Statement by the Australian Public Service Commissioner on the Robodebt Centralised Code of Conduct Inquiry

The Robodebt Scheme was a failure of government in both policy design and implementation. The Australian Public Service acknowledges its role and takes responsibility for its actions, and is intent on learning from these failures to serve the Government, Parliament and Australian public better. 

I apologise as Public Service Commissioner to those affected by the Scheme and to the Australian public for the part played by public servants in this failure. 

Following the Royal Commission, the Secretaries of Australian Government Departments agreed a centralised process to investigate possible breaches of the Australian Public Service Code of Conduct to ensure consistency across the public service. The Australian Public Service Commission established a Robodebt Code of Conduct Taskforce and appointed expert independent reviewers to conduct inquiries into the actions of public servants associated with the Robodebt Scheme. Sixteen people were referred to the Taskforce, comprising current public servants referred by the Royal Commission, current and former public servants referred by their Agency Head, and former APS Agency Heads initially referred by the Minister for the Public Service, Senator the Hon Katy Gallagher. The Taskforce’s public report is published alongside this Statement. 

In summary, 12 people have been found to have breached the Code of Conduct on 97 occasions. 

Findings with respect to former Agency Heads 

Having taken advice at the time, the Minister for the Public Service directed me on 24 July 2023 to conduct a review of the conduct of former Agency Heads under s41(2)(k) of the Public Service Act. The same approach to procedural fairness, forensic investigation and confidentiality was applied to the review of former Agency Heads, as would have applied in an inquiry into current Agency Heads. 

As the review progressed, some of those affected claimed that the conduct of former Agency Heads could not be investigated in the absence of express legislative provision to that effect. On 13 August 2024, the Minister announced the Government’s intention to amend the Public Service Act to clarify by way of express provisions that the conduct of former Agency Heads can be investigated by the Australian Public Service Commissioner. Parliament passed the amendment on 22 August and it came into operation on 27 August, enabling an investigation of former Agency Heads under s 41(2)(m) of the Public Service Act based on the material gathered in the s 41(2)(k) process. 

Two former Secretaries, Ms Kathryn Campbell and Ms Renée Leon, have been found to have breached the Code of Conduct during their tenure at the Department of Human Services. 

Ms Campbell breached the Code in respect of 6 overarching allegations, each comprising two breaches of the Code and amounting to a total of 12 breaches of the Code. 

The 6 findings or substantiated allegations are that Ms Campbell:

1. failed in 2017 to ensure that internal and external legal advices about the Scheme were sought,
2. failed to sufficiently respond to public criticism and some whistle-blower complaints received by her in early 2017 about the Scheme,
3. failed in 2017 to investigate legal issues raised in a public forum, namely the annual meeting of the Australian Institute of Administrative Law, about the Scheme, 
4. failed in 2017 to ensure that her Minister was fully informed of academic and legal criticisms raised in that public forum in respect of the Scheme, 
5. created and allowed a culture that prevented issues about the Scheme from being properly considered within the Department of Human Services, including aggressive and abusive behaviour by a Deputy Secretary, and 
6. caused the resumption of income averaging under the Scheme in August 2017 when she knew, or ought to have known, that debts raised pursuant to that process were potentially inaccurate. 

A substantiated allegation can breach different elements of the Code of Conduct. The breaches by Ms Campbell of the Code relate to failure to act with due care and diligence (s 13(2) of the Public Service Act) and not upholding the APS Values (s 13(11) of the Public Service Act) in each of these 6 findings.

The following allegations against Ms Campbell were not substantiated: that she misled Cabinet, that she directed that preparation of legal advice cease, and that she failed to discharge her legal obligations with respect to the PWC engagement. 

Ms Leon breached the Code in respect of 4 overarching allegations, each comprising multiple breaches of the Code and amounting to 13 breaches of the Code. 

The 4 findings or substantiated allegations are that Ms Leon:

1. misrepresented to the Ombudsman in March 2019 that the Department’s legal position regarding the use of income averaging under the Scheme was ‘not uncertain’, 
2. failed in March 2019 to correct or qualify representations made to the Ombudsman of the Department’s legal position on the use of income averaging under the Scheme after receiving further legal advice, 
3. failed in mid 2019 to ensure that the Solicitor-General was expeditiously briefed and advice sought regarding the lawfulness of the Scheme, and 
4. failed to expeditiously inform her Minister and relevant Secretary colleague of the Solicitor-General’s advice on the lawfulness of the Scheme and cease the practice of income averaging under the Scheme. 

