At least seven public servants including the former Department of Human Services secretaries Kathryn Campbell and Renée Leon are the subject of adverse findings in the robodebt royal commission report released last week.
The 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 agency heads were “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, had 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, had “failed to advise DHS executives of the weakness of the DHS position on averaging and the extent of the legal risk that it faced”.
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, Department of Social Services deputy secretary; and Cath Halbert the group manager of payments policy at the DSS.
The commissioner found that the DSS had 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.
The trio “were all involved in preparing the DSS explanation and knew these representations to be false”, the report said.
“The commission is satisfied that the behaviour of Mr de Burgh, Ms Wilson and Ms Halbert in making the false representations and concealing critical information was designed to, and did, mislead the ombudsman in the exercise of his functions.”
Leon, the 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 Holmes said Leon “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.”
But 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”.
