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…..

Read the full article here.

And the uncertainty continues for Lismore flood victims.....

 

Australian Associated Press AAP, 28 October 2022:

Flood victims in northern NSW have described the government’s $520 million buyback scheme as a “cookie cutter” package designed without adequate community consultation.

The $520 million buyback scheme is the centrepiece of an $800 million package co-funded by the NSW and federal governments, to give 2000 flood-impacted residents of the Northern Rivers region the opportunity to raise, repair or retrofit their houses.

For homes in the areas most at risk – Lismore and the surrounding Northern Rivers region – governments will offer to buy the home and land from the owner.

But victims of the Lismore floods criticised the scheme on Friday, saying it lacks detail and was developed without their input, nearly eight months after the town was devastated.

“Nobody’s actually spoken to us about what our community’s needs are prior to determining the package,” flood victim and domestic violence worker Vicky Findlay told AAP.

“I feel like it’s a bit of a cookie-cutter approach.”

Ms Findlay’s North Lismore home was inundated during flooding earlier this year, destroying bedrooms and leaving her without a kitchen.

Her son, 27, has a disability and is on a waitlist for social housing, meanwhile living in a caravan on their property.

“I imagine we will get a buyback, but the problem for us is that we can’t leave unless our son is given social housing,” she said.

Prime Minister Anthony Albanese says the package offers a way forward for communities devastated by repeated flooding this year, adding governments could not continue to allow homes to be built on floodplains.

“This is the biggest agreement of its kind, ever, in response to a very significant event,” he told reporters in Lismore on Friday.

“We need to do better on planning, but we also need to do better than thinking we can just do the same thing over and over again.”

NSW Premier Dominic Perrottet will lead discussion at a national cabinet meeting about improving planning to ensure floodplain developments didn’t continue.

Mr Perrottet said rebuilding with resilience in mind would avoid past mistakes, adding the days of developing on floodplains in the state were over.

“I’ve already spoken to the planning minister in relation to this,” he said.

Criminal lawyer and Lismore local Eddie Lloyd, who was rescued from a roof during floods earlier this year, said residents living on floodplains remained unsure about which support packages they would be eligible for.

“We hoped that this would be a community-led recovery and rebuild,” Ms Lloyd told AAP.

“The really disappointing factor for us is that the community haven’t been consulted.”

Labor leader Chris Minns welcomed the Commonwealth-state funded package but said it was vital the Northern Rivers were not forgotten.

“It’s a tricky policy situation. I think everybody acknowledges it’s not as simple as coming out with an announcement within days of a natural emergency … I’m glad that we’re now where we are at,” he said.

The program will be open to residents in the Ballina, Byron, Clarence Valley, Kyogle, Lismore, Richmond Valley and Tweed local government areas.

The voluntary buyback scheme will be offered from Monday to home owners in the most vulnerable parts of the Northern Rivers, where renewed flooding continues to pose a serious risk.

They will be offered money to raise, repair or retrofit their property, or sell it to the government, based on expert assessments of the damage, its safety risks and potential future flood levels.

Many assessments will have already taken place, Mr Perrottet said.

Those eligible will be given a payment based on a valuation of the home and land.

Up to $100,000 will be available to raise homes and up to $50,000 for retrofitting in cases where flood risk can be mitigated by better building.

The state government will also spend $100 million buying new land in flood-safe locations for new developments with the Northern Rivers Reconstruction Corporation.

So why did the NSW Perrottet Government compose and compile those documents in the 2021 "Flood prone land" package if its regional planning panels are allowed to play fast and loose with the package provisions when considering large scale-large dollar value developments?

"NSW Premier Dominic Perrottet has vowed his government will not repeat “the mistakes of the past” in allowing development on floodplains that risks lives and property." [NSW Premier and Liberal MLA for Epping Dominic Perrottet, Financial Review, 22 July 2022]

"the days of developing on floodplains in the state were over" [NSW Premier and Liberal MLA for Epping Dominic Perrottet, AAP 28 October 2022]

Yamba, New South Wales, known to have a permanent First Nations settlement before 1799. Land area is enclosed by Pacific Ocean, Clarence River, Oyster Channel and Lake Wooloweyah. A coastal land corridor to the east of the lake approx. 1.12km wide and 1.13km long anchors Yamba & environs to the NSW mainland. IMAGE: Google Earth, October 2021

On 26 October 2022 Hometown America LLC through its subsidiary Hometown Australia received development consent from the NSW Northern Regional Planning Panel for DA2021/0558, 8 Park Ave Yamba, Multi-Dwelling Manufactured Housing (136 dwellings, clubhouse, community facilities for the over 50s).

This development consent was a split decision 3 to 2 – with the three permanent panel members Paul Mitchell, Steven Gow & Penny Holloway (or alternate) voting down the serious concerns held by the panel’s two local government area members, Clarence Valley Council Mayor Ian Tiley and Deputy Mayor Greg Clancy.

