Operation of the taskforce

2.1 Good governance and managing risk

While the Taskforce was established quickly, it was critical that proper governance and investigative arrangements were put in place to ensure the integrity of the process.

Early decisions about governance of the Taskforce fell into one of three broad streams of work, described below in Figure 1:

	The Taskforce consulted with affected agencies on guidance material and procedures The Taskforce regularly communicated with agencies to provide complete wellbeing support to respondents for the duration of the process
	The APSC recruited Taskforce officers from a range of APS agencies with expertise in conducting investigations, law, and project management. The APSC engaged external legal services providers from the Commonwealth's legal services panel. The Taskforce engaged Australian Government Consulting in PM&C to optiomise the Taskforce's ways of working.
	The APSC and Taskforce engaged different external legal services providers and two sanctions advisers to avoid conflicts. All individuals that worked in or for the Taskforce were required to declare any actual or perceived conflicts.  The Taskforce developed a risk register to identify and treat risks to the Taskforce's operations.

2.2 Procedural fairness

Procedures for conducting Code inquiries are well established within the APS. An important principle for the work of the Taskforce was that, to the greatest extent possible, existing policies and procedures should be relied upon for the purposes of conducting the inquiries.

The APSC Misconduct Guide [3] (Misconduct Guide) provides the parameters for undertaking conduct investigations within the APS, including guidance on procedural fairness. The Taskforce has, at each stage in its inquiries, adhered to the requirements of the Misconduct Guide. 

The Code Process

Independent Reviewer

	Notice issued to individual with specific elements of code suspected to have been breached with supporting evidence.
	Allegations, evidence, individual's submissions and interview (optional) reviewed. Preliminary findings shared with individual with right to reply.
	A final report is prepared that confirms there is or is not a breach of the code If not a breach, no further action taken If a breach is found: Current APS employee - referred to Independent Sanction Advisor Former APS employee/Former Agency Head - relevant agencies notified of breach outcome

Independent Sanctions Advisor

	Independent Sanction Advisor provides sanction proposal to the employing Agency.
	Individual advised of proposed sanction by Agency. Individual provided reasonable opportunity to make submissions to inform sanction decision.

The Misconduct Guide requires that the person under investigation be provided with all relevant, credible, and significant evidence collected during the inquiries to allow them to respond, comment or correct these records. The Taskforce invited respondents to respond at every stage during its inquiries. Where new evidence came to light during the course of an inquiry, a respondent was provided with the evidence and afforded time to consider and respond. Where new evidence resulted in new allegations, supplementary notices of suspected breach were issued.

The passage of time since the alleged conduct occurred has had an impact on respondents’ recollection and, in some cases, ability to access archived or lost documentation. The Taskforce worked with relevant agencies to assist respondents to access relevant information where possible.

The initial 12 month timeframe allowed sufficient time for thorough investigations and preparation of findings, respondent and witness interviews, and extension requests.

2.3 Respondent wellbeing

A key characteristic of the Robodebt Scheme was its negative impact on the physical and mental wellbeing of individuals who received debt notices. Even in cases where a debt was accurately calculated, the absence of a human-centric approach to communicating and collecting debts left many people frightened, ashamed and confused. Tragically, the receipt of an automated debt notice has been linked to incidents of self-harm.

The Taskforce took all reasonable steps to ensure that it did not exacerbate the human toll of the Robodebt Scheme, including among public servants involved in its design and delivery. In adopting a human-centred approach to the Code Inquiries, the Taskforce considered respondent wellbeing throughout the process. Being the subject of a Code inquiry is confronting and distressing for any public servant. The consequences of an adverse finding on a respondent’s financial position, career development and professional reputation can be significant. This was particularly the case for this cohort of respondents who had already appeared as witnesses before the Royal Commission and been the subject of public discussion and speculation. The Taskforce became aware that many of the respondents as well as additional witnesses interviewed by the Taskforce had health and wellbeing concerns that needed to be carefully managed.

