josh-frydenberg-and-scott-morrison budget
Treasurer Josh Frydenberg and Prime Minister Scott Morrison (Image: AAP/Mick Tsikas)

What we know about the wastage in JobKeeper so far is that $13 billion was paid by the federal government to businesses whose revenue actually went up. Given its explicit purpose — to keep workers employed by underwriting the wage bills of businesses whose turnover had been savaged by COVID-19 — it’s pretty extraordinary that at least 18.5% of the public money thrown at it was trousered by companies that didn’t need it.

None of that is coming back, except to the extent that the beneficiaries volunteer it (which a few have done, most recently Gerry Harvey). There are two reasons for this. One is a moral choice explained thus by Prime Minister Scott Morrison in February when asked what he’d be doing about clawing back JobKeeper money: “I’m not into the politics of envy.” 

The other was put by Treasurer Josh Frydenberg when asked why the government was not making companies repay JobKeeper when it routinely does that to welfare recipients who have been overpaid. Frydenberg said that was “a false analogy because one is in accordance with the law, the other is not”. 

He has since doubled down, evidently quite impressed by his own logic, proclaiming: “Labor want to make lawbreakers out of businesses that received JobKeeper.”

These justifications, although they may seem (and have been widely received as) hypocritical bullshit, are not random scraps of political wallpaper but coherent expressions of a common philosophy. Call it the rule of law, neoliberal style.

Just because Frydenberg wouldn’t know the rule of law if he fell over it — any more than his mate, former attorney-general Christian Porter — doesn’t mean he doesn’t believe what he says about it. The only other possible explanation for the justification of the JobKeeper rort is that he intended it, with rank cynicism, to operate as a fire hose of public money into private bank accounts.

The actual rule of law, as one has to keep repeating for the slow learners in the government, is nothing more or less than a promise of equality before the law. Frydenberg’s resort to it is specious and wrong, just as Porter’s claims to its protection against ever having to face up to the allegations of rape against him are an inversion of what the rule says.

The most obvious point about Frydenberg’s rationale is that, while he’s literally correct, the only reason for the legal dichotomy between ordinary welfare recipients and corporate welfare recipients is that that’s the way his government made the law. JobKeeper was implemented with no mechanism for audit or clawback; businesses that estimated a revenue shortfall and qualified for the subsidy have no legal obligation to pay it back just because it turned out that their revenue went up instead of down. That was a design feature of the program — presumably intentional.

Non-corporate people who receive government welfare payments, on the other hand, do so under a system of laws which provide explicitly and in great detail for that money to be taken back if it turns out they’re not eligible. They can also be prosecuted, fined and imprisoned.

The dissonance is made louder by the robodebt debacle, which was implemented by law and took a couple of billion dollars from people before the government finally acknowledged it had been illegal all along.

None of this has anything to do with the rule of law which, if it was honoured by the government rather than just invoked as a magic spell to ward off uncomfortable questions, would have ensured that corporate beneficiaries of public money were treated equally with everyone else. It would have ensured that JobKeeper went only to those who needed it.

There is a deeper point here, regarding the underlying cause of such grindingly obvious farces as JobKeeper — as well as explaining how it is that Morrison and Frydenberg can say such inane things as they have in its defence. While there’s a widespread assumption they’re just being cynical, I think they’re sincere.

If there’s a single golden thread of principle to be found in the actions and words of the Morrison government, it’s this: what the government does is right, because it is the government that does it. It flows from Morrison’s own mantra — “I am the prime minister” — as a self-establishing proof through all the rorts, refusals of accountability, absence of consequences and rank hypocrisies, right down to how it treats the people it touches, Brittany Higgins or the unvaccinated people of Wilcannia.

In that frame, the rule of law is that the law is what you say it is, which is what you’d prefer it to be. Any challenge to that proposition simply does not compute. Thus Frydenberg was, in his own terms, speaking the logical and whole truth. And he would have no idea why anyone would find that hard to swallow.