The National Anti-Corruption Commission’s Robodebt report provides transparency and some accountability, but key findings and the lack of public detail on APS code breaches leave troubling questions unresolved.

It is pleasing that the National Anti-Corruption Commission (NACC) has undertaken a thorough investigation of the six individuals referred to it by the Robodebt Royal Commission, and that it has released its (445 page) report in full. That follows, of course, its earlier unfortunate decision not to proceed with such an investigation.

Some of its findings, however, are surprising. In addition, the public release raises questions again about the APS Commission’s Code of Conduct investigation and the limited information from that which has been made public.

Some observers will be uncomfortable with the finding that only two of the six individuals have been found to have acted corruptly, and that two of the leading players in the scheme – Kathryn Campbell and Scott Morrison – were found not to have engaged in corrupt conduct.

In doing so, as the NACC emphasises towards the end of the report that:

“serious maladministration is not necessarily, or frequently at all, the same as corrupt conduct as defined by the NACC Act, despite such serious effects as it may have been upon recipients, their families and the reputation of the APS.”

Equally, though not explicitly stated in the report, a finding that someone had not acted corruptly does not necessarily exonerate them. Campbell has been found separately to have breached the APS Code of Conduct multiple times, and Morrison surely still wears the scars of the Royal Commission’s damnation of the scheme’s basic ‘venality’ and its message that ‘politicians need to lead a change in social attitudes to people receiving welfare payments’. Whatever the failings of public servants – and there were many, some unbelievably egregious – there is such a thing as ministerial responsibility.

More surprising to me is the NACC’s view that the situation with regard to the use of income averaging was ‘not as clear as the Royal Commission found in its report’. Like the Royal Commission and DSS officers in late 2014, the scheme’s unlawful use of income averaging should have been clear from the start. The NACC, however, suggests the use of income averaging ‘as a last resort’ was not so clearly unlawful back in 2014 and 2015.

That is unconvincing. The scheme as proposed in the original Cabinet Submission, with the estimated high level of savings to be achieved, surely required legislation if it was to be lawful. Moreover, as DSS officers advised at least internally, it was also inconsistent with longstanding social security policy. The NACC view on this has contributed, though probably not critically, to its findings about whether corrupt conduct occurred at that time.

Findings of corrupt conduct

The findings of corrupt conduct against Mark Withnell and Serena Wilson are hard to dispute, though I do have some sympathy for Wilson.

Unlike Withnell who was a driving force behind the scheme from the beginning, Wilson shared her officers’ concerns about the DHS proposal and she did draw to the minister’s attention questions about the proposed scheme’s lawfulness in early 2015. Moreover, almost alone amongst those involved, she showed real contrition when giving evidence to the Royal Commission. Nonetheless, the NACC’s finding that she intentionally misled the Ombudsman in 2017 is convincing.

Repeatedly in the NACC report is the ghost of Malisa Golightly, the now deceased deputy secretary in DHS responsible for taking the proposal forward and implementing the scheme.

It is clear that she was a bully and made life very difficult not only for those working for and with her in DHS but also those in DSS with whom she interacted. Those above her ‘were prepared to turn a blind eye to her behaviour because of the results she achieved’. People were ‘worn down’ by her and some ‘acquiesced’ in response to her determination and bullying.

It is hard not to conclude that, were she still alive, she would have been referred to the NACC by the Royal Commission and likely found to have acted corruptly; even more certainly, she would have been found to have breached the APS Code of Conduct.

Golightly’s role was also critical to the NACC findings, particularly about Campbell. Golightly was one of eight deputies in the large DHS and the NACC considered it reasonable for her to rely on Golightly. Nonetheless, Campbell was the Secretary, personally advising ministers and taking the lead before Parliamentary committees.

Campbell may also count herself somewhat fortunate to have the NACC support her claim that DSS had sole responsibility for advice on the lawfulness of the proposed scheme when the proposal originated in her department and was pressed by DHS with such enthusiasm. That said, the NACC rightly points out that the DSS Secretary, Finn Pratt, was with Campbell when ERC considered the proposal but he was not referred to the NACC for investigation. (Pratt was also perhaps fortunate that he was not found by the APSC to have breached the Code of Conduct.)

Publication The NACC decision to publish this report in full contrasts with the APS Commissioner’s (APSC) decision to keep most of its investigations into alleged breaches of the Code of Conduct confidential, not even naming anyone other than two of the secretaries involved.

The NACC explains the public interest served by publishing the full report:

• The referrals to NACC were and remain a matter of public concern;
• The referrals identified corruption issues that, if established, would amount to serious corrupt conduct; and
• It is important that the public be assured that the issues have been fully and fairly investigated.

The Attorney-General has subsequently tabled the Royal Commission’s confidential third volume of its report which was referred to the NACC and widely quoted throughout the NACC report.

It is now time for the APSC to reconsider its earlier decision not to name names or to release details of its investigations. Surely the enormously adverse impact of Robodebt demands that those found to have breached the Code of Conduct be held publicly accountable? Assurance of fairness also demands more information on the investigations, including about those found not to have breached the Code. Indeed there is already unease about the fairness of the APSC’s findings.

Senator Gallagher should ask the Acting Commissioner to review the situation.

Further action needed

In its final observations and recommendations, the NACC endorses the recommendations made by the Royal Commission, notes advice from the Department of Prime Minister and Cabinet that most have now been implemented or are in the process of implementation, and claims the recommendations are sufficient to prevent repetition of the kind of corrupt conduct that Withnell and Wilson engaged in.

Maybe not. Sadly, however, the Royal Commission did not include in its recommendations the recommendations of the 2019 Thodey review of the APS which it highlighted and specifically endorsed. These include strengthened processes surrounding the appointment of secretaries and the APS Commissioner and surrounding terminations of secretaries.

The lack of tenure for secretaries was a factor behind the ‘cowardice’ the Royal Commission found in the APS. It is not just a coincidence that Morrison appointed Campbell twice to new prestigious positions during and after Robodebt, and terminated the appointment of Renee Leon weeks after she advised her minister of the scheme’s unlawfulness. Excessive responsiveness to what public servants thought ministers wanted clearly contributed to the absence of the advice that ministers actually needed.

Ministers and would-be ministers would do well to reflect on the potential damage to them politically from a climate that undermines frank and fearless advice.