Extract from The Guardian
Royal commission into robodebt
Former PM’s verbose approach in stand meant it took an eternity to establish his position that he didn’t see vital legal advice on the scheme and can’t say why.
Thu 15 Dec 2022 01.00 AEDT
Last modified on Thu 15 Dec 2022 07.51 AEDTMorrison was asked on Wednesday what he knew about the legal problems with the disastrous robodebt scheme he implemented as social services minister in 2015, agreed to expand as treasurer and defended as prime minister in 2019.
He was expansive in his answers and keen to respond. Often he was told to wait for the question to be asked. Observers lost count of how many times he was then told to answer them – rather than bless the room with what commissioner Catherine Holmes called “unnecessary detail”.
At one stage, Morrison, who noted he was not a lawyer, appeared to quibble with Holmes, a former supreme court judge, about the Social Security (Administration) Act. But he was happy to assist.
Morrison’s appearance was important because he represents political responsibility for a scheme that wreaked havoc on the lives of thousands of Australians, some of whom were among the most vulnerable in the country.
As his junior minister at the time, Marise Payne told the royal commission on Tuesday: “Essentially responsibility is always borne by ministers.”
Senior counsel assisting, Justin Greggery KC, initially tried to establish Morrison’s knowledge of the robodebt scheme’s problems as it was being developed.
Greggery sought to do this in a methodical way – as he has with all senior witnesses. He asks what a person knew in 2015. Then, he asks what they did with that knowledge (either in 2015 or later when robodebt hit the headlines). If they didn’t know, why not? Why didn’t they seek out the knowledge, especially if it was their responsibility to know?
Morrison’s approach in the stand meant it took an eternity to get to the final position, but it was essentially:
Morrison was told (by people in the Department of Human Services, he could not recall whom) that the robodebt plan was not a new policy but an expansion of a long-standing practice of using annual tax data to raise debts against fortnightly welfare payments (this is disputed by experts and the commissioner was very sceptical).
Due to this, he didn’t ask for clarification about why officials had briefed him that legal change was needed in late February 2015, but said no legislation was required in the policy proposal soon after in early March.
He didn’t ask more questions about it because he had “faith” in his department and it was “unthinkable” they wouldn’t share the 2014 legal advice they had which warned the scheme might be unlawful.
Morrison pointed out that the public servants working in the Department of Social Services and Department of Human Services had an “obligation and duty” to warn ministers if they knew what they did.
The Department of Social Services legal advice sought in late 2014 was, as Morrison himself noted, “clear”. His argument was that he never saw it, that it was outrageous that it wasn’t provided to him, and that if he had got it then there would be no robodebt – and no royal commission.
The obvious question is why he never saw it and Morrison could not say. This was “distressing”, he said.
Greggery detoured from the questions of what Morrison knew in 2015 to paint a picture of the considerations of the time. He noted the Senate was, as Morrison conceded, “hostile”. He pointed out Morrison had portrayed himself as a “tough welfare cop on the beat”. He referred to the government’s desire to balance the budget and find budget savings.
As Morrison’s appearance came to a close, Greggery raised the prospect that these “cumulative” factors may have meant public servants felt they could not raise robodebt’s legal problems with him.
They may have felt “constrained”. Greggery raised this prospect after some evidence – almost entirely vague so far – from public servants who have told the commission of unspecified pressures to find budget savings, or work up the robodebt plan without legislation. No one has tied this to Morrison, but Greggery wanted to give him the chance to respond, in case the evidence points this way later.
Morrison rejected the notion public servants might have been “constrained”. It was “inconceivable” they wouldn’t share such advice. Morrison called this the “critical failure”.
Holmes also poked and prodded at some of his responses. At one stage Morrison quoted from the Social Security (Administration) Act to support his understanding of why Centrelink could demand people respond to their debt letters. Holmes pointed out Morrison was clearly interested in social security law.
“If you were so familiar with the act, you ought to have been concerned about whether the act was being complied with in the development of this proposal,” she suggested. Morrison retreated to his faith in his department.
When he raised the claim that the method used in robodebt had gone back to 1989, Holmes asked how he knew this.
Morrison said, vaguely, that it would have “come up” in briefings or conversations with Department of Human Services staff. He couldn’t recall who told him. He said it was non-controversial, an accepted fact among staff.
Holmes appeared wholly unconvinced. She asked him to provide more evidence, which Morrison agreed to do. As the brave Centrelink worker Colleen Taylor noted in her evidence on Tuesday, there is little useful comparison between the income averaging that occurred before robodebt and that which occurred since.
The questionable suggestion that income averaging was not new and that Centrelink could demand responses to debt letters dating back years was first raised by a Department of Human Services official, Scott Britton, in March 2015. The commission heard that evidence earlier this week.
An email showed to the commission showed Britton was pushing back against legal concerns raised by DSS. He was not employed by the department as a lawyer and had been involved in the design of the robodebt program.
Whether Morrison took Britton’s word for it is a likely line of inquiry.
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