Jack Waterford | Will anything actually happen in the wake of the robodebt scandal?

Some agency heads would protest. Three of the four central agencies most in a position to set public service standards - Prime Minister and Cabinet, Finance and the Public Service Commission - now have new men at the top. They might insist that all is now well under their leadership, regardless of what may have happened before. But agencies are bigger than their leaders, and, given the calibre of some of those leaders, many pass through leaving little in the way of impression, departmental culture remaining unchanged. None of the new bosses has restructured their agencies in any significant way. Officials who were cyphers for the ideology and will of the former government remain in position, continuing to treat their opinions and prejudices as facts. It is not just that the relevant ministers do not seem to care, or do not know better. The place and access of those officials is a matter for the department head, not the minister.

Nor do any of the new leaders, scene-setters for a new era, seem to have conducted any sort of inquiry into notorious misbehavior, or apparent misbehavior under previous "leaders", whether their own or those with whom they work. The page has been turned. We are in Year two, not the 122 since Federation. History is only for political point-scoring. Their speeches signalling change are vague and optimistic but essentially meaningless, and particularly uninterested in what their closest colleagues have been doing. As Paddy Gourley recently pointed out, not even one of the crimes, misdemeanors or acts of misconduct exposed by the robodebt commission would have been prevented by any of the anodyne changes to public service legislation swept in by the new brooms over the past year. Or legislation in contemplation. Top public service committees - of secretaries for example, do not mention at their many meetings cases worth exploring. No one, in the senior agencies or elsewhere, has sent out any messages that henceforth officials must no longer sit passively by if ministers appear to be breaking the law.

No one has asked how it was that senior officials of some of the senior agencies sat in cabinet expenditure review committees in circumstances where they could hardly have failed to be aware that Centrelink was misleading ministers, if only by omissions that its boss Kathryn Campbell has called "oversight." It should have been obvious to those with the big picture - the dollars and cents, the economic strategy and the coordination of policy - that what was being claimed by the minister, the secretary and the departmental brief, was misleading. Indeed, in the royal commissioner's view, deliberately deceptive. The plan, apparently, is to punish the secretary, and maybe the minister, for this. Are we to punish those who should have noticed, but negligently failed to do so? Or who, having noticed, decided not to rock the boat. Commissioner Holmes had no real power, or time, to look at the wider context of the mega-scandal she was charged with investigating. But much of that context is obvious. Is it in the public interest that the big boys and girls get off scott-free, as it were, while we burn some witches?

A quick, useful way of checking whether agencies had changed their ways over the past year might involve checking performance in FOI requests asking questions about agency activities. FOI might not be the most important part of an agency's functions, and many senior public servants hold it in open disdain. Nonetheless it is the law of the land, whether in terms of the timetable set down for answering requests, or in the spirit with which exemptions can or should be claimed. Any such review would make it immediately obvious that many agencies, including central ones, routinely defy legislated timetables, and that they regularly make plainly spurious claims that processing the request would involve an unreasonable diversion of departmental resources.

That the claims are specious is obvious not only by inspection but from formal reviews of decisions, after appeals to the information commissioner. Alas, these often come years after the decision, thus achieving agency aims of frustrating requests when they are topical or embarrassing to the government or the agency. This general aim is carried further with the routine making of fanciful, even laughable, claims for exemption, including in general terms that have been explicitly rejected in FOI guidelines or previous FOI decisions. Agencies frequently ignore precedents, at least until any adjudication process.

The open flouting of the spirit of the law is orchestrated by senior officers in PM&C and does not appear to have abated since the change of government. While in opposition, Albanese and the shadow attorney-general, Mark Dreyfus, were scathing about the use of false claims to avoid disclosure. In power, they shifted abruptly, making claims of a sort they had previously criticised, and becoming compulsive secrecy zealots. And, despite promises, they have continued keeping the FOI appeal system seriously under-resourced so that they get the full benefit of undue delay. The office of the information commissioner could certainly be a lot more efficient, if only it used its inquisitorial powers and devolved them on staff so that they could force the pace with recalcitrant agencies. But if it became more efficient, it would probably have its own limbs amputated.

A department which will not manage FOI in the public interest will almost certainly be cutting corners and doing dodgy things in its other activities. A minister who smiles over departmental resistance to the law is encouraging that attitude of mind to dealing with wicked problems in public administration. Such as, perhaps, attacking welfare fraud, were it actually a serious problem.

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Why do public servants smile and shrug at open defiance of the Act by senior colleagues? What example have public service commissioners or secretaries set? The last public service commissioner to be an enthusiastic champion of FOI was Peter Wilenski who once commented that the total cost of having an FOI Act was rather less than the cost of maintaining golf courses on Defence department properties. Other senior officials make public sport of being cute and economical with the truth at estimates committee hearings.

How does this promote a culture in which public servants who abuse their powers come to know that "we'll find you; we'll track you down and you will have to repay those debts and you may end up in prison"? As Alan Tudge put it in a somewhat different context.

The committee under former departmental secretary and public service commissioner Steve Sedgwick does not seem to have a brief to investigate the wider context, or the behaviour of people in the big agencies, whose actions, or inaction facilitated and enabled the misconduct that occurred. Nor is it clear that he, or it, has any power or brief to deal with the situation of any minister, minder or retired public servant whose name and conduct was contained inside the commission's sealed section. Indeed, though it is commonly asserted that both ministers and ministerial officers are covered by the public service codes of conduct, it is not entirely clear that they are. Or that, if they are, anything can be done about breaches, especially if one of those accused has become, during a relevant period, the prime minister, who might have had some power to investigate alleged breaches. (I assume that, if such breaches were alleged and he found it necessary to deal with it, he would have referred the matter to his departmental secretary, Phil Gaetjens, for report and that we would still be waiting for it.)

