Pearls and Irritations

The Robodebt Royal Commission makes clear that the APS Value, ‘accountability’, is not just aspirational: individual public servants have duties and failing to meet them should have serious consequences.

It is possible to detect in the Commission’s Report two strategies for promoting public service integrity:

• The support in Chapter 23 for Thodey Review recommendations aimed to clarify the role of the APS and to strengthen its independence particularly by addressing the processes for appointment, termination and performance management of secretaries, which would greatly dilute incentives for excessive responsiveness to ministers; and
• The ‘naming and shaming’ of individual public servants, including the referral of some for further investigation and possible sanctions, thus highlighting the potential consequences of excessive responsiveness.

In the report I prepared for the Royal Commission in February I responded to their request to describe the responsibilities of individual public servants (Part B of my report). I spelt out in some detail:

• The responsibilities of secretaries under both the Public Service Act (particularly section 57) and the Public Governance, Performance and Accountability Act (particularly under sections 15, 16, 17, 18 and 19);
• The responsibilities of the SES, particularly under section 35 of the PS Act (including that ‘by personal example and other appropriate means, promotes the APS Values, APS Employment Principles and compliance with the Code of Conduct’); and
• The responsibilities of all APS employees to uphold the APS Values and APS Employment Principles and comply with the Code of Conduct.

Provisions in the Code of Conduct I highlighted given the then emerging evidence at Commission hearings included that APS employees must:

• Behave honestly and with integrity;
• Act with care and diligence;
• Treat everyone with respect and courtesy, and without harassment;
• Comply with all applicable Australian laws; and
• At all times behave in a way that upholds the APS Values and Employment Principles, and the integrity and good reputation of the employee’s Agency and the APS.

Secretaries also have particular responsibilities under various administrative laws and, in most departments, under the legislation their department administers.

I do not know who the Commissioner has referred to in her sealed report for investigation, but her published report contains seriously adverse findings and comments about a number of current and former public servants. There are also adverse findings and comments about former ministers but to me the most alarming material concerns the behaviour of public servants. Sadly, her concluding comments about ‘venality, incompetence and cowardice’ are directed as much if not more to them as to ministers.

The public servant mentioned adversely by far the most is Kathryn Campbell, the former Secretary of the Department of Human Services when the scheme was first developed and then implemented, and then Secretary of the Department of Social Services until the scheme was terminated (before being appointed Secretary of DFAT). Findings include that she misled the Expenditure Review Committee of Cabinet when the measure was first proposed in early 2015. At the time Renee Leon took over in September 2017:

‘Ms Campbell had been responsible for a department that had established, implemented and maintained an unlawful program. When exposed to information that brought to light the illegality of income averaging, she did nothing of substance. When presented with opportunities to obtain advice on the lawfulness of that practice, she failed to act.’

Finn Pratt, Secretary of DSS when the scheme was first proposed and during the period of implementation to September 2017, does not escape criticism. The Commission found that he did not take any steps to inquire about assertions of legality at the time of the Ombudsman’s inquiry in early 2017. He of course signed the letter to the Ombudsman claiming the scheme’s legality. His experience in the portfolio prior to the proposal first emerging might also be noted, and his attendance at the ERC meeting when it was first discussed – surely not just as an observer but to offer expert advice about the proposal if asked by ministers.

While the Commission acknowledges that Renee Leon inherited responsibility well after Cabinet approval and implementation, it is highly critical of her handling of the Ombudsman’s inquiries and in the delay in providing the legal advice of unlawfulness when it finally was obtained in 2019. A factor the Commission might have raised but did not do so was that the courage required to give unwelcome advice was far greater by 2019 given the consequences both political and budgetary after several years of implementation. It is also noteworthy that Leon lost her position in early 2020.

The Commission also makes some important general comments about secretaries and their reliance on advice from their departmental officers.

‘Secretaries are not, or ought not be, utterly reliant on the advice that they receive. They can undertake critical analysis of the reasoning expressed in advice and seek external opinions to validate (or refute) that reasoning. Whether it is necessary to do so depends, of course, on a number of factors, but a critical factor is the implications of acting in accordance with the advice if it turns out to be wrong.’

Deputy secretaries were also the subject of severe adverse reports. Malisa Golightly, the DHS deputy closest to the establishment and implementation of the scheme, contributed to the misleading of the ERC. It is clear also that her management style discouraged staff from providing unwelcome advice. The fact that she died before the Royal Commission meant that she was never subject to the direct scrutiny others faced.

There is strong criticism of Serena Wilson, a DSS deputy for most of the Robodebt period, despite the fact that she had advised DHS of the unlawfulness of averaging in late 2014 and ensured questions of legality were included in the advice to Minister Morrison in early 2015. The Commission rejected Wilson’s claim that she was unaware that averaging was still applied in the proposal that went to the ERC and the measure subsequently implemented. Accordingly, the Commission did not accept that Wilson was surprised in early 2017 to find that averaging was taking place and was highly critical of her for misleading the Ombudsman at that time. It should be noted nonetheless that Wilson was one of the very few amongst those appearing before the Commission to show genuine contrition for failing to advise ministers in early 2017 that she knew what was being done by DHS was unlawful.

Another DHS deputy, Jonathan Hutson, is also criticised for his part in responding to the Ombudsman in early 2017, though not as severely as Wilson.

Mark Withnell, the DHS general manager most closely involved with the development of the measure comes in for almost as much scathing commentary as Campbell. This includes the finding that he ‘engaged in deliberate conduct to mislead Cabinet’. That deceptive behaviour continued over the following years as Robodebt was rolled out and continued.

Annette Musalino, the DHS senior counsel, also comes in for serious criticism, particularly given her position as the senior in-house lawyer who should have been exercising professional independence. She continually avoided seeking formal legal advice, and she also misled the Ombudsman. Other lawyers such as Emma-Kate McGuirk in DHS are also criticised by the Commission.

DSS SES officers are also the subject of adverse findings, including Allyson Essex, Cath Halbert and Russell de Burgh.

Whatever happens from here, all these public servants now know what accountability means; their personal reputation has been tarnished, some irretrievably. It is sad, but of course what happened to so many disadvantaged Australians is so much worse.

While the main focus of the Commission was on those in DHS and DSS, the Commission is also critical of ATO, successive Ombudsman and the Office of the Australian Information Commissioner. Problems were also revealed in budget processes and the management of technology, and in the role of in-house lawyers. There is therefore much to learn for the whole APS.

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