NOTE: Northern Rivers Planning Panel (NRPP) is constituted for local government areas of Armidale Regional, Ballina, Bellingen, Byron, Clarence Valley, Coffs Harbour City, Glen Innes Severn Shire, Gunnedah, Gwydir, Inverell, Kempsey, Kyogle, Lismore City, Liverpool Plains, Moree Plains, Nambucca, Narrabri, Port Macquarie-Hastings, Richmond Valley, Tamworth Regional, Tenterfield, Tweed, Uralla and Walcha.

Around 42 concerned Yamba residents – plus representatives of YambaCAN and Valley Watch, along with NSW MLC Cate Faehrmann and Yamba residents CVC Crs. Debrah Novak & Karen Toms – were online for this NRPP virtual public meeting.

Of those Yamba and Northern Rivers residents who had registered to speak at the meeting not one voiced support for the creation of this manufactured home estate. In fact the only persons appearing before the panel who supported this development were council staff and those employed by or representing the interests of Hometown America LLC – the most egregious of which was Bewsher Consulting Pty Ltd.

As an online observer of that meeting it is my opinion that neither Hometown Australia nor Clarence Valley Council staff offered solid proof that the planned development:

(i) “will not adversely affect the environment in the event of a flood”;

(ii) as “senior housing” did not fall within the existing Department of Planning, Industry and Environment category of “Sensitive and Hazardous Development”;

(iii) was not within one of those “areas with evacuation limitations”;

(iv) by adding another 136 dwellings to the existing 4,073 residential dwellings within town precincts [ABS, 2021] would not be increasing overall dwelling densities which would have “a significant impact on the ability of the existing community to evacuate using existing evacuation routes within the available warning time”. [DPIE, “Considering flooding in land use planning; Guideline”, July 2021]

In fact there is a strong possibility that this development is/will cause/contribute to all those matters found in the aforementioned (i) to (iv) list.

On completion of construction 8 Park Ave will be Hometown America’s sixth site in the Northern Rivers region – bringing its land lease sites in Yamba to two manufactured homes estates.

It will also increase the Yamba population by between 136 and 272 people over 50 years of age, in a town where 57.50% of the population are already aged 50 to 85 years of age and older [Australian Census, August 2021].

This development will also increase the population in the 0.37sq.km SA1 statistical precinct it lies within – from 654 persons to between 790–926 persons depending on number of occupants per dwelling at 8 Park Ave. 

Note: This statistical precinct is bounded by sections of Park Ave, Wattle Drive, Gumnut Road, The Links, The Mainbrace, Shores Drive and Yamba Road and currently contains more than 200 houses, townhouses and apartments/units. Along with one childminding centre and one motel [maps.abs.gov.au, 2021]

The current dwelling density within town boundaries is est. 345.7 per sq. km. It is not outside the realms of possibility that over the next 28 years dwelling density may rise as high as >400 per sq. km, given the cumulative effect of land release zoned for or under residential development elsewhere in Yamba. [IDcommunity: Demographic Resources, Clarence Valley Council Social Atlas, 2021]  

Sadly, it will also add to Yamba’s climate change risk as it places more pressure on the town’s only evacuation route in times of flooding-storm water inundation or storm surge. A route which has repeatedly failed during previous flood events given the number of locations floodwater cuts Yamba Road within township boundaries and beyond.

Over the course of the next 28 years the NSW Government’s so-called strategic planning for regional urban expansion apparently intends to increase the population of Yamba & environs by at least another 4,000 men, women and children.

They will all still be expected to travel along this road during high rainfall events, storm surge and/or flooding.

Yamba Road heading towards Oyster Channel Bridge, March 2022, IMAGE: March 2022, YambaCAN

Cross this bridge

Oyster Channel bridge linking Yamba with the wider Clarence Valley
IMAGE: March 2022,  supplied

And traverse causeways across two other river channels – the first of which is frequently cut during major flood events. 

This journey is the only option in any effort to find dry land and safety in the wider Clarence Valley, which itself would have been flooding for days ahead of any emergency services advice to evacuate all or part of Yamba township.

Yamba Road itself is a two lane undivided road carrying between 10,000 t0 17,000 vehicle movements a day as it crosses over Oyster Channel [Transport NSW July 2021]. Within town limits the road currently experiences est. 10,573 vehicle movements a day in the vicinity of its intersection with Treelands Drive and it has AM and PM peaks of 750 veh/hour for traffic travelling in both directions. The expectation it that traffic volume on Yamba Road is growing 3.5% annually [Geolink, March 2022].

This main road varies between 1.4mAHD and 2mAHD in height which mean it can be cut by flood water in one or more of at least five points along its length within the town before Oyster Channel bridge and a number of points after the bridge along that section from Micalo Island to Maclean township limits. This road can be inundated somewhere along its length in 1 in 10 ARI and greater flood events. 

