visual perception, speech recognition, decision-making, and translation between languages. The processes used to perform these tasks can include expert systems and machine learning (supervised, unsupervised and neural networks). According to a paper written by UNSW’s Professor Michael Legg and Dr Felicity Bell from the Law Society of NSW Future of Law and Innovation in the Profession (FLIP) joint research project, FLIP Stream, the AI developments most relevant to legal services are expert systems, machine learning and natural language processing. The application of these systems makes tasks like automated advice, document drafting, due diligence, online dispute resolution, eDiscovery, contract review and outcome prediction possible.


Neil Sahota, writing for Forbes, recently addressed the question of whether AI would put lawyers out of business. Together with Michael Ashley, Sahota (a United Nations AI expert) has authored a soon-to-be published book, Own the A.I. Revolution: Unlock Your Artificial Intelligence Strategy to Disrupt Your Competition. No matter how sophisticated the technology becomes, Sahota speaks with a number of experts who claim that AI “will never be a substitute for the judgment and decision-making that only humans can provide”.

One way to classify AI is by delineating “strong AI” and “weak AI”. Independent “thinking” AI falls into the first category, while weak AI relies on programs to mimic human thinking, without reasoning in the same way that a human does. Currently, AI works best with well-defined and focused tasks like reading a text or ‘understanding’ a contract clause. Mookerjee says there is little use for the “strong” kind of AI that is all-knowing and all-thinking.

“Lawyers in fact are, by nature, narrow in their focus and specialisation. And that is how, not just in law but in most industries, things happen. That is also how AI is being rolled out,” Mookerjee explains.

“That is not because AI needs to be rolled out like that, but because we are fixing real-world business problems which are narrow in focus.”

Perspective matters, aim for efficiency

AI will transform legal practice as part of a broader movement in law to automate. That is the view of UK-based strategy and innovation advisor Richard Tromans of Tromans Consulting. He suggests that sole practitioners scratching their heads as to how AI relates to them should refocus their attention on what tools can bring greater efficiency to their practice and how to automate basic tasks.

“It’s all part of a broader movement to drive efficiency and deeper insight in the law through automation,” Tromans says.

“AI is just one means to an end – one of many different ways to achieve the above. Automation is the goal. AI is one set of tools to get there.

“If you use Google, you use an AI system. So any lawyer can use this tech.”

Although he concedes that those law firms with a dedicated legal AI system on their wishlist will need to invest in a software licence that is not cheap, Tromans says most lawyers who are only looking to improve efficiencies and automate tasks can find affordable AI products on the market. The end objective should be to solve problems quickly and inexpensively.

“If your client wants work done to a fixed fee and you want to protect margins on process work, then AI or automation is the only way to do this,” Tromans says.

“Automation does help profits, but this depends on the client environment you are in. Just using tech alone does not make you more profitable – there needs to be a client context for it to be worthwhile economically.”

He adds that it is those practice areas with the least amount of repeatable tasks that will benefit the least from AI technologies. No practice area, however, will be immune to the efficiencies it can achieve.

According to Mookerjee, clients expect modern lawyers to be engaged with and open to using AI-assisted technologies. This expectation means the legal profession must be willing to abandon its culture of resistance to change. He says it is positive to see the Law Society of NSW pursue initiatives like FLIP, which bring people into a room and expose them to ideas about technology and innovation that may have felt out of reach.

“This takes people one step from ‘I don’t know what I don’t know’ to ‘I know what I don’t know’,” Mookerjee explains.

He adds that universities and law schools nationwide are beginning to take awareness of technology seriously, helping to shift the mentality of the next generation of lawyers. More senior practitioners should think about what extra training they can do to brush up on their skills, he adds, and should consider getting onto online platforms like Udemy or Coursera.

“The universities are doing some good work by having multi-faceted training available earlier. It encourages students to recognise that they might be going into law but they should also do a technology unit,” he says.

“For lawyers who have been in practice for the last 15 years, they also need to appreciate what changes are coming, not just because the industry is changing but also because the client base is changing.”

Hardwired

--My cover story for the February 2018 edition of the Lawyers Weekly magazine | Harwired - How innovation has transformed the advocate's approach, from chambers to the courtroom.

Melissa Coade speaks to members of the Australian bar about their perspective on how innovation has transformed the advocate’s approach, from chambers to the courtroom.

