On Friday 7 July 2023 the Royal Commission into the Robodebt Scheme tabled its final report and recommendations.
Three days later on Monday 10 July 2023, the Australian Public Service Commission (APSC) posted online an open letter which was reportedly emailed 170,000 federal public servants, "A message to you from PM&C Secretary Davis and APS Commissioner de Brouwer on the Royal Commission into the Robodebt Scheme", which stated in part:
Following the release of the report on Friday, a taskforce led by the Department of the Prime Minister and Cabinet, the Attorney-General’s Department, and the Australian Public Service Commission will be established to support Ministers in preparing the Government’s response.
Separate to this, the APSC will oversee an independent process to determine if public servants with adverse findings have breached the APS Code of Conduct. This process will be established under the APS Commissioner’s powers in the Public Service Act 1999. It is designed to be fair, independent, and consistent.
The APSC has engaged Mr Stephen Sedgwick AO to exercise these powers as an Independent Reviewer. Mr Sedgwick will make inquiries and determinations about whether an individual referred for inquiry has breached the APSCode of Conduct.
On 3 August 2023 the APSC revealed that:
The Commissioner has now received 16 referrals to the APSC’s centralised code of conduct mechanism, consisting of:
current APS employees named in the sealed section of the Royal Commission’s report
former APS employees referred by their most recent Agency Head, and
former Agency Heads referred by the Minister following advice from the Secretary of the Department of the Prime Minister and Cabinet.
All referrals for investigation of potential breaches of the APS Code of Conduct have now been made and the Code of Conduct Taskforce in APSC has notified all referred individuals. An assessment will now be undertaken to establish in each case whether there are sufficient grounds to commence an investigation into suspected breach(es) of the APS Code of Conduct. The APSC will not provide details on individual cases or any further breakdown.....
Mr Stephen Sedgwick AO has been appointed as an independent reviewer to make inquiries into possible breaches of the APS Code of Conduct by current and former APS employees.
Ms Penny Shakespeare has been appointed as a supplementary reviewer to make inquiries into the conduct of former Agency Heads. The Public Service Act 1999 requires that the reviewer for referrals under section 41(2)(k) is a current senior public servant.
An independent sanctions adviser will be appointed, as required, to make recommendations to the relevant Agency Head, should any current APS employees be found to have breached the APS Code of Conduct.
On 8 February 2024 APS again updated its online information concerning the review:
Since the last update on 3 August 2023, the Code of Conduct Taskforce in the APSC has continued inquiries into all 16 referred matters.
To date:
15 investigations have proceeded to the issuing of notices outlining the grounds and categories for potential breach of the APS Code of Conduct.
Of the 15 investigations, 4 individuals have been issued a preliminary determination that they have breached one or more elements of the APS Code of Conduct; 11 investigations remain current.
One investigation has concluded as the individual's actions did not meet the threshold to issue a notice of suspected breach.
Final determinations and, if appropriate, decisions about sanctions will be communicated to individuals once preliminary determinations are finalised. The timeframe for the conclusion of inquiries depends on various factors, including the complexity of each matter, the number of submissions and any extensions that may be requested by respondents.
The 16 matters are complex, with a significant volume of evidence. Sufficient time is required to allow the Independent Reviewers, Mr Stephen Sedgwick AO and Ms Penny Shakespeare, to conduct the inquiries in a manner that is robust and affords respondents appropriate procedural fairness.
Elsewhere on the APSC website it was noted that:
The decision about the employment arrangements for public service employees identified in the Royal Commission report is a matter for their current employer. Agency Heads can take action before a formal investigation has started or concluded.
In considering the most appropriate action, the employer needs to properly consider a number of factors including the information provided in the report and the seriousness of the allegations, as well as the particular circumstances of the individual’s employment including their current roles and responsibilities.
The APSC and individual departments and agencies will not be commenting on the employment arrangements of individuals because, to do so, may inadvertently disclose content contained in the sealed chapter or risk prejudicing ongoing inquiries.
Based on APSC's own statements it does not appear very likely that any of the16 public servants identified by the Royal Commission will actually lose their public service employment.
On 8 February 2024 media outlets gave pared down accounts of the progress of this independent review. For example......
ABC News, 8 February 2024:
Four current or former public servants have breached the Australian Public Service code of conduct in relation to the Robodebt scheme, according to the preliminary findings of an independent investigation.
Last year, the Australian Public Service Commission (APSC) launched an investigation into 16 public servants who were identified by the royal commission into the unlawful debt recovery program as being involved in it.
The royal commission said the scheme was an extraordinary saga of "incompetence and cowardice" that was "neither fair, nor legal".
It recommended a number of people be referred for civil and criminal prosecution.
The findings form part of the ongoing APSC investigation into whether the public servants in question breached their responsibilities as described in the Code of Conduct.
The Code of Conduct, which is enshrined in the Public Service Act, requires public servants to act "honestly and with integrity".
It requires they maintain confidentiality and use their power and inside information appropriately.
It also forbids them from providing "false and misleading information" in the course of their work.
The APSC has not disclosed which elements of the code the four individuals are accused of breaching.
Breaching the code is not an offence, but can carry sanctions or lead to dismissal.
Another 11 individuals remain under investigation. One individual has been cleared of breaching the code.
Former Home Affairs secretary Mike Pezzullo was last year dismissed from his role after an independent investigation found he had breached the Code of Conduct on 14 occasions.....
BACKGROUND
On 24 September 2023, the Australian Public Service Commissioner, Dr Gordon de Brouwer, received a referral from the Minister for Home Affairs, the Hon Clare O'Neil MP, after concerns were raised in the media about the Secretary of the Department of Home Affairs, Mr Michael Pezzullo AO.
In accordance with the provisions of the Public Service Act 1999, the Commissioner appointed Ms Lynelle Briggs AO to lead an independent inquiry into these matters and report to the Prime Minister.
The Inquiry was conducted under the provisions of the Public Service Act, and consistent with the principles of procedural fairness.
Ms Briggs determined that Mr Pezzullo breached the Australian Public Service Code of Conduct on at least 14 occasions in relation to 5 overarching allegations, those allegations being that Mr Pezzullo:
used his duty, power, status or authority to seek to gain a benefit or advantage for himself,
engaged in gossip and disrespectful critique of Ministers and public servants,
failed to maintain confidentiality of sensitive government information,
failed to act apolitically in his employment,
failed to disclose a conflict of interest.
By way of sanction, Ms Briggs recommended that Mr Pezzullo’s appointment as a Secretary be terminated pursuant to section 59 of the Public Service Act.
Section 72A of the Public Service Act provides strict restrictions on the disclosure of information obtained as part of an Inquiry into possible breaches of the Code of Conduct. In addition, the Privacy Act 1988 applies to the use and disclosure of personal information obtained during an inquiry. However, given the public nature of the allegations and the importance of upholding confidence in the Australian Public Service, it is in the public interest that the overarching breach findings and the recommended sanction are made available in this case.
No further information regarding the contents of the Inquiry will be provided by the Australian Public Service Commission.
27 November 2023
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