Typically the Reviewers and Taskforce relied on publicly available evidence and testimony to the Royal Commission to avoid witnesses having to repeat information already on the public record. In some cases, specific witnesses were approached for an interview if it was thought they could provide additional detail or insight not otherwise provided to the Royal Commission.

In the case of respondents who remained APS employees throughout the course of their inquiry, primary responsibility for their wellbeing remained with their employing agency. The Taskforce engaged regularly with Agency contacts and encouraged agencies to regularly conduct wellbeing check-ins, particularly when the respondents received significant communications from the Taskforce such as a Notice of Suspected Breach or Final Determination. At every significant stage throughout the process, the Taskforce sought advice from the relevant agency to enquire about the respondent’s current capacity to receive communication, taking into consideration concerns and adjusting timeframes where necessary.

The Taskforce was responsible for monitoring the wellbeing of respondents who were no longer APS employees, including individuals who resigned or retired from the APS during their inquiry. The Taskforce engaged with respondents at critical junctures, including immediately prior to issuing significant communication. Additional engagement was respondent-led and adjusted according to their request for support. Where the Taskforce was aware of respondent health and wellbeing concerns, for either current or former APS employees or former Agency Heads, process timeframes were adjusted to accommodate.

Respondents were offered access to the Taskforce’s wellbeing officer in addition to their agency’s wellbeing contacts if applicable. Agency support services, such as the Employee Assistance Program, were regularly offered in formal and informal communications.

Respondents were provided with advance notice of significant public announcements relating to the inquiries such as updates to the APSC website, so that respondent wellbeing was not impacted by an unexpected public release of information.

2.4 Privacy

A Code investigation is an internal disciplinary proceeding. A Code investigation is not a legal investigation of a civil or criminal nature. A Code inquiry occurs within the APS employment relationship, which is derived primarily from the Public Service Act. The use of sensitive materials and personal information is governed by the Public Service Act, the Privacy Act 1999 (Cth) (Privacy Act) and the Australian Privacy Principles.

To best comply with relevant confidentiality obligations, the Taskforce commissioned a Privacy Impact Assessment. During this process the Taskforce identified relevant stakeholders and identified any associated information handling risks. The Privacy Impact Assessment has governed how the Taskforce has handled and secured personal information.

At every stage of the inquiries the Taskforce has adhered to these privacy processes to provide procedural fairness to individuals under investigation and to protect their privacy so as not to prejudice any current or future Code investigations conducted by the APSC or other investigative bodies.

2.5 Public comment

Since the Final Report of the Royal Commission was released on 7 July 2023, public interest in better understanding the consequences for public servants identified in the Final Report has been high. There has been particular interest in the contents of the sealed section of the Final Report which was subject to a Direction Not To Publish Order in accordance with section 6D(3) of the Royal Commissions Act 1902 (Cth).

The findings of the Royal Commission revealed the cost of the Robodebt Scheme on the lives, confidence and wellbeing of many Australians. There has also been serious damage to the reputation of, and public confidence in, the APS.

The Parliament and the public quite rightly expect accountability for the actions of the APS. Being as transparent as possible about the inquiry process and its outcomes is critical to meeting that expectation.

Throughout the course of its inquiries, the Taskforce has sought to balance this legitimate public interest with its legal obligations. The Taskforce has not published details of allegations, lines of inquiry, projected timeframes or likely outcomes of any investigation. To maximise transparency the Taskforce has:

• Provided updates on the progress of its inquiries on the APSC website on 3 August 2023 and 8 February 2024;
• Through the Commissioner provided updates to the Senate Finance and Public Administration Legislation Committee on 24 October 2023, 13 February 2024 and 30 May 2024; and
• Received and responded to a small number of media inquiries, FOI requests and correspondence from members of the public seeking information about the progress of the inquiries and the identity of individuals subject to those inquiries.

This report sets out the number and range of breaches upheld and sanctions imposed, without disclosing the identity of individuals. Such commentary may disclose sensitive personal information and inadvertently undermine the effectiveness of future Code inquiries.

