Freedom at last for the Robodebt Six, thanks to the NACC

I use this as my text as I prepare to admit that I must walk back on some of the unkind words I have said about people whose conduct in the robodebt disaster was said to be corrupt, disgraceful and blameworthy. The behaviour of six was said by a royal commission to possibly amount to corruption under the national anti-corruption legislation.

Four of these initially unnamed people - including Scott Morrison, one-time social security minister and later prime minister, and Kathryn Campbell, former secretary of human services and later social security - were found after an inquiry by a Deputy NACC Commissioner, Kiley Kilgour, to deserve exoneration from this allegation. Two others were found to have acted corruptly, but they will not be charged because the commissioner does not believe that criminal charges could be proven beyond a reasonable doubt. They are thus as free as the other four, apart from the stain on their reputations.

I was gobsmacked by the result because I had expected that there was ample material capable of supporting the allegations. Indeed, I was angry that the anti-corruption commissioners, minus the one who conducted the hearings, had initially shied from holding hearings at all, on the quite false grounds that all matters had been dealt with already by the royal commission. That decision was overturned, and the Chief Commissioner Paul Brereton was found to have committed a NACC corruption offence after he recused himself on the ground of acquaintanceship with Ms Campbell but subsequently sought to involve himself in deliberations about how cases were to be investigated.

At the time the NACC decision not to hold an inquiry was reversed, I urged that the NACC not be allowed to pick up on its mistake and visit again their initial predispositions on the matter. I said a new person should be chosen to do it, away from a commission which had already lost the confidence of the public. Kiley Kilgour, up to a point, fits that bill, and was assisted by former High Court justice Geoff Nettle. Kilgour comes from the Victorian broad-based commission against corruption, which operates secretively on NACC lines, and has a public profile and record like the NACC.

We now have a 400-plus page "judgement" - the first from the NACC. Albeit after closed hearings so that no one could establish the zeal, if any, with which inquiries were pursued. Judging by the quotes in the judgment I doubt many witnesses were stretched.

I repent my rush to judgment, the more so because I now tend to agree with some of the commissioner's conclusions. At least based on the evidence that I now know. In general Ms Kilgour is more inclined to think the behaviour of the six (and another few dozen who appear equally blameworthy) was not dishonest and corrupt. Rather it was the product of a giant stuff-up in which the minds of various of the actors were not properly on their jobs. A complete stuff-up, not a provable conspiracy, in short.

So, should we treat the accused folk somewhat in the manner of folk acquitted of felony? Champagne all round after a horrible ordeal? Profuse apologies from people such as myself, and an entitlement by them to walk henceforth with heads held up high?

Not quite, because the source of doubts entertained by Ms Kilgour came mostly from the fact she was less than completely satisfied of corrupt purposes, even though there was evidence pointing to it. Her bar was very high.

But against such evidence were signs of incompetence, lack of attention to detail, a chain of correspondence and decision-making, stretching over years, that made following the evidence a bit confusing. And the stout denial of most of the parties that they ever had in mind the deception of the cabinet, the government, or the broader public. (Some of the denials were, by themselves, quite unconvincing, but that's a matter of impression.)

It was not straightforward. Sometimes (I suspect) deliberate ambiguity in thousands of emails and different motives on the part of some of the players complicated things. There was also a good deal of deliberate shorthand adverting, elliptically, to fears of senior officer retaliation. Some of the more junior public servants involved would go to almost any lengths to avoid conflict with them.

It is a judgment on even more senior public servants, including former secretaries of the prime minister's department and the Public Service Commission that such people were put up for leadership roles, and never brought to account, quite separately from the management of robodebt, for some of their tantrums, abuse and shocking misbehaviour.

Kathryn Campbell's unfortunate manner may have derived from her military "command and control" training and manner at the expense of the more woke inclusive style of most public service managers. (She was a major-general in the Army Reserve, like Paul Brereton.) I perfectly understand that running an army is about efficiently organising killing other people, not cuddling up to them. But I venture that no modern military leader as imperious, remote and unempathetic as Ms Campbell was alleged to be should ever be put in charge of soldiers. Anywhere.

One of the other management monsters was Malisa Golightly, a deputy secretary in Human Services, who had overall charge of the implementation of the robodebt project and was not much inclined to allow obstacles, including naysayers, to stand in the way of it. Nor to much respect the idea that public servants deserved some time off from time to time. Alas she died before the whole illegal and monstrous scheme fell apart. While she deserved her reputation as a bully, I have a cynical feeling that some of the blame has been foisted upon her.

The big problem standing in the way of the cock-up theory rather than conspiracy account is that there were guilty secrets influencing some players. The first was the consciousness that using taxation data to "average out" welfare income data was explicitly not authorised by the Social Security Act. This was pointed out firmly even before the robodebt scheme was put up before ministers for consideration by Kathryn Campbell. There was no way of getting around this: if the scheme was to work at all, such a system, which often produced unfair and false results, would have to be approved by legislation. Many thought they could deal with the problem by euphemism, lying about what occurred, or ignoring the nagging voices.

Ms Kilgour has accepted the assurances of Scott Morrison that he never indicated that he wanted the scheme to proceed without legislative changes, which, implicitly, might have (would have/should have) struck problems in the Senate. Be that as it may, no one in either of the departments ever put up legislation to their minister. Later, a false claim that legislation was not needed went before the cabinet expenditure review committee. Some of those who saw the documentation and should have noticed claim not to have done so. The royal commissioner said that Morrison, who had been told initially that the scheme contravened the law, was possibly corrupt for failing to notice this. It was certainly politically convenient for him.

