Public officials could face jail time over Robodebt scandal

Commissioner Catherine Holmes' damning report included a sealed chapter which recommended several individuals be referred for potential criminal prosecution or civil action.

While the identities of these individuals have not been publicly revealed, Geoffrey Watson SC - a director at the Centre for Public Integrity - speculated that public officials could potentially be charged under the Commonwealth Criminal Code for misconduct in public office.

The offence applies to current or former public officials who exercise influence, engage in conduct, or use information obtained in their official capacity, with the intention of dishonestly obtaining a benefit, or dishonestly causing a detriment to another person. It carries a potential criminal penalty of five years' imprisonment.

"I'm not saying that anybody who has come before the royal commission has committed these offences, or even that they deserve to be referred for them. I'm just pointing out to you that these are the sorts of things which could be done," Mr Watson, a director of the Centre for Public Integrity, told The Canberra Times.

Commissioner Holmes said the additional chapter naming the individuals she recommended referring for civil action or criminal prosecution should remain sealed, "so as not to prejudice the conduct of any future civil action or criminal prosecution".

The commissioner later wrote that she referred individuals to four different authorities for further investigation, but didn't say which ones "because it would only lead to speculation about who has been referred where, which would almost certainly be wrong".

But Mr Watson said that, while it was a "superbly conducted royal commission", he was disappointed that these names were kept secret.

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"It leads to unnecessary speculation as to who was adversely affected. It also means we don't know what the referrals are, or why they're made, or to whom they're made," he said.

"And all of this means that we'll never be able really to know or gauge whether or not the agency to which the referrals were made properly discharged the responsibilities."

The report did, however, note that the sealed chapter was sent to the Australian Public Service Commissioner and the president of the ACT Law Society.

University of Sydney Emeritus Law Professor Terry Carney speculated that government lawyers - who were criticised for failing to provide proper legal advice on the scheme - may have been referred for investigation to the law society. Disciplinary action for professional misconduct can include suspension from practising law.

Asked to confirm whether it had received referrals of individuals, a spokesperson for the ACT Law Society said the society "refrains from making comments on matters that have been referred to it for further consideration".

Government Services Minister Bill Shorten also told ABC's 7.30 on Monday night that the heads of departments had referred "anyone who needs" to an independent public service investigation led by former Public Service Commissioner Steven Sedgwick, which will include code of conduct hearings.

Commissioner Holmes wrote that she didn't think there was "any practical way of setting up some sort of compensation scheme" for Robodebt victims, given the various degrees and extents to which individuals suffered.

Individuals or groups may be able to sue under the tort of misfeasance, which applies where a public officer maliciously does something invalid and unauthorised.

University of Canberra law professor Kim Rubenstein warned that the the tort of misfeasance can be difficult to establish "because you actually have to prove the intention of the person to do harm, and how do you prove that someone intended to do harm?".

But the Commissioner wrote that "on the evidence before the commission, elements of the tort of misfeasance in public office appear to exist".

Speaking on 7.30, Mr Shorten suggested that Coalition ministers should be concerned about potential civil suits following the royal commission.

"I do not know why these Coalition ministers think they are out of the woods," Mr Shorten said on Monday.

"This royal commission has a long way to go and a lot of lessons to be applied, but I do not know why Coalition ministers, with that sort of very very damning analysis by the royal commission, why they think ... victims won't sue them individually".

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