Calls for APS code of conduct reform following Kathryn Campbell resignation

"Defence can confirm it has accepted Ms Kathryn Campbell's resignation from the Department with effect from Friday 21 July, 2023. Defence will not provide further comment on this matter".

Campbell's resignation wasn't entirely surprising. The disgraced top bureaucrat had faced two weeks of intense scrutiny following the robodebt royal commission's damning report, with The Canberra Times revealing she had been quietly suspended without pay not long after the report came out. As the former Department of Human Services secretary, Campbell had overseen the implementation of robodebt, and the report found that, on the weight of evidence, she failed to act despite having information that the income averaging scheme was illegal.

For some, Campbell's decision to quit her $900,000 a year Defence role was a relief. The following morning, Government Services Minister Bill Shorten said he'd heard from families affected by robodebt who told him they felt "some measure of public accountability" was taking place.

But for others, Campbell's resignation means the opposite; that she has effectively dodged any chance of being held to account under the Australian public service code of conduct. The same code of conduct that former Centrelink staff say was used to silence workers raising alarm bells about robodebt.

The Canberra Times is not suggesting that Campbell would be found guilty of breaching the code of conduct; merely that, if she were, there would be no scope to take disciplinary action against her, under the code.

But the saga has prompted calls for changes to the rules governing public servants to ensure that those who leave can still be held to account.

"I feel that there has been a complete lack of justice..." Luke Baker, a former Centrelink worker, told The Canberra Times following Campbell's resignation.

"[The code of conduct has] been applied against vulnerable staff members; staff members who were brave, who were courageous, who did their best for the government, for the citizen, for the taxpayer. They had the [code] weaponised against them..." he said.

"I feel completely aggrieved that the same framework that was used against me is not applied to someone who has been so generously rewarded by the Australian taxpayer over such a considerable amount of time, and is then not accountable to those people, not accountable to those taxpayers, under the rules that govern all public servants. It stinks."

Baker - who worked at Centrelink between 2014 and 2017, during which time robodebt was implemented - said he saw the code of conduct "routinely used to end the employment, or target the employment, of people at a lower APS grade".

He said that staff would "regularly" receive emails from workplace relations executives, warning them that they would breach the code if they spoke up about the unlawful scheme

"We would be told that if we spoke to anyone outside specifically about the debts, that was a breach of the code of conduct. We were told if we called it a 'robodebt', as opposed to the name they'd given it, that was a breach of the code of conduct," Baker remembered.

"So we were getting these warnings really consistently from the department - these threats about the APS code of conduct that didn't apply to them, but only seemed to apply to us."

Baker said executives would sit with members of Centrelink's debt team and read the code of conduct out to them. He himself remembers being sent an electronic version of the code and being required to tick various boxes saying that he had read and understood it.

"It had this chilling effect because [the executives] wouldn't necessarily say what it was about, what the issue was. They would just read the code," he said.

Another former Centrelink employee, who spoke to The Canberra Times on the condition of anonymity, described the code of conduct as "an overarching threat".

They also remembered emails being sent to staff warning them that they would be in breach of the code if they spoke to the media about the unlawful scheme.

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You can't fire somebody who's already quit

The APS code of conduct, contained within the Public Service Act 1999, sets out a list of principles governing the actions and behaviours of APS employees. It includes directions to "behave honestly and with integrity", comply with lawful and reasonable instructions, and to not provide "false or misleading information".

Consequences for breaching the code are significant: employees can lose their jobs, be demoted or reassigned, have their salary lowered, or face a reprimand or fine. But this doesn't apply to those who have since left the public service.

This was clearly an issue that crossed robodebt royal commissioner Catherine Holmes' mind.

Holmes wrote that while the law makes it clear that the Public Service Commissioner can inquire into a former APS employees' conduct, it doesn't explicitly say whether the commissioner can look into conduct by a former agency head, like Campbell.

Holmes reckons that, while this should be clarified, the legislation would most likely be interpreted to allow for inquiries into former agency heads' behaviour.

But the problem still remains: "given that sanctions relating to a breach of the APS code of conduct can only be imposed on current APS employees, no meaningful consequence would flow from any found breach," the Commissioner wrote.

In other words: you can't fire somebody who has already quit. You can't demote them or dock their pay.

Commissioner Holmes, herself, has called for reform on this matter. One of the 57 recommendations she made in her report calls on the government to alter the Public Service Act to allow for a "disciplinary declaration" to be made against former APS employees and former agency heads; a measure that already exists in Queensland.

This would allow for the Public Service Commissioner to state what action would have been taken against the employee were they still with the public sector. You may be wondering why bother? But Holmes seems to suggest that this could prove a useful consequence if that person tried to re-join the public service, or sought consulting work from it.

Former senior public servant Paddy Gourley says that he agrees with the Commissioner's recommendation, and speculated whether it would be possible to also impose a fine on past staff found guilty of breaching the code.

But Gourley thinks, if anything, changes to the code of conduct and other regulatory frameworks under legislation should go further. He says that regulation of public servants has gone from tight rules around what not to do, to broad principles that guide behaviour - a change that should be reversed given what the royal commission revealed.

"In light of robodebt, I think ... maybe we were too optimistic about the way in which principles could work to regulate behaviour," Gourley said.

"We need to think of sort of turning the clock back so that behaviour is more tightly regulated by more prescriptive provisions in the legislation," he said.

The Community and Public Sector Union, on the other hand, worries about how the code of conduct has been used against staff to "silence them and enforce compliance".

"There is a hangover of fear of speaking out across the APS because of what happened in the years of robodebt," CPSU National Secretary Melissa Donnelly warned.

"Robodebt has highlighted the urgent need for strong whistleblower protections that provide APS workers protected avenues for receiving independent advice from their union and other appropriate bodies."

Robodebt will forever be an ugly stain on Australia's history.

The royal commission's report tells many stories: the way that we as a society like to demonise those who need welfare support, and the way the political class was determined to harness that; the way that top bureaucrats shirked their responsibilities as government advisors and parroted Yes, Minister; the way that staff who tried to speak out against injustice were silenced with threats of disciplinary action.

Calls to reform the Public Service Act to ensure former staff can be held accountable are being heard loud and clear.

But as Baker told The Canberra Times, "... the APS Code of Conduct seems only to be utilised against vulnerable and lower paid staff members, and it doesn't appear to apply to the senior executive class".

The question left unanswered is whether any reform will, or can, change that.