Robodebt investigation rethink is a win for Australia’s integrity landscape

By Professor A J Brown AM, Professor of public policy and law at Griffith University, and Chair of Transparency International Australia

After just 16 months of operation, all eyes are on Australia’s new National Anti-Corruption Commission (NACC) for lessons about how a powerful federal public sector anti-corruption regulator– and indeed, any anti-corruption agency – should do its job.

This was one focus of the recent National Regulators Community of Practice event discussing Australia’s integrity landscape – learning from the past and preparing for the future.

Since then, the NACC’s forced about-face over whether it should investigate any individuals over the Robodebt scandal stands out as an important win for the federal government’s newly improved integrity system, and opportunity – if not warning – for the NACC to think carefully about its role.

The reversal follows a finding by the Inspector of the NACC, Gail Furness SC, that Commissioner the Hon Paul Brereton AM RFD SC did not adequately remove himself from the decision-making process – despite his intention to do so.  He needed to remove himself because, as a former senior officer in the Army Reserve, he had worked closely with at least one of those allegedly responsible for the harm caused by Robodebt.

The Inspector also found the NACC had inaccurately claimed that other government inquiries, most notably the code of conduct investigations being conducted by the Australian Public Service Commission, would be sufficient to ensure appropriate sanctions in those individual cases.

In fact, as reinforced by Australian Public Service Commissioner Dr Gordon de Brouwer when publicly apologising for the APS’ failures, the APSC can complete investigations into officials – but cannot impose sanctions if they have already resigned, as have several in the fiasco.

Plus, when it initially declined to investigate, the NACC indicated it would not be in a position to help deliver any further remedies for Robodebt victims.  Revisiting that troubling idea is a crucial opportunity for both the NACC, and the wider public.

Why is this all a win for the federal government’s new integrity system?

For a start, it demonstrates that Australians have high expectations that the NACC should deliver on its mandate and not be a faceless government agency, accountable simply within government.

The agency and the Inspector received hundreds of complaints from victims and ordinary members of the public about its initial decision not to review any individuals’ conduct, despite the Royal Commission’s suggestion that it should do so.  And the independent Inspector has proved its role as a necessary and worthwhile circuit-breaker for this rethink.

The challenge for the NACC now is how to marry what can often be narrow, legalistic approaches to corrupt conduct, with its broader powers and high public expectations for it to act holistically as a positive public integrity agency.

It was reasonable of the NACC to assess that the misconduct displayed by Robodebt did not warrant further investigation as corrupt conduct, because, based on the information we have, it wasn’t.

Corruption is the abuse of an entrusted power for private or political gain. At its worst, Robodebt included major abuses of power but the only potential private or political gain by officials was normal career self-advancement. Despite the harm, no one seems to have been trying to otherwise profit personally from enforcing the defective Robodebt policies. In fact, some of them continue to argue they were doing the right thing.

Even on a broad definition of corrupt conduct, Rododebt reminds us that incredible harm can occur without “corruption”.

But does that mean the NACC has no role? No, not in law nor in policy.

The NACC’s statutory jurisdiction – which Transparency International Australia strongly supported, in its 18 year campaign for this reform — gives the NACC power to investigate and make any recommendations it sees fit about serious abuses of office which involve breaches of public trust – even if it might not be “corruption”, or a criminal abuse of office, in more narrow senses.

This aligns with the NACC having a serious integrity-building function, not just a reactive anti-corruption function.

It is also still right for the NACC to assess whether it is the best-placed agency to investigate such matters. But if no one else can, or will, then the answer might well be ‘yes’.

The Robodebt royal commissioner, the Hon Catherine Holmes AC, clearly believed there was a case for individuals to be held personally liable for their breaches, at some level, even if they had resigned. That is something still yet to be assessed, and which no other government agency appears to be able to do, instead forcing victims themselves to (again) sue in court for the tort of misfeasance in public office.

Just as important is the related question of whether any further remedies are needed to set things right as a result of the alleged abuses of power.

The fact that the NACC has power to make whatever recommendations it sees fit should put this question front and centre in its analysis.

As Commissioner Brereton has said in a number of forums, including to the recent National Regulatory Community of Practice event, ensuring a culture of integrity is not just about “heads on pikes”, or holding individuals to account through punishment or sanctions.

It is also about recognising that corruption and other serious abuses of office cause harm, both to the government and indirectly or directly to the community, citizens and stakeholders. A major focus of the NACC should be to help make sure those harms cannot happen again. And especially, to ensure remedies are found for affected individuals and communities, if any are still needed.

We have to remember that integrity and anti-corruption are not just about compliance with rules and standards. Often, they are also fundamentally about justice. For anti-corruption agencies in the Australian tradition, ensuring they fulfil public expectations about this outcome is a relatively new, but major challenge, which the NACC’s early travails are now bringing very much to the fore.