Those calling for the dismissal of Renee Leon as vice-chancellor of Charles Sturt University are thoroughly misguided.
Before taking up her current position, Leon was secretary of the human services department – which meant she had been deeply involved in the Morrison government’s robodebt scheme.
But it’s ludicrous to pursue her in the belief she was somehow responsible for the automated and unlawful income averaging for welfare recipients that underpinned that scheme.
Leon acted honourably. This is the woman who stopped robodebt and was sacked for her trouble by the Morrison government.
Yet she has been pursued by the Albanese government in a manner that raises a brand new set of concerns about public administration.
This is how Leon responded to a report issued last week by the Australian Public Service Commission saying she had breached provisions of the public service code of conduct:
“Robodebt had already been in operation for two years when I became secretary of Human Services,” Leon said.
“When legal doubts were raised, I sought definitive advice from the solicitor-general.
“I acted as expeditiously as possible to convince a government that was wedded to the robodebt program that it had to be ceased.
“When ministers delayed, I directed it be stopped. Two weeks later, my role as secretary was terminated by a government that did not welcome frank and fearless advice.
“I acted with integrity and in accordance with the standards of the public service I served for 30 years.
“I testified before the robodebt royal commission, which found that I acted in good faith, and which did not refer me to the APSC or the National Anti-Corruption Commission or any other investigative process,” Leon said.
The royal commission’s report shows that statement is soundly based.
On the question of who was responsible for ending robodebt, the commission’s report says: “Ms Leon was in fact the first to take steps for that purpose.”
Catherine Holmes, the royal commissioner, also supports Leon on the issue of whether she acted in good faith: “There is no suggestion that Ms Leon was acting in bad faith at any time.”
She had not been involved in developing or implementing robodebt, the royal commission found.
On July 7 last year, when the royal commission handed down its report, Leon was no longer a public servant which might help explain why it did not refer her to the Public Service Commission.
So how did she find herself accused in last week’s report by the Public Service Commission of breaching the public service code of conduct?
On July 24 last year, soon after the royal commission had reported, Katy Gallagher, the minister for the public service, instructed the Public Service Commission to include Leon and another former agency head in the robodebt investigation it was conducting.
This is spelled out in a statement issued last Friday by Gordon de Brouwer, who is the Public Service Commissioner.
The problem is that on July 24 last year the commission had no legal basis for investigating Leon or any other former agency head.
Almost a year later, on June 21 this year, the limits on the Public Service Commission’s jurisdiction were identified by the Australian National Audit Office in a report on the commission’s administration of integrity functions.
The government’s own actions indicate it was aware of the problem since at least November last year.
Yet the Leon inquiry proceeded without a legal basis until last month.
It was only on August 14 that the government introduced legislation that cobbled together a legal basis to investigate Leon.
That legislation, the Public Service Amendment Act (No 2), retrospectively extends the jurisdiction of the Public Service Commission and “validates” what had already been done.
This patch-up job came into effect on August 27, just eleven days before the Public Service Commissioner received the inquiry’s report.
The lesson from the robodebt scandal is that public administration must always proceed on a lawful basis. The law, not political considerations, must prevail.
Public servants are in grave peril if they implement ministerial instructions that are at odds with the law.
Yet the handling of the Leon inquiry suggests the primacy of the law is still not properly understood.
On July 7 last year, just before Gallagher referred Leon to the Public Service Commission on July 24, the royal commission had made it clear in its report there were doubts about whether the commission had the legal authority to inquire into the conduct of agency heads after they had left the public service.
In recommendation 23.7 of her report, Holmes called for this to be remedied.
That should have been happened before Leon was roped in to an unlawful inquiry.
In November last year, four months after Gallagher had referred Leon to the Public Service Commission, the government gave every indication it knew the Public Service Commission had no jurisdiction over former agency heads.
That is the only way of reading the government’s formal response to the royal commission which was issued by Gallagher and Attorney-General Mark Dreyfus.
It says: “The government will also progress amendments to extend the APS Commissioner’s powers to former secretaries, agency heads and APS employees.”
Yet it would be another nine months before this was addressed.
On June 21 this year the Australian National Audit Office warned that the Public Service Commission “has no power to conduct investigations into allegations regarding former agency heads or former heads of statutory agencies . . . ”.
Pursuing Leon was disproportionate and, for quite a while, unlawful. It shows the Albanese government, like its predecessor, has set its own terrible standard in public administration.