Public servants under fire again as Ombudsman reminds them to not break the law

And here we are again. Another week, another report confirming the corrosion of our public service.

Almost unbelievably, the Commonwealth Ombudsman, Iain Anderson, has felt compelled to remind public servants they need to abide by the law and, ahh, to stay on top of current government policy. In other words, do your job.

Anderson’s message to public servants last week, with its understated title Room for Improvement, is the latest in a stream of royal commission and inquiry reports unveiling the serious undermining of our public sector by leaders that have failed, willingly or otherwise, to instil integrity, honesty and serving the people as basic values.

The Ombudsman’s message is clear: abide by the law, even if you don’t like it, or it makes work by forcing systems change.

As an example of government agencies apparently forgetting their legal obligations, he cited one “acting on a long-held but incorrect view” that if the customers hadn’t complained, it didn’t need to compensate them for failing to follow the law.

In other words, you had to know you’d been dudded to claim compensation. Silence was taken as acquiescence. Some would call it fraud.

He also warned agency staff to record why they’d made a decision. Not keeping records means agencies can’t monitor how their powers to make such decisions are being used. And, as Anderson noted, it “can cast doubt on the integrity of decision-making”.

Indeed. Not keeping records is a nice trick to avoid being challenged. If you don’t know why a decision has been made, how can you challenge it?

It also means we can’t know if it was an abuse of power driven by prejudice in breach of anti-discrimination laws because a quota of refusals or cuts was expected for budget reasons or made on a whim.

Unfortunately, Anderson only “recommended” agencies keep records of reasons for decisions. It should be mandatory.

It’s clear Anderson, our new Ombudsman, is directing his advice to those involved in the Robodebt disaster, though there’s some irony in that.

Robodebt revealed an egregious failing of our democratic system of ‘checks and balances’ to ensure our public institutions operate fairly and with integrity.

Appeals to the former acting Ombudsman Richard Glenn from social security recipients erroneously and unfairly targeted by the scheme were dismissed.

Glenn’s 2017 Robodebt report failed to mention it was illegal despite one of his staff including this crucial information in an original draft. He even gave the Human Services Department access to the report, allowing it to doctor it.

That unforgivable failure by one of our critical democratic institutions probably did as much to undermine trust in government as Service Australia’s cruelty.

It’s important to remember that Glenn was ‘acting’ Ombudsman, a not uncommon tactic of governments to keep independent statutory authorities in their hand.

People must have recourse when they believe they’re being treated unfairly by a government without having to be wealthy enough to afford a lawyer (or poor enough to access legal aid).

Appealing against a government official’s decision in the various administrative appeal tribunals across the country is beyond most ordinary Australians. There are no cost orders so putting up the money for a lawyer is risky, especially when you’re up against government-paid lawyers on the other side.

The first stop should be properly functioning, easy to access agency complaints processes, Anderson advised. Agencies have a responsibility to tell people they may have the right to appeal a decision so they can ask for it to be reviewed by a higher-up, he said.

The next stop is to head to the Ombudsman’s office for advice. One of its jobs is to offer free advice on whether people have been treated fairly by the government.

To be trusted, people must know with certainty that the Ombudsman’s advice is truly independent and free of any political interference.

I suspect Anderson’s message is an attempt to remind not just the public service of its duties but also that the office has a new leader whose job is ‘to ensure fairness’.

Robodebt has tainted so many innocents, but there’s nothing lost in the Ombudsman reminding all that “it’s crucial for us as public servants to have people front of mind at all stages of service delivery”.