A dedicated and growing conversation among lawyers in government and private practice about technology and the law has flourished, perhaps in part because the impact of technological innovation on business is apparent. Professional bodies representing Australian barristers have also responded, albeit in different ways and with a little more caution.

There have been fewer surveys conducted with members of the bar than members of the various state law societies. However, recent years have seen some of the Australia’s larger bar associations in New South Wales and Victoria establish committees focused on innovation and technology. 

At the International Bar Association (IBA) conference held in Sydney last October, themes inextricably tied to technology and law dominated the program agenda. A few months before that congregation of practitioners, mainstream media was gripped by the concept of giving legal status to robots that was being considered by the European Union. A draft report presented to the EU’s lawmakers had suggested attaching civil liability to “smart autonomous robots” and creating a code of ethics for the manufacturers of such products. In 2016, a joint conference hosted by the Australian Bar Association (ABA) and Victorian Bar convened a panel of chief justices who spoke at length about technology and the courts.

Both at home and further afield, the advocates of the legal profession are thinking about where new innovations may take their vocation and its broader impact on justice. Here, leading barristers share their views on just how far these advances take the bar and how they have transformed the realities of day-to-day practice.

Time to transition

Taking his interview over the phone from Perth, Western Australian barrister Joshua Thomson SC spares 30 minutes to share his evolving experience with technology and practice. For most senior practitioners like Mr Thomson, setting aside the time to research, explore and self-teach the range of tech-offerings that are available to barristers can be difficult.

“I certainly see the way of the future as embracing technology as a tool. And I think that there is a long way to go in both legal firms and at the bar in making full use of the potential of technology,” Mr Thomson says.

“There is often a lag in trying to implement those things, just out of a fear of how it will work or because barristers are very much time-consumed with other things. They do not want to experience by dropping a few hours here in order to make up quite a lot of hours down the track if they can get technology working.”

For a busy sole practitioner, exploring the limits of a software program before committing to a new one, and then learning the ways of the alternative solution, takes patience. The trial and error required to make a strategic decision about what software to invest time in can also be a taxing process, Mr Thomson says. The silk shared his experience of moving from Microsoft OneNote to PDF Annotator (created by GRAHL software design) as an example of a process that required time to adjust to.

Previously the PDF alternatives to Microsoft OneNote had the problem of what Mr Thomson says a “clunky and haphazard” writing function. He says he had to wait for a new PDF product to come onto the market before making the decision to switch.

“It took a little bit of time for me to find a really good program like PDF Annotator, which allows me to write directly onto the screen, do links and to highlight and draw on it like it is a piece of paper,” Mr Thomson says.

“Until quite recently, I used the Microsoft OneNote program to store and utilise my electronic briefs because the experience was very similar to having a paper brief.

The difficulty about using One Note was that I had to transport all of the documents – the documents effectively had to be electronically printed into the software, and while there are techniques you can use to do that more quickly, it was a little time-consuming,” Mr Thomson says.

Mr Thompson joined the WA Bar in 2001, five years after graduating from the University of Oxford with a Bachelor of Civil Law, and six years after being admitted to practice. His main areas of practice, commercial disputes especially for insolvency, shipping law or building and construction matters, are document-intensive.

He says life as an advocate has become much more convenient now that the days of hauling bundles of paper to court are over.

“Certainly most commercial disputes have very large volumes of documents and it becomes very difficult to physically carry around,” Mr Thomson says.

“I recently did a trial or four weeks in Adelaide and that was done much easier by doing things electronically. I took my computers with me, as opposed to having to lug 17 volumes of 12 bundles backwards and forwards between Perth and Adelaide.”

Reducing his reliance on paper has also altered what was once the logistical juggling of taking suitcases filled with briefs back and forth between his chambers and home. Nowadays, transporting content is as seamless as packing away a laptop and leaving the office.

“I have moved from having an office, which is significantly cluttered with paper, to one where I try to have almost no paper at all.”

Speaking about the receptivity to technology more broadly and the election by lawyers to run electronic trials (e-trials), Alain Musikanth suggests old habits die hard. Like Mr Thomson, the barrister is a member of Francis Burt Chambers in Perth. Mr Musikanth also served as the 2017 president of the WA Law Society.

