Services Australia can no longer off its own bat crack welfare recipients' PC, mobile, email & social media passwords in order to spy - since 13 October 2015 its been obliged to use the Australian Federal Police, an even more indiscreet Commonwealth agency.

 

On 17 July 2015 Deputy Secretary of the Dept. of Human Services (now Services Australia) Malisa Golightly, of ‘Robodebt’ notoriety, wrote to the Deputy Secretary of the National Security and Criminal Justice Group in the Attorney-General’s Department, seeking the department's continued inclusion as an enforcement agency under the Commonwealth Telecommunications (Interception and Access) Act 1979.

At that time the Dept. of Human Services employed 295 investigators and 89 intelligence analysts who typically conducted 3,000 criminal investigation per year – using the full range of powers available to an “enforcement agency” in the 1 July 2015 version of the Telecommunications (Interception and Access) Act.

Here is a potted history of what happened after that.

ITNews, 4 April 2022:

Services Australia is using telecommunications metadata and password-bypassing software to investigate welfare recipients suspected of claiming single payments while in relationships.

The Centrelink administrator told the Attorney General’s Department (ADG) that metadata is used to detect “people who receive payments as a single person while in a marriage-like relationship,” according to documents obtained by iTnews.

Submissions to AGD in 2015 and again in 2022 [pdf], obtained through a freedom of information request, list types of fraud the agency uses welfare recipients’ telecommunications metadata to detect.

A Services Australia spokesperson told iTnews that both telecommunications metadata and password-bypassing technology from Israeli vendor Cellebrite are only used when fraudulent claims trigger criminal investigations.

This contrasts with the more common non-compliance investigations, which prevent and recover debts resulting from over-payments, such as the notorious robodebt scheme.

However, the spokesperson would not say how much money a person needs to be suspected of being overpaid before a non-compliance investigation is tipped into a criminal investigation, making it hard to estimate the extent to which the technologies are used to determine relationship-status.

Moreover, welfare recipients told iTnews, while Services Australia has said that Cellebrite is only used for criminal investigations, data may be extracted from their devices before charges have been laid; and Services Australia may continue to pursue the debt as a non-compliance investigation even if the suspect is not prosecuted…...

Metadata and relationship-status

It is not clear what types of metadata are used to glean if welfare recipients are single, however criteria listed on Services Australia’s website for “how we assess if you’re a couple” includes: “financial aspects of your relationship, the nature of your household, social aspects of your relationship, [and] if you have a sexual relationship.”

The Services Australia spokesperson told iTnews that "the key metadata we request enables us to identify records linked to telephone numbers or IP addresses to support criminal investigations.”

The spokesperson did not answer whether it includes geolocation data on a device’s connection to the internet or the sender-recipient records of a user's communications.

Services Australia was cut off from directly asking telcos for metadata in late 2015, after having had the power since 2009.

It now makes requests for metadata, "where required", through the Australian Federal Police.

Services Australia has asked the government at least twice to have its powers back.

According to the FoI, Services Australia requested AGD declare it an 'enforcement agency' under Section 176A of the Telecommunications (Interception and Access) Act (TIA) in 2015 and made the same request seven years later during a current review of electronic surveillance laws…...

In response to its 2015 application, AGD suggested “joint investigations arrangements with a criminal law-enforcement agency” as an “alternative means of accessing historical telecommunications data.” The welfare provider took the advice.

Since Services Australia started accessing telecommunications metadata indirectly through the AFP, it is unclear how many investigations involved fraud claims based on relationship-status.

According to its most recent annual reports, in 2021–22 Services Australia conducted 709 criminal investigations, 988 administrative investigations and made 203 referrals to the CDPP.

A quick look at the Commonwealth Ombudsman' views on the often erratic response of the Australian Federal Police to its requirement to comply with telecommunication data law:

https://www.ombudsman.gov.au/__data/assets/pdf_file/0021/112476/Report-into-the-AFPs-use-and-administration-of-telecommunications-data-powers.pdf

There were several important factors that informed my decision to commence an investigation, including:

• the covert and intrusive nature of this power

• the duration and potential scale of non-compliance with the TIA Act as a result of ACT Policing accessing telecommunications data outside the AFP’s approved process

• the omission of the affected records from our Office’s regular compliance inspections

• previous recommendations our Office has made to the AFP about non-compliance with the TIA Act. 

Like law enforcement Services Australia is not eager to advertise the shortcomings of its own errant staff, but the character of this bureaucracy which uses covert surveillance on welfare recipients is not above interrogation. 

