Commissioner Catherine Holmes found that public servants had engaged in conduct including misleading cabinet that legislation was not required for the unlawful scheme, and misleading the commonwealth ombudsman.
Seven public servants criticised in robodebt report as agencies consider response. Robodebt royal commissioner Catherine Holmes found that public servants had misled cabinet, and misled the commonwealth ombudsman.
At least seven public servants (Mark Withnell,former general manager of business integrity at the DHS,Malisa Golightly, the former deputy secretary of DHS,Annette Musolino, chief counsel at the DHS,Russell de Burgh, branch manager of the pensions and integrity branch; Serena Wilson, DSS deputy secretary; and Cath Halbert the group manager of payments policy at the DSS. ) including former Department of Human Services (DHS) secretary, Kathryn Campbell, and former DHS secretary, Renée Leon, are the subject of adverse findings in the robodebt royal commission report released last week.
Commissioner Catherine Holmes found that public servants had engaged in conduct including misleading cabinet that legislation was not required for the unlawful scheme, and misleading the commonwealth ombudsman.
But it is not yet clear which, if any, will face further consequences. The prime minister, Anthony Albanese, has said that agency heads are “empowered to take immediate action [against public servants], pending further investigations and I am very confident that they will”, but he did not name any particular people.
The identity of the people referred by the royal commission for potential civil action or criminal prosecution is unknown. Albanese said he has sought advice about whether a confidential sealed chapter from the commission’s report which details these referrals can eventually be released, after further actions against named individuals and legal appeals are exhausted.
Referrals have been made to the Australian federal police, the National Anti-Corruption Commission, the heads of agencies who employ public servants, the Australian Public Service Commission and professional conduct bodies for lawyers.
A panel including the secretaries of the Department of the Prime Minister and Cabinet, the attorney general’s department and APSC commissioner Gordon de Brouwer will develop advice for government on how to respond.
The royal commissioner found that Mark Withnell, the former general manager of business integrity at the DHS, “had a clear understanding” that robodebt used income averaging but there was “no evidence” he had taken steps to alert cabinet.
“[Withnell] knew that the [new policy proposal] did not describe the averaging component to the proposal, or the legal impediments to it and he knew that it was likely to mislead cabinet by those omissions,” Holmes said.
“The commission’s view is that Mr Withnell engaged in deliberate conduct designed to mislead cabinet.”
The commissioner found that Malisa Golightly, the former deputy secretary of DHS who is now deceased, directed that the statement that robodebt did not change how “income was assessed or overpayments calculated” be added to the submission to cabinet.
“Ms Golightly was responsible for the development of the [new policy proposal], and was a senior public servant. She was heavily involved in clearing the draft [proposal], and engaging with Mr Withnell in developing [it]. The commission concludes that she was aware that, as presented to cabinet, it was misleading.”
The commissioner found that Annette Musolino, chief counsel at the DHS, “failed to advise DHS executives of the weakness of the DHS position on averaging and the extent of the legal risk that it faced”.
Anthony Albanese says robodebt was ‘a gross betrayal and a human tragedy’ – video
The report also makes findings against a trio of public servants involved in responding to the commonwealth ombudsman, whose report was used repeatedly by the Coalition to defend the scheme although it did not verify public servants’ claims about its legality.
These were Russell de Burgh, branch manager of the pensions and integrity branch; Serena Wilson, DSS deputy secretary; and Cath Halbert the group manager of payments policy at the DSS.
The commissioner found the DSS made false representations to the ombudsman in March 2017: that there had been a change to how income averaging was proposed to be used under the scheme; that the DSS had adopted a position that legislative change was no longer required to implement the measure; and that earlier legal advice was therefore outdated.
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Renée Leon, the former secretary of the DHS from 2017 to 2020, was criticised for telling the ombudsman that the lawfulness of the scheme was “not uncertain”, which the commission said “had no proper basis”. Leon explained she did so because this was a description of the DHS’s position at the time.
But commissioner Holmes said she “did not delve into the grounds for the purported DHS position” and if she had the claim “could not be sustained”.
“The representation made by Ms Leon to [the ombudsman] Mr [Michael] Manthorpe in March 2019 that the lawfulness of the scheme was ‘not uncertain’ was misleading.”
However, the commissioner also credited Leon for being “the first to take steps” to end the robodebt scheme in 2019.
The commission found Campbell “did nothing of substance” when exposed to information that brought to light the illegality of income averaging and “failed to act” when presented with opportunities to obtain legal advice.
MPs have called for Campbell, who is still employed in a role paying almost $900,000 a year to oversee Aukus, to consider resigning.
On Friday when asked about the fate of Campbell and other public servants, Albanese said it was “not appropriate to comment on individual cases”.
This article was originally published by The Guardian
Early critics of robodebt have said they are shocked, appalled and outraged by how long the Coalition government persisted with the unlawful scheme.
The independent MP Andrew Wilkie and former the administrative appeals tribunal member Terry Carney were responding to the release of the royal commission report on Friday.
The commission, which made referrals for possible civil action and criminal prosecution of unnamed individuals, credits some politicians, civil society and whistleblowers for speaking out about the scheme in its early days.
Wilkie, who repeatedly raised the issue of constituents’ incorrect debt notices, the former senator Nick Xenophon, Labor’s shadow human services minister, Linda Burney, the Australian Council of Social Services, and Carney, who warned the scheme was unlawful in 2018 after he was not reappointed to the AAT.
Carney, who as an AAT member frequently wiped robodebts due to the unlawful process of income averaging, said he was “appalled and outraged that it did take so long to confront the bleedingly obvious”.
Carney, who as an AAT member frequently wiped robodebts due to the unlawful process of income averaging, said he was “appalled and outraged that it did take so long to confront the bleedingly obvious”.
“It wasn’t a sophisticated legal issue, it was clear cut and as we now know lots of people within relevant bureaucracies did actually from early on appreciate it was illegal unless legislation was passed to authorise it,” he told Guardian Australia.
Carney said the royal commissioner, Catherine Holmes, was “spot on” in identifying the culture of demonising welfare recipients as a cause of the failure of administration. He said Australians were “the world’s greatest demonisers of dole bludgers”.
Wilkie said: “We all knew it was a flawed data matching system, spitting out incorrect notices, and damaging people terribly.”
But the member for Clark said it was still shocking to learn that “public servants and politicians knew it was illegal and every time they responded to … inquiries, they were basically just lying to us”.
“It was such a complete failure of governance, and potentially criminal behaviour. That has shocked me.”
Those accused of misconduct “deserve their day in court”, he added, but if the royal commission’s findings were accurate “then frankly they should throw the book at these people”.
“For many of the victims there is no satisfactory remedy. Their lives were impacted so greatly and, of course, the people who self-harmed and suicided, those families will never get their loved one back. Nothing will ever make this fully right.”
On Sunday Burney told ABC’s Insiders that Labor had publicly warned that “the algorithm was unjust and unfair and that there was no human involvement in it”.
“This is a shocking indictment of it not being stopped,” she said. “And it just it just says to me there has to be consequences.
“I can’t articulate exactly what they should be because I don’t know what’s in the sealed section.”
The opposition leader, Peter Dutton, has conceded that “mistakes” were made by “individuals” involved in the unlawful robodebt scheme, while warning against a “trial by media” on the findings of the royal commission.
The education minister, Jason Clare, said that Dutton had shown “all the empathy of a rock” in responding to the royal commission report.
“The fact that Peter Dutton on the day that this came down, went straight to politics showed that this bloke doesn’t get it,” he told Sky News.
Clare said Scott Morrison, his ministers and bureaucrats “are going to have to live with this on their conscience for the rest of their lives.”.
Morrison has said he “completely” rejects adverse findings, claiming they were “wrong, unsubstantiated and contradicted by clear documentary evidence presented to the commission”.
As the cabinet minister who brought the robodebt proposal to cabinet, Morrison said he had “acted in good faith and on clear and deliberate department advice that no legislation was required to introduce the scheme”.
