28 Nov 2023What is misfeasance in public office?
The tort of misfeasance – it sounds like an evil spell in Lord of the Rings or Harry Potter, and in a way it’s similar.
Misfeasance is a legal term relating to the abuse of power by a person holding public office.
Misfeasance and the robodebt scandal
The term “misfeasance” was used in the final report of the Royal Commission into the Robodebt Scheme, which revealed the full extent of the harm to thousands of vulnerable people caused by the former Coalition government’s automated welfare debt recovery program. (Please see Report – Royal Commission into the Robodebt Scheme.)
The report said the people behind robodebt caused extraordinary harm through “venality, incompetence and cowardice”. It concluded that “elements of the tort of misfeasance in public office appear to exist”.
It will be up to federal police and the new National Anti-Corruption Commission whether anybody faces criminal or civil charges stemming from the royal commission investigation.
But those who have been harmed by robodebt may be able to make a claim against the government under the tort of misfeasance, as it has been found that key officials knew robodebt was unlawful, yet persisted with its execution. (Please see Explainer – What is the tort of misfeasance and how might it apply in the case of robodebt, The Conversation, 11 July 2023.)
How difficult is it to prove misfeasance in court?
Misfeasance in public office occurs when there is an abuse of power or authority by a public officer, and the officer knows they are abusing their power or they are recklessly indifferent to the abuse.
It would also be necessary to prove that the officer acted with malice, and that they knew their action would most likely cause harm, or that they had reckless indifference to the probability of harm.
This sets a high bar for misfeasance to be proven in court, as it is more likely a judge would find a public officer to be incompetent, than accept that they acted with malicious intent.
This was the finding of Federal Court Justice Bernard Murphy in June 2021, when he approved a settlement of $1.8 billion between the Commonwealth and victims of the robodebt scheme. (Please see Prygodicz v Commonwealth of Australia (No 2) [2021] FCA 634.)
The judge found there was “massive failure” and while it should have been obvious to government ministers and senior public servants that robodebt was “flawed”, he concluded the unlawful automated debt collection system was a “stuff-up” rather than a conspiracy.
Next legal steps in robodebt saga
This judgement was delivered before the damning report of the royal commission and there could be more legal action for damages in future.
Robodebt victims got their money back, but the settlement did not include damages for harm and distress caused by the former government’s actions. The royal commission found at least two people committed suicide when facing robodebt.
Under the Criminal Code Act section 142.2, public officials can be prosecuted for abuse of public office and jailed for up to five years. This does not include politicians.
The consequences of the terrible robodebt scheme still have a long way to run.
