Discontent with Australian democracy is near record lows. The majority of voters are convinced that people in government look after themselves and can’t be trusted, and that government is run for the benefit of a few big interests. But, through all this, the Morrison government has found a new way to alienate voters.
Yesterday The Guardian reported that, as part of its defence against a Federal Court class action relating to its illegal robodebt scheme, the government argued it had no duty of care to its victims under social security law.
A government insisting it has no duty of care to its citizens — and particularly those who require welfare assistance — confirms exactly the perception that the majority of voters have about a system of government that they believe has abandoned them.
The government literally doesn’t believe it has any responsibility to them — not even to the alleged “Quiet Australians” beloved of Coalition propagandists.
The government’s reported views on duty of care also sit oddly with the core principles of welfare in Australia.
“Australian government employees have a duty of care to the public when performing their duties. This advice extends to any advice given and any actions performed” is a key principle that informs social security law.
It features prominently in all the respective Guides to Social Policy Law that the Department of Social Services provides for each of the key welfare payments it makes.
For example, in the Administrative Principles of the Social Security Guide, there’s a section that “explains duty of care in the context of the SSAct [Social Security Act]. This applies to any advice given and any actions performed”.
“A breach of duty of care can result from negligent advice and/or a negligent action,” the guide explains, noting “compensation can only be paid if the department or Centrelink has breached its duty to exercise reasonable care.”
Of course, you could read the principle as suggesting public servants have a duty of care, rather than the government itself. Public servants are also legislatively bound by the “duty of care and diligence” in section 25 of the Public Governance, Performance and Accountability Act.
Doubtless the Federal Court will pick through the arguments of the government’s legal team, assembled to try to crush the action brought by Slater and Gordon, despite its admission that the scheme was illegal. But there’s a broader issue than the legal disputation around who has a specific duty of care and how it can reasonably be carried out in a way that satisfies the relevant legislation.
The government’s formal position is that it’s not its problem if it embarks on a scheme that turns out to be unlawful and inflicts damage on citizens who have done the right thing.
What is the duty of a citizen to a government like that? Is there any civic duty at all when a government declares it has no legal responsibility toward its citizens, when citizens already believe that government is primarily there to look after a few big interests?
The lack of a “duty of care”, however, that is parsed by lawyers in the Federal Court will only add to the estrangement of citizens toward their government.
We’ve seen the lack of a real federal anti-corruption commission; the rorting of grant programs for electoral benefit; the ever-deepening politicisation of the public service; the lack of transparency of donations and secret meetings with lobbyists; the raids on journalists and whistleblowers who embarrass the government while police let the government’s friends off the hook.
The Australian government looks more and more like an extortion racket designed to look after itself and its mates, rather than a democratic entity that has a special contract with its citizens.