Irony does not seem to be the strong point of the Public Service Commissioner, Gordon de Brouwer. During the very moments while explaining why Kathryn Campbell had failed her public service ethics examinations, he was committing much the same sort of sin. This was when he was unconvincingly explaining why he could not, should not, disclose the names of all but one of the other dozen or so accused of failing the ethical code.
The sin of most of the other miscreants was of putting their own interests and career ambitions, and putting their terror of political retaliation, ahead of the obvious public interest. De Brouwer was claiming he had no discretion about putting the interests of the villains ahead of the public interest. The PS Act says that the names of people investigated for breaches of the public service code of conduct should not be disclosed “unless the Commissioner is satisfied that the disclosure is fair and reasonable in all the circumstances”. This is, he thinks, a “high threshold”. Actually, it is not, but it gives him broad discretion even when there is a strong public interest in the story being told. It depends on his feelings, not the facts.
But it was, apparently, a threshold that will never ever be reached, at least while he is in office. He’s not focused on the infamy of conduct, or the notoriety of a scandal. His interest is in protecting public servants, except secretaries, from public responsibility for their actions. It turns out that he is not a guardian of the public interest, as we had supposed, but a guardian of the absolute privacy of public servants.
The investigations involved perhaps 10 public servants, at the relevant time senior executive officers or executive level officers in the APS. He won’t tell us who they are, or what positions they held. He won’t tell, other than with platitudes from the public service code, how each failed to follow the code. Perhaps some identities could be deduced from publicly available royal commission transcripts, but one would be guessing, given that some unnamed folk have been exonerated and others were not fingered by Justice Holmes. The “charges” involved matters he said were serious. The royal commissioner used far stronger words to describe the worst scandal in Australian public service history.
It was epic maladministration that caused grave damage to tens of thousands of Australians, mostly the poorest and most vulnerable, and those least able to test a system that had seemed to them (rightly) unjust, unfair, and arbitrary. The deliberately cruel and vindictive scheme involved the illegal collection of alleged debts that the victims did not, in fact, owe. It has cost taxpayers billions. Although politicians embraced the scheme, it was conceived and carried into action by senior public servants, against strong resistance by some others. It earned Campbell her AO. No one has pressed her to return it. No one has pressed her to return anything, nor does she face any penalties, other than to her self-esteem.
Honest and diligent public servants suffered as senior officers ignored their duty and warnings from below. The officers have been lightly stroked with a feather
Public servants who did their duty deserve vindication they will not get while hardly any of those who did remain unpunished and unnamed. More widely the scandal has caused untold damage to the reputation of the service. It has probably made it more difficult to recruit the best and the brightest.
Many able and loyal public servants tried to draw the attention of managers to the injustices being perpetrated and to their unease about the legality of the schemes. Some who persisted were punished by managers who did not welcome bad news, particularly if it were true. There was credible evidence that some public servants were terrified of the anger of bosses if they gave reports which did not suit the political aims of the government, improperly focused on pretending that alleged over-payments were fraud. The scandal arose out of a management which demanded a military-style culture of absolute obedience, with epic rages if expectations were not met. Campbell, otherwise in her part time a major general in the army reserve, was first the secretary of the human services department, which implemented the policy, and was then promoted to be secretary of Social Services, which set the policy.
Later, when the failure of Robodebt had been exposed by her successor at Human Services, Renee Leon, Campbell’s continuation became too embarrassing for words, and she was moved, again by Scott Morrison to the Department of Foreign Affairs. When the incoming Labor foreign minister did not want her, she was not made to retire, as others with her sort of record have been. Instead the old-boy network — it’s an all-male one — found her a new pretend job at $900,000 a year in the bowels of the defence department. She made no obvious contribution there, but her retention of a position occurred with the consent of the prime minister and the incoming head of his department, Dr Glynn Davis.