During his stewardship of the law society, Mr Musikanth commissioned a report into the future of the legal profession. The report identifies technology as one of the greatest challenges facing the legal profession, acknowledging that many lawyers do appreciate the opportunities of the tech revolution. It goes on to note that some practitioners, however, are “still hesitant about how the use of technology will fit within traditional models”.

When asked why he thinks a large number of parties have not chosen to proceed with e-trials, Mr Musikanth says he believes people, clients and their lawyers, are stuck in old ways. Notwithstanding the fact that an official survey of the legal profession is yet to have been conducted on the subject, he says that there is no surge of litigants in e-trials because parties are simply used to doing things the way they have always been done.

“That’s just my own view on it – they are afraid to try something different. It requires buy-in from the solicitors, it requires buy-in from the barristers and obviously from the clients,” he says.

Brief encounters

Mr Thomson says that he prefers for solicitors to brief him electronically. This is typically done by receiving the electronic brief on a USB or accessing documents via email or secure portal. In his view, the portals used to share documents with counsel are comparable platforms between firms.

“My way of using the portals is to access the documents and save them on my computer, and then a separate disk that I can use, as opposed to going back to the portal and re-accessing the documents. That is also because the links on to those portals often expire after a period of time,” he says.

According to Mr Musikanth, software designed specifically for barristers is limited. Other than the practice management package SILQ, which streamlines accounting and conflict check processes, new ways to brief barristers tend to be the main innovation of interest.

“I know that some barristers, one in particular, trying to use a cloud briefing system, where he gets briefed over the cloud. It is just another way of doing old things. Instead of people sending hard copy briefs or a USB, the solicitor can put stuff up on a secure server, which can then be downloaded,” Mr Musikanth says.

While the Perth barrister says that receiving briefs in digital format is his preference, he adds that realistically some solicitors will resist doing things digitally and insist on sending paper briefs.

“Some solicitors will insist on sending you 25 lever arch files, which you can’t really conveniently cart around with you. I think it is just a matter of people doing what works for them but being dedicated as to the benefits of having as little paper around as possible,” he says.

Courting the digital realm: Why more barristers don’t build software

Security issues concerning the use of cloud computing and electronic document and records management systems (EDRMS) to exchange confidential information is an important aspect of this evolving area. While the discussion of protecting client information from data breaches is a popular topic among solicitors and law firms, they are just as relevant to members at the bar and the software infrastructure at their disposal.

The WA Law Society has developed its own ethical and practice guidelines to address security issues concerning cloud computing and practitioners who use it. The guidelines note that professional conduct issues can arise for a practitioner, specifically when relying on cloud computing software, and they are unable to comply with the requirement of “competent and diligent” delivery of legal services or have difficulty doing so.

Other potential pitfalls tied up with cloud computing include circumstances where a lawyer cannot guarantee they have not shared confidential client information without relevant authorisation.

Where comparable, these ethical boundaries may account for why few barristers have actively entered the software development space. Mr Thomson points to groups such as the legal publishing team behind not-for-profit BarNet JADE as a project that has worked well. The platform provides searchable electronic access to legal decisions.

“I have often wondered whether there could be developed some specific software that would be useful for barristers and there is some great examples of people who have done that in a different context. The BarNet JADE team have done a very good job in terms of developing a database for case law and legislation which is extremely good,” Mr Thomson says.

“And there are also certain chambers in Melbourne where they do have their own platforms for the way in which you can brief barristers but that also increases risk. If chambers offer a software platform which goes down at a critical time, that could jeopardise a barrister. Or if it gets hacked into, that could jeopardise a barrister as well.”

“That would be a risk then that’s worn by the chambers providing the platform. Whereas, at the moment, each barrister makes their own decision and obtains the platform from a commercial provider. If you have somebody like Microsoft or another service providing the relevant facility, the platform is much less likely to go down and there is no particular set of barristers that are bankrolling the risk of other barristers in the chambers,” he says.

The WA silk also suggests that another reason fewer barristers are actively involving themselves in developing innovation solutions is the speed at which technology evolves. When asked if he considers it useful for legally qualified professionals and barristers to be involved in developing legal software, Mr Thomson offers a pragmatic response: it is useful but not essential.

“I do think it is helpful if lawyers can be involved in developing technology that is used by lawyers but I do not know if it’s absolutely essential,” Mr Thomson says.

