In the aftermath of the release of the Final Report of the Royal Commission into the Robodebt Scheme there is little satisfaction remaining from the findings which found that the Scheme was an unlawful creation and pursuit of, for the most part entirely fictional or over stated, welfare debt.
By the time Robodebt was brought to a halt it is thought that around 443,000 welfare recipients across the country had received false debt notices.
This scheme was seemingly built on the basis of the then federal Coalition Government's false assumption that as a class of persons welfare recipients had a tendency to commit fraud and, that recovery of this 'overpayment' money mountain thought to be worth $4 billion would go some way to easing the public perception of its budgetary woes.
Instead of heads rolling for the level of illegality involved, the Cabinet Ministers, Ministers with portfolio, Departmental Secretaries and other key public servants & legal advisors appear to have - after the first shock of public exposure - moved on to lives where little or no consequences followed them as a result of the Royal Commission findings and referrals.
There was public anger expressed when on 6 July 2024 the newly created National Anti-Corruption Commission declined to investigated the referrals received from the Royal Commissioner eleven months before and that anger has been joined by resentment on occasion.
Evidence of this anger and resentment can be found on social media platforms and expressions of concern are found in news and media releases by relevant unions.
CPSU Community & Public Sector Union, News online, undated September 2024:
Union calls for Kathryn Campbell to lose APS honour
The main public sector union has called for Kathryn Campbell to have her membership of the Order of Australia revoked, after findings that she breached her obligations as a senior public servant throughout the robodebt scheme.
The Public Service Commission on Friday revealed Ms Campbell had breached the APS Code of Conduct a dozen times while she oversaw the unlawful scheme as Human Services secretary.
Findings included that she had failed to investigate legal concerns about the scheme, seek legal advice and keep her minister informed of criticisms about the program.
She was also found to have created a culture which prevented the consideration of concerns about the scheme, and to have caused its resumption in 2017, when she knew or ought to have known about inaccuracies in debts raised.
Ms Campbell has rejected all of the Public Service Commission's findings, telling The Australian she had relied on advice from the Department of Social Services over the course of the scheme, and that she felt she had been scapegoated.
But the Community and Public Sector Union has condemned Ms Campbell for her role in the scheme, calling for her honour to be stripped.
Ms Campbell was appointed an officer of the Order of Australia in 2019 by the Governor-General, in recognition of "distinguished service to public administration through senior roles with government departments, and to the Australian Army Reserve".
The commission's findings, which represent the final chapter of the government's formal robodebt response, have raised questions about whether she will be allowed to keep this honour......
First published: The Canberra Times, September 19 2024, by Miriam Webber.
Read the full Statement at
https://www.cpsu.org.au/CPSU/Content/News/Union_calls_for_Kathryn_Campbell_to_lose_APS_honour.aspx
National Tertiary Education Union, media release:
Charles Sturt University vice-chancellor must resign over robo-debt findings
16 September 2024
The National Tertiary Education Union (NTEU) has called for Charles Sturt University Vice-Chancellor Renee Leon to resign after she was found to have breached public service rules as part of her role in the robo-debt disaster.
Ms Leon, who was the secretary of the Department of Human Services between 2017 and 2020, has been in charge of CSU since 2021.
In a damning report, Public Service Commissioner Gordon de Brouwer found Ms Leon breached public service rules 13 times.
The breaches included misrepresentations of the department's legal position on income averaging, failures to correct or qualify that position and failures to "expeditiously" inform the responsible minister of advice on the lawfulness of the robo-debt scheme.
NTEU General Secretary Dr Damien Cahill said:
“Renee Leon must resign immediately. Her role as vice-chancellor at CSU is untenable after these damning findings.
“The chancellor’s claim that Ms Leon has the full backing of the university completely ignores the fact staff want the vice-chancellor to resign.”.....
Read the full Media Release at
https://www.nteu.au/News_Articles/Media_Releases/CSU_VC_must_resign.aspx
Statement by the Australian Public Service Commissioner on the Robodebt Centralised Code of Conduct Inquiry
Published 13 September 2024
The Robodebt Scheme was a failure of government in both policy design and implementation. The Australian Public Service acknowledges its role and takes responsibility for its actions, and is intent on learning from these failures to serve the Government, Parliament and Australian public better.