Imagine that among those whose conduct was mentioned in the sealed section were up to half a dozen ministers, led by that former minister for social security Scott Morrison, with responsibilities covering robodebt. No process for adjudicating their cases has been laid down, but it is to be assumed that the hot potato will be passed, without comment, by the present government, and present "head of the public service", Professor Davis, to the NACC, and or the AFP, and or the APSC, perhaps Steve Sedgwick.

It is important to remember that the decision to put Kathryn Campbell on unpaid leave pending disposition of any matters against her was not a judgment or final disposition of the allegations. That decision, to which apparently, prime minister Anthony Albanese, head of prime minister's Glyn Davis, and head of Defence Greg Moriarty, were parties, was the starting point of a disciplinary process, not the end. It is possible that she may have to appear before the National Anti-Corruption Commission (which cannot find her "guilty" of anything, nor punish her beyond further humiliating her). It could hold its own hearing or refer all the material to the Commonwealth Director of Public Prosecutions. The DPP can decide whether the publicly available material justifies criminal charges, and, possibly, can send the matter to the cops to fix up any gaps in evidence. My informed guess is that the NACC cannot make any finding, or even pass on the matter to the DPP, without according Ms Campbell, or anyone else in her position, natural justice. That would involve, at the least, an opportunity to comment on the evidence, and, probably, to introduce fresh material she thought to be helpful.

The NACC has the right to refuse to accept the reference, judging it either outside its purview, or its order of priorities. It might do this on the basis that it is not clear that the alleged misconduct involved clear, perhaps criminal, corruption. Certainly, there is an alleged corruption of approach to administering and following the law, leading to significant injustice. But that does not necessarily involve any sort of misconduct akin to bribery, theft or personal enrichment.

In the normal course of hierarchies in dealing with sins of maladministration and misgovernment, I would expect that the NACC would rank above the AFP in having first dibs. But either the NACC or the AFP would have priority over Sedgwick. The AFP would be dealing, after all, with alleged crime. The commission, by contrast, merely with public service discipline. As the commission has pointed out, it can proceed with disciplinary charges even if a criminal investigation - though not, I expect an actual trial - is going on. But Sedgwick, appointed as an independent assessor of disciplinary misconduct, would be wise to hold hearings, or at least to send out show-cause letters before he comes to judgment. He'd be wise too to be alert for the appearance of conflicts of interest because the public service is a very incestuous place. He'd best advised to wait at least until he knew of the NACC and AFP intentions. That's because the commission should not be framing public service "charges" until it knows whether these are also likely to be matters prosecuted in the courts. We wouldn't want duplication, double jeopardy, or contradictory outcomes.

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If the commission jumps the gun, it could compromise the gathering of evidence, an actual criminal prosecution and its own accordance of natural justice in its own proceedings. If it restricts itself to technical non-criminal misdemeanor, there's a real risk the public would think that the mandarins looked after their own.

Personally, I bet the AFP will be very reluctant to take up the opportunities the royal commission has afforded it. It has a serious conflict of interest, given its past (and present) collaboration over alleged welfare fraud with social security and the old Centrelink. Did any of its former briefs assume as a fact what we now know to be untrue - that the Social Security Act authorised income averaging or smoothing? Of course, most cruel and unlawful robodebt moral atrocities occurred as civil-debt cases; but the Tudge remarks suggest that police action was a part of the government's package.

At a practical level, the AFP has little investigative experience with corruption or criminal misconduct-in-office cases. Some of its poor performance has seemed to include political factors - it simply had no will, at senior AFP levels, to investigate meat substitution scandals getting close to government figures in the 1980s, or $300 million kickbacks in the Iraqi wheat-for-oil cases in 2006, or Reserve Bank bribery and other shenanigans in trying to sell banknotes. It has not, at 44 years old, of its own initiative (rather than, say, a reference from the tax department), detected, prosecuted and brought to conviction a systemic case of government corruption or abuse of public power. That's in major part because it has only limited power of independent investigation at the federal level, but even in its ACT jurisdiction, where it has an independent jurisdiction over common law crime, it has not ever troubled the scorekeeper. At least with a conviction: the Joe Emanuele case, involving alleged attempted bribery with a tender to buy the Belconnen Mall faded into oblivion.

While the royal commission was still hearing evidence, I wrote pointing out the special position of departmental lawyers over robodebt. Strictly public servants in legal positions are independent in their advisings, and as admitted legal practitioners, able to be disciplined by the Law Society or the Bar Association for their professional work. They could not be directed by their public service bosses as to their legal advice. Their independence was established by a 1987 High Court case, Waterford v the Commonwealth, in which I was the losing party, with two judges on my side, three against.

Commissioner Holmes was very critical of Centrelink lawyers seeming to be consciously playing a part in departmental musical chairs of failing to formally advise the plain fact that the robodebt scheme was plainly unlawful. Bluntly, she thought their conduct fell well short of the professional standards that one ought to be able to expect from a legal practitioner. The in-house lawyers, in short, were out-house lawyers. Not for want of technical skill but for want of professional attention to the public interest.

Those accused are presumably in the closed chapter. Strictly the cases should go to the ACT Law Society, which makes handsome money by having them on their books. I bet, however, there will be little enthusiasm for discipline. And even less skill and experience deployed at considering the duties of a public, as opposed to a private lawyer, let alone the interests of the client when she is the public at large. If it's not the Law Society's thing, we need another professional standards body. Probably one dominated by non-lawyers, and non-public servants, just to stop it becoming a trade-union-come social club, as the law society so often is.