The 'catch-22' protecting Robodebt bureaucrats from criminal prosecution

The truth was always going to come at a price when Australia's corruption watchdog undertook its biggest investigation to date.

Damning admissions were pried out of two key players in the Robodebt scandal, enough for the National Anti-Corruption Commission (NACC) to brand their conduct seriously corrupt.

And enough, potentially, to establish corruption offences punishable by jail.

But the testimony will not land the former bureaucrats inside a courtroom, let alone a cell, because the law empowering the agency to penetrate the right to silence is built with a shield.

The NACC can force someone to answer a question — even if it incriminates themselves — but that evidence cannot be used in criminal proceedings.

'People wouldn't speak'

Christopher Rudge, a welfare law scholar at the University of Sydney, called it a "catch-22".

"The protection exists because without it, people wouldn't speak. And people wouldn't be compelled to do so," Dr Rudge said.

"A court permits people to be silent, to not appear on the stand when they are being criminally charged.

"The NACC is able to reach into the workings of government officials … in a way that no other agency can."

Geoffrey Watson SC, a director of the Centre for Public Integrity, was disappointed at the lack of "concrete" consequences for the architects of the policy.

The Robodebt scheme claimed unlawfully calculated debts from hundreds of thousands of welfare recipients from 2015 to 2019 and was linked to multiple suicides.

"None of those responsible for the design or implementation of this dreadful scheme seem to have suffered much," Mr Watson said.

But the senior barrister, who advised on setting up the NACC, said witnesses were given privileges for a "very good reason".

"The reason why there is a protection against self-incrimination is that that's a cornerstone of our judicial justice system," he said.

"That is removed in the context of the NACC so that the NACC can get to the truth.

Reasonable doubt persists

If the NACC finds evidence of a criminal offence, it may send a brief of evidence to the Commonwealth Director of Public Prosecutions (CDPP), who will then decide whether to lay charges.

The NACC did look at whether certain Commonwealth crimes could be established in relation to retired public servants Mark Withnell and Serena Wilson.

In particular, it considered the offences of dishonestly influencing a public official exercising their duties and of knowingly giving false or misleading information to a Commonwealth entity or official.

But the watchdog concluded these crimes could only be proved by the admissions made to NACC and not merely the evidence unearthed during the Royal Commission into the Robodebt Scheme.

For example, Mr Withnell, who was central to developing the proposal that became Robodebt, told the royal commission he believed the income averaging underpinning the scheme was "abandoned" before its implementation.

But during the NACC investigation, he admitted he always knew the proposal involved averaging.

"Without the contradictions which his evidence in this investigation disclose … there would remain reasonable doubt as to the extent of his involvement and state of mind," the NACC report states.

"There is not sufficient admissible evidence to establish either of those offences beyond reasonable doubt."

Ultimately, the NACC decided not to refer Mr Withnell and Ms Wilson to the CDPP, despite making serious corrupt conduct findings against both of them.

Mr Watson criticised the NACC for declaring there was insufficient evidence to pursue criminal charges.

"That is truly and clearly a question, solely for the prosecuting authority — not for the NACC," he said.

The CDPP told the ABC it had no investigative function and had not received a brief of evidence from the NACC regarding Robodebt.

As a previously sealed chapter of the royal commission report revealed last week, Mr Withnell was referred to the Australian Federal Police (AFP) for possible offences of giving false testimony.

This related to evidence he gave to the royal commission which included a claim he never became aware income averaging was a feature of the scheme.

But in 2024, the AFP cleared Mr Withnell, finding there was not enough admissible evidence to prove he intended to mislead the inquiry.

Call for accountability

The lack of referrals for criminal prosecution remains unsatisfactory for Kath Madgwick, whose only son, Jarrad, took his own life within hours of being told he owed a debt to Centrelink.

As Ms Madgwick told the ABC last week, she has lost faith in the NACC.

"People took their lives over this. This isn't a small thing. And unless there's accountability … this will happen again."