Jack Waterford | Don't expect much post-robodebt reform from the Albanese government

From the politicians we will hear phrases such as "now is not the time," given budget priorities and all the other calls on the government's attention. The actual truth is that there are people inside the government who would be delighted if the public service leadership did anything of their own initiative, provided that the government generally, and individual ministers did not have to take responsibility for it. The Prime Minister does not want to be criticised for any Howard or Abbott-like night of the long knives with wholesale sacking of senior public servants. He wants, rather, to be seen, as Gough Whitlam and Bob Hawke were, as conservative in his dealings with the administration, recognising that many of its supposed sins are actually those of the previous ministers they served, and of a public service culture of "responsiveness" that Labor itself has over the years done as much to foster as the Coalition. Now, he hopes, even Secretaries and agency heads with a bad conscience or of doubtful qualifications are being extra punctilious in the alacrity with which they serve ministers of the opposite political persuasion. Perhaps able at best to be forced out on the expiry of contracts, or during the fallout from the umpteen further inquiries into malfeasance, maladministration and incompetence over the past decade, including the past year of Labor government.

With a good many agency heads the problem is not about whether they have been - perhaps still are - acolytes of ministers in the Morrison government. Nor is it, in most cases, about the way they carried out the policies and instructions from ministers and implemented programs as directed. But they have come to represent and personify a cancerous trend in public administration of leaders without leadership skills, government advisers with virtually no expertise, experience or background in the policies and programs for which they have been responsible. It is not entirely their fault that they supervise agencies which have shed most of their policy formulation functions, whether to ministerial advisers or to outside consultants, many of whom, as we all have long known but now must confront, have lacked independence, integrity and a proper professionalism. But a good many of the current leadership generation have risen to the top precisely because of the experience vacuum. Bluntly, they would not be there had the public service retained and cultivated its own expertise. Their shortcomings are often the most obvious in their virtually complete anonymity, even in their own agencies, by their failures to provide inspiration, ethical and neutral leadership, and, perhaps particularly, in their own abject failures to themselves live and operate by the standards the public service, and the public, has a right to expect.

Take for example, sports rorts and a host of other grants programs by which ministers, the prime minister's office and an array of National Party chancers took over and politicised schemes designed to benefit groups of Australians in particular need. Any number of provisions of general financial management legislation, and, often, in the legislation governing bodies such as the Australian Sports Commission, set the rules about how money should have been disbursed, and at whose decision. The processes were supposed to involve objective criteria, as measured by agencies themselves. Instead, such schemes were hijacked by ministers for blatantly partisan purposes, particularly around election time. What they did involve were questions of power and propriety - issues clear to the administering public servants, agency heads, and to the three central agencies - Treasury, Finance and prime minister's - from whom Australians are supposed to be able to expect some stewardship of proper process.

Central agencies - Finance in particular - were the chief enablers of corrupt, illegal and grossly improper spending of public money by ministers, including over robodebt.

Officials in these departments knew far better than anxious middle-level public servants in line-agencies how the law and the constitutional controls over money were being subverted. Many had read precisely the same new policy proposals referring to the need for legislation that Morrison is accused of ignoring.

These officials knew better than most what humbug and nonsense there was in words spoken, but never written down, by then attorney-general, Christian Porter, that, at the end of the day, ministers could override the rules and take control of portfolio spending. If senior officers in Finance, and Secretaries aware of the rules, were ticking off actions that were plainly dodgy, can anyone be surprised that middle level bureaucrats pursed their lips but complied? And what an example to see senior officers rewarded with Australian honours for their loyal service.

There were public officials - particularly the Auditor-General, Grant Hehir - who blew the whistle, detailing all the departures from sound administration. He got no public support whatever from his public service colleagues. They may have disapproved, but they, even those with statutory independence, lacked the guts, or perhaps thought that lawless and arbitrary government designed to entrench the position of the benefactors was perfectly fine. We can all be grateful that the NSW Independent Commission Against Corruption has now formally branded pork-barrelling as corrupt, even as some politicians pretend it to be justified because "all politicians do it''. But it had long been clear, all around the world, that swindling public programs for private or purely political partisan purposes, defied principles of good government.

