“Unfortunately,because the recommendations are sealed,we’re now engaging in speculation,” said Geoffrey Watson,SC,a director of the Centre for Public Integrity who was counsel assisting a series of high-profile NSW corruption inquiries.
Geoffrey Watson from the Centre for Public Integrity says it is a pity the recommendations for criminal and civil prosecution have been sealed from public view.Credit:Rob Homer
Abuse of public office involves a Commonwealth public official exercising influence or engaging in conduct in their official capacity with the intention of dishonestly obtaining a benefit for themselves or a third party or dishonestly causing a detriment to another person.
“The meaning of benefit and detriment in those provisions is very wide,and certainly not limited to financial benefits and detriments,” Watson said.
The Commonwealth Criminal Code states explicitly that a benefit “includes any advantage and is not limited to property”. This could include political or employment-related benefits.
“The Commonwealth statutory offence is designed to cover the same territory as the common law state offences of misconduct in public office,and will probably operate in a more or less identical fashion,” Watson said.
Former NSW Labor ministers Eddie Obeid and Ian Macdonald were convicted of the state-based offence,he said.
Gordon Legal senior partner Peter Gordon acted for robo-debt victims in a successful $1.8 billion class action settled in June 2021. Under the settlement,the Commonwealth agreed to pay $112 million in compensation to about 400,000 class group members,including legal costs.
Gordon said there were grounds for examining whether the offence of abuse of public office applied,noting there would be questions about whether there was the requisite criminal intent.
“I don’t think there’s much doubt that the Criminal Code ... would cover politicians as well as senior public servants,” Gordon said.
He said that in this case “clearly there was detriment not just to a person,but to hundreds of thousands of persons”.
“That detriment is at the very least withholding their money or taking their money ... even if it was returned,” he said. “In tens of thousands of cases,it caused other forms of loss.” He said there appeared to be a “reasonable case to be made” that a political benefit also flowed from the robo-debt scheme,including being able to point to the significant amounts of money recovered as evidence of strong economic management.
A potential promotion for a public servant might also be “legally capable of being construed as a personal benefit”,Gordon said.
Separately,the Royal Commission Act makes it an offence to “intentionally give evidence that the person knows to be false or misleading”.
Secrecy condemned
Watson said that “in an otherwise superbly conducted royal commission,I think it’s regrettable that the recommendations for further action were sealed.
“The royal commission was conducted in public;the personalities involved are publicly known. Without knowing what the recommendations are,or to whom they were made,we will have no way of knowing if the body to whom the referrals were made have done their job,” Watson said.
National Anti-Corruption Commission
The sealed section of the report was submitted to the newly created National Anti-Corruption Commission,which started operations on July 1.
This raises the prospect that the NACC will consider whether any of the conduct identified in the report amounts to corruption,which might also involve the commission of a criminal offence.
Law Society of the ACT
The referral of the sealed section to the Law Society of the ACT suggests the royal commission may have recommended the professional body consider whether disciplinary action should be taken against any solicitor as a result of its findings.
The commission noted the professional independence of in-house lawyers at the Department of Human Services and the Department of Social Services “was compromised in relation to the scheme” and lawyers involved in providing advice “did not uniformly display a professional ethos”.
Bill Shorten,in opposition in 2019,with Peter Gordon of Gordon Legal.Credit:Justin McManus
Additional civil redress
Gordon said his firm was exploring new areas of redress for members of the robo-debt class action,as a result of evidence that had come to light during the royal commission.
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“We were never given access to some critical evidence which demonstrates dishonesty and misconduct on anything like the scale which has been revealed by this royal commission,” he said.
“If we had been given access to that evidence,then many other areas of redress would have been open to this class,including damages for their pain and their distress and also punitive damages. That may have sounded in hundreds of millions of dollars.