what is the 'tort of misfeasance' and how might it apply in the case of robodebt?

The final report of the robodebt royal commission has revealed the full extent of one of the most egregiously harmful acts our government has ever committed against some of the most vulnerable Australians.

At the end of her scrupulous examination of the robodebt scheme, commissioner Catherine Holmes concluded by stating that the people behind robodebt caused extraordinary harm “through venality, incompetence and cowardice”.

Holmes also reluctantly concluded that a compensation scheme for these harms is not practicable. However, a sealed section of the report has been sent to relevant agencies that details potential civil and criminal claims that may be brought against former ministers and public servants.

What are the potential legal avenues available?

Read more: View from The Hill: The 'sealed' chapter of the Robodebt report should be released

Misfeasance in public office

The report stated that “elements of the tort of misfeasance in public office appear to exist”.

Misfeasance occurs where:

1. there is an abuse of public power or authority by a public officer. This first requirement is not contentious: there is an abundance of evidence documented in the report and elsewhere that robodebt was unlawful. But this is not sufficient. Misfeasance requires further that the public officer:

2. either knew that they were abusing their power/authority or were recklessly indifferent to that fact and

3. they acted or omitted to act either with malice (the intention to harm), the knowledge of the probability of harm, or with a conscious and reckless indifference to the probability of harm.

The second and third requirements are more difficult to prove. Courts are generally more likely to find that public officers acted in error rather than with knowledge and malice.

In fact, this is what the federal court found in an earlier class action concerning robodebt. In 2020, Gordon Legal brought a class action representing all victims of robodebt, with the federal court approving a $1.8bn settlement with the previous federal government in June 2021.

Justice Bernard Murphy described robodebt as a “shameful chapter” in public administration, but he did not believe there was sufficient evidence to prove the government knew the scheme was unlawful when it was established:

There is little in the materials to indicate that the evidence rises to that level […] I am reminded of the aphorism that, given a choice between a stuff-up, even a massive one, and a conspiracy, one should usually choose a stuff-up.

This class action facilitated the return of money taken unlawfully under robodebt. But it did not provide damages for distress in part because of the absence of this evidence. It is important these damages be claimed, because harms to victims extended far beyond the theft of their funds, extending to loss of job opportunities and their homes, damage to mental and physical health, and the loss of at least two lives to suicide.

The findings outlined in the report suggest that contrary to Justice Murphy’s findings, this was not just a stuff up: at a minimum, this was misfeasance.

The final report found that:

The beginning of 2017 was the point at which Robodebt’s unfairness, probable illegality and cruelty became apparent. It should then have been abandoned or revised drastically, and an enormous amount of hardship and misery […] would have been averted. Instead the path taken was to double down, to go on the attack in the media against those who complained and to maintain the falsehood that in fact the system had not changed at all.

The royal commission report specifically criticised Scott Morrison in his role as social services minister. It found, for example, that “Mr Morrison allowed cabinet to be misled”. Stuart Robert, the government services minister, was criticised for using false figures about robodebt’s accuracy to publicly defend robodebt.

The report is scathing of Kathryn Campbell, the former department of human services secretary, on multiple points, finding that “when exposed to information that brought to light the illegality of income averaging, she did nothing of substance”.

The report was also damning of Alan Tudge, the human services minister in 2017: “Mr Tudge’s use of information about social security recipients in the media to distract from and discourage commentary about Robodebt’s problems represented an abuse of that power”.

Robodebt was based on shaming and degrading welfare recipients, supported by the government’s narrative (at one point, Tudge said “We’ll find you, we’ll track you down and […] you may end up in prison”.)

This narrative, the stressors of being pursued by debt-collectors, and the financial deprivations all caused significant trauma to its victims.

The tort of misfeasance allows for the pursuit of aggravated damages, which are punitive damages for egregious conduct, because of the shameful behaviour of so many people involved, and the horror of the scale of harm they caused.

We believe there is strong evidentiary support for claims in misfeasance in public office and victims should be encouraged to make claims. We are encouraged to hear a class action is already being considered on this basis.

Criminal prosecutions?

Additionally, the sealed section of the final report recommends referrals of individuals for civil and criminal prosecution. Civil compensation is significant, but it does not have the expressive power of the criminal legal system to communicate right and wrong.

But how might this work?

Read more: Robodebt royal commissioner makes multiple referrals for prosecution, condemning scheme as 'crude and cruel'

Senior public officials may be prosecuted for abuse of public office, which is punishable by up to five years prison. The offence requires that the official engages in conduct with the intention of either dishonestly obtaining a benefit for themselves or dishonestly causing a detriment to another person. There is plenty of evidence in the report that some politicians and senior public servants could be liable for criminal charges.

The harms caused by robodebt are overwhelming, heartbreaking and horrific in both their scope and impact. As a community, we should be examining the report carefully, particularly the recommendations, to ensure nothing like this happens again.

We should also be examining the report carefully to ensure every individual and entity responsible for this harm is brought to account through the full force of the law. The many victims of the scheme, as well as their families and friends, deserve nothing less than complete justice.