Services Australia is a federal government department which includes Centrelink.

A brief Internet search reveals for the most part sparsely worded information. The following is a compilation from government and media sources.

In a two year period covering 2005 to September 2006 Centrelink investigated 790 APS Code of Conduct complaints, with 766 referred for investigation and 585 staff found to have accessed the private information of welfare recipients or entered into a conflict of interest situation in breach of the code. Sanctions for these breaches reportedly ranged from 19 dismissals, 92 resignations and, more than 300 salary reductions or fines. Another est. 134 staff were demoted, reprimanded and warned. Five cases were referred to the AFP or Director of Public Prosecutions.

In 2006–07 Centrelink staff breached the information privacy principal in 367 instances, including 108 unauthorised access, 4 unauthorised disclosure and 10 unauthorised use. Another 17 new cases were opened with the Office of the Privacy Commissioner, bringing the total to 20 cases for the year. Centrelink finalised six cases with the office and as at 30 June 2007, 14 cases were still open.

By the next financial year 2007-08, Centrelink recorded 355 privacy breaches of which 100 were unauthorised access, 13 unauthorised disclosure and 1 unauthorised use. The remainder of breaches said to be primarily mailing errors.

In 2008-09 Centrelink found 368 proven privacy incidents of which 85 were unauthorised access of information, 14 were unauthorised disclosure and 1 was unauthorised use.

Financial year 2009-10 saw Centrelink admitted to 465 proven privacy incidents and it appears to have undertaken 286 staff code of conduct complaints investigations in which 187 staff member were found to have breached the code of conduct.

The following financial year 2010-11, Centrelink undertook 197 staff code of conduct complaints investigations, including 25 investigations of improper use of internet or email, and 67 investigations of ‘improper access to personal information’. The latter occurring when employees accessed records either without a business reason, or despite being directed not to do so, for example if the records belonged to themselves, family or friends. A total of 128 Centrelink staff members were found to have breached the code of conduct.

In 2011 Centrelink & Medicare were integrated into the Dept. of Human Services.

In 2011-12  the Dept. of Human Services finalised 205 staff breaches of the APS Code of Conduct, including:

• 68 instances of improper access to personal information;

• 5 unauthorised disclosure of information;

• 10 conflict of interest;

• 48 inappropriate behaviour other than bullying or harassment;

• 17 harassment and/or bullying;

• 8 fraud other than theft;

• 1 theft;

• 8 improper use of resources other than email;

• 25 improper use of internet or email;

• 8 inappropriate use of government vehicles;

• 7 improper use of position or status;

• 4 behaviour of the employee outside of work;

• 2 misuse of drugs and/or alcohol, and

• 2 other.

The next year 2012-13 the Dept. of Human Services finalised 165 matters involving 214 breaches of the code of conduct - across the gamut of human behaviour displayed in the workplace including 82  instances of improper access to personal information, 5 unauthorised disclosure of information and 26 conflict of interest. 

In 2013-14 the Department of Human Services reported there were 472 matters involving staff breaches of code of conduct of which 234 were finalised, including 118 improper access to personal information, 4 unauthorised disclosure, 181 conflict of interest and 66 fraud. 

The next financial year 2014-15 saw reports of 1,939 substantiated privacy incidents from which there were officially 268 findings of staff breaches of the code of conduct.

In 2015-16 there were 368 findings of a breach of the code of conduct.

Note: From 21.9.2015 to 18.2.2016 Stuart Robert was the Minister for Human Services.

In 2016-17 there were a reported 304 staff breaches of the code of conduct.

NOTE: From 21.9.2015 to 18.2.2016 Stuart Robert was the Minister for Human Services.

In 2017-18 a total of 235 staff code of conduct investigations were completed and 224 findings of a breach were made.

In 2018-19 the Department of Human Services reported a total of 249 staff code of conduct investigations were completed, with 241 findings of a breach of the code.

NOTE: From  29.5.2019 to 30.3.2021 Stuart Robert was Minister for Government Services, which included the Dept. of Human Services in his portfolio.

In May 2019 the Dept. of Human Services had a name change, becoming Services Australia.

From July 2017 to end June 2019 almost half of the breaches arose from unauthorised access to information, where staff had inappropriately accessed customer records. Almost a quarter of all breaches allegedly related to incorrect reporting of income by staff who were also in receipt of Centrelink benefits.