The first and second substantiated allegations involved breaches of the requirement to act honestly and with integrity (s 13(1)), to act with care and diligence (s 13(2)), to not provide false or misleading information (s 13(9), and to uphold the APS Values (s 13(11)). The third substantiated allegation breached the requirement to act with care and diligence (s 13(2)) and to uphold the APS Values (s 13(11)). The fourth substantiated allegation breached the requirement to act honestly and with integrity (s 13(1)), to act with care and diligence (s 13(2)), and to uphold the APS Values (s 13(11)).

Because they are former Agency Heads, no sanction can be applied. However, if they seek employment or engagement as a consultant or contractor with the Australian Public Service in the next 5 years they are required to disclose when asked that they have been found to have breached the APS Code of Conduct. 

Findings with respect to current and former Australian Public Service employees 

The inquiries with respect to current and former Executive Level and Senior Executive Level public servants were conducted in accordance with s 41(2)(n) of the Public Service Act. An inquiry conducted under this subsection makes findings about whether conduct constituted a breach of the Code. In the case of current Australian Public Service employees, sanctions may be recommended. A number of people resigned or retired from the public service prior to, or during, the inquiries into their conduct. Resigning or retiring from the public service should not mean that individuals avoid accountability for their behaviour during their period of employment.

Ten current and former employees have been found to have breached the Code on 72 occasions. The breaches include lack of care and diligence and lack of integrity in performing duties, as well as instances of misleading others and failing to uphold Australian Public Service Values. 

The sorts of action or inaction that constituted these breaches include

1. failing to exercise proper diligence in preparing policy, legal or implementation advice, 
2. failing to inform others or escalate a matter when the person had a reasonable concern that the policy was unlawful or the advice was inaccurate, 
3. expressly directing staff not to consult or collaborate with others who had a direct interest in the matter relevant to the accuracy of the advice, 
4. failing to consider the impact on and capacity of staff and work quality when setting time frames, 
5. misleading Ministers and senior officials on matters related to lawfulness or accuracy of a policy, 
6. failing to disclose relevant material to an integrity agency, and 
7. failing to act on lawfulness or truthfulness given all the information that a person has gained over a reasonable period of time. 

The Code breaches for the first four types of action go to failure to exercise reasonable care and diligence (s 13(2)) and breach of the APS Values (s 13(11)). The Code breaches for the last three types of action also include failure to behave with honesty and integrity (s 13(1)). The Code breaches for action (6) include providing false or misleading information in response to a request for information related to official duties (s 13(9)). 

Sanctions have been recommended for all four current public servants found to have breached the Code of Conduct, including reprimands, fines and demotions. One person retired before the sanction could be applied. The final sanctions decision is a matter for the Head of the agency in which the public servant is now employed, and sanctions have been or are being actioned. 

Breaches by the former public servants, including the two Secretaries, range in gravity from moderate to very serious. Had those individuals not already resigned or retired from the public service, they would have likely attracted the sanctions listed above and, in some instances, termination of employment. While sanctions cannot be imposed where there is no longer an employment relationship, these former public servants are required to disclose when asked that they have breached the Code if they seek re-employment or engagement as a contractor or consultant in the Australian Public Service in the next 5 years. The Australian Public Service Commission retains a record of these breaches. 

Analysis of the findings 

I have received a full report forensically analysing and detailing the outcomes in the Code inquiries into current and former public servants and former Agency Heads. This report has also been provided to the Minister for the Public Service so that she, as responsible Minister, has full visibility of the exercise of the Public Service Commission’s responsibilities and the propriety of the Taskforce’s inquiries. I have provided a report on the former Agency Heads to the Prime Minister, in accordance with s 41A(2) of the Public Service Act. 

The inquiries have been independent, thorough and fair, and the findings and sanctions (where applicable) for current and former public servants and former Agency Heads are proper and proportionate. It is a reflection of the independence and thoroughness of the process that not all individuals referred to the inquiry process were found to have breached the Code.

A Code of Conduct inquiry is not a public civil or criminal investigation. It occurs within the public service employment relationship and is subject to specific requirements about process and protection of information under the Public Service Act as well as the Privacy Act. While the Royal Commission was the prompt for the Code of Conduct inquiries, the process is a fresh one and evidence has to be provided and examined anew. Procedural fairness is a key reason why the process takes time, with the person being investigated having the right to respond to allegations at each stage in the inquiry and, if necessary, seek an extension of time to prepare their response. 