From time to time a few members of administrative tribunals charged with providing independent review of decisions made by ministers and public servants overruled ministerial or bureaucratic decisions. Other watchdogs, including the Ombudsman, were ineffective and ineffectual, regarded in some agencies as a joke easily able to be misled (the Holmes report has a humiliating example of this). Some other supposed watchdogs were so starved of resources that their interventions, if any, came long after it would or could have made a difference. In the FOI sphere this was emphasised by the way that PM&C set the tone by ignoring FOI timetables and established precedent and resisted inconvenient FOI decisions. Many of those involved might have deserved to have been sacked had there been anyone at senior levels of bureaucratic government who believed in the spirit and the letter of FOI.

The response to the odd unwelcome administrative tribunal decision, supervised and implemented through the Attorney-General's Department, was to fail to renew the contracts of dissenters. And to attempt to stack tribunals with hacks, Liberal Party donors, cronies and relatives. The present leader of the opposition, Peter Dutton, was a leading advocate of stacking tribunals, even benches, with people who saw things his way and getting rid of those who didn't.

The lawlessness and misconduct of the Morrison government could not have occurred if senior public servants had been doing their job. Turning the occasion simply into one of bashing the Morrison government - much as it deserves that criticism - lets critical players off. Morrison ministers debauched public administration. If this cancer is not addressed, it leaves open the opportunity for Labor to do much the same thing with a public service now alive to its interests. This is something like the problem with the Australian Federal Police, ever improperly slavish to the prejudices and interests of the government of the day, but equally willing to the extend the same "service'' to a new government. The real people being "serviced" are members of the public. What the public interest requires is real independence and integrity.

In many cases where senior public servants were saying yes when they should have been saying no, less senior officers were doing their job, but were abused, shoved aside, and sometimes punished.

The Holmes royal commission report gives a few examples, the best perhaps being the patience but stubbornness of Andrew Whitecross in iterating and reiterating the fundamental illegality of the robodebt process. Andrew Whitecross, who deserves some of the honours with which his superiors were wrongly showered, was once a player in ACT politics. But he was not playing the partisan. He was doing his job and refusing to be intimidated away from it simply to be on the team.

When decisions cross a legal or moral line, the plain duty of the public servant is to say, "No, minister." That is so even if it could affect the public servant's career prospects. Honour is better than servility and being an accessory to illegality. There is the world of difference between being responsive to and anxious to achieve legitimate government policies and being a witting participant in wrongdoing. It seems that more and more of the executive class have no idea where the line is. And, if they don't - as some, but by no means all, public servants in Centrelink and Social Security did not seem to know about robodebt - how can they talk the right talk or walk the right walk.

A close reading of the Holmes report continually suggests that there was guilty knowledge of the line where conduct moved into impropriety. Most of the senior public servants knew the words - such as "averaging" or "smoothing" income - which invited questions about the legal basis for what the agency was doing. So, whenever such words appeared, senior public servants in the know - from the secretary down, would substitute other words - anodyne and misleading ones - which concealed the guilty secret. The bullying, blaming and shouting culture, along with the ritual humiliation of less senior staff, might not have occurred had not some of the leaders been carrying the unlawful policies on their consciences.

The royal commissioner, Catherine Holmes, was dealing with two departments (one of which was merged into the other halfway through) and a few adjunct agencies, such as the Ombudsman's office. She was not conducting a general inquiry into all the ills of public administration. But the agency represented, if in microcosm, just the sort of bad, illegal and unconscionable behaviour that had pervaded the whole public service. That's one of the reasons that the recommendations should be seen as a mandate for serious change throughout the service. And it is one of the reasons why public servants should be looking carefully and anxiously at what happens to the twenty or so people whose conduct is now to be examined by the national anti-corruption commission, the AFP and the Public Service Commission. It's by no means unusual for officials, even ministers, to be strongly criticised by an inquiry. But it is rare indeed to see charges - criminal, civil or administrative - recommended, particularly when there is no suggestion of any hand in the till.