The Commonwealth Ombudsman's Report of 2019-20 mention that;  We received more complaints about Services Australia than any other agency (11,222), although this was a decrease of 3.7 per cent compared to last year. 

In one case; A complainant’s disability support pension (DSP) was cancelled as a result of a staff error and while seeking a review of this error they received an inheritance.

A trustee acting on behalf of the complainant contacted Services Australia however was unable to have the DSP payments reinstated, despite payments not being made in excess of 12 months.

As a result of the Office’s engagement with Services Australia during an investigation, the complainant’s circumstances were reviewed and they were back-paid over $45,000 for the entire period since their DSP was cancelled. Additionally, Services Australia provided feedback to the officer who made the initial error to improve future service.

In his following 2020-21 annual report the Commonwealth Ombudsman placed Services Australia in; the number of disclosures assessed meeting the criteria under s 26 of the Public Interest Disclosure Act 2013 and alleged kinds of disclosable conduct to which the disclosures relate. 

This involves 8 instances of:

• Contravention of a law of the Commonwealth, state or territory (5)

• Maladministration (2)

• Abuse of public trust (2)

• Wastage of public money (2)

• Conduct that results in, or that increases, the risk of danger to the health or safety of one or more persons (3)

• Abuse of public office (3)

• Conduct that may result in disciplinary action

(6) 

In 2021-22 the Commonwealth Ombudsman reported that 52% of complaints it received from the public involved Services Australia-Centrelink.

The Royal Commission into the Robodebt Scheme peels back layers of a six year old onion

 

A SINGLE MOTHER HITS OUT AT THE ROBODEBT SCHEME IN EARLY 2017

The Sydney Morning Herald, 6 February 2017:

It all started when I began receiving calls from a debt collector, which I initially ignored. I knew I had no debt and that any request for personal details from a stranger was cause for suspicion. But after some time I gave in to the harassment – my curiosity got the better of me, and by then the calls were interrupting everything from work meetings to putting the children to bed.

And that was how I discovered I had a Centrelink debt…..

Terrorised by Centrelink, I began to behave as the bureaucracy saw me: angry, emotional, confused, dependent and idiotic. It does not matter that I am a full-time employed economist with several degrees, published books and articles, and security clearance for giving economic policy advice on secret government documents. Now, I was a welfare cheat….

The debt recovery operation currently being run by Centrelink using data matching has the extraordinarily high error rate of one in five. I doubt any private enterprise would be allowed to get away with these error rates for debt collection.

You would like to think that my story means at least the one in five errors are all being identified and eventually resolved, but it doesn't. Many of my fellow Centrelink "clients" will lack the assertiveness, confidence, energy and literacy I used to fight for my case. The errors in their debt will not be found. Money will be taken, wrongfully, from some of the very poorest people in this country. I guarantee you they are terrified.

And anyway, my case isn't over.

Days before publication of this piece I was contacted by Centrelink with a new notification of debt. I have been instructed to pay back the Family Tax Benefit we received in the year my ex didn't file his tax return. And so, it begins again.

PUBLIC PUSH BACK BY THE THEN MORRISON COALITION GOVERNMENT BEGINS

Excerpt from The Canberra Times columnist Paul Malone’s article in The Sydney Morning Herald on 24 February 2017:

“But Centrelink has a different story.

The agency says Ms Fox's debt is a Family Tax Benefit (FTB) debt for the 2011-12 financial year which arose after she received more FTB than she was entitled to because she under-estimated her family income for that year.

The original debt was raised because she and her ex-partner did not lodge a tax return or confirm their income information for 2011-12.

Centrelink says that after Ms Fox notified the department that she had separated from her partner, the debt due to her partner's non-lodgement was cancelled.

In a later article on 5 March 2017 Malone admitted his 24 February article was based on information supplied by both Centrelink and the office of the Minister for Human Services “To my surprise I got answers to my questions in a series of emails from Centrelink and the office of the Minister for Human Services, Alan Tudge.

They said Ms Fox's case was not a robo-debt matter.

Her current debt was a Family Tax Benefit debt for the 2011-12 financial year which arose after she received more FTB than she was entitled to because she under-estimated her family income for that year”.

POLITICAL EXCUSES APPEAR IN MAINSTREAM MEDIA

The Guardian, 2 March 2017:

The office of human services minister, Alan Tudge, mistakenly sent a journalist internal departmental briefings about a welfare recipient’s personal circumstances, which included additional detail on her relationship and tax history.

