Three senior public servants within DSS were involved in the deception of the Commonwealth Ombudsman in relation to the robodebt scheme, the Royal Commission found.

In a section of the 900-page report titled Deception of the ombudsman by social services, Commissioner Catherine Holmes SC says the office of the ombudsman was provided with dishonest and false information from the Department of Social Services when it requested information about the scheme in 2017.

The public servants at the centre of the deception included DSS Deputy Secretary Serena Wilson; former Payments Policy Group Manager Cath Halbert; and former Payments Policy Group Branch Manager Pensions and Integrity Russell de Burgh.

Ms Halbert, Ms Wilson and Mr De Burgh were all involved in making representations to the Ombudsman which they knew to be false, and in concealing the falsity of those representations, the report says.

“The Commission is satisfied that the behaviour of Mr de Burgh, Ms Wilson and Ms Halbert in making the false representations and concealing critical information was designed to, and did, mislead the Ombudsman in the exercise of his functions,” Commissioner Holmes concludes.

Legal opinion omitted

In February 2017,  the Ombudsman requested information from DSS about the legal basis of income averaging, including legal advice relating to averaging income to calculate social security overpayments, for an investigation sparked by escalating concerns about the scheme.

DSS had obtained legal advice in 2014 warning that the use of income averaging in the way proposed by DHS was unlawful, but that advice was never sent to the Ombudsman.

“The Commission is satisfied that it was Ms Wilson who … decided to withhold the 2014 DSS legal advice from the Ombudsman,” the report says.

“DSS’s withholding of the 2014 DSS legal advice from the Ombudsman constituted a failure to comply with the Ombudsman’s 19 February 2017 request for information.

“Ms Wilson’s behaviour in this regard was an attempt to conceal critical information from the Ombudsman.”

Advice about legislative change withheld

Ms Halbert, Ms Wilson or Mr De Burgh did nothing to provide any information in response to the Ombudsman’s request for “any other notes, documents or emails” that related to the need for legislative change, Commissioner Holmes said.

The omission “was calculated to conceal the warnings DSS had given DHS in early 2015 about the need for legislative change if income averaging were to form part of the proposal which began the Scheme,” the report says.

“DSS attempted to and did conceal critical information from the Ombudsman and represented that the Scheme was lawful.”

Commissioner Holmes’ report, handed down last Friday, recommends referring certain figures involved in the scheme for civil and criminal prosecution.

The names are contained in a sealed chapter of the report which has been handed to agency heads.

Commenting after the report was tabled last week, Prime Minister Anthony Albanese said he wasn’t privy to the names and wouldn’t be commenting on individuals, in keeping with the Commissioner’s desire not to prejudice any potential prosecutions.