I apologise as Public Service Commissioner to those affected by the Scheme and to the Australian public for the part played by public servants in this failure.
Following the Royal Commission, the Secretaries of Australian Government Departments agreed a centralised process to investigate possible breaches of the Australian Public Service Code of Conduct to ensure consistency across the public service. The Australian Public Service Commission established a Robodebt Code of Conduct Taskforce and appointed expert independent reviewers to conduct inquiries into the actions of public servants associated with the Robodebt Scheme. Sixteen people were referred to the Taskforce, comprising current public servants referred by the Royal Commission, current and former public servants referred by their Agency Head, and former APS Agency Heads initially referred by the Minister for the Public Service, Senator the Hon Katy Gallagher. The Taskforce’s public report is published alongside this Statement.
In summary, 12 people have been found to have breached the Code of Conduct on 97 occasions....
Two former Secretaries, Ms Kathryn Campbell and Ms Renée Leon, have been found to have breached the Code of Conduct during their tenure at the Department of Human Services.
Ms Campbell breached the Code in respect of 6 overarching allegations, each comprising two breaches of the Code and amounting to a total of 12 breaches of the Code.
The 6 findings or substantiated allegations are that Ms Campbell:
1. failed in 2017 to ensure that internal and external legal advices about the Scheme were sought,
2. failed to sufficiently respond to public criticism and some whistle-blower complaints received by her in early 2017 about the Scheme,
3. failed in 2017 to investigate legal issues raised in a public forum, namely the annual meeting of the Australian Institute of Administrative Law, about the Scheme,
4. failed in 2017 to ensure that her Minister was fully informed of academic and legal criticisms raised in that public forum in respect of the Scheme,
5. created and allowed a culture that prevented issues about the Scheme from being properly considered within the Department of Human Services, including aggressive and abusive behaviour by a Deputy Secretary, and
6. caused the resumption of income averaging under the Scheme in August 2017 when she knew, or ought to have known, that debts raised pursuant to that process were potentially inaccurate.
A substantiated allegation can breach different elements of the Code of Conduct. The breaches by Ms Campbell of the Code relate to failure to act with due care and diligence (s 13(2) of the Public Service Act) and not upholding the APS Values (s 13(11) of the Public Service Act) in each of these 6 findings.
The following allegations against Ms Campbell were not substantiated: that she misled Cabinet, that she directed that preparation of legal advice cease, and that she failed to discharge her legal obligations with respect to the PWC engagement.
Ms Leon breached the Code in respect of 4 overarching allegations, each comprising multiple breaches of the Code and amounting to 13 breaches of the Code.
The 4 findings or substantiated allegations are that Ms Leon:
1. misrepresented to the Ombudsman in March 2019 that the Department’s legal position regarding the use of income averaging under the Scheme was ‘not uncertain’,
2. failed in March 2019 to correct or qualify representations made to the Ombudsman of the Department’s legal position on the use of income averaging under the Scheme after receiving further legal advice,
3. failed in mid 2019 to ensure that the Solicitor-General was expeditiously briefed and advice sought regarding the lawfulness of the Scheme, and
4. failed to expeditiously inform her Minister and relevant Secretary colleague of the Solicitor-General’s advice on the lawfulness of the Scheme and cease the practice of income averaging under the Scheme.
The first and second substantiated allegations involved breaches of the requirement to act honestly and with integrity (s 13(1)), to act with care and diligence (s 13(2)), to not provide false or misleading information (s 13(9), and to uphold the APS Values (s 13(11)). The third substantiated allegation breached the requirement to act with care and diligence (s 13(2)) and to uphold the APS Values (s 13(11)). The fourth substantiated allegation breached the requirement to act honestly and with integrity (s 13(1)), to act with care and diligence (s 13(2)), and to uphold the APS Values (s 13(11)).
Because they are former Agency Heads, no sanction can be applied. However, if they seek employment or engagement as a consultant or contractor with the Australian Public Service in the next 5 years they are required to disclose when asked that they have been found to have breached the APS Code of Conduct....
The full Statement can be found at
Rick Morton writing in The Saturday Paper, 21 September 2024, excerpts:
The Albanese government is considering whether it will, or even can, release the confidential sealed chapter of the robodebt royal commission report, after all of the major public inquiries triggered by it have fizzled out, been halted or made their own findings.
