In which the Liberal MP for Cook and former Australian Minister Scott John Morrison decides that social security law and in particular the Social Security (Administration) Act 1999 is open to interpretation, incorrectly cites the numbering of sections and subsection of this Act and assumes that a degree in applied economic geography gained in the 1980s allows him sufficient understanding of law to school a Royal Commissioner....
ROYAL COMMISSION INTO THE ROBODEBT SCHEME, official transcript, 14.12.2022, P.1816-P.1819, excerpt:
THE HON. SCOTT MORRISON MP: Because the advice that we received was there had been overpayment to the extent of around 3.6 per cent of the annual payments.
COMMISSIONER: I'm asking - you said you were familiar with the Act. I'm just wondering what you identified as the provision which would entitle you to ask people who hadn't been on about benefit for some period questions -
THE HON. SCOTT MORRISON MP: Well, the Department has - under the Act has an ability to raise debts. I don't think there's any dispute about that.
COMMISSIONER: That's not the question. On what basis were they to be asked for information using this online system as to their income?
THE HON. SCOTT MORRISON MP: Because -
COMMISSIONER: Because the idea was that they would be asked to confirm what the ATO said.
THE HON. SCOTT MORRISON MP: Well, they were asked to clarify what their income was at the time based on the fact that there was an identified irregularity between what their annual income was. And the process was built to seek to engage - this is my understanding.
COMMISSIONER: Sure.
THE HON. SCOTT MORRISON MP: The great frustration, as was explained to me, was the Department of Human Services had in engaging with individuals.
COMMISSIONER: Alright. Now, look, that's not my question. You said you were familiar with the Act. I'm asking you what you understood to be the legal basis for understanding how someone who may not have been on benefit for six months or three years or whatever to confirm or deny ATO data. Did you -
THE HON. SCOTT MORRISON MP: Because the Department, under the Act, has an ability to raise debts in relation to previous overpayments.
COMMISSIONER: That's a different issue from what they can ask people to do, you will appreciate.
THE HON. SCOTT MORRISON MP: Well, no, I would say that in relation to the identification of a debt, then it's not unreasonable for the Secretary to seek information as to whether they were kept appraised of the beneficiary's income at the time.
COMMISSIONER: It mightn't be unreasonable, but is it legal?
THE HON. SCOTT MORRISON MP: Yes, it is.
COMMISSIONER: Okay. And pursuant to what, in your understanding?
THE HON. SCOTT MORRISON MP: Well, under section 63, the Secretary may require a person to attend the Department.
COMMISSIONER: I'm sorry to do this to you, Mr Greggery.
THE HON. SCOTT MORRISON MP: And under section 192, they have the power to obtain information.
COMMISSIONER: Mr Morrison, this is your reading of the Act, or you had some advice about this?
THE HON. SCOTT MORRISON MP: Well, it's my plain English understanding of it.
COMMISSIONER: I see. Alright. Now, section 63 applies to a person who is receiving or has made a claim for social security payment, you appreciate?
THE HON. SCOTT MORRISON MP: Yes.
COMMISSIONER: Not somebody who in the past has received it?
THE HON. SCOTT MORRISON MP: Well, that is a matter open to interpretation.
COMMISSIONER: Well, yes. Section -
THE HON. SCOTT MORRISON MP: I think it is 65A.
COMMISSIONER: 65A?
THE HON. SCOTT MORRISON MP: Is that the section?
COMMISSIONER: Have you got them there with you?
THE HON. SCOTT MORRISON MP: No.
COMMISSIONER: Alright. So - are you doing this from memory, or have you got a record of some sort?
THE HON. SCOTT MORRISON MP: I've just noted the sections.
COMMISSIONER: Okay. You see, the position in relation to somebody who has been on benefit in the past but is no longer, is that you can go back 13 weeks under section 69 - 13 weeks prior. And that was not going to be this position, was it?
THE HON. SCOTT MORRISON MP: No. And in relation to the matters that were raised in the Executive Minute, they were non-specific as to what issues required legislative change or policy change. There's - generally there may be a need to do that. So -
COMMISSIONER: But you seem to have been quite familiar with the legislation. So why were you not interested in what legislative change was required? Because you must have wondered, didn't you, about the power to do these things?
THE HON. SCOTT MORRISON MP: Well, not at that point because it was still a proposal under development. Now, had it reached a point where it said that legislation was required, then I would have expected to see all of that, of course, and then would have made judgments about whether that would have been proceeded with. And in all likelihood, then I suspect it would not have.
COMMISSIONER: Look, 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 to the New Policy Proposal point. How is that you were content to just see "no legislation required" and leave it at that?
THE HON. SCOTT MORRISON MP: Because, Commissioner, that is how the Cabinet process works. I had been a member of Cabinet for a long time. And the way the Cabinet process works is it has the in-built disciplines across The Public Service to fully interrogate these matters to enable what is put forward to Ministers, who are dealing with multiple submissions - in this submission alone, there were 51 New Policy Proposals.
COMMISSIONER: Yes.
THE HON. SCOTT MORRISON MP: Multiple submissions. And it is part of the process for these matters to be interrogated. Now, in the Executive Minute I received, it said - it noted there are issues. That is not uncommon. I have seen that many times in the early stages.
COMMISSIONER: And then that vanished. So why were you content with that? That vanished. You were familiar with the Act. Why didn't you want to know how it was that legislative change wouldn't be required for this proposal to go back some years?
THE HON. SCOTT MORRISON MP: Because I was satisfied that the Department had done their job. I had great respect for the Department and for their professionalism and for their knowledge of these issues, and - and I would never have conceived that had there been legal advice suggesting this was unlawful - it had never entered my imagination that that would not be raised with Ministers.
COMMISSIONER: Okay. But you have a Minute that says legislative change is required, and it's your own Department that's saying that. Then you get a New Policy Proposal that says legislative change is not required. Why don't you ask your own Department, "So how does that happen?”
THE HON. SCOTT MORRISON MP: Because I didn't see it as necessary, because they had - they had affirmed it so strongly and that I had great faith in the Department to work through the matters that they were working through…...
NOTES
1) Mr. Morrison refers the Commissioner to "sec 63, the Secretary may require a person to attend the Department" then narrows it down further to "I think it is 65A". There is no 65A in the Act. There is a "61A Deduction at request of recipient--other payments" provisions, "63A Proof of life certificate" provisions and "66A General requirement to inform of a change of circumstances etc." provisions. Perhaps Mr. Morrison meant to cite "66A". However that section does not deal with persons who are no longer receiving benefits and it was his understanding of the time limit provisions in "SECT 69 Person who has received a social security payment or who has held a concession card" that the Commissioner was querying.
2) Despite details of the 11 June 2021 judgment of the Federal Court of Australia found in Prygodicz v Commonwealth of Australia (No 2) - Summary — "In the course of the proceeding the Commonwealth admitted that it did not have a proper legal basis to raise, demand or recover asserted debts which were based on income averaging from ATO data. The evidence shows that the Commonwealth unlawfully asserted such debts, totalling at least $1.763 billion against approximately 433,000 Australians. Then, including through private debt collection agencies, the Commonwealth pursued people to repay these wrongly asserted debts, and recovered approximately $751 million from about 381,000 of them." — Mr. Morrison insisted to the Commissioner that the federal government's actions were legal.
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