Whether as conscious acts or omissions in criminal law, tortious misconduct in office, or as breaches of the public service code of conduct, it is misconduct of a type with which the AFP is entirely unfamiliar. It has no experience in it other than, occasionally, with internal discipline matters. It might also think itself compromised, as it so often is when handed a brief from outside the established process, by its own enabling role as willing and enthusiastic enforcer and prosecutor of criminal charges against welfare clients. The cops must share in the embarrassment of being key players in an unlawful and illegitimate process and ought at least to manifest some shame. It's not something, as Reece Kershaw seems to think, that can be concealed behind Chinese walls, or dealt with by mates.

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The NACC is in a fledging state. It is up to it whether it accepts the brief, but it is not right in its bailiwick. The alleged corruption involves more a corruption of the spirit of public stewardship that should guide public servants rather than bribery or imposition. This could mean that the Public Service Commission, another of the enabling agencies of the Morrison government, could end up with everything by default. It can, of course, dismiss or impose financial penalties. But its findings do not carry the sting of criminal convictions, something that might cause great relief among those targeted. And among those in other agencies wondering whether they might find themselves, after some more inquiries, in similar positions. There would be some in the government, and among its advisers, who would be pleased if the whole affair ended in a whimper, not a bang. And if it took the focus away from the performance of the service as a whole.

There's a good chance the public would be outraged if the talk of charges and legal proceedings ended up as mere internal reviews, fines and slaps on the wrist.

There were, after all, nearly 500,000 victims of this cruel and illegal scheme, some of whom were plainly pushed to suicide. The cost to the public purse is already up to $2.5 billion and may reach $5 billion if victims join class actions seeking compensation for the agonies to which they were put. Including having to wait hours on the telephone waiting for an answer. One mustn't pander to a lynch mob, but public opinion, like the public interest, is something that our timorous government must consider. This is not an administration which must restrain its enthusiasms and instincts. It is one that must be galvanised and shamed into any action at all.

I first began writing of robodebt, including suggesting it was illegal and wrong in 2017. After I did, a departmental legal official rang to threaten legal proceedings on behalf of the secretary, even though a defamation case, if possible, was a private right and not departmental business. I put in an FOI request, and after more than the usual runaround with specious delays, including more than the usual delays from the office of the information commissioner, I received findings that Centrelink could not charge me, and rejecting its argument that answering the inquiry would consume too many resources. At this stage the department, years out of time, decided to start again, including beginning a new consultation program. An official of the information commissioner's office told me that a previous commissioner had determined that "the better view" of the Act allowed an agency to start again, thus enabling yet further delays. Disgusted, I pulled out, aware that I would have to wait further years for information which had lost its currency.

It turns out that about the time of giving up I made written criticisms of Centrelink's FOI performance to the commissioner. (I expect these criticisms were accompanied by frank and fearless criticisms of the performance of the commission's office too, though these may not have been in writing.)

In any event I received a letter on July 7 this year - exactly four years after my complaint against Centrelink and about six after I lodged the request. The OAIC has just decided to conduct an investigation.

"In your complaint you raised concerns that:

The OAIC has commenced investigation of your complaint ... You will be advised of the outcome ... once the Commissioner has finalised their investigation."

In fairness, the office has had much reduced resources over the six years since I lodged the request, but delays of this order - and the commission's failure to do anything at all about the deliberate obstruction from agencies - have made a farce of the Act. It is to be noted that the Labor Attorney-General Mark Dreyfus has done nothing to address the resources question, even as he pretends to be a champion of FOI. At this pace, and with this commitment I am not expecting a decision for another four years.