The federal public service sector appears to have spent most of the seven months since the Robodebt Royal Commission ended in circling the wagons

 

On Friday 7 July 2023 the Royal Commission into the Robodebt Scheme tabled its final report and recommendations.

Three days later on Monday 10 July 2023, the Australian Public Service Commission (APSC) posted online an open letter which was reportedly emailed 170,000 federal public servants, "A message to you from PM&C Secretary Davis and APS Commissioner de Brouwer on the Royal Commission into the Robodebt Scheme", which stated in part:

Following the release of the report on Friday, a taskforce led by the Department of the Prime Minister and Cabinet, the Attorney-General’s Department, and the Australian Public Service Commission will be established to support Ministers in preparing the Government’s response.

Separate to this, the APSC will oversee an independent process to determine if public servants with adverse findings have breached the APS Code of Conduct. This process will be established under the APS Commissioner’s powers in the Public Service Act 1999. It is designed to be fair, independent, and consistent.

The APSC has engaged Mr Stephen Sedgwick AO to exercise these powers as an Independent Reviewer. Mr Sedgwick will make inquiries and determinations about whether an individual referred for inquiry has breached the APSCode of Conduct.

On 3 August 2023 the APSC revealed that:

The Commissioner has now received 16 referrals to the APSC’s centralised code of conduct mechanism, consisting of:

• current APS employees named in the sealed section of the Royal Commission’s report

• former APS employees referred by their most recent Agency Head, and

• former Agency Heads referred by the Minister following advice from the Secretary of the Department of the Prime Minister and Cabinet.

All referrals for investigation of potential breaches of the APS Code of Conduct have now been made and the Code of Conduct Taskforce in APSC has notified all referred individuals. An assessment will now be undertaken to establish in each case whether there are sufficient grounds to commence an investigation into suspected breach(es) of the APS Code of Conduct. The APSC will not provide details on individual cases or any further breakdown.....

Mr Stephen Sedgwick AO has been appointed as an independent reviewer to make inquiries into possible breaches of the APS Code of Conduct by current and former APS employees.

Ms Penny Shakespeare has been appointed as a supplementary reviewer to make inquiries into the conduct of former Agency Heads. The Public Service Act 1999 requires that the reviewer for referrals under section 41(2)(k) is a current senior public servant.

An independent sanctions adviser will be appointed, as required, to make recommendations to the relevant Agency Head, should any current APS employees be found to have breached the APS Code of Conduct.

On 8 February 2024 APS again updated its online information concerning the review:

Since the last update on 3 August 2023, the Code of Conduct Taskforce in the APSC has continued inquiries into all 16 referred matters.

To date:

• 15 investigations have proceeded to the issuing of notices outlining the grounds and categories for potential breach of the APS Code of Conduct.

• Of the 15 investigations, 4 individuals have been issued a preliminary determination that they have breached one or more elements of the APS Code of Conduct; 11 investigations remain current.

• One investigation has concluded as the individual's actions did not meet the threshold to issue a notice of suspected breach.

Final determinations and, if appropriate, decisions about sanctions will be communicated to individuals once preliminary determinations are finalised. The timeframe for the conclusion of inquiries depends on various factors, including the complexity of each matter, the number of submissions and any extensions that may be requested by respondents.

The 16 matters are complex, with a significant volume of evidence. Sufficient time is required to allow the Independent Reviewers, Mr Stephen Sedgwick AO and Ms Penny Shakespeare, to conduct the inquiries in a manner that is robust and affords respondents appropriate procedural fairness.

Elsewhere on the APSC website it was noted that:

The decision about the employment arrangements for public service employees identified in the Royal Commission report is a matter for their current employer. Agency Heads can take action before a formal investigation has started or concluded.

In considering the most appropriate action, the employer needs to properly consider a number of factors including the information provided in the report and the seriousness of the allegations, as well as the particular circumstances of the individual’s employment including their current roles and responsibilities.

The APSC and individual departments and agencies will not be commenting on the employment arrangements of individuals because, to do so, may inadvertently disclose content contained in the sealed chapter or risk prejudicing ongoing inquiries.

Based on APSC's own statements it does not appear very likely that any of the16 public servants identified by the Royal Commission will actually lose their public service employment.

On 8 February 2024 media outlets gave pared down accounts of the progress of this independent review. For example......

