What comes after the damning robodebt report?

The coup de grâce to the Morrison era came in the form of two seminal documents: the devastating, uncompromising robodebt report from royal commissioner Catherine Holmes, and Scott Morrison’s stereotypically deluded response. Lest we ever forget the serial mendacious cruelty that marked the governments in which he was a leading player, these twin pillars will stand as a reminder.

But where to from here? The Albanese government that established the royal commission has promised its final report will not just gather dust. Government Services Minister Bill Shorten declared his priorities are to first get past his anger and then do what’s needed to ensure a travesty like robodebt never happens again.

The hard long-term work, it is true, will be the responsibility of government. Holmes was adamant that the political culture of punching down on welfare recipients — not exclusively the Coalition’s fault — has to stop. Her findings also pointed to the deep systemic failures that permeate Australia’s public service, after decades of being gutted, corporatised and compromised.

In the first instance, however, there are irresistible consequences of what Holmes found. Individuals failed in their duty of public service, manifestly and comprehensively. In a sealed section of her report, she recommended criminal and civil charges against some of these people. Referrals have been made to four agencies, including the new National Anti-Corruption Commission (NACC).

At this early stage, we can only speculate on what actual consequences people are facing, picking through the details of the report and holding them up to the light of laws and regulatory regimes that might have been infringed. We shouldn’t jump too quickly to firm predictions.

Still, I’m happy to take a bit of a stab and be proved wildly wrong later. 

The intentional cruelty of robodebt did not render it criminal. It was unlawful, because there was no legal basis for the practice of creating debt obligations from averaged data, such that any relationship between what robodebt claimed a recipient owed the government, and what that person did owe (if anything), was purely coincidental. Literally, robodebt made shit up.

That unlawfulness by itself was also not criminal. It was in the series of decisions and choices made by a long succession of people to push for the scheme’s implementation, hide or maintain wilful blindness to its illegality, and keep doubling down on it for years after that illegality was so obvious it could be seen from the moon that something far more sinister and potentially criminal emerged.

Without pointing to any names, it seems that the most likely scope for criminal charges in this aspect is the offence of “abuse of public office”, found in the Commonwealth criminal code. It applies to public officials and arises if they engage in conduct in the exercise of their duties, or use information they’ve obtained in that capacity, with the intention either of dishonestly obtaining a benefit for themselves or someone else, or of dishonestly causing detriment to another person.

Hypothetically, based on Holmes’ findings, it’s hard to avoid the conclusion that some individuals acted dishonestly in relation to the robodebt scheme. There were concerted efforts to conceal its illegality, including manipulation of advice and instructions, as well as what looks a lot like a conspiracy to deceive the ombudsman (successfully).

The trick, however, is in establishing criminal intent. Were those individuals motivated by gain, for themselves or others? Were they aiming to harm robodebt’s victims? These will be very fine and hotly argued distinctions if anyone is prosecuted.

Another area of potential criminal culpability could arise from the practice under minister Alan Tudge, which Holmes excoriated, of leaking to the media the personal information of recipients who were criticising the government over robodebt. It’s not too difficult to see how this conduct may be characterised as a dishonest misuse of information to cause harm.

NACC-wise, there is plenty of scope for investigation of potential corrupt conduct. The breaches of public trust were many — underpinned by deliberately deceitful behaviour.

Numerous public servants could face disciplinary action for blatant failures to perform their one job: to  act in the public interest. Robodebt exemplifies the breakdown of the ethos of the public service and its corrosive shift from independence to craven enabling of the political wishes of the government of the day. That’s cultural, but also personal. People could, and chose not to, act ethically.

Speaking of ethics, some lawyers may be in bother. Again, Holmes was scathing in her criticism of the complete failure of government lawyers to stop robodebt in its tracks, or at least to ensure that they were not a party to the deception. Instead, she found a whole lot of going along.

Lawyers’ professional ethical obligations, however, don’t allow for just going along. They demand fearless independence, impartial advice and willingness to call things out when they’re wrong. Failure to meet that standard can have serious career consequences.

Anyone hoping to see a long trail of heads on pikes by Christmas will be disappointed; any criminal prosecutions will be hard to get up, and whatever punitive processes are going to be pursued will take years to unfold. The cooling of passions in the meantime will strip away any ultimate consequences of much of their meaning.

So while I agree that where personal culpability exists it should be chased down, because actions should have consequences, the truth is that the hard work — the let’s-not-go-down-this-path-ever-again work — will be what really matters.