Reading the little that is written by local and state governments, emergency services and property developers about emergency evacuation from Yamba, it appears that from now into the foreseeable future the entire town population of est. 6,405 men, women and children along with the town's visitor population which can range anywhere between a few hundred to thousands of holidaymakers, are expected to immediately respond to advice to evacuate the predominately low-lying areas of the town.

Even on a fine day without the river in flood, with Yamba on the move in est. 4,180 vehicles accompanied by an untold number of visitor cars (some towing caravans or boats) on that one westbound lane of a two lane road, just how long would it take to first clear the town limits and then continue on that approx. 19km stretch of Yamba Road to reach Maclean or the turnoff to the Pacific Highway? In a high rainfall event with advice to evacuate ahead of a major flood? I suspect that there would be multiple intersection traffic snarls within the first hour.

An evacuation situation which is not supposed to be allowed to develop under official planning policies, guidelines, orders and directions found in the NSW Government “Flood prone land package”.

As an alternative to a closed evacuation route heading out of town, in a major flood local residents are expected after registering at the Bowling Club to head for the only high ground in Yamba – Pilot Hill and environs.

A hill with the Pacific Ocean at its foot. A hill historically known for increased groundwater levels during days of sustained rain or heavy rainfall events. Events which have been associated with land slumping, scouring, earthslides, earthflows and landslides on the marginal stability slopes.

A hill with a mapped landslip risk area which includes much of the community land/open space available to persons seeking safety during times when there is widespread flooding in the low-lying residential sections of the town.

The highlighted area shows Crown land/community land & properties in the Yamba landslide risk zone, as defined by Clarence Valley Council in March 2017

So how big a burden can this hill physically carry when it comes to evacuees? There is no answer to that question that I can find. Perhaps the question is yet to be asked by federal, state and local government or emergency services.

All I know is that even if one only calculated on the basis of average body weight of 3,000 adults [ABS 2011-12] and average unladen weight of 750 full-sized sedan motor vehicles [AuotChimp 2022], then a mass evacuation of less than half the resident population to Pilot Hill and environs and congregating there on community land in the absence of sufficient emergency accommodation, this would place an additional surface weight stress of est. 1,560 tons. A weight which would be moving and vibrating not only on the geologically safe section around the water tower but also on land having marginal stability in adverse weather conditions.

I cannot state my opinion any clearer than this – any large scale emergency evacuation of the Yamba population is highly likely to fail because of city-centric policymakers basic lack of informed understanding of vulnerabilities in the local road network, continued bad urban development planning loading a higher population into a town known to become isolated in natural disasters and, insufficient understanding of changing sea rise, storm surge and flood behaviours. Lives will inevitably be lost if or when situations become catastrophic.

 

BACKGROUND

Hometown America LLC is a residential land lease company operating over 60 manufactured home sites in the U.S. styled as affordable housing.

The corporation is headquartered in Chicago, Illinois, and has two business divisions – the Hometown America Family Communities and Hometown America Age-Qualified (55+) Communities.

Its current CEO/President is Richard Cline.

Hometown America has been the defendant in multiple legal actions principally brought by individuals and groups of individuals who were residents in its U.S. land lease-manufactured home sites.

Hometown America is the parent company of Hometown Australia headquartered in Queensland and when it was establishing itself in Australia was composed of the following entities:

A.C.N. 626 522 085 Pty. Ltd – registered in NSW on 31 May 2018

Hometown Australia Management Pty Ltd (ACN 614 529 538 )

Hometown Australia Nominees Pty Ltd (ACN 616 047 084) atf Hometown Australia Property Trust (Hometown).

Through its Australian subsidiary Hometown Australia this U.S. corporation currently operates est. 51 sites in Queensland, South Australia and New South Wales, marketed as affordable housing and lifestyle living for the over 50s. Including 4 sites in the Northern Rivers regions.

Hometown America’s land-lease sites in NSW are governed by the provisions in the Residential (Land Lease) Communities Act 2013.

Real Estate agents Kevin Tucker and Stuart Long appear to be joint managing directors of Hometown Australia.

In the first financial year Hometown America LLC was operating in Australia 2019-20 its local arm Hometown Australia Holdings Pty Ltd declared an income of $185,480,667 with no taxable income and no taxes paid. In 2020-21 its second financial year its local arm declared  $314,117, 781 in income with no taxable income or tax paid. [Australian Taxation Office, Data Sets, Corporate Tax Transparency, Report on Entity Tax Information 2019-20 & 2020-21]

Hometown Australia is gaining a similar reputation to its U.S. parent company when it comes to resident’s complaints and concerns about its business practices – particularly in relation rent increases and poor maintenance of community facilities [media report 2020, media report 2021 & media report 2022].