Senior departmental figures were grilled at Senate estimates on Thursday about the release of welfare recipient Andie Fox’s personal information last month.

Fox had written an opinion piece critical of Centrelink and its handling of her debt, which ran in Fairfax Media in February. The government released her personal details to Fairfax journalist Paul Malone, who subsequently published a piece attacking Fox and questioning the veracity of her claims.

Two responses were given to the journalist, one from the department of human services and the other from Tudge.

The department said its response – three dot points containing only minimal detail on Fox’s personal history – was cleared by lawyers and was lawful. The minister’s office then added two quotes from Tudge and sent its own response to Malone.

Guardian Australia can now reveal that the minister’s office also accidentally sent the journalist two internal briefing documents, marked “for official use only”, which had been prepared by the department…..

SIX YEARS LATER THOSE POLITICALLY MOTIVATED LIES ARE REVEALED 

Excerpts from Twitter threads by journalist Rick Morton @SquigglyRick as he live tweeted from the Royal Commission into the Robodebt Scheme public hearing on 31 January 2023:

Greggery: "You said the media demand was very high while the Minister was on leave, the media was generally adverse, heavily critical. Would you say that by January 2017... the media situation was in crisis mode?"

Miller "Yes, but I didn't think it was not able to be shut down."

1:22 PM · Jan 31, 2023

Miller: "He [the Minister, Tudge] was very firm with me that I needed to shut this story down. The Minister became very quickly aware that the Prime Minister was unhappy. At the time, we were trying to decline as many media opportunities as we could."

1:23 PM · Jan 31, 2023

Miller: "That media strategy that I developed was very comprehensive and that involved placing stories in more friendly media about how the Coalition was actually catching people who were cheating the welfare system."

1:24 PM · Jan 31, 2023

Miller: "We were getting feedback from the Prime Minister's office that this was playing quite well in the marginal seats, Western Sydney, that sort of thing."

1:25 PM · Jan 31, 2023

This "counter-narrative" in the crisis strategy that Miller developed included pushing the message that they were "tracking down debts from the period when Labor was in Government that were not detected because they did not take the integrity of the welfare system seriously."

1:27 PM · Jan 31, 2023

Greggery asks about using "real life examples."

Miller: "The Minister was very adamant with me that I needed to hunt down as many case studies as I could, he was really very forceful about obtaining these."

He wanted to dismiss the stories that he thought were gussied up.

1:30 PM · Jan 31, 2023

Miller: "He wanted to put the attention back on the Labor Party and say 'what, you would let these guys go, you would happily give them taxpayer money that they were not entitled to'."

Miller spoke to Bevan Hannan, head of media at DHS etc

1:31 PM · Jan 31, 2023

Greggery: "What do you recall of the topic of releasing personal information from persons with whom Centrelink dealt to media?"

Miller: "So we didn't think of doing that at all ever."

This is early on. But then the author of an SMH/Age piece gets in touch.

1:38 PM · Jan 31, 2023

This journo sees this case in the media and says the case is "disgraceful" and "how is it the Minister can let this happen on your watch and he said I am going to write another piece about this." But he asks: can you assure me that what the author has written is correct?

1:41 PM · Jan 31, 2023

Miller talks to the DHS, they say well actually you CAN release very limited details about a person to "correct the record."

"The Minister requested the file of every single person who had appeared in the media."

The file was already in the MO

1:42 PM · Jan 31, 2023

Miller recalls Tudge being adamant they wanted people to think twice about going to the media with "false" information because if it's not true "we will correct the record."

"I wasn't too worried about [the criticism from the leftwing media]. That didn't surprise me at all."

1:44 PM · Jan 31, 2023

But she was worried, she says, that what they were doing was legal.

Miller says of the one case, where they released details "and the publicity that it got" sent the message that the Govt would push back.

1:45 PM · Jan 31, 2023

In the case of the person whose name they released, but in other cases too, Miller says there was "formal, signed legal advice." The Minister "requested that specifically."

1:46 PM · Jan 31, 2023

Miller: "It wasn't usual practice at that stage for Ministers in that portfolio to do that. It was a risk. There weren't, to my knowledge, previous cases of people using that particular loophole."

In retrospect, Miller says it is "not something I would do again."

1:48 PM · Jan 31, 2023

Miller says it was unethical that some leftwing journalists were not even going to them for comment.

"The usual relationships I would have with journalists were not working, and this particular group were being quite vindictive, being very biased and unbalanced."

