Sackings, demotions, stripping of decorations, cancelation of security clearances as well as potential bans on private sector work with government for current and former public servants are all on the table ahead of public release of the findings of the Royal Commission into the Robodebt Scheme on Friday.
As the day or reckoning approaches for those willingly or negligently drawn into the vortex of the illegal fake debt collection racket engineered by the former Department of Human Services, royal commissioner Catherine Holmes issued a swag of procedural gag orders on Wednesday to afford those in the frame due and fair process as per their legal rights.
The gag orders confirm the existence of a so-called ‘sealed section’ of the robodebt report that necessarily needs to go through an adversarial legal process before being exposed to sunlight.
Thus, The Mandarin is not naming names before the commission does. Besides, the evidence to date tells us who the main figures are. The eve of findings is the equivalent of a legal cooling-off period.
A matter of process
It’s the process that’s important here, and the evidence about the most likely APS disciplinary procedure is already on the public record as per the requested report of subject matter expert and former Australian Public Service commissioner Andrew Podger.
Podger was specifically asked to look at and outline the mechanisms available under the laws governing the APS’s function as employer, namely through the role of the Australian Public Service Commission, which also acts as the government’s bargaining agent in wage negotiations.
We don’t yet know what commissioner Catherine Holmes will recommend; but we do know what has been submitted to her, upon request.
‘Tis a mere flesh wound
So let’s start with the potential removal of present public servants. There is scope for this, under existing laws. These are contained within ‘Section B’ of the requested Podger report.
Specifically, Section B covers:
“How would you describe the responsibilities of individual public servants, particularly Secretaries, SES and ELs including their statutory obligations under the PS Act, the PGPA Act, the PID Act and administrative law for the Relevant Period?”.
Here, adherence to the APS Code of Conduct appears to be the key point. It was adherence to the APS Code that was vigorously tested by Counsel Assisting. This is what has been put forward, from the Podger report.
“Provisions in the Code of particular relevance to the establishment, design and implementation of the Robodebt scheme would seem to be that APS employees must:
- Behave honestly and with integrity;
- Act with care and diligence;
- Treat everyone with respect and courtesy, and without harassment;
- Comply with all applicable Australian laws; and
- At all times behave in a way that upholds the APS Values and Employment Principles, and the integrity and good reputation of the employee’s Agency and the APS.
“These Code of Conduct provisions are particularly relevant to the Secretaries, the SES and EL officers exercising delegations from the Secretary or with other specific responsibilities, and those managing teams: all have responsibilities that require particular care and diligence, compliance with the law etc.
“Breaches of the Code of Conduct are subject to processes under s 15 of the PS Act managed by Agency Heads. In the case of alleged breaches by an Agency Head, under s 41A the APS Commissioner is responsible for inquiries and, in the case of a Secretary, reports to the PM.
“Under s 41B, the APS Commissioner may also inquire into alleged breaches of the Code by a current or former APS employee at the request of an Agency Head or the PM. Where a breach of the Code is found, sanctions may be imposed on an APS employee as set out in s 15(1) of the Act; there is no provision for sanctions on a former APS employee.”
Retrospective powers
In the event of adverse findings — like being untruthful, knowingly breaking the law and deliberately harassing vulnerable people when there was a duty to protect them — there are sanctions open to deal with those public servants still in the system — and there are quite a few.
But a very notable feature of Podger’s advice is the power by the APS commissioner to “also inquire into alleged breaches of the Code by a current or former APS employee at the request of an Agency Head or the PM.
This is where it could get very interesting indeed for APSC commissioner Gordon de Brouwer, because there is clearly scope to look into the misdeeds of those who have left the APS and make a call in retrospect.
Of course, you can’t sack someone who’s left the employment of an organisation retrospectively and have it added to their employment record, but there could be very real consequences if former public servants maintain their links with the government and trade off their former government status.
Significant development obligations
Under the Commonwealth Procurement Rules crackdown instigated by the Department of Finance in response to the PwC scandal, suppliers to the government are now explicitly required to notify purchasing agencies of a “significant event” and these include adverse findings.
“The clauses require a service provider to notify the entity managing the contract immediately upon becoming aware of any adverse findings made by a court, commission, tribunal or other statutory or professional body regarding the conduct of the service provider or its capacity to deliver the agreed services,” the Finance policy note states.
In the event of former public servants being the suppliers themselves, or principles of suppliers, or in a significant government-facing role for a supplier where there’s a contract — think strategic advisor on a major contract or transformation project — those triggers could need to be pulled.
Like lobbyists, former senior and mid-level public servants often trade on their connections, professional networks and sectoral expertise, so the notification triggers could also extend to advisory, committee and board roles.
Security clearance divers
Roping in the above, as well as current public servants, is the thorny issue of security clearances that essentially go to an individual’s ability to be trusted, and trusted with sensitive information.
In the event of adverse findings going to trust and integrity, there’s a fairly obvious question hanging over anyone adversely named to retain a clearance or at the least be re-vetted, a problem for agencies and those named alike.
Then there’s the not-so-small issue of the small mint of medals and decorations that adversely named public servants have been honoured with over the period that robodebt operated. There are a couple of basic questions here, but The Mandarin understands there is sufficient scope to strip decorations in the event there is sufficient agreement and will to do so.
In practical terms, the matter would most likely fall to the prime minister to instigate or recommend and the governor-general to execute.
In the case of the Public Service Medal (PSM), the most relevant for robodebt’s various proponents, the governor-general’s “Regulations Governing the Award of the Public Service Medal” state that PSMs can be stripped and reinstated. And you do have to hand back your medal.
This is what the regulations say:
Cancellation and reinstatement
9. (1) The Governor-General may cancel the award of the Medal to a person and may reinstate an award so cancelled.(2) When an award of the Medal is cancelled, the name of the person to whom the award was made shall be erased from the Register and that person shall return the Medal to the Registrar.(3) Where an award that has been cancelled is reinstated, the Registrar shall restore the entry in the Register that had been erased.
Oh, happy days.
READ MORE:
Transformers vs Care Bears: How an APS culture war produced the monster of robodebt
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