ABC News, 8 February 2024:

Four current or former public servants have breached the Australian Public Service code of conduct in relation to the Robodebt scheme, according to the preliminary findings of an independent investigation.

Last year, the Australian Public Service Commission (APSC) launched an investigation into 16 public servants who were identified by the royal commission into the unlawful debt recovery program as being involved in it.

The royal commission said the scheme was an extraordinary saga of "incompetence and cowardice" that was "neither fair, nor legal".

It recommended a number of people be referred for civil and criminal prosecution.

The findings form part of the ongoing APSC investigation into whether the public servants in question breached their responsibilities as described in the Code of Conduct.

The Code of Conduct, which is enshrined in the Public Service Act, requires public servants to act "honestly and with integrity".

It requires they maintain confidentiality and use their power and inside information appropriately.

It also forbids them from providing "false and misleading information" in the course of their work.

The APSC has not disclosed which elements of the code the four individuals are accused of breaching.

Breaching the code is not an offence, but can carry sanctions or lead to dismissal.

Another 11 individuals remain under investigation. One individual has been cleared of breaching the code.

Former Home Affairs secretary Mike Pezzullo was last year dismissed from his role after an independent investigation found he had breached the Code of Conduct on 14 occasions.....

BACKGROUND

Mediastatement on the inquiry into possible breaches of the APS Code ofConduct by Mr Michael Pezzullo AO

On 24 September 2023, the Australian Public Service Commissioner, Dr Gordon de Brouwer, received a referral from the Minister for Home Affairs, the Hon Clare O'Neil MP, after concerns were raised in the media about the Secretary of the Department of Home Affairs, Mr Michael Pezzullo AO.

In accordance with the provisions of the Public Service Act 1999, the Commissioner appointed Ms Lynelle Briggs AO to lead an independent inquiry into these matters and report to the Prime Minister.

The Inquiry was conducted under the provisions of the Public Service Act, and consistent with the principles of procedural fairness.

Ms Briggs determined that Mr Pezzullo breached the Australian Public Service Code of Conduct on at least 14 occasions in relation to 5 overarching allegations, those allegations being that Mr Pezzullo:

• used his duty, power, status or authority to seek to gain a benefit or advantage for himself,

• engaged in gossip and disrespectful critique of Ministers and public servants,

• failed to maintain confidentiality of sensitive government information,

• failed to act apolitically in his employment,

• failed to disclose a conflict of interest.

By way of sanction, Ms Briggs recommended that Mr Pezzullo’s appointment as a Secretary be terminated pursuant to section 59 of the Public Service Act.

Section 72A of the Public Service Act provides strict restrictions on the disclosure of information obtained as part of an Inquiry into possible breaches of the Code of Conduct. In addition, the Privacy Act 1988 applies to the use and disclosure of personal information obtained during an inquiry. However, given the public nature of the allegations and the importance of upholding confidence in the Australian Public Service, it is in the public interest that the overarching breach findings and the recommended sanction are made available in this case.

No further information regarding the contents of the Inquiry will be provided by the Australian Public Service Commission.