“It seems to me that questions of confidentiality are certainly much global in all sorts of different areas of commerce and use of technology.”

Listless for change

Late last year, taLaw introduced an alternative briefing model to the legal market in New South Wales. BarristerSELECT offers a free central service for solicitors to lodge the requirements of their matter, which gets dispatched to a group of chambers in Sydney. The product leans on the knowledge of a dedicated clerk to find the best barrister for a particular matter but, crucially, touts itself as being a time-saver for instructing solicitors.

In a state like NSW, where there are in excess of 80 barristers’ chambers, taLaw CEO Stephen Foley says solicitors can spend hours ringing around to try and counsel who may be available for their client.

“We are giving this time back, as well as access to a wide range of chambers, with our intuitive online form that takes a maximum of five minutes to complete,” he says.

“Good lists or good chambers will have barristers’ clerks that know their barristers very well and know who’s most suitable for the job. For the solicitor and barrister, it’s a bit like a matchmaking service, but it’s the clerk that is the hub in the middle that is the trusted adviser. It’s in their interest only to put the right barristers forward, because if they don’t it reflects on their chambers, so we’re leveraging the clerk as the [focal] point in this system.”

Chambers are charged $165 per successful engagement organised through the BarristerSELECT service. Mr Foley refers to the chambers connected to the network as “progressive chambers”.

“What we mean by progressive chambers is chambers that are willing to take on technology, and take on this type of technology to find the right barristers,” he says.

More direct access to advocates

With models for briefing barristers differing slightly between Australia’s jurisdictions, the use of platforms such as BarristerSELECT to disrupt established briefing processes can be a sensitive topic. A member from the Victorian Bar told Lawyers Weekly that its innovation and technology committee has spoken about the option of working with a similar provider to help facilitate the process of briefing of counsel. It is understood that the possibility in Victoria is still in its embryonic stages.

In Queensland, Level Twenty Seven Chambers was the first group of barristers in the state to adopt the chambers clerk model in 2014. Since launching, Level Twenty Seven claims to be “the largest barristers’ chambers in Brisbane” operating from a fixed address.

Then Hemmant’s List entered the foray in the Sunshine State, taking the chambers clerk model online in 2016. At the time of the list launch, chair Geoffrey Diehm QC told Lawyers Weekly that the clerk-led, e-chambers took a “modern approach to an old game”.

One of the primary goals of Hemmant’s List is to better facilitate an equitable briefing regime and the way that matters are referred to counsel in Queensland.

“Our aim was to untie the list from any physical set of chambers, which much better facilitates our objective of getting a group of people of high quality but of diversity, because chambers are tied together by other considerations that might mean [such diversity] is harder to achieve,” Mr Diehm says.

“The list hopes to principally do two things: one aim is to provide solicitors and clients with the facility by which they can make informed choices about who they wish to brief for a particular matter.

“And then from the barrister’s perspective, it is an important service for providing professional development, where the clerk is able to assist the individual barristers in progressing their careers and developing their practice into the client that they hope to have,” he says.

Mr Thomson does not consider these new ways to connect solicitors with lawyers as a poisoned chalice for physical chambers. This is because the purpose of a chamber of barristers is to promote a culture of collaboration and support, and this need will not diminish with new and more efficient ways of briefing counsel. He suggests that it is going a step too far to suggest that these technologies and tools will lead to a future where only virtual chambers will exist.

“It is necessary for barristers to practice in a set of chambers, typically speaking. The purpose of chambers is not simply the paying of rent together but it is also to advise each other, to have professional interactions and to support each other ethically as well. I do not think those things are going to necessarily be provided electronically. But I do think that the electronic delivery of material will facilitate streamlining of the way chambers operate quite significantly,” Mr Thomson says.

Ranking lawyers with analytics

Just as Mr Thomson cycles through the ways technology has changed his practice, the silk stops abruptly and mentions a new product marketing itself as a tool for lawyers that also provides data to help litigants. Opening up the Litimetrics portal from his browser, he recites what information the so-called legal tech platform generates for the search entry ‘Joshua Thomson SC’.

“If I pay money it will tell me who my instructing firms primarily are, representative cases I have carried out and so forth,” he says.

The engine claims to provide credible information to assist clients plan for litigation by summarising the experience of different legal practitioners in Australia. Using learning models based on recent advances in natural language processing, Litimetrics will mine and translate available data. The insights which can be accessed from the platform include information such as a practitioner’s main area of expertise, average case duration, success rates and settlement figures.

