Robo-debt wasn’t fair or legal. Because of a loophole we’ll never know if it was also corrupt

“Be afraid,” warned Attorney-General Mark Dreyfus when he announced details of the Albanese government’s National Anti-Corruption Commission back in 2022. Perhaps you’ll recall the build up to this moment: how the Morrison government had promised one – widely criticised as toothless – then failed to deliver it, leaving the door open for Labor to outbid it on the issue of integrity.

In the wake of minor scandals like “sports rorts” and major ones like robo-debt, integrity had become a reasonably prominent political issue in the 2022 election, especially in the teal seats the Coalition ultimately lost. So, it makes sense that Dreyfus could sound so bold, repeating his flourish in case we missed it: “And I would want people to be afraid if they’ve engaged in corrupt activities.”

Credit: Andrew Dyson

But perhaps they’ll be less afraid now. Last week, the NACC declared that after considering the matter for nearly a year, it would not be investigating anyone in relation to robo-debt. Specifically, it would not pursue any of the six public officials the royal commission referred to it.

We can’t know who these officials are because the details are contained in a confidential chapter of the commission’s report. But we know the horrors of robo-debt all too well: how it drove people to suicide, how it was in the commission’s words “crude and cruel … neither fair nor legal”, and “made people feel like criminals” even if they had done nothing wrong.

Slightly less well known – but of tremendous relevance here – is that Commissioner Catherine Holmes specifically delayed handing down her report because she wanted the NACC to be up and running first. That way, it could receive referrals from her. Clearly, then, she thought her referrals were doing something consequential.

Apparently not. The very basis of the NACC’s decision is that its investigation would have been of no real consequence, that it has no worthwhile contribution to make. It cannot punish anyone directly, and is unlikely to unearth any facts the royal commission hasn’t already. It also notes that other bodies which can impose sanctions – such as the Public Sector Commission – are already running investigations. Accordingly, it reasons, there is no point having multiple bodies running basically the same investigation.

Quite apart from wasting resources, at some point these repeated processes become a form of oppression in themselves. Not as oppressive as robo-debt itself, you might say, but oppressive nonetheless.

Understandably, victims and their families feel betrayed. “There’s no pathway to justice,” were the words of one. No doubt I would feel the same way, but accountability certainly remains possible. The PSC has the power to fine, demote or sack public servants who breach their duties, and seven people have already been found guilty of that, with their sanctions still to come. To seek some harsher punishment is to enter the realm of the criminal law – and the royal commission has referred people for potential criminal prosecution, though whom and for what, we don’t know. Either way, it’s simply not the NACC’s role to mete out that brand of justice, and our constitution makes it plain that it shouldn’t be.

But that doesn’t mean the NACC’s decision should sit comfortably. Unfortunately, we’re at a severe disadvantage in assessing it because so much of the vital information remains secret, which only heightens the dissatisfaction. We’re left to guess and glean. We now know that the PSC is investigating five of the robo-debt six. But who is the sixth? Is it a politician? A former minister or even prime minister? What exactly is the evidence against these people? And if that sixth person isn’t being investigated, why would the NACC decline to pick up the slack? We may never get to know. And on a scandal as thorough (and thoroughly condemned) as robo-debt, that is hard to take.

The NACC is headed by Paul Brereton: the same NSW Supreme Court judge whose inquiry detailed Australian soldiers’ war crimes in Afghanistan. Robo-debt is unlikely to scare him. But that leaves us with the troubling conclusion that the NACC doesn’t believe in the importance of its role in a case like this.

It should. Because whatever any other investigations might be about to find, they won’t make a finding of corruption. At most, the PSC will find that certain people have breached the public sector code: important, but it hardly seizes the imagination in the way corruption does.

Corruption is a hefty finding on its own terms, whether any punishments flow directly from it or not. It’s hard to imagine a minister, for example, could wear that lightly as a matter of scant consequence even if they wanted to. Or future ministers that wouldn’t consider themselves warned.

Given the NACC’s definition of corruption includes situations where public officials “breach public trust”, “abuse their office”, or “misuse information”, we’re dealing with matters of fundamental democratic concern. So, when public officials knowingly implement an illegal policy, or when politicians take the private information of people publicly complaining about robo-debt and feed it to media outlets with the aim of discrediting those people, we have every reason to seek a verdict on whether corruption is the right word to describe it.

That’s the point that NACC misses when it concludes that a corruption investigation into something as seismic as robo-debt wouldn’t “add value in the public interest”. A body that declares such things – not as polemic, not in the mudslinging way politicians accuse each other, but in the forensic manner of a commission – does something immensely valuable no one else can duplicate.

The fact it doesn’t punish only means its role is a democratic one, placing the ultimate recompense in the hands of voters. But that’s not a reason to opt out when a scandal gets so big it attracts the scrutiny of multiple agencies. It’s a moment to realise you have a mission to believe in.

Waleed Aly is a regular columnist.

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