The APSC’s Robodebt code of conduct inquiry: too little, too late and not convincing

Sep 24, 2024
Text Code of conduct typed on retro typewriter.

Those thousands of Australians so terribly damaged by Robodebt are unlikely to be satisfied by the Robodebt Centralised Code of Conduct Inquiry Report or the associated statement last Friday by the APS Commissioner, Gordon de Brouwer. Nor should the public service or the general public. Nor even those who were investigated.

The investigation took way too long. The Robodebt Royal Commission itself took only 11 months to complete its forensic investigation and publish its three-volume report (with another volume provided in confidence to assist investigations of individuals’ alleged misbehaviour).

The APSC’s investigation has taken 14 months before its findings were made public, despite the amount of evidence it had at the beginning.

The only person to lose their job was Kathryn Campbell, and that was 3-½ years after the scheme she had directed was found to be unlawful. (Renee Leon’s appointment was terminated in early 2020, almost certainly not because she had defended the unlawful scheme, but because she was the one who finally told ministers it was unlawful – more on that later.)

Only two people found to have breached the Code of Conduct have been named, even though the Royal Commission identified by name each of those it considered to have failed to meet their duties as public servants.

Indeed, it seems from the report and the APS Commissioner’s statement that the rights and welfare of those investigated were given priority over the public interest in knowing who has been found to have breached the Code of Conduct (and who has been found not to have done so) and why. Of course, procedural fairness is essential, and the mental health and welfare of those investigated must be considered, but the public interest in holding public servants to account, particularly those in senior positions, is overwhelming, given the scale of damage done.

The APS Commissioner notes that Robodebt was “a failure of government” and that the APS “acknowledges its role and takes responsibility for its actions”. What this omits is that, while the scheme did reflect the then government’s general policy approach towards welfare, it originated from within the public service, public servants advised the government to agree to it, public servants failed to advise frankly on its unlawful basis, public servants implemented it in ways inconsistent with the benevolent nature of social security legislation, public servants ignored concerns from welfare recipients, peak advocacy groups and external experts (and their own front office staff), and public servants misled the Ombudsman and other institutional checks and balances. More than anything else, Robodebt was a failure of the public service.

More names should have been released

The APS Commissioner does have discretion under the Public Service Act to release the names of those under investigation (whether found to have breached the Code or not) if he considered that to be sufficiently in the public interest and that this would not impact adversely on due process. The four reasons he gives for not releasing names (other than of the Secretaries found to have breached the Code) are not convincing.

  • Why should employers of those no longer in the APS be kept ignorant of past misbehaviour?
  • Why the emphasis on allowing individuals to restore themselves and have some closure?
  • Is it true that deterrence will be sufficient without disclosure?
  • Would this really create a precedent that could not be managed?

Not only does the public have an interest in knowing the names, but the public service itself has a close interest. By far the most effective way to bring home to the public service the criticality of upholding the APS Values and the Code of Conduct, is to name and shame those who do not do so when the damage is so significant. This is particularly the case for the SES as well as agency heads, as these are responsible under the Act for promoting the Values and Code, not just upholding them.

More details should have been made public

The Report is also very thin in explaining the basis of its findings. A sharp contrast can be found in the report by the former NSW Public Service Commissioner (Graeme Head) in 2022 into the appointment of John Barilaro as a Trade Commissioner. That report into the actions by the relevant agency head, Amy Brown, was completed within a few months, sets out in detail his findings and reasoning, and was made public. Brown was found to have breached the NSW code of conduct and was dismissed. The details in the report provided extremely useful guidance to public servants across NSW. Such details from the APSC’s investigations might similarly have provided important guidance to everyone in the APS, and been used in education and training on ethical behaviour. But the APSC has chosen not to take this approach.

The lack of openness can only feed the sort of rejoinders that have appeared over the weekend from Kathryn Campbell and Renee Leon. In the absence of details about the findings, I must admit to being unconvinced about a number of the conclusions set out in the APSC Report and the APS Commissioner’s statement.

How sound are the findings?

For the most part, the findings concerning Campbell are consistent with those of the Royal Commission and her own objections reported in the Weekend Australian are unconvincing. She may be correct that the Department of Social Services had the main responsibility for policy and the lawfulness of the proposal, but her department developed the original proposal in 2014 and 2015, and it was made aware of DSS concerns at that time: it clearly took the lead on the whole scheme regardless of questions about lawfulness.

She does raise a legitimate point, however, in asking why the DSS secretary at that time, Finn Pratt, has not been found to have breached the Code. He and Campbell were both present in the cabinet room when the decision to proceed was taken, both knew there were questions about lawfulness, and both had some role in the cabinet submission that claimed that no legislation was needed.