“It says ‘Joshua’s primary areas of practice appear to be constitutional law, corporations and associations, private international law, costs and contract…’ And it says that I was called to the bar 16 years ago.

“This is just another example of the way in which people are using technology to assess barristers and cases,” Mr Thomson says.

The Litimetrics’ website specifies that as a “provider of information about matters of public importance”, it will consider taking down profiles in exceptional circumstances only.

Similar data-driven platforms that offer performance metrics for lawyers, like US-based legal analytics firm Premonition, have already captured the full archive of court records in the Australian market. It is understood that the Victorian Bar is cautiously observing how these platforms evolve.

When asked about how much stock rankings of this kind should be given, Mr Thomson said advocates, especially senior counsel, are often engaged for the tactical advantages they can offer. He underscored the fact if a case was especially difficult, losing may not be a bad outcome

“If you have a senior counsel involved, they will make sure to take advantage of every point that might arise and you might actually get them to come up with a good outcome,” Mr Thomson says.

“That doesn’t mean that if they lose, they have run a bad case. It means that the case may have been a very difficult one in any event and the client’s trying to maximise the potential of a good outcome.”

Bench pressing for paperless trials

It took three years to complete WA’s new David Malcolm Justice Centre, located on the corner of Barrack Street and St George’s Terrace. Home to 33 storeys comprising a civil courthouse, judicial chambers for the WA Supreme Court, the Supreme Court registry and offices for the Attorney-General and Treasurer, the facility is now complete.

According to Mr Musikanth and Mr Thomson, the court is a leading example of state-of-the-art facilities which can accommodate e-trials and other electronic processes during court proceedings.

“The brand-new Supreme Court facilities in WA are very well fitted-out for electronic trials and/or the display of electronic materials,” Mr Thomson says.

Mr Musikanth adds that in WA, facilities to conduct e-trials have been around for over two decades. The improved fit-out in the Supreme Court building offers even more sophisticated technology to conduct paperless trials, he says.

“Certainly the facilities are there for any practitioners wishing to use them. There are enormous advantages to using them.

“Instead of going to court with your trolley, you make sure that everything is uploaded onto the system. You do not have a paper trial bundle, you have an electronic trial bundle, and everyone has access to the bundle on their screens,” he says.

Mr Thomson’s experience of how technology is used in the courtroom is varied. Overall, he reports his experience as a positive one. He says that in a recent matter before the Federal Court in Adelaide was able to conduct a case that involved using electronic spread sheets and A3-sized documents during cross examination. Modern facilities will also accommodate for split screens to project two different pages in the courtroom at once.

“You can identify the relevant spreadsheet, and electronically it is projected on to a screen. Then you can manoeuvre the witness through several cells in the spreadsheet so the cross examination can occur by reference to the particular cells in the spreadsheet.

“The judge is able to follow the cross examination, it’s recorded on the transcript by reference to the cell numbers and everyone can see it on the screen in front of them,” Mr Thomson says.

“Obviously it varies between different judges but I have had generally positive experiences in the courtroom,” he adds.

From 1 March 2018, there will be compulsory e-filing for documents relating to General Division civil matters that are lodged in the WA Supreme Court and district courts. The requirement will apply to solicitors on the record and government, with no confirmation as yet about whether the compulsory rule also applies to self-represented litigants.

“Making e-filing compulsory could end up encouraging e-trials,” Mr Muskanth says.

“Once that is in, it may have the effect of making people realise that it is actually quite convenient having everything set up electronically and maybe we should start using the electronic trial rather than printing all our paper out.”

In November, NSW Attorney-General Mark Speakman announced that the Land and Environment Court would begin a trial of paperless hearings, with all evidence to be stored on USB and projected on to walls. Justice Brian Preston, chief judge of the NSW Land and Environment Court, said at the time that there was a strong likelihood paperless trials would become more common in lengthy civil matters.

“Paperless trials will only account for a minority of hearings in the Land and Environment Court this year, but they could quickly become the norm for lengthy civil matters as the legal profession adjusts to the technology and realises the benefits,” Justice Preston says.

By the end of 2017, five hearings had been scheduled in the NSW Land and Environment Court to consider electronic evidence and without using a single sheet of paper.