When the confidential chapter recommending referrals for civil and criminal prosecutions was given to the Albanese government, it was provided in hard copy, in sealed envelopes marked for just a handful of people. In all, only five people have officially received the sealed section. It is understood it makes recommendations for referrals against both politicians and senior public servants.
The governor-general received the whole report, as did the secretary of the Department of the Prime Minister and Cabinet and the Australian Public Service commissioner. Officials in the Attorney-General’s Department’s royal commissions branch received two envelopes they were forbidden from opening. One was given to their secretary and one was reserved for the attorney-general himself, Mark Dreyfus. He is the only politician to have received it. The prime minister was not given a copy and nor was the minister for government services, Bill Shorten......
There is the small matter of the law, however. When the commissioner, Catherine Holmes, provided the complete confidential section to just five people in July last year, she issued a simultaneous non-publication order preventing its disclosure to any person other than official investigating agencies. Only the people referred for possible prosecution can disclose, if they choose, what has been said about them in the section.
“Any person who makes any publication in contravention of any direction for non-publication commits a punishable offence,” Holmes’s order states.
“The penalty for this offence is, on summary conviction, a fine not exceeding 20 penalty units or imprisonment for a period not exceeding 12 months.”
A March 2022 review into confidentiality provisions in the Royal Commissions Act recommended the Australian government look at ways to make such “non-publication orders” more “effectively” managed after an inquiry had finished because they otherwise had no expiry date.
“Another drawback is that non-publication directions operate in perpetuity, and the Royal Commissions Act does not provide a clear mechanism for removing or amending the scope or application of a direction once a Royal Commission has concluded,” the review says.
“Robodebt happened because of a political and media culture that punches down on income support recipients. This is a culture that dehumanises people on income support on the one hand, whilst humanising people like Kathryn Campbell on the other.”
“In the time following the conclusion of a Royal Commission’s inquiry, there may be circumstances where there are legitimate reasons in the interests of public transparency for a non-publication direction to be removed or adjusted.
“For example, information that was confidential at the time of an inquiry may subsequently come into the public domain or may become less sensitive over time (for example information about criminal investigations). As such, there may be merit in exploring options for the Royal Commissions Act to prescribe methods of lifting a direction after a Royal Commission has concluded.”
A spokesperson for the attorney-general said the government was now considering what was possible.
“The Robodebt Scheme, run by the former Liberal Government, was illegal and one of the worst failures of public administration in history,” the spokesperson told The Saturday Paper in a statement.
“The Government is now giving consideration to questions relating to the release of the confidential chapter.”
A spokesperson for the Attoney-General’s Department suggested any potential changes to legislation to achieve this were not on the government’s radar, however.
“Any reforms to the Royal Commissions Act 1902 will be considered in the context of the Government’s broader reform agenda, noting there is currently no royal commission on foot,” they said in a statement.
Publicly, the commissioner noted she had referred individuals to the National Anti-Corruption Commission (NACC), the Australian Public Service Commission (APSC), the Australian Federal Police and the Law Society of the ACT. The NACC controversially elected “not to commence a corruption investigation” in relation to six individuals referred to it because the APSC was already investigating five of them.
One, however, was a politician who is not subject to the APSC.
The corruption body is headed by Paul Brereton, who delegated the decision to a deputy commissioner “to avoid any possible perception of a conflict of interest” – although the nature of that possible conflict was not disclosed.
That NACC decision is now the subject of its own conduct investigation by the NACC inspector, Gail Furness, after more than 900 complaints were received following the announcement in June.
The Australian Federal Police received a referral for an individual who the royal commissioner suggested had deliberately misled her inquiry, but the AFP declined to charge anybody because, it said, it lacked admissible evidence that the “alleged offender intended to mislead the royal commission”.
Finally, the Law Society of the ACT will not say whether it has even received a referral from the robodebt royal commission, as it neither confirms nor denies such things, but in some circumstances disciplinary action taken against its enrolled legal practitioners will be published in an online register.....
Despite its recommendations and findings, notably that Scott Morrison allowed cabinet to be misled about the illegal robodebt scheme and that vast swaths of Stuart Robert’s evidence were rejected as untrue, no minister involved in the scandal has featured in any other public accountability forum.....
This article was first published in the print edition of The Saturday Paper on September 21, 2024 as "Inside the fight to open the robodebt sealed section".