Davis and de Brouwer were sold as the new brooms who were going to fix the public service and restore values of integrity. They have preferred the softly-softly steady-steady approach; indeed, progress on any reforms have been glacial. De Brouwer claimed in his summary that “public scrutiny of the Robodebt scheme has been intense and a lot has happened to remedy problems in the past year. The public service has come a long way. Services Australia and Social Services have significantly transformed themselves. The implementation of the government’s response to the Robodebt royal commission and the secretaries board’s Integrity Roadmap is important to ensuring the APS can do its job well and that government failures like the Robodebt scheme do not happen again”.
His optimism is not shared by many observers. Many of the reforms are rhetorical management-speak at best and meaningless blather at worst. New top managers at social services have made a difference, but it is simply impossible to say that structural or legislative reforms could — or would — prevent a recurrence. The overwhelming proportion of the departmental secretaries were loyal servants of the Morrison Government, diligent about anticipating and achieving the wishes of the elected government.
No PS reforms so far would prevent another Robodebt, or the rise of ambitious officials without ethics
Some, even in senior departments, must be very grateful indeed that the desire of the Albanese Government to search out unprofessional and deplorable senior management has ended up being restricted to Robodebt.
Some ministers had expected that actions of ministers and public servants during the COVID period, business welfare that didn’t have to be repaid, sports rorts and the politicisation of grant money would be investigated by the National Anti-Corruption Commission. There now seems little hope of that. But we don’t know. The NACC is intensely secretive and seems to feel no need to explain anything. It is fast losing credibility and public trust.
The Robodebt royal commissioner, Catherine Holmes, produced a secret chapter to her report recommending that the NACC investigate possible corruption and maladministration by ministers and public servants. The conduct in question was beyond her terms of reference, but the details she had gleaned, and the evidence she had gathered and was now passing on, called for inquiry. We do not know the details.
She may have recommended that ACT legal regulators be asked to look at clear breaches of legal professional duty shown by some government lawyers. We don’t know if they got the reference; certainly they did not take it up – another reason to wonder whether APS lawyers are under any professional discipline at all. Holmes had only limited scope to investigate the conduct of public servants outside of the two Robodebt departments. Lawyers and public servants in AGs, Home Affairs, Finance and PMC were in different ways intimately involved with Robodebt adoption and practice, especially in budget processes. It would be amazing if all the external players provided magnificent service. But the curiosity of the PSC has been exhausted.
After the report came out, a committee of secretaries discussed how the blame for Robodebt extended beyond Social Services and Human Services. After immediately exonerating themselves, some may have dobbed in a minor official or two. We do not know because the PSC concern for the privacy of those accused extends to the matters they have been accused of, found guilty of, or even the department they served. Some were acquitted, if by processes that do not make it clear why we should prefer the findings of anonymous PSC staff to the open evidence, publicly cross-examined findings of a NSW Court of Appeal judge. De Brouwer’s slim and slight explanations invite more questions than they answer, and like his similarly secretive report on the sins of Mike Pezzullo do not tell enough for the public to make any final judgment. In Pezzullo’s case, the problem is made worse in that he is now spreading an uncontradicted self-serving version of what he did wrong. And he is seeking, without noticeable opposition, to have himself placed again in the higher councils of defence policy.
At least one minister was named in the secret report. Many think it was Morrison, who has not explicitly denied it, even if he thinks his behaviour exemplary and implies he was let down by Campbell. It appears that the PSC will be relieved to stamp NFA on that file, which is out of its jurisdiction with nowhere to go.
A PSC committee, with personnel far wiser than Justice Holmes showed how diligent and independent it was by rejecting some disciplinary charges. But we are not allowed to know who, how or why. This committee also elevated, without public reasoning, the charges against Leon to a level alongside Campbell. That was not the view of Commissioner Holmes. Leon was not beyond criticism, but she did bring the fiasco to an abrupt halt, and, for her pains, was sacked by Morrison very shortly after. By contrast, Campbell received about $2 million from taxpayers between the time when the music stopped and when she was encouraged to go.
