What became apparent during the course of his evidence is that as a then Minister for Social Services, later Treasurer and finally Prime Minister the Liberal MP for Cook believed he had powers not found in federal legislation

 

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.

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.