One year after the Department of Prime Minister and Cabinet was secretly instructed by the Commonwealth Ombudsman to complete a review of hundreds of senior public officials over concerns of systemic illegality, it has failed to do so.

The department – the nation’s most powerful agency – was on December 2 last year told to conduct a review of all appointments since 2014 over concerns public officials had been, or were continuing to be, illegally paid for holding multiple government jobs at the same time.

The Commonwealth Ombudsman had conducted a year-long investigation – in secret – and filed a report – again, in secret – instructing the Department of Prime Minister and Cabinet (PM&C) to conduct “a review of appointments” made “over the last seven years”.

“This investigation…identified a potential gap in the process of appointing an individual to more than one position covered by the RT (Remuneration Tribunal) Act, and the risk of unidentified non-compliance with section 7(11) of the RT Act,” the secret Ombudsman report states.

The vast majority of top public servants, such as agency heads, are employed under the Remuneration Tribunal Act, which sets the employment conditions and pay rates for hundreds of full-time positions as well as many hundreds more part-time positions.

Except in limited circumstances, it is illegal for full-time appointees to also be paid for part-time positions.

“This investigation…identified a potential gap in the process of appointing an individual to more than one position” – Commonwealth Ombudsman

“PM&C (should) undertake and coordinate a review of appointments over the last seven years to determine whether payments made to any individuals who held more than one position over the same period were consistent with…the RT Act,” the Ombudsman states.

PM&C was to report back to the Ombudsman with “any other instances of non-compliance” it found, along with “what (if any) action has been or will be taken”.

The Klaxon can exclusively reveal that, one year later, PM&C has failed to do this.

Both under former Prime Minister Scott Morrison and, since May, under Prime Minister Anthony Albanese.

The Ombudsman’s directive – the investigation itself was sparked by an illegal Morrison appointment – includes every appointment Morrison made under the Remuneration Tribunal Act during his four-year term as Prime Minister.

The revelations come as the Albanese ALP Government on Thursday – with the help of the Federal Coalition, now in opposition – passed legislation in the lower house to create a federal anti-corruption body that will hold all hearings in secret unless there are undefined “exceptional circumstances”.

Secret Report

The Commonwealth Ombudsman investigation was into public official Chris Jose, a top boss of media regulator the Australian Communications and Media Authority (ACMA).

Between May 2018 and April 2020 Jose, who is also a Pentecostal pastor, was paid for his full-time role at the ACMA as well as being illegally paid as a part-time member of the National Competition Council (NCC).

Jose was illegally paid $41,073 by the NCC across 53 payments. He has paid none of the money back.

Jose denies any wrongdoing and has said he had not been aware the payments were illegal.

The Ombudsman investigation was conducted in secret and its 41-page report is marked “OFFICIAL: Sensitive Legal Privilege”.

A copy was leaked to The Klaxon. Otherwise, the report, the Ombudsman’s directions to PM&C – even the existence of the investigation itself – would all remain a secret and hidden from the public.

“A copy was leaked to The Klaxon, otherwise the report and entire investigation would all remain a secret”

In a statement to The Klaxon, the PM&C said: “In December 2021, the Commonwealth Ombudsman asked the Department of the Prime Minister and Cabinet to conduct a review of appointments made under the Remuneration Tribunal Act 1973”.

“The PM&C Review as recommended by the Ombudsman Report is ongoing”.

PM&C provided The Klaxon with that same response later in August, in September, and again earlier this month.

The nation’s most powerful department repeatedly refused to say when it had started the review – including whether it was before or after the May Federal Election – only that it was “earlier this year”.

How The Klaxon broke the Quinlivan story.

In September The Klaxon revealed Julie Quinlivan, the former long-time head of the Federal Government’s Professional Services Review (PSR) agency, had for five-and-a-half years also been paid as a part-time member of the Administrative Appeals Tribunal (AAT).

As PSA head, a role she left in July, Quinlivan was responsible for penalising medical practitioners who rip-off Medicare. The Klaxon is not aware of any action being taken.

Quinlivan has denied any wrongdoing.

Glyn Davis, who was appointed PM&C boss by Albanese in June, replacing Phil Gaetjens, has repeatedly refused to comment or be interviewed regarding the Ombudsman’s directive.

Prime Minister Albanese and his office have repeatedly refused to respond to our requests for comment since August.

Morrison has refused to comment since January.

The office of the Commonwealth Ombudsman said it could not comment.

Phil Gaetjens, Scott Morrison and Glyn Davis (L-R). Source: Supplied

The secret Ombudsman report provides a rare glimpse into a the workings of an investigation into government conducted in secret.

It shows that rather than having Jose repay the money, PM&C; the Department of Finance; the Department of Treasury; and the NCC all went to extensive lengths that prevented Jose from having to repay the illegally paid money.

The Royal Commission into the Robodebt Scheme held its first public hearings earlier this month.

Under the scheme, which has been cited as contributing to hundreds of suicides, hundreds of thousands of Centrelink recipients were ordered to repay debts for welfare “overpayments” that never occurred.

The Federal Coalition launched the scheme – put forward in 2015 by Morrison as Minister for Social Services – despite being told beforehand by government lawyers that it was illegal, it emerged this month.

How The Klaxon broke the story in January.

The secret Ombudsman report shows the debt to Jose was “waived” in full, despite a waiver being “generally a remedy of last resort” that “will generally not be used when there is another viable remedy available”.

“The sum owing to the Commonwealth in this case, approximately $40,000, was significant. In such circumstances, it is reasonable to expect a degree of caution and rigour in considering a possible waiver,” it states.

“Noting…that as a matter of practice debts arising from agency error, such as Centrelink overpayments, are routinely recovered, there is a heightened expectation that Treasury’s decision to not to pursue recovery would be well-documented and clearly defensible”.

The Ombudsman found the decision not to pursue recovery was not well-documented or clearly defensible.

No action has been taken against any of those involved.

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