1:49 PM · Jan 31, 2023

Of the name they did release, Miller says: "I did trust the reporter who was going to write that up, that rebuttal of ours, he was reputable, very reputable."

1:51 PM · Jan 31, 2023

Miller: "I did try to seek assurances from the policy issue but he was very firm that 'hey, this isn't your job'."

Policy adviser was Mark Wood.

1:56 PM · Jan 31, 2023

Miller: "Kathryn Campbell was there on a regular basis [in January 2017 at the Minister's office]. She was set up in the boardroom, almost permanently, I think. Malisa Golightly, I can't recall other specific people... Craig Storen."

1:57 PM · Jan 31, 2023

Prime Minister (Turnbull) asked Tudge to return from leave immediately to deal with the Robodebt "crisis."

Miller is asked about what she recalls about people committing suicide after receiving debt letters.

1:59 PM · Jan 31, 2023

The Saturday Paper, 4 February 2023, excerpts:

Alan Tudge, Rachelle Miller and Christian Porter appear at the robo-debt royal commission this week.  CREDIT: ROYAL COMMISSION INTO THE ROBODEBT SCHEME

An ugly “strategy” of demonising welfare recipients extended to almost all elements of the official response to the developing media storm. 

In the Rhys Cauzzo matter, in the week following publication of The Saturday Paper story in February 2017, the minister’s office debated the merits of releasing a dead man’s personal information in order to strike back at what they perceived to be unfair coverage. 

Tudge’s chief-of-staff, Andrew Asten, appeared to draw a line in the sand. 

“I would advise against going through these details in public because I think it is a bad look to be discussing the wrongdoing of a person who committed suicide.” 

He was overruled, presumably by Tudge himself, who micromanaged every aspect of his office’s media strategy, down to dictating the formatting of documents. Journalists were duly briefed about the “facts” as the government saw them. 

What is particularly telling about this specific episode – one in a catalogue of grotesque and deliberate acts designed to save robo-debt from “unethical” journalists, as Miller described them, and their good-for-nothing welfare complainants – is that Tudge ordered an investigation into the department’s handling of Cauzzo’s matter, but only to make them look good. 

A month after briefing journalists with Cauzzo’s protected Centrelink record, a departmental liaison officer working in Tudge’s office emailed her colleagues in the DHS with a “specific request” from the minister. The department and minister’s office had been drafting a letter to send to Rhys Cauzzo’s mother, Jennifer Miller. 

“The Minister has a specific request to open an investigation into Rhys’ circumstances,” the officer wrote on March 31, 2017. “He would like a brief on the investigation. The intent is to be able to update the letter to include a line similar to [redacted] letter, stating that he has investigated the matter and is confident the Department has done everything correctly (etc).” 

Within days, Tudge got the pre-determined outcome he was looking for: a ministerial brief from his department that noted “all interactions were appropriate and undertaken within the parameters of departmental processes”. 

What Tudge didn’t do, however, was investigate the use of income averaging in the creation of debts attributed to Rhys Cauzzo. Part of the fury about The Saturday Paper story at the time was that it was “not a robo-debt case” – even though this newspaper did not suggest that it was. The royal commission heard on Wednesday that Cauzzo’s matter was part of the manual PAYG intervention, which still included the use of income averaging and is now considered to be the very first iteration of the illegal robo-debt scheme. 

Greggery said that this matter was “the first point in time when the potential adverse consequences have gone beyond a matter of mere finance”. 

Addressing Tudge, he said: “Did you ask for an investigation into whether the role of averaging led to the death of Mr Cauzzo, a factor relevant to the suicide?” 

Tudge said what had been written in the piece “concerned him” and he “did want to … directly understand what had occurred”. Tudge’s inquiry deliberately avoided the two key criticisms of the debt recovery system, aired at length by this time in early 2017 and now accepted by Tudge. They were that debts being raised under the system were inaccurate and that Centrelink recipients were being swamped by the sudden reversal of the onus of proof. 

Now, people were killing themselves. 

The conflagration had ruined Tudge’s summer. There were many of these negative stories, beginning in December 2016, before Tudge went to Britain on a family holiday. Over Christmas, however, the situation was so obviously bad that then prime minister Malcolm Turnbull demanded Tudge cut short his holiday and return to deal with the crisis. 

In the royal commission this week, the former minister made a point of mentioning this holiday over and over again. It was a significant moment in a significant career because it was a media disaster and Tudge was a media performer. 

Miller had described her then