The National Anti-Corruption Commission (NACC) has decided not to pursue the robodebt royal commission referrals. Among its reasons were that five of the six public servants referred to it for investigation “were also the subject of referrals to the Australian Public Service Commission (APSC)”, and that there exists “the absence of a real likelihood of a further investigation producing significant new evidence”.
Duplication of the work of the APSC would be a good reason for the NACC not to proceed — if the public had confidence in those investigations. Its slowness raises fears that robodebt perpetrators will avoid consequences by resigning or retiring, remaining anonymous and unaccountable.
The NACC realising it has little chance of finding new evidence is unfortunate but entirely predictable. We know evidence disappears with time. And the longer investigations drag on, the less likely it is that any public servant will be publicly accountable for their actions in implementing robodebt.
The royal commission found that robodebt was illegal, and the government’s response to the report confirmed this. Attorney-General Mark Dreyfus said bluntly, “The robodebt scheme was unlawful.”
But it is a funny kind of illegality if nobody is held responsible and accountable for ever doing anything illegal. It’s an illegality that merely floats around in abstract terms, never dirtying the hands of the people who devised and ran the scheme. Just the vibe, really.
Clearly there are lessons to be learned from the disastrous failure of public administration that was robodebt. The public service commissioner has promised to report on those lessons. The question is, will future public servants bother to learn those lessons?
If there is no public and demonstrable accountability for robodebt maladministration, chances are they won’t. We tell people not to behave badly. That has little effect if in practice the incentives work the other way. If the only consequence for implementing an illegal scheme like robodebt is a slap on the wrist and a warning not to do it again — or a chance to slink quietly off to retirement — the signal sent is that we condone such behaviours.
If that happens, we run a high risk of a different but equally egregious failure of public administration emerging in coming years, harming innocent bystanders, wasting public money and eroding trust in the public service.
We can’t predict what it will be, or in which agency it will occur. Likely it won’t be this year or next, while memories are still fresh. But a failure to act now ensures it will happen. When it does, the public service will have cause to reflect on how it should have ensured accountability for robodebt.
That also means going public, not conducting investigations behind closed doors. That is one of the drawbacks of reliance on investigations under the public service code of conduct, in which APS commissioner Gordon de Brouwer argues the Public Service Act prohibits naming names.
When the commissioner said this in his recent Senate estimates appearance, senators did not ask what section of the act he referred to. If it was s.72(A)(6), it states: “The commissioner must not disclose the name of an individual, or any other material that would enable an individual to be identified.” However, this has an exception in cases where “the commissioner is satisfied that the disclosure is fair and reasonable in all the circumstances”.
Surely the thousands of Australians who suffered from robodebt would see public disclosure of disciplinary action as both fair and reasonable. However, there may be other prohibitions to which the commissioner refers. Interpreting legislation is a complex legal matter.
As a simpler solution — and once the investigations are complete, a timely one — would be for the government to release the “sealed section” of the royal commission report. That presumably will tell the public who did what, and why the commission referred them for investigation.
This is republished from The Mandarin.