Neither Campbell nor Leon suffered for their sins, other than to their reputation and some very slight hopes of recall after a suitable period of penance. Some SES officers and SOGs — the few left in the APS and thus still inside the PSC jurisdiction — may suffer demotion or loss of pay. The rest, including any ministers, suffer no penalties at all, not even being held to public account and notoriety. Under the PSC, Robodebt was a victimless crime, and it is a proof that the system is working perfectly that no public servant will be known to have suffered for their neglect of duty.
De Brouwer acknowledges legitimate public interest in knowing what happened. Against that, he posited four factors impelling his discretion to protect the identities or sins of the public servants.
First, he says, anonymity helps ensure proportionality in the applications of sanctions. Thus, we know that those who have left the APS have escaped scot-free. These should not have to suffer in their new careers, if any, because they have been named, he says.
Second, it is important to allow the individuals involved a chance to “restore” themselves and have some “closure.” [It seems that to de Brouwer these are the real victims of Robodebt.]
Third, he says naming names is not necessary if we are to deter similar behaviour in future. Apparently, the public will be happy, and public servants looking for guidance relieved if they are merely reassured that the guilty have been identified and dealt with, if for actions he won’t specify. Thanks to his prompt action (15 months), impartial justice, exemplary and appropriate punishments, the public and public servants now know what is expected of them.
Finally, responding to pressure to name names in this case might create a precedent where journalists or others demand to know about other misconduct coming before the terrifying PSC Star Chamber. This could undermine future effective investigations, destroy the opportunity for restoration and rehabilitation, and increase litigiousness.
One can understand when de Brouwer is bravely willing to take a fall to protect public servants from the operation of the public interest. It is quite clear from his rationale that he does not see himself as the guardian of the public – there to protect public service efficiency, effectiveness, independence and integrity against any demand for public accountability, transparency of action, or open and appropriate justice. He’s there to prevent the public from knowing anything is wrong.
The PSC was not investigating allegations of crimes, but of clear failures of public duty. Its investigations are not criminal court proceedings. But they are quasi-judicial proceedings subject to the well-established rule that justice should be done in the open. The rule says judgments should be public and explain both the law (or the rules) and the reasoning applied to the facts. His sermon from his hill would not suffice. High Court judges defending these open justice principles say that a judge, and their performance and competence, are as much on display, and as subject to criticism as the person being investigated. Allowing for some narrow reasons for privacy (not of the type proposed by de Brouwer), a closed proceeding cannot produce justice, because openness is a critical part of what justice involves.
We cannot assume the PSC and the NACC have good judgment or understand the public interest in transparency
De Brouwer and Dr Davis need to consider how much the reputation of the APS and the PSC depend on their being seen to be fair and just. By many people, including specialists in public administration, they are not. One cannot simply take the word of de Brouwer, or the commission, or Dr Davis, or even the prime minister that they have done their job. It involves no disrespect to those who have been involved to say that their very judgment is in question. They rejected, without any explanation, clear and specific findings by Justice Holmes. At the PSC hearings, it is quite clear that the APS “victims” had all of the natural justice and opportunity to make submissions that they could have wanted. It is by no means clear, certainly from anything de Brouwer has said about the proceedings, that the public, or the public interest, was represented at all.
Frankly, I have no confidence whatever in the findings of the PSC. Not even those against Campbell or Leon, who have their names published without us having any fresh information explaining why the Rumpoles of the PSC reject some of the fact-finding and the law-finding of the royal commissioner. Beyond that, I have lost all confidence in the judgment of the commissioner and in his capacity to balance competing interests on openness or to judge the best interest of the service.
If he is this astray of public expectation, I do not think he can “restore himself” or that the many victims of Robodebt, including honest public servants, will ever find the “closure” he seems to want. Now that he has fixed everything with a few criticisms, he seems to think that it only remains we put the whole embarrassing incident behind us.