Public hearings in the Royal Commission into the Robodebt Scheme have been underway since 31 October 2022.
Currently Hearing Block 3 is coming to an end and the final round of public hearings, Hearing Block 4, is due to commence on 20 February 2023.
This week evidence has been heard from a number of significant political & public service 'operatives':
former
Senior Media Adviser, Office of the Minister of Human Services (Aug
2016-Nov
2017),
Rachelle
Miller;
former
Agency
Spokesperson,
Department of Human Services (2000?-May
2019)
&
current Agency
Spokesperson,
Services Australia, Hank
Jongen;
Liberal
MP for Aston & former Minister
for Human Services (8.2.2016
to 20.12.2017),
Alan
Tudge; and,
former Liberal MP for Pearce & former
Minister for Social Services (21.9.2015
to 20.12.2017),
Christian
Porter.
However, before addressing their sworn testimony, a review of last week's hearings may be in order from journalist Rick Morton.
The
Saturday Paper,
28 January 2023:
Evidence
heard during one of the most incendiary weeks at the robo-debt royal
commission has revealed the extraordinary lengths two federal
government departments went to in order to cover up a
multibillion-dollar crime that spanned years.
By
early 2017, two years after the Centrelink debt fabrication scheme
had begun, there were two external agencies with prying eyes
threatening to expose the legal fiction on which the entire program
rested.
The
Commonwealth Ombudsman was investigating, and damning decisions were
also coming back in greater numbers from the Administrative Appeals
Tribunal.
Both
the Department of Social Services and the Department of Human
Services adopted a “pattern of behaviour” that would deliberately
mislead the ombudsman, ignore directions from the AAT and conspire to
keep the government’s dodgy decisions in-house by refusing to ever
challenge them past a first-round loss with the tribunal.
It
was this latter strategy – according to Emeritus Professor Terry
Carney, who sat on the AAT and a predecessor tribunal for decades
until the former Coalition government suddenly ended his tenure in
2017 – that was the main reason robo-debt was “able to operate
for so long and at such costs to applicants”.
His
evidence and the other evidence given this week is the clearest
account yet of the extraordinary efforts the government and its
departments went to in the name of continuing a scheme that they knew
was unlawful and was raising fake debts. Tens of thousands more
people were dragged into the mess while this was known.
“Had
there been a public ventilation of what the AAT was ruling, there
wouldn’t have been an instant change to, or abandonment of, the
scheme,” Carney told the hearing on Tuesday.
“But
it would have been a lot quicker than the three or more years that
nearly half a million people had to suffer the raising of unlawful
debts against them.”
The
fact the Commonwealth never appealed against a single decision was
“unprecedented”, Carney said. This was even more startling a
strategy when it became clear lawyers and appeal branch managers in
the Department of Human Services (DHS) knew what was going on and did
nothing to change course.
"Everybody
needs to understand how many thousands of people were affected so
badly by a system that was put in by a government department."
Under
Commonwealth model litigant obligations and separate responsibilities
enshrined in social security law, the federal government is required
to have “due regard” to AAT decisions and should act to contest
them where it involves a significant matter of law or policy or where
different decisions create “inconsistencies” in the application
of policy.
Former
DHS appeals branch manager Elizabeth Bundy, a qualified lawyer, told
the Royal Commission into the Robodebt Scheme on Tuesday that she
probably didn’t read one of Professor Carney’s adverse tribunal
decisions that was explicitly sent to her for monitoring “because
it was very long and legalistic”.
Emails
between Bundy and a lawyer in her team, Damien Brazel, sent in late
March 2017, show they understood the significance of the Carney
decision because it involved the use of income averaging from the
“manual” pilot stage of robo-debt, a domain they say they
believed was not an issue.
“We
need to escalate this ASAP,” Bundy wrote to Brazel on March 24,
suggesting they should inform DHS deputy secretary Malisa Golightly.
The
following day, a Saturday, at 8.35pm, Darren Zogopoulos, a manager in
DHS, emailed about a “third set aside … decision” with a note
of alarm.
“This
one is very interesting,” he wrote. “I would be concerned of
[sic] legal services didn’t contest this. If they don’t, it will
open up Pandora’s Box.”
Not
only did they not contest this or any other decision, however, but
DHS lawyers met some of the decisions with institutional arrogance……
It
is helpful to go through this time line in detail.
The
sequence of events begins around January 11, 2017, when DSS officials
– including former director of payment integrity and debt strategy
Robert Hurman – became aware of the ombudsman’s investigation.
From
this date, the fuse of bureaucratic panic was lit.
Within
hours, Hurman had been sent the only written advice his department
had ever sought about the legality of the scheme: the 2014 advice
written by Simon Jordan and second-counselled by senior lawyer Anne
Pulford, which was unequivocal in its statement that the fundamental
basis of robo-debt was illegal.
What
to do?
Greggery
laid out the department’s blueprint for deception.
“I
suggest to you there was a common understanding within DSS – from
the time the ombudsman’s investigation was received – to go on
the front foot and defend the scheme as being both lawful and
accurate in raising debts,” he said to Hurman.
“There
was a pattern of behaviour from the start by people within DSS, of
which you were a part, and it was designed to establish the
lawfulness of the scheme in the representations that it made to the
ombudsman, irrespective of the true position.”
Hurman
responded that they “were trying to show it in a positive light”,
a description that rankled the senior counsel.
“Yes,”
Greggery said, “but it’s a bit hard to put a positive light on
something that you understood was being conducted unlawfully
according to the advice that had been given in 2014.”
Hurman
and colleagues commissioned a new set of legal advice from Pulford,
the same lawyer who co-authored the 2014 advice, only this time the
answer to ostensibly the same proposition was that income averaging
could be used to raise a debt.
This
“2017 advice” wasn’t delivered until later in January. Six days
before it arrived, on January 18, DSS officials attended a
walkthrough with DHS leadership about the robo-debt scheme. About the
same time then ministers Alan Tudge and Christian Porter were making
public statements asserting the lawfulness of the program.
Although
Hurman was on leave for this January 18 walkthrough, he authored an
email that stated DSS staff were “comfortable that the current
process is lawful and clear”.
Greggery
asked how this could have been so. The walkthrough happened after the
2014 advice had been recirculated, noting the scheme was unlawful,
and before the new Pulford advice had been received.
“So
how could you be satisfied, or how could you represent that senior
department staff were comfortable that the current process was both
lawful and clear,” Greggery pressed, “in circumstances where you
had been given contrary advice?”
Initially,
Hurman had believed the original advice should be withheld. After a
tense back and forth between the policy and legal teams, a decision
was made to send both to the ombudsman.
However,
on February 23, Greggery said, Hurman learnt that only the 2017
advice had gone to the ombudsman. The legal opinion acknowledging the
scheme was likely unlawful was not sent. Former branch manager
Russell de Burgh, Hurman’s boss, accepts that the 2017 advice was
the only document the department ever had that could be construed as
suggesting the scheme was even remotely lawful…….
Read
the full article here.