27 November 2023

~~~~~~~~~~~~~~~~~~

Cartoons of the Week

 

A tale of two former leaders

Scott John Morrison & Donald John Trump at the height of their  political careers before the fall into public disgrace and infamy

Getty Image circa Sept. 2019

As both men are seen in Australia in July 2023

Blameless
Cathy Wilcox

In a pickle
Jon Shakespeare

Australian twitterverse receives praise from Commissioner heading the Royal Commission into the Robodebt Scheme

 

Thank you all for your coverage of #RoboDebtRC 👏@lukehgomes 🙏@SquigglyRick 🙏@maximumwelfare 🙏@strangerous10 🙏@DarrenODonovan 🙏

Thank you @Asher_Wolf for kicking off scrutiny of #RoboDebt in the first place 🤩

And a massive THANK YOU to all who followed and cared 🥹💜 https://t.co/lUAonCysN5

— Noely ⚡️🏐 (@YaThinkN) March 10, 2023

 

Recorded remarks made by Commissioner Catherine Holmes AC SC on Friday 10 March 2023, the final day of hearings of the Royal Commissioner into the Robodebt Scheme. The Commission's final report will be delivered in June 2023.

 

Tweet of the Week

 

#RobodebtRC Former DHS Minister Stuart Robert says he had a “Massive Personal Misgiving” about figures he gave in media interviews including to the ABC, but as a cabinet minister “That’s what we do”😳

Commissioner: “Misrepresent things to the Australian Public?”💥 pic.twitter.com/qL285ERgC2

— stranger (@strangerous10) March 2, 2023

 

State of Play 2023: Royal Commission into the Robodebt Scheme in entering the final tranche of public hearings

 

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.

On Wednesday 14 December 2022 the Liberal MP for Cook and former Prime Minister, former minister for Immigration and Border Protection, Social Services, Treasury, Public Service, Health, Finance, Industry, Science, Energy and Resources, Home Affairs & Treasury. Scott Morrison, finally has to give evidence under oath at the Royal Commission into the Robodebt Scheme

 

Former prime minister Scott Morrison with fellow Opposition MPs after a censure motion was moved against him in parliament, Wednesday, November 30, 2022. © Lukas Coch / AAP Images, in The Monthly, 30.11.22 

On Wednesday 14 December 2022 the Liberal MP for Cook, Scott John Morrison, as former prime minister (Aug 2018-May 2022), former treasurer (Sept 2015-Aug 2018, May 2021-May 2022) and former minister for social services (Dec 2014-Sept 2015) will give sworn evidence before the Royal Commission into the Robodebt Scheme.

He is the only witness called before the Royal Commission on that day, in a week which will see a total of fourteen witnesses called to give evidence.

Although, Morrison avoided giving evidence in person during the Inquiry into the Appointment of the Former Prime Minister to Administer Multiple Departments, preferring instead to put his case and parry the Inquiry’s questions through his legal team, that opportunity was not open to him in this instance.

To avoid disappointment, anyone watching a live broadcast of the Member for Cook giving evidence next Wednesday — or reading whatever statements he makes afterward — should not anticipate any expressions of genuine regret for his policies, words, or actions taken over the course of creating and implementing the Centrelink automated debt creation and recovery process which was in operation between 2015 and 2019.

BACKGROUND

Report of the Inquiry into the Appointment of the Former Prime Minister to Administer Multiple Departments, Executive Summary, 25 November 2022, excerpts:

17. Mr Morrison does not appear to have attached any significance to the fact that, from the time of its making, each appointment operated in law to charge him with responsibility for the administration of the whole department. There was no delineation of responsibilities between Mr Morrison and the other minister or ministers appointed to administer the department. In the absence of such delineation, there was a risk of conflict had Mr Morrison decided to exercise a statutory power inconsistently with the exercise of the power by another minister administering the department. The 2021 appointments were not taken with a view to Mr Morrison having any active part in the administration of the department but rather to give Mr Morrison the capacity to exercise particular statutory power should the minister charged with responsibility for the exercise of that power propose to do so in a manner with which Mr Morrison disagreed, or fail to make a decision that Mr Morrison wanted to be made. In terms of the functioning of the departments this was as Dr Gordon de Brouwer PSM, Secretary for Public Sector Reform, observes “extremely irregular”……

19. Given that the Parliament was not informed of any of the appointments, it was unable to hold Mr Morrison to account in his capacity as minister administering any of these five departments. As the Solicitor-General concluded, the principles of responsible government were “fundamentally undermined” because Mr Morrison was not “responsible” to the Parliament, and through the Parliament to the electors, for the departments he was appointed to administer.

[my yellow highlighting]

20. Finally, the lack of disclosure of the appointments to the public was apt to undermine public confidence in government. Once the appointments became known, the secrecy with which they had been surrounded was corrosive of trust in government.

The Saturday Paper, Editorial, 3 December 2022:

Like a veteran troubadour, Scott Morrison rose from the backbench on Wednesday and delivered all the old hits: indignation, self-pity and sly evasions. The moment – parliamentary debate of his historic censure for secretly swearing himself into several portfolios as prime minister – demanded new notes, of course, namely songs of contrition. But Australians were kidding themselves if they thought they’d hear them.

Last week, former High Court justice Virginia Bell wrote that Morrison’s weird and secretive acquisitions were “corrosive of trust in government” and found that he had attempted to swear himself into a sixth ministry, Environment. Bell found that the secret assumption of powers was not illegal but gravely unorthodox and concerning, and wrote – despite Morrison’s previous justifications – that three of the five appointments he made for himself had little or nothing to do with the pandemic. She also wrote: “Being appointed to administer multiple departments seems an exorbitant means of addressing Mr Morrison’s concern about his ministers’ exercise of statutory power in cases that were not subject to Cabinet oversight”.

Despite the solicitor-general arriving at a similar conclusion, and the disgust of his own colleagues when they learnt, sometimes through the media, that he had secretly appointed himself to their portfolios, Morrison spoke with characteristic defiance. He told parliament the censure motion was “political intimidation” to which he would bravely refuse to submit, and with an air of brittle righteousness invoked the crisis of the pandemic: you have no right to judge me, he was saying, because you weren’t there in the seat of power during the storm. Incredibly, Morrison also said that had he been asked about his secret manoeuvre – of which his closest colleagues were oblivious – then he would have answered honestly.

With the lone exception of Bridget Archer, the Liberals decided to back their man. Opposition Leader Peter Dutton called the motion “a stunt” – a recurring party line – and their side of the chamber emptied after Morrison’s speech in theatrical protest. As they did, MPs filed past Morrison and shook his hand.

It is confirmation, if we needed it, that Morrison was a dangerously loose unit. He was not, as some in the press gallery once argued, an “extreme pragmatist”. He was paranoid, bullying and profoundly allergic to scrutiny. Prolifically deceptive, he was also thin-skinned and prone to unsavoury fits of rage and self-pity. His contempt for the media is obvious, but that contempt also extended to his own cabinet and basic conventions of democracy. And thus, to the Australian people. [my yellow highlighting]

And so, on Wednesday, parliament successfully passed its motion 86-50. It made Morrison the first prime minister, or former prime minister, to be censured in the house. It was proportionate acknowledgement of a historically deviant act and a suitably ignominious distinction for a man who was grossly unfit for the office he once held.

Cartoons of the Week

Cathy Wilcox

Matt Golding

Evidence before the Royal Commission into the Robodebt Scheme hints at possibility Scott Morrison knew that the infamous Robodebt scheme was unsupported by social security legislation & regulations and therefore unlawful

 

Scott John Morrison the current Liberal MP for Cook sits on the Opposition benches in the House of Representatives of the Australian Parliament, holds no parliamentary party positions and sits on no parliamentary committees.

As Minister for Social Services from 23 December 2014 to 21 September 2015, Treasurer from 21 September 2015 to 28 August 2018 and Prime Minister from 24 August 2018 to 23 May 2022, Morrison had considerable influence on the creation and implementation of social security policy and programs.

Including the infamous and unlawful ‘Robodebt’ debt recovery scheme which appears to have its genesis during his time as Minister for Social Services and Marise Payne’s time as Minister for Human Services in the Abbott Government.

Christian Porter followed Morrison as Minister for Social Services from 21 September 2015 to 20 December 2017, Stuart Robert followed Payne as Minister for Human Services from 21 September 2015 to 18 February 2016 and later becoming Minister for Government Services from 29 May 2019 to 30 February 2021 responsible for Services Australia, while Alan Tudge was Robert’s Assistant Minister for Social Services from 30 September 2015 to 18 February 2016 and then Minister for Human Services from 18 February 2016 to 20 December 2017, thus all three men had a hand in refining and implementing the punitive horror that was Robodebt as envisioned by Morrison and Payne. 

Approximate tenures of assorted departmental heads during the period December 2014 to December 2021:

• Secretary of Dept. of Social Services - 

Finn Pratt (18 December 2013 to 18 September 2018)

Kathryn Campbell (18 September 2018 to 22 July 2021)

Raymond Griggs (22 July 2021 to present day)

 

• Secretary of Department of Human Services - 

Finn Pratt (September 2009 to 7 March 2011)

Kathryn Campbell (7 March 2011 to 17 September 2017)

Carolyn Edwards, Acting Secretary, Department of Human Services (September 2017)

Renée Leon (18 September 2017 to 16 March 2020)

 Name change to Services Australia -

Chief Executive Officer Rebecca Skinner (16 March 2020 to present day)

 