The process has been conducted with scrupulous fairness and open engagement with those subject to an inquiry. It has not been an exercise based on the wisdom of hindsight but, rather, an evaluation of events and actions based on what was reasonable at the time in accord with the duties of the public servant. The process does not deny the good these public servants have shown elsewhere in their career. It does say, however, that there is a path to delivering with integrity and that there are consequences to not staying within the boundaries of the law and ethics. 

By law, Code inquiries are conducted confidentially and with procedural fairness. For this reason, Part A of the Taskforce’s public report included with this Statement does not provide detail on individual current and former public servants and their specific allegations. 

The Public Service Act presumes a prohibition on the disclosure of the names of the people investigated for a breach of the Code of Conduct. Section 72A of the Public Service Act protects personal information and prohibits the Commissioner from disclosing a person’s name unless “the Commissioner is satisfied that the disclosure is fair and reasonable in all the circumstances.” This is a high threshold. 

Four factors are relevant in the decision not to name current or former public servants. 

1. Anonymity helps ensure proportionality in the application of sanctions. For example, people who have left the Australian Public Service for whom the likely sanction would not have been termination of their employment should not in turn lose their current employment as a result of being named. 
2. It is important to allow the individuals involved to restore themselves and have some closure, even if for some that will never involve future employment and engagement with the Australian Public Service. 
3. The critical objectives of deterring public servants from engaging in improper or inappropriate conduct and of maintaining standards of conduct and public confidence can be achieved without disclosure of personal details. The Royal Commission and the knowledge that public servants are held accountable for how they do their job has shifted behaviour in the public sector, and the examples of breaches listed above provide a guide to public servants about the behaviour expected of them. 
4. Naming of individuals in the Robodebt case may create expectations that public servants in other or future Code of Conduct inquiries will also be named, and this could undermine the effective operation of these (and other) investigations. There are several hundred investigations across the Australian Public Service each year, and fear of being named may undermine engagement, diminish the opportunity for restoration and increase litigiousness. 

I believe, however, that the judgment is different with respect to the former Agency Heads in this instance, especially since the two individuals were Secretaries of the Department responsible for the administration of the Scheme. 

There is a strong public interest in public disclosure of information about the findings of breach of the Code by the two former Secretaries. I consider this critical to ensure public accountability and trust in the public service. 

The failures of Robodebt affected so many people, in such a terrible way, and for so many years that it is not credible if the outcomes of the inquiries into the former Secretaries who were responsible for the administration of the Scheme are not made public. 

Considerations in support of the public interest in public disclosure of information about the findings of breach of the Code include the following.

Between them, both Secretaries breached the Code of Conduct 25 times. 

The public needs to know that the most senior of public servants, those who have enormous power and influence in the public service, are accountable for their actions, especially in the case of demonstrated, numerous and serious failures in public administration.  

There are unique and high responsibilities for Agency Heads as the Accountable Authority of an Australian Government entity under the Public Governance, Performance and Accountability Act, and public accountability matters for public confidence.

Having regard to information already in the public arena, disclosure of information about the findings of breach of the Code by the two former Secretaries, even if not named, would enable their identification. It would also lead to speculation about their identity and the possibility of others being mistakenly identified. 

It is not possible to redact the breach findings to remove material that would enable the two former Secretaries to be identified while also ensuring the disclosure of the findings is meaningful. 

I am satisfied that in all the circumstances it is fair and reasonable to publicly disclose identifying information about the two former Secretaries and to name them.

I again note that it is important that the people named in this report have the opportunity for closure. I would like to repeat the observation above that the people named also should have the opportunity to restore their professional lives outside of the Australian Public Service. 

Next steps 

The public service has taken responsibility for its part in the failure of the Robodebt Scheme and individuals have been held to account for their actions within the employment context and borne the consequences.

The Code of Conduct inquiries into the Robodebt Scheme confirm a sad and shameful succession of public servants failing to demonstrate the behaviour expected of public service. The Robodebt Scheme saw members of the public service lose their grounding, feel under pressure from Ministers and senior officials, and caught up in busyness and self-absorption. The consequences were felt by hundreds of thousands of people, sometimes tragically. This failure at some senior levels contrasts with the instances where front-line staff and more junior officers properly raised their concerns but were not listened to. 

The focus from here is to strengthen and support the public service. The public service wants to show the Australian public that it warrants their trust. Public servants can strengthen public trust by showing that they do their job well and with honesty and fairness. The vast majority of public servants perform their jobs capably and with integrity, and seeing how the Robodebt Royal Commission played out has strengthened their intention to do so. 

