Avoiding the brakes: Malign policy and legal advice in the Robodebt scandal

Abstract Robodebt, a welfare compliance scheme that issued illegitimate debts to more than 500,000 welfare recipients, is among the most prominent examples of malign policymaking in recent Australian history. In this article, we seek to understand how the Australian Government came to implement a scheme that was in clear violation of social security law, focusing specifically on the role of legal advice. Legal advice can play an important role in policy design by foregrounding citizen rights and key democratic values like transparency and legislative scrutiny. However, in this case, public agencies ignored, avoided, and concealed internal and external legal advice, quashed internal dissent, pushed back against prominent legal experts, and sought to avoid the judgment of legal authorities for as long as possible. Robodebt therefore has troubling implications for our understanding of institutional protections against malign policy in liberal democratic policymaking. We argue that lawyers were often siloed from the policy process, with non-lawyers, particularly senior agency leadership, displaying a remarkable ability to evade grappling with basic legal questions. Even where internal legal advice was clear about the required standards of evidence needed to impose debts on welfare recipients, it held little force in the face of ministerial enthusiasm and the prospect of budget savings. The case suggests a need for policy scholars to pay closer attention to the organizational, institutional, and political factors that shape the production and use of legal knowledge in the policy process, and especially the ways in which non-lawyers strategically engage with legal knowledge.