The National Anti-Corruption Commission (NACC) has released its much-anticipated investigation into the six people referred by the Royal Commission into the Robodebt Scheme.
Author
- Yee-Fui Ng
Associate Professor, Faculty of Law, Monash University
The report reveals the identity of the referred people, which was previously not public knowledge: five bureaucrats and former prime minister Scott Morrison, who was social services minister at the time.
NACC found that two of the six individuals (Mark Withnell and Serena Wilson) had committed serious corrupt conduct. Notably, Morrison had no findings of corruption made against him.
Why did NACC decide to investigate?
On July 6 2024, the Robodebt royal commission referred six people involved in the Robodebt scheme to the NACC.
Initially the NACC declined to investigate, stating that the issues had been fully ventilated by the royal commission.
Following hundreds of complaints from the public about this decision, the inspector of NACC conducted an investigation into NACC's decision not to investigate. She found it was flawed due to the NACC's commissioner's conflict of interest with one of the referred persons.
Former High Court judge Geoffrey Nettle was then appointed in December 2024 to reconsider whether and how the NACC should deal with the referrals. Nettle determined each referral raised a corruption issue under the NACC act, and it was in the public interest for the NACC to conduct a corruption investigation.
This finally prompted the NACC to decide to investigate the matter. This investigation was conducted by a deputy commissioner, Kylie Kilgour, to avoid a conflict of interest.
NACC held private hearings for this investigation, where the six referred people and 33 witnesses were called to give evidence. There were no public hearings.
What were the main findings?
The investigation found that two of the six referred people had committed serious corrupt conduct.
The commission found that Mark Withnell (previously general manager of business integrity at the Department of Human Services) engaged in corrupt conduct by intentionally misleading officers of the Department of Social Services in 2015 in preparing a submission to the Expenditure Review Committee of Cabinet of the Robodebt scheme proposal.
It also found that Serena Wilson (previously secretary at the Department of Social Services) engaged in corrupt conduct by intentionally misleading the ombudsman in 2017 during the ombudsman's own investigation into the Robodebt Scheme. Wilson had concealed from the ombudsman legal advice that the Robodebt scheme was unlawful, and made misleading statements about the scheme.
However, NACC also concluded there was insufficient admissible evidence to establish the alleged offences against either Withnell or Wilson beyond reasonable doubt. It was therefore not appropriate to refer them to the director of public prosecutions.
NACC found Scott Morrison did not engage in serious corrupt conduct. This was because he was entitled to rely on departmental advice. The report lays the responsibility for misleading Cabinet on the public servants.
Is this adequate?
Key admissions and statements made during NACC investigations are not admissible in criminal proceedings.
This is because anti-corruption commissions often have extraordinary powers to abrogate fundamental privileges that normally apply to legal proceedings. These include legal professional privilege, public interest immunity and the privilege against self-incrimination. These privileges are necessary in order to allow anti-corruption commissions to uncover acts of corruption without impediment.
However, the abrogation of privileges is always twinned with "use immunity". This prevents the compelled evidence from being used against the individual in a criminal prosecution, ensuring it is used for investigation rather than for the punishment of that person.
On the one hand, we now have a full ventilation of the truth of the matter and the role of each person in this sorry saga, both through the Royal Commission and the NACC investigation. And we have findings these two public servants have engaged in serious corrupt conduct.
However, as the public servants are not likely to be criminally prosecuted, it is unclear what other repercussions there will be beyond reputational damage.
More tellingly, the Robodebt scheme has exposed fundamental failings in our system of public administration. Public servants have lost power over the decades, with the rise of ministerial advisers and senior bureaucrats being in fixed-term contracts and in constant fear of losing their jobs. As a result, it is more difficult for public servants to provide "frank and fearless advice" - they are instead often focused on pleasing the minister. In the case of Robodebt, the public servants manoeuvred to put together this unlawful scheme that has caused significant harm to hundreds of thousands of Australians.
The Robodebt royal commission lambasted the scheme as an "extraordinary saga" of "venality, incompetence and cowardice".
We also have a situation where ministers are able to evade responsibility for these policy choices. This is because they have plausible deniability. They can simply use the phrase: "I was not advised". As long as they are careful enough, they can simply blame their advisers when things go horribly wrong. Here, the minister who orchestrated the whole scheme is not fully held accountable.
The Robodebt scheme shows the rise of automation in government may lead to significant harm . Therefore, stronger safeguards are needed before we deploy such technologies.
The NACC's investigation has provided us with detailed examination of the conduct of the six people who were primarily responsible for the Robodebt scheme. It has shown some of these actions have amounted to serious corrupt conduct.
But there are broader issues at stake here. If we want to avoid another Robodebt, the government needs to look at broader reform on automated government decision-making and measures to strengthen the public service.
Yee-Fui Ng received funding as an Academic Fellow at the Australian and New Zealand School of Government (ANZSOG) for a project on anti-corruption commissions. She has also previously received funding from the NSW Independent Commission Against Corruption.
