The final report of the Royal Commission into the Robodebt Scheme made 57 recommendations to the Federal Government and included a secret sealed section which holds the names of several individuals to be considered for further investigation and potential prosecution for criminal offences.
But after so much time and money spent on the Commission, and its damning findings against unnamed senior politicians and bureaucrats, many believe it’s high time criminal charges are brought and the matter left for the courts to determine guilt whether the criminal offence of misconduct in public office any of many other potential offences were committed.
So why isn’t this already happening.
The sealed section
Why isn’t the Royal Commission’s evidence sufficient to pursue legal action now?
The secret ‘sealed section’ is currently in the hands of the Australian Public Service Commissioner, the National Anti-Corruption Commissioner, the President of the Law Society of the Australian Capital Territory and the Australian Federal Police.
The names remain confidential in order not to prejudice any further legal proceedings. As we’ve seen in recent times, media reporting can, and does sometimes impact the judicial process.
However, Commissioner Holmes wrote in her final report: “On the evidence before the commission, elements of the tort of misfeasance in public office appear to exist”.
Misfeasance in a public office
Misfeasance in a public office is different from misconduct in a public office.
Misfeasance is a form of intentional tort. A tort is a legal wrongdoing, but it is part of the law developed by courts over time rather than enacted in legislation.
Essentially, misfeasance in a public office is alleged to have occurred when a person – an office holder – is alleged to have unlawfully exercised their power, which includes being indifferent to the likelihood of causing harm.
Commissioner Holmes also suggested that civil action should be considered – potentially opening the gateway for anyone affected by Robodebt to instigate a civil suit.
And this is a pretty big deal. Rarely in Australia are politicians and others in positions of authority held accountable for the decisions they make and the actions they take while in office.
Evidence given at a Royal Commission cannot later be used
However, any subsequent legal action will ultimately be the decision of the Director of Public Prosecutions, (DPP) and will be based on independent investigation, should the above bodies find sufficient evidence for charges to be laid.
Evidence from the Royal Commission cannot be used. The reason why it cannot be used is because it is ‘compelled’ evidence – meaning that it is compulsory for anyone called before the commission to testify. Royal Commissions have a number of powers over and above those of ordinary courts of law, These include:
- to summons any person whose evidence is material to the inquiry.
- to demand the production and presentation of documents;
- to question a person under oath;
- to exclude the public from hearings in some circumstances and hold private hearings
- to issue search warrants.
Hand in hand with these powers is the Commission’s ability to penalise non-attendance or refusal to give evidence.
- Failure to attend as required by the summons; or failure to attend from day to day unless excused, or released from further attendance, by a member of the Commission can attract a penalty of 2 years imprisonment.
- Failure of witness to produce document or thing required by the summons to appear or the Commission can also attract a penalty of 2 years imprisonment.
Anyone who is called before a Royal Commission is obligated to answer any question, irrespective of whether or not it may mean implicating themselves in a crime.
In other courts, the privilege to self incrimination applies. It is contained in Section 128 of the Evidence Act (NSW) and is fairly uniform across most Australian jurisdictions. It is considered a ‘basic and substantive right’ which prevents a person being questioned, against their will, on matters which may result in evidence that could tend to prove they have committed a crime.
The privilege against self-incrimination does not apply in Royal Commissions. This is outlined in Section 6A of the Royal Commissions Act 1902 which provides that it is “not a justification to refuse or fail to produce a document or to refuse to answer a question on the basis that it might tend to [self] incriminate.” However there are some exceptions. These are:
- the production or answer might tend to incriminate the person in relation to an offence; and the person has been charged with that offence; and
- the charge has not been finally dealt with by a court or otherwise disposed of.
Further protections for witnesses are outlined in Section 6DD of the same Act which determines that any testimony given by a person to a Royal Commission may not be used against that person in civil or criminal proceedings in subsequent legal proceedings.
False or misleading evidence
It is also an offence to intentionally provide false or misleading evidence to a Royal Commission or to intentionally obstruct or disrupt it – in much the same way that perjury and perverting the course of justice are both offences in a court of law.