To this end, Part B of the Taskforce’s public report sets out insights and observations about individual behaviours and inter-agency actions, responsibilities and processes. The Robodebt experience offers important lessons for public servants – especially about ethical decision making, leadership, and accountability – that are actively part of people management and capability focus in the Australian Government public sector. 

Decisions about policy design and service delivery must be informed by what is legally and technically possible. But this is not the end of the story. Public servants have a duty to consider whether a decision is ethically sound. The question cannot be confined to whether a decision is legally and technically possible but also whether it is, in fact, the right thing to do, no matter how hard that may be. It is not open to a public servant to manufacture contrivances, to selectively choose evidence to justify a line of action, or to simply turn away. 

Simply saying ‘but I wasn’t told’ does not cut it. Curiosity should be a default setting for public servants. Using code in an email or text like ‘we need to discuss’ or ‘I need to brief in person’ as a means to provide plausible deniability of knowledge is unacceptable; instances like this may fail the public servant’s duty to exercise reasonable care and diligence. Worse yet is to obfuscate and mislead, especially of integrity agencies that are seeking to support public servants in their decision making; instances like these may fail the public servant’s duty to act honestly and with integrity. 

Governments are properly interested in both legislative and non-legislative ways to implement their policy, and public servants cannot maintain non-legislative solutions that necessarily require a legislative solution.

No one has breached the Code because they had an idea; the breaches all relate to subsequent action or inaction. All the public service values in the Public Service Act matter. The craft of public service is to act ethically in a way that enables innovation – which is an essential part of the public service value of being ‘committed to service’ – and supports a Government to deliver on its priorities. Robodebt should not have the unintended consequence of freezing innovation, risk taking and collaboration in the public service. Effective and ethical delivery remains a priority in training across the public service, including specifically record keeping, engagement with ministerial advisors, written advice to Ministers, and open government. 

Leaders matter. Leaders set the tone in an organisation on professionalism, respect, engagement with colleagues and Ministers, and purpose. The profound failures of leadership throughout the life of the Robodebt Scheme show the importance of changes already underway to strengthen the public service – including open and merit-based selection of Senior Executive Service officers and agency heads, pro-active talent and professional development of public service leaders, clarity and support in what is expected of leaders, and ongoing substantive performance management and leadership development of public service leaders. This is a priority shared by the Secretary of the Department of the Prime Minister and Cabinet and Secretaries Board. 

Finally, public servants are accountable. Effective leaders delegate functions to their staff but they retain accountability for their work. Senior leaders are responsible for ensuring that their teams have the resources, time, capability and information necessary for them to do their job well. Leaders are also accountable when they fail to address poor behaviour by those who represent them. Everyone makes mistakes: the problem with mistakes is hiding and not acknowledging them. 

The role of a Secretary or other Agency Head is complex and difficult but it is certainly not impossible. It is complex not just in the demands of administering a public-sector organisation with multiple responsibilities under the Public Service Act, the Public Governance, Performance and Accountability Act and other legislation, but also in the rarely publicly visible craft of working with and supporting Ministers who have executive responsibility and decision making authority. 

It does not follow from the accountability of a Secretary for their behaviour and the performance of their department that a Secretary has to know and micro-manage everything. That, in fact, is the wrong inference. Rather, the way to manage complexity is by understanding and prioritising the activities of the Department (typically based on Government priorities and legislated duties) and knowing, enabling and empowering staff to do their job within that system with the right assurance. 

Public scrutiny of the Robodebt Scheme has been intense and a lot has happened to remedy problems in the past year. The public service has come a long way. Services Australia and the Department of Social Services have significantly transformed themselves. The implementation of the Government’s Response to the Robodebt Royal Commission and Secretaries Board’s Integrity Roadmap is important to ensuring the Australian Public Service can do its job well and that government failures like the Robodebt Scheme do not happen again.

From here, the Australian Public Service Commission and Secretaries Board will continue to support training and professional development within the public service. 

The Commission will assess lessons learned about the Code of Conduct process to ensure that future Code investigations are as effective, fair and timely as they can be. 

I would like to thank the independent investigators, Mr Stephen Sedgwick AO and Ms Penny Shakespeare, the independent sanction advisors, Ms Cheryl Ann Moy and Ms Elizabeth Kelly PSM, and the Robodebt Code of Conduct Investigation Taskforce team, led by Ms Jamie Lowe. This has been a difficult task done with great professionalism and empathy. 

Dr Gordon de Brouwer
Australian Public Service Commissioner
13 September 2024