2.5 Hindsight bias and evidentiary considerations

The design, implementation and management of the Robodebt Scheme has been significantly scrutinised over the course of the Royal Commission. The Taskforce was mindful that, with the passage of time, and in hindsight, it could be convenient to form a view based largely on the Royal Commission’s Final Report, public commentary and media reporting. However, it was imperative the Taskforce maintain the perspective that the Code inquiries specifically address the actions and decisions taken in a contextualised and impartial manner. The Taskforce inquiries have been focused on the period when individuals were employed and their role in designing and implementing the Scheme.

Moreover, the Code inquiries were undertaken a significant time after the events in question. In some cases, the events subject to a Code inquiry occurred ten years ago. The ability for individuals to recall meetings, conversations or intentions will have been inhibited by this passage of time. While the inquiries relied significantly on documentary evidence and witness statements, individuals often had to recall the circumstances in which an email was written, a decision undertaken or the meaning of a meeting note. Individuals cited the difficulty with this and made reasonable attempts to clarify and explain, noting that recollections were not necessarily distinct. At all times, the Taskforce has been cognisant of the risk of hindsight bias. The Independent Reviewers have been alert to the impact of the passage of time and taken this factor into their considerations of the evidence.

The Taskforce inquiries considered documentary evidence and witness testimony presented during the Royal Commission. However, the Taskforce was not confined to using only this information and did request and receive further information and testimony from respondents as well as other witnesses and relevant agencies. This additional evidentiary basis has enabled the Taskforce to take a broad, independent and objective view.

2.6 Investigative Standards

The Taskforce inquiries were framed around the following APS investigative standards:

Standard of proof

Allegations were considered on the balance of probabilities. This required the decision maker to be satisfied that, having considered all relevant, credible and significant evidence, a reasonable person would form the view that the suspected misconduct is more likely than not to have occurred.

This standard of proof is based on the common law principles Dixon J set out in Briginshaw v Briginshaw[4] that:

...reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved…

The Independent Reviewers adhered to this standard of proof in their investigations.

Standard of behaviour

The Misconduct Guide applies an objective standard of behaviour: [5]

The standard of behaviour expected of APS employees is an objective one. This means that the question of whether particular conduct is in breach of the Code is not determined by the subjective standard of the particular employee who has engaged in the conduct.

An employee’s genuine belief that the action they took was proper is not relevant to a decision about whether that action was in breach of the Code. For example, an employee may genuinely have intended to compliment a colleague by remarking on their physical appearance, but such behaviour may not meet the objective standard of ‘respect and courtesy, and without harassment’ required by the Code.

The Independent Reviewers adhered to this standard of behaviour in its investigations.

Intention

The Misconduct Guide advises that intention is not generally relevant to the question of whether the Code has been breached:

The Code does not use words such as ‘wilful’, ‘reckless’ or ‘negligent’ to qualify behaviour, and, generally speaking, intent does not need to be shown to determine that an employee has breached the Code. It can, for example, be inconsistent with the Code to act without respect and courtesy even if the employee did not intend to be disrespectful or discourteous.

Conduct that is the result of an honest and reasonable mistake, accident, or a lack of capability can generally be addressed through process improvements or management action such as training, performance management, or counselling. On the other hand, behaviour by an employee that is within their control—for example, a wilful refusal to follow lawful and reasonable directions, or a blatant disregard for expected behavioural standards—may be better dealt with through misconduct action.[6]

An example of such conduct was the following behaviour:

A document had been prepared for senior officers at an agency. A respondent, tasked with preparing this document made changes to the document that contained falsehoods. The changes made were not accidental. The respondent knew they were creating a document that created a false impression and prepared the document with the intention of creating the false impression.

While intention is not generally relevant to the question of whether the Code has been breached, it can be a relevant mitigating factor when considering appropriate sanctions once a breach has been found. In the course of the inquiries, respondents shared evidence that provided context and some understanding of the intention and thought processes of respondents at pertinent times. While of limited relevance to considering whether a breach had occurred, this information was provided to the Independent Sanctions Advisers to assist them in making recommendations about sanction that took appropriate consideration of relevant mitigating factors.