Pratt may also count himself rather fortunate if, as seems likely, at least one of his staff has been found to have breached the Code. The public do not know for certain if this is the case, of course, but it seems noteworthy that the Royal Commission found that Pratt knew in early 2015 of the significant concerns his experts had about the proposed scheme (p63) and also that Pratt signed the misleading letter to the Ombudsman in April 2017 (while Pratt was entitled to rely on experts in DSS in developing this letter, the Royal Commission said this did not absolve him of any responsibility, and it found that he failed to make inquiries with respect to the legality of the scheme in the letter (p223)). Somehow, the buck would seem to have stopped below the level of the Secretary.

Another surprise for me was that the Code of Conduct Inquiry found that Campbell did not mislead ministers in 2015 despite the Royal Commission finding differently (that Minister Scott Morrison had misled Cabinet and Campbell knew, but chose to remain silent (p98)). On what basis this new finding was made we do not know. Perhaps this surprising finding also allowed Pratt off the hook.

Leon’s objections in a post on LinkedIn are particularly serious. The APSC report and the Commissioner’s statement seem to suggest Leon should accept as much responsibility as Campbell. Indeed, the presentation highlights that Leon breached the Code 13 times compared to Campbell’s 12 times. Certainly, Leon was criticised by the Royal Commission for her role in misleading the Ombudsman in 2019 and for not briefing the Solicitor-General as a matter of urgency nor conveying the AGS advice to her minister as expeditiously as she should have. But the Royal Commission also drew attention (p243) to the fact that Leon’s appointment in September 2017 represented the end of Campbell’s tenure in DHS, and that:

“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.”

Leon, in her post, also highlights that the scheme by then had been in operation for two years. A point she could have made, but did not, is that the courage required by then to give frank and fearless advice was far greater than that required by the other two secretaries back in 2015: her advice required the government to tell the Parliament and the public that it had been operating unlawfully for more than two years, millions collected would have to be repaid and compensation provided.

Leon claimed in her post that:

“I acted as expeditiously as possible to convince a government that was wedded to the Robodebt scheme that it had to be ceased. When Ministers delayed, I directed it be stopped. Two weeks later, my role as secretary was terminated by a government that did not welcome frank and fearless advice.”

While this omits the Royal Commission findings about misleading the Ombudsman and delays in some of her actions, it is true that her appointment was terminated shortly afterwards. Campbell, by contrast, was appointed to a new prestigious position.

None of this context is included in the APSC report or the APS Commissioner’s statement. It should have been.

Responses to Leon’s post on LinkedIn are also of interest. Charles Sturt University gives Leon (now the vice-chancellor) its full support and considers she has been unfairly treated. Many former senior public servants, including former PM&C secretary Martin Parkinson, express surprise about the findings in light of their knowledge of Leon’s integrity. Former staff also lend their support, one saying, for example:

“You were the best thing to happen to us at the Department of Human Services, Renee. Your leadership had genuine impact and gave frontline staff a hope positive change was on the way for our agency. We were shattered to hear of your termination, knowing the changes you enacted and started to deliver was going to cease. I am gobsmacked by the announcement today.”

Insights and lessons

Part B of the APSC report has a list of key insights arising from the investigations, the ones on culture and leadership being particularly important. Missing, however, are some of the key lessons to be learned if we are not to see such a disaster again.

In particular, there is a need to rebalance rewards and penalties in the APS, particularly for those at the top. Penalties for doing the right thing need to be removed: that requires addressing secretaries’ tenure and the appointment processes. And there must be penalties, not rewards, for doing the wrong thing, starting with simple acknowledgements of errors, but also incorporating within performance management systems assessments of behaviours that relate to promoting and upholding the APS Values. Similarly, doing the right thing should be rewarded.

Other matters not included amongst the insights which I suspect would have been raised during the investigations include:

  • Whether the current articulation of the APS Values makes sufficiently clear responsibilities to the Parliament and Australian public as well as to the government.
  • Are structural changes and/or new protocols needed to ensure appropriate links between social services policy and administration?
  • Whether the budget process itself may have placed undue pressure for the sorts of savings Robodebt was designed to achieve, and what are the responsibilities therefore of the central agencies.
  • What are reasonable approaches towards compliance administration of beneficial legislation?
  • The importance of technical knowledge at senior levels, including amongst Secretaries, and the efforts required of those newly appointed to departments and agencies to learn the ropes.

Some of these are touched upon by the Royal Commission though it noted that it did not have the time or resources “to examine whatever shortcomings exist in the APS as a whole” (p637). They are explored in my own report to the Royal Commission and I hope will receive further consideration by the APSC and the Secretaries Board.

Conclusion

While the APSC might have hoped its report would give “the opportunity for closure” (to use the APS Commissioner’s words) for those investigated, it has not done so. Nor does it provide any closure for the thousands damaged by Robodebt. Combined with the failure of the NACC to undertake investigations at all, it leaves the public with cause for grave concern about the processes of accountability for this fiasco.

 

Republished from THE MANDARIN, September 16, 2023

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