Bernard Keane of Crikey, with Rick Morton of the Saturday Paper one of the most cogent critics of the robodebt debacle, has strongly criticised Ms Kilgour for high-order political naivety in the way she accepted Morrison's denials.

If Morrison wasn't guilty, it all makes sense.

READ MORE FROM JACK WATERFORD:

Had Morrison thought the proposal was misleading in saying legislation was unnecessary, she said, "I think it is probable that the last thing he would have done was refrain from speaking up in the hope of [the scheme] being adopted without further delay or investigation.

"For, as a member of parliament and minister of many years standing [two years] he would have almost certainly foreseen that, were he to do so, there would be a high chance of the deception soon being discovered, and of his and the government's subjection to the inevitably adverse political consequences that would follow. Rather than being a reason to suspect a dishonest failure to inquire, the fact that Morrison did not make further inquiries appears probably more consistent with him not having perceived a need to do so."

I am prepared to believe that Morrison did not realise that a stroke of the pen had (wrongly) dismissed the need for legislation. But not on those grounds. Over years in government, Morrison showed a reflex tendency to deceive and dissimulate, quite often seeming to believe his own bullshit.

An indication that there was a lot of guilty awareness of the fundamentally dodgy base on which the scheme sat was the repeated use of false statements, and misleading claims made about why the scheme was not income averaging, when it was. Or how, for example, a failure by a beneficiary to go onto a website and "engage with" a set of (illegitimate) assertions about annual income and debt to be repaid had the effect of reversing the onus of proof.

Departmental lawyers used every euphemism in the book to get around the problem, but the one thing all seemed very reluctant to do was to get external advice (from the Attorney-General's department) about the legality of the scheme. Once a new departmental secretary, Renee Leon, ordered such an inquiry, the jig was up and robodebt was abandoned. It was probably the greatest public administration debacle in history and has cost the Commonwealth billions in compensation. (For her pains, the Public Service Board unfairly punished Leon for not acting quickly enough, while failing to punish others who resisted action.)

In my opinion, the royal commissioner's criticism of departmental lawyers did not extend anywhere near far enough, and many of them should have had their professionalism, competence and devotion to duty reviewed by their so-called profession. Several declared, in effect, that they were unwilling to press doubts up the line for fear that senior public servants would punish them. Others read papers by senior lawyers outlining the illegality of the scheme, and a steady set of appeals rejecting the idea that beneficiaries could owe debts because of income averaging.

They cooperated in schemes to keep others hurt (illegally) by the scheme from knowing about the developing jurisprudence casting doubt on legality. First instance appeals judgments were not publicly available. But by strategies undescribed (and unpunished) the department made sure that such outcomes were not appealed and that any effort to take the matter to the Federal Court should be resisted. If that did not provide evidence of guilty consciences, I do not know what does.

It is true, as the NACC commissioner commented that not everyone involved was a lawyer (Kathryn Campbell was not, for example). She was entitled to depend on lawyers answering to her, even if they were too intimidated to tell her what was wrong. Not everyone knew in any detail how averaging was applied all the time, and some said, falsely, that it was a last resort, only occasionally used. Ignorance, apparently, may be an excuse of corruption charges which must involve consciousness of wrongdoing. Whenever anyone found some new way of justifying inaction others quickly adopted the excuse.

Heaven forfend that a senior public servant might seek to please rather than do her duty.

Here's Kilgour's rejection of the very idea that Campbell might have been motivated by ambition and desire to please the minister.

"Quite apart from the speculation inherent in that kind of reasoning, it is objectively a most unlikely proposition that an already very senior, career public servant with a long and unblemished record of achievement and recognition in both the APS and the ADF would so much desire further advancement as to premeditatedly commit the serious criminal offence of deceiving ERC," she said.

While motive was important, "where the only motive for engaging in corrupt conduct is so improbable as to be near inconceivable, it comes so near to the point of proven absence of motive as to bespeak the absence of intent" Ms Kilgour said.

Again, I will not second-guess the NACC commissioner. Perhaps Kathryn Campbell ought to be believed on anything she says on the grounds that Kiley Kilgour has tested her every recollection and cross-examined her vigorously into a cocked hat. (Or perhaps not, given the deference to which she may be automatically entitled by rank.)

But reasoning of the sort she has applied is a ground for doubting Kilgour's every conclusion. Her reasoning is specious and it is nonsense. No prime minister, or judge, or senior public servant gets a free pass of the sort she is offering. Nor should they. If this is a sample of the credulity of NACC commissioners, or their understanding of human nature even among the very great and good, it would be better if we abolish the commission now and replace it with an effective one, including one committed to operating in public.

The very idea that public servants, of whatever seniority, would not trim their sails around their own survival or ambitions is not unusual. I am very familiar with the idea of senior public servants tailoring their advice to circumstance because, say, they fear getting the sack for drawing inconvenient facts to attention, or want to be seen as an enthusiastic can-do friend of the government of the day.

A good part of my cynicism comes from the frank criticism by senior public servants, of the conduct of named colleagues, attributing just such motives to unusual actions. So pronounced is the problem, in fact that even some much more senior career public servants and defence officers have been given to discussing the problem aloud - and the lack of protections for honourable senior public servants - for many years.

It is, of course, possible that Kiley Kilgour, whose background is in the Victorian anti-corruption agency, which like the NACC never finds much corruption, is unaware of this dialogue in public administration circles.

Another great public benefit, given all the innocent Victorian Labor and Liberal people they encounter, is that their hearings, like the NACC's, are out of the public eye, and their reports hardly ever offend anyone.