The commencement of successful legal actions, in an individual filing by a person who received a debt recovery notice and a class action on behalf of a group of persons receiving Centrelink pensions, benefits or allowances who had received debt notices, saw the Morrison Government end the Robodebt scheme. 

The Royal Commission into the Robodebt Scheme was established on 18 August 2022 and commenced its public hearings into the circumstances surrounding this scheme on 22 September 2022.

In particular the Royal Commission is seeking information with regard to the following matters:

• who was responsible for the scheme’s design, development and establishment

• why it was considered necessary or desirable

• any advice or processes that informed its design or implementation

• any concerns raised about its legality or fairness

• the use of third party debt collectors under the Robodebt scheme

• concerns raised following the implementation of the Robodebt scheme. In particular;

  • how risks were identified, assessed and managed in response to concerns raised

  • the systems, processes or arrangements in place to handle complaints about the Robodebt scheme

  • whether complaints were handled in accordance with those systems, processes or arrangements

  • whether complaints were handled fairly

  • how the Australian Government responded to legal challenges, including decisions made by the Administrative Appeals Tribunal

  • when the Australian Government knew, or ought to have known that debts were not, or may not have been, validly raised

  • whether the Australian Government sought to prevent, inhibit or discourage scrutiny of the Robodebt scheme

• the intended or actual outcomes of the Robodebt scheme including;

• the impacts that the scheme had on individuals and families

• the costs of implementing, administering, suspending and winding back the scheme, including associated costs such as obtaining advice and legal costs.

On Monday 31 October 2022 the Royal Commission published Exhibit 1-0001 - CTH.2013.0012.5070_R - Advice prepared by Solicitor General to AGS re use of apportioned ATO PAYG data which in my opinion clearly shows that a competent Prime Minister, Minister for Social Services, Minister for Human Services, any other relevant ministers and their department heads should have been aware or were aware that the Robodebt debt recovery scheme that had been in operation since April 2015 was at best legally fraught and at worst unlawful in all or part of its design, implementation and compliance measures. That this situation was being discussed at some level during 2015 and 2016 and was widely known by August-September 2018.

From 24 September 2019 there was a 46-page legal opinion to that effect — written by the Solicitor-General Stephen Donahue QC, Nicholas Owens SC and barrister Zoe Maud — available to then Prime Minister Morrison, relevant ministers and department heads.

At its 31 October hearing the Royal Commission heard evidence from Victoria Legal Aid and two women who made ‘debtors’ by the Robodebt scheme.

The 1 November hearing heard evidence from:

• Principal Lawyer, Department of Social Services; and

• Former Assistant Director, Payment Review and Debt Strategy Team, Social Security Performance and Analysis Branch Department of Social Services.

At the 2 November hearing evidence was heard from:

• Group Manager, Redress Group, Department of Social Services;

• Former General Counsel, Programme Advice and Privacy

Department of Social Services; and

• Former Director of Payment Integrity and Debt Management

Department of Social Services.

Over the course of 1 and 2 November hearing days it became clear that government departmental awareness of the probability of a lack of legislative support for and flaws in the Robodebt scheme preceded that of the general public.

Matters revealed in evidence should become quite interesting in coming days, weeks and months.

The full witness list for the period 31 October to 4 November 2022 can be found at: https://robodebt.royalcommission.gov.au/system/files/2022-11/witness-list-31-october-2022.pdf

Hearing transcripts for 2 to 4 November 2022 can be found at:

https://robodebt.royalcommission.gov.au/hearings

A mainstream media perspective…….

ABC News, 2 November 2014:

...The commission, being held in Brisbane, has been hearing evidence from public servants involved in formulating the earliest legal and policy advice about the bungled Robodebt scheme that wrongly claimed hundreds of thousands of welfare recipients owed debts to Centrelink through a process of income averaging.

Counsel assisting the commission Justin Greggery KC questioned Social Services Department lawyer Anne Pulford about external legal advice the department obtained in August 2018 that raised concerns about income averaging by scheme.

The advice was sought after a decision was handed down in the Administrative Appeals Tribunal relating to Robodebt.

Mr Greggery drew Ms Pulford's attention to email comments from government lawyers about the external advice including one describing it as "somewhat unhelpful" and another which stated: "They might be able to rework the advice if this causes catastrophic issues for us but there is not a lot of room for them to do so."

He asked Ms Pulford if she appreciated "that, at that point, the department had in its possession an external legal advice which said the Robodebt scheme was not lawfully sustainable".

Ms Pulford said she didn't recall the details of the advice but presumed she did appreciate the significance.

