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Author: William Partlett, Associate professor of public law, The University of Melbourne
Original article: https://theconversation.com/in-failing-to-probe-robodebt-australias-anti-corruption-body-fell-at-the-first-hurdle-it-now-has-a-second-chance-236147
The inspector of the National Anti-Corruption Commission (NACC) has released her long-awaited report on the failure of the commission to investigate the Robodebt scandal.
The report finds the commissioner of the NACC committed “officer misconduct”. He failed to fully remove himself from the decision not to investigate the scandal.
In response, the NACC has agreed to appoint an “independent eminent person” to reconsider its decision not to investigate the Robodebt scandal.
It’s an embarrassing moment for the Commonwealth’s newly created anti-corruption watchdog.
But it’s also an opportunity for the NACC to do what the public expects of it: act decisively to protect public trust in government.
How did we get here?
The NACC was created in 2022 after a federal election campaign that often focused on transparency and integrity in government.
Earlier this year, the commission announced it would not be looking into the Robodebt scandal.
This was despite the Royal Commission into Robodebt referring six people to the commission for further investigation.
The commission is monitored by an inspector, independent of the commission and the government. After receiving hundreds of complaints, Inspector Gail Furness launched an investigation into why the NACC didn’t look into Robodebt.
The issue was the first big test for the oversight body.
The inspector is legally limited as to what it can look at, but its finding of “officer misconduct” offers a broader opportunity for NACC to change course.
Robodebt was a clear breach of the public trust, with thousands of Australians feeling betrayed by the way the Morrison government acted. NACC now has a second chance to look into the scandal.
Unique anti-corruption tradition
NACC’s decision not to investigate was a departure from a long history of anti-corruption oversight in Australia.
It has its roots in corruption scandals in the late 1980s in Queensland, Western Australia and New South Wales.
These scandals involved the vast misuse of public power and resources by powerful executive branch officials. The response was far-reaching.
In Queensland, explosive allegations of police and government involvement in gambling and corruption led to the creation of an inquiry led by Tony Fitzgerald.
This inquiry made a number of wide-ranging recommendations, including the creation of a commission. It would eventually would become today’s Crime and Corruption Commission.
Read more:
Thirty years on, the Fitzgerald Inquiry still looms large over Queensland politics
In NSW, high-ranking ministers and police were caught embezzling funds and misusing public influence.
Public outrage led to the creation of Australia’s first anti-corruption commission, the powerful Independent Commission Against Corruption (ICAC).
In parliament, the NSW premier explained that ICAC was established “independent of the Executive Government and responsible only to Parliament”.
He went on to argue that its role was not to prosecute crime, but instead to enforce the public trust and dispel a “cloud of suspicion” that hung over the NSW government.
In WA in the 1980s, allegations emerged that executive branch officials were using their control of public resources to enrich themselves and preserve their own power.
In response, a royal commission in the early 1990s made a number of recommendations, including the creation of an anti-corruption commission. The commission would be an “independent parliamentary agency” responsible to parliament in carrying out its oversight duties.
Since then, all ten Australian jurisdictions have adopted anti-corruption commissions. Many of these commissions are described as officers of parliament intended to investigate breaches of the public trust.
In all states and territories, excluding Victoria and (recently) South Australia, “breaches of the public trust” or “dishonest or improper” conduct can be investigated by these agencies. Anti-corruption agencies have therefore emerged as important guardians of public trust in government.
Anti-corruption amnesia
However, we seem to have forgotten this tradition in recent years.
In South Australia, a 2021 law strippedthe state’s intergrity body of the power to investigate “maladministration” and “misconduct” in public administration and confined its scope to criminal activity.
In Victoria, then-Premier Daniel Andrews downplayed the significant breaches of public trust found by Victoria’s anti-corruption agency as being merely “educational”.
Most recently, the NACC’s refusal to review the Robodebt scandal also suggests it is unaware of the traditional purpose of Australian anti-corruption oversight.
The Robodebt scandal rivals the scandals of the 1980s in its threat to public trust.
One submission to the Royal Commission report put it clearly:
I feel utterly betrayed by the government for this […] myself, and everyone else who turned up to every meeting they had to, jumped through every hoop and tried to do the right thing, were treated like criminals and cheats, when all the while it was the department’s scheme that was illegal.
The NACC now has the opportunity to change course and broadly inquire into the Robodebt scandal.
This includes more than just an inquiry into the referrals from the Robodebt Royal Commission. It can also look into the way that a scandal of this magnitude happened and how we can prevent it in the future.
Failing to ask these questions endangers what the WA Royal Commission 30 years ago described as the “trust principle”. It said:
institutions of government and the officials and agencies of government exist for the public, to serve the interests of the public.
The NACC has been given a second chance to serve the public through properly investigating Robodebt.
If it chooses to take it, it will signal that the commission understands it plays a key role in preserving one of the most valuable commodities in Australian democracy: trust in government.