When Catherine Holmes’ scathing royal commission report on the robodebt scandal was released, it made abundantly clear who she felt was at fault for the scheme.
But the public did not get the juiciest bit: Holmes’ view of precisely what consequences should attach to those failings.
The “sealed chapter” recommended the referral of individuals for civil action or criminal prosecution but was not released, so as not to prejudice those processes.
Last week, one of them came to an end. The National Anti-Corruption Commission decided not to launch an investigation into six public officials referred to it by Holmes, because five of them were already under investigation by the Australian Public Service Commission.
This was understandably a great disappointment to victims of robodebt. Rather than second-guess the decision – which I agree is largely a cop-out – I want to turn to the question of whether there has been enough transparency about how the referrals are being handled.
To adapt some legal aphorisms: robojustice must be seen to be done; and robojustice delayed is robojustice denied.
Let’s start with some basic questions: if five of six public officials are under investigation by the APSC, why is person six not?
Could this indicate they are outside the APSC’s remit because they are or were a public official who was not a public servant? Or was it for some other reason?
Can we infer from the Nacc omitting to mention any other civil or criminal process in relation to person six that no such process is under way?
Who is person six, and why are we not allowed to know?
The technical answer is: because Holmes said so. The royal commission’s direction not to publish says that the chapter containing the referrals and “the identity of the persons subject to a communication, is not to be published”.
There are some limited exceptions, but sadly none of them encompass media reporting to understand who Holmes wanted investigated for possible corruption.
This order now seems overly broad. The government services minister, Bill Shorten, said in July that it was “not sustainable” for the sealed chapter to remain secret for ever.
Given the Nacc process has now concluded, unless there is some other process afoot, I think we have a right to know who person six is.
Holmes said the sealed chapter remained secret “for further investigation by other bodies” about the information contained in it. There was nothing about protecting the reputation of the people named therein or preventing them any embarrassment.
And as the Nacc noted, the conduct of the six has “has already been fully explored by the robodebt royal commission and extensively discussed in its final report”.
Many of the other processes beyond the Nacc have flown under the radar.
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Some of the royal commission referrals went to the ACT Law Society, which regulates the professional conduct of solicitors. It won’t comment unless and until disciplinary action has been taken in a court or tribunal.
In August an Australian federal police spokesperson said: “The AFP received a report of crime from the royal commission into the robodebt scheme. No further comment will be made at this time.”
There are no updates (yet) from either.
The APSC has been more forthcoming, revealing it has been investigating the actions of 16 bureaucrats involved in the scheme to establish if they had breached the APS code of conduct.
In Senate estimates the agency head, Gordon de Brouwer, has said one of the 16 people “did not meet the threshold to issue a notice of suspected breach”. Four people have already been sanctioned, all current public servants.
Seven final determinations – meaning findings – had been given and another seven were still under way. The final outcomes are expected to be made public by July.
Much of the transparency piece has fallen to the media. My now colleague Sarah Basford Canales revealed in a June 2023 story for the Canberra Times that the former head of the department of human services, now Services Australia, Kathryn Campbell, was suspended without pay from her defence job shortly after the release of the robodebt report. Shortly after, Campbell resigned.
The ABC reported last week that the former Services Australia chief operating officer, Annette Musolino, resigned after it was discovered she had been consulting for a firm that provides legal advice to government departments while on unpaid leave from the agency.
Hopefully there are some more consequences around the corner, so we won’t be left guessing for long what became of the referrals from the royal commission.
But as processes like the Nacc conclude, we should also be told who was referred.
It adds insult to injury that as an unspecified person is let off the hook, we, the public, don’t even have the right to know their name.