Mr Greggery drew Ms Pulford's attention to an email she sent, noting the income-averaging approach was not supported.

"You are signalling there that this advice if accepted means the end of the Robodebt scheme," he said.

Ms Pulford said she did not recall what she was trying to signal by the words.

Under questioning from Mr Greggery, Ms Pulford said that, from information she had seen, the external legal advice was not converted beyond a draft advice form.

She said that, if an external advice was not formalised beyond a draft, then it was "treated as not representing the departmental preferred view and arguable still open to discussion or comment or potential revision".

The reference prompted Commissioner Holmes to ask if, when the department received unfavourable advice, was it "just left that way and then never represents anything that you deal with, is that the approach?"

Ms Pulford replied that the scenario occurred "regularly" and it happened many times "that I had seen it".

Commissioner Holmes responded by saying: "I'm appalled".

Asked by Mr Greggery who would have made the decision about leaving the legal advice as a draft, Ms Pulford said the decision-making within the policy area was a matter for the internal organisation.

"I couldn't necessarily comment on saying whether that would have been if such a decision were made, it would be necessarily made at director level or at a different level,'' she said.

The commission has previously been given evidence that Ms Pulford was co-counsel on legal advice formulated by her team in 2014, which indicated the then-proposed scheme was illegal. [my yellow highlighting]

Inquiry shown emails relating to draft brief prepared for Scott Morrison

Earlier on Wednesday, the inquiry was told lawyers in Ms Pulford's section appeared to come under pressure later — when the scheme was being formulated — from then-social services minister, Scott Morrison, in relation to providing advice so it could be submitted to the Finance Department.

The inquiry was told lawyers in Ms Pulford's team provided more advice in 2015 because the Department of Human Services was advised that "Mr Morrison indicated he wants a number of potential proposals in an attached briefing [to] be brought forward for portfolio budget statements".

Ms Pulford agreed with counsel assisting Justin Greggery KC: "That it appeared pressure was coming from a clearance by minister Morrison to have a new policy proposal developed to the point where it might be submitted to the Department of Finance".

She agreed the advice was being sought in relation to proposals, such as the capability to detect, investigate and prosecute suspected fraud and noncompliance in the context of social welfare payments.

They also included the "utilisation of new technology to increase data analytics, complex network analysis and geospatial analysis and establishing a capability for real-time monitoring and risk-profiling".

The inquiry was shown internal emails between lawyers within the Social Services Department in 2015 relating to a draft brief being prepared for Mr Morrison.

Those emails referred to Mr Morrison requesting the Human Services Department "bring forward proposals to strengthen the integrity of the welfare system".

The emails went on to say the social security performance and analysis branch had provided comments highlighting the need for legislative change as well as the shift away from underlying principles of social security law.

Under questioning from Mr Greggery, Ms Pulford acknowledged the emails were seeking advice about what legislative changes were needed to get the proposal up and running.

Other emails revealed the need to provide preliminary advice to the Finance Department within just two days — a timeline that Ms Pulford agreed was "short".

The Guardian, 3 November 2022:

Plans for what became the robodebt scheme “almost immediately” concerned policy advisers at the Department of Social Services and were viewed by one official as “unethical”, a royal commission has been told.

Cameron Brown, a former director of payment integrity and debt management at the Department of Social Services (DSS), said he was responsible for seeking advice on the policy idea from its internal legal team in late 2014. [my yellow highlighting]

That was in response to a proposal from the Department of Human Services to use “income averaging” to raise welfare debts – the central plank of what became the ill-fated robodebt scheme.

At the time the DSS led the development of social policy while the Department of Human Services was responsible for administering services such as Centrelink, including welfare debt recovery.

It remains unclear whether this damning legal advice was shared with the Department of Human Services, which was responsible for the plan.

Brown said he and his team were “almost immediately” concerned about the “unethical” debt recovery proposal.

Brown compared the proposal to the so-called Dallas Buyers Club “speculative invoicing” saga in which copyright holders sent legal demands to alleged downloaders of the 2013 film for large amounts of money in the hope they would settle. [my yellow highlighting]

He noted many of the people targeted by robodebt were vulnerable and the “onus of proof” was unreasonable given much of the pay information they would need to source went back years…..

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