Extract from The Guardian
Public servants had legal advice saying the robodebt proposal was unlawful long before Scott Morrison announced it. How was the advice never delivered to him?
Sat 17 Dec 2022 01.00 AEDT
Last modified on Sat 17 Dec 2022 01.02 AEDT“Just like they won’t cop people coming on boats, they are not going to cop people who are going to rort that system,” Morrison said of the social security system he was now responsible for.
Speaking on Sky News, the new social services minister volunteered a phrase he would come back to regularly over the next few weeks.
“So there does need to be a strong welfare cop on the beat,” he said, “and I will certainly be looking to do that.
“I want to make sure this system helps the people who most need it”.
The next morning, 22 January, the Sydney Morning Herald reported what it called Morrison’s warning to “would-be dole bludgers, disability support pension rorters and terrorists who want to wage war while on government benefits”.
“He stopped the boats, now he’s going to stop the rorts.”
Over the next six months, Morrison used the phrase “welfare cop” in at least eight interviews, mostly on talkback radio.
Sometimes it seemed Morrison was the “welfare cop” himself, at other times it was something he was putting in place. But it was almost always “strong”.
In the May budget, Morrison delivered what he had promised: a “strong welfare cop on the beat”. There was very little detail, but the best clues about what was coming were on talkback – not in the budget papers.
‘A fairly unextraordinary principle’
This week, more than seven years later, Morrison was compelled to appear at a royal commission investigating why and how the unlawful Centrelink debt recovery program was established in 2015 and ran until November 2019, ending in a $1.8bn settlement with hundreds of thousands of victims.
Morrison launched what became known as robodebt as minister, expanded it as treasurer and defended it as prime minister.
It became clear this week that the royal commission views Morrison’s “welfare cop” as more than just cheap and nasty politicking.
He told the royal commission being the “welfare cop” was “one of my many responsibilities”.
“And that’s how I colloquially described it often. I’m the son of a police officer.”
The commission has uncovered that public servants had legal advice saying the robodebt proposal was potentially unlawful months before it was announced in the 2015 budget.
A key question the commission must answer is why the advice was never passed on to Morrison.
One possible theory put forward by the senior counsel assisting the commission, Justin Greggery KC, was that over a few months in early 2015, those public servants were only telling Morrison what they thought he wanted to hear.
Greggery pointed to “cumulative” factors. He noted Morrison had never asked to see any legal advice, despite being initially told there might legal issues with a robodebt-style plan. Greggery noted legislating was unfavourable because of a “hostile” Senate, where some of Tony Abbott’s welfare policies had already been blocked. The budget savings were also attractive in an era of austerity.
Greggery suggested Morrison’s “welfare cop” rhetoric “locked in” something he expected the department to deliver, even before it had finalised any proposals.
“On welfare cop, with respect, I think you read too much into that,” Morrison replied. “I was simply articulating, I think, a fairly unextraordinary principle, and I don’t resile from it.”
He said later: “The critical failure in the system … was that this advice, which had been sought prior to my turning up, was not brought to the attention of ministers. And I believe there was an obligation and duty to do so.”
Morrison launches the ‘welfare cop’
In his first meeting with the boss of the Department of Human Services, Kathryn Campbell, in late 2014, Morrison is said to have asked for a briefing on the Centrelink compliance regime and requested options to strengthen it.
He “saw a lot of similarities” with the immigration system.
Before the brief had landed on his desk, Morrison was on a media blitz. Ray Hadley was particularly fixated on the idea terrorists were receiving welfare payments and that the disability support pension – a regular target of the Daily Telegraph – was being rorted. On the latter, Morrison would cite a Coalition government crackdown that three years later was deemed an abject failure.
It probably cost more to conduct the eligibility reviews than it saved from the few people moved off the payment.
On 26 January, Hadley read out the Centrelink fraud number as he asked Morrison if there would be a “more fervent attempt to get these things under control?”
Morrison thanked him for citing the number. He said he would be asking his department to “strengthen the compliance, enforcement and investigative capability” of his departments to “make sure we do have a strong welfare cop on the beat”.
“I notice over the summer some people have taken offence to me using that phrase,” he said. “Well, I make no apology for it.”
The department came back with a brief on 12 February 2015. It outlined a number of proposals, including an outline of what became the robodebt scheme. With a small increase in funding for Centrelink, the measure was predicted to save a net $1.2bn. The numbers, it turned out, were fanciful, but the measure was the most lucrative of the nine proposals.
As Morrison himself pointed out this week, the plan had been knocked around by Department of Human Services staff well before he came to the portfolio.
In November 2014, the Department of Social Services’ lawyers suggested the idea might be unlawful. DSS policy advisers were appalled and warned it was flawed.
By the February 2015 brief for Morrison, the legal and policy concerns had been significantly “watered down”.
Morrison signed the brief on 20 February, asking his officials to come back with a formal proposal.
That arrived on 4 March 2015. The legal concerns had disappeared.
In parliament, Morrison announced the new Centrelink debt recovery system – a “welfare cop on the beat” – would commence in July 2015.
“We are going after the cheats,” he said. “We are going to stop those rorters. This will deliver $1.7bn in gross savings returned to the government in the budget.”
Morrison became treasurer a few months later.
‘Make it stop’
Sandra Bevan wasn’t a “cheat”. She wasn’t a “rorter”. But four years later, the welfare cop turned up at her house in the form of a $3,000 Centrelink debt letter.
Morrison was now prime minister. Bevan, who worked in palliative care, was a single mother with four sons.
Bevan told the royal commission that no matter how vigorously she insisted to Centrelink she had reportedly her income correctly, it wouldn’t listen. Like many caught up in the program, Bevan said she was made to feel like a criminal.
“There were these threats of taking money directly out of my pay, or out of my bank account, [or] from my tax return,” Bevan said. “It was such a weight on my shoulders.
“I do remember driving home at night just beside myself with worry about this money, and thinking, ‘I could just drive my car into a tree and make it stop.’”
Sobbing, Bevan went on: “But my kids needed me. They’d already lost their dad. And I was trying my best to keep a roof over our head.
“I was working so hard and going into every shift trying to be cheerful and happy for my clients, because I didn’t want to let on to them that this was happening to me.”
The “debt” was being held over Bevan so she would do the investigative work that Centrelink compliance officers had previously done: in particular, find payslips or bank statements to accurately calculate a debt.
Though Morrison conceded the system had been found to be unlawful, he said if debts were inaccurate, it had been “important for the recipient to inform the government of that information”.
The commission may yet find the theory that Morrison’s “welfare cop” rhetoric “constrained” officials was immaterial to the implementation of an unlawful policy.
The public servants working for Morrison certainly had a duty to inform him of the law. But Cassandra Goldie, the chief executive of the Australian Council of Social Service, told the royal commission this week: “The fact that something is legislated doesn’t necessarily make it right.”
Goldie said robodebt had created a “culture of fear”. Her colleague, Charmaine Crowe, said irrespective of its legality, the government had continued with robodebt despite knowing it was “causing harm”.
For this Morrison cannot deflect blame on to the public service. He accepted this week he understood the annual data being used by Centrelink to raise debts was not always accurate to calculate someone’s fortnightly income.
As Bevan concluded her evidence this week, there was an eerie echo of one of Morrison’s talkback interviews with Alan Jones on 29 January 2015.
Morrison suggested parents of school-leavers were picking up Centrelink brochures “as if it’s some sort of catalogue”. At the time, the government had proposed denying unemployment benefits to applicants under 25 for a whole month.
Bevan, whose unlawful debt was wiped in May 2020, told the royal commission she would “never access Centrelink benefits ever again”.
“My son, when he left school, was eligible for Newstart allowance. Because of my experience … we didn’t apply.”
Perhaps the “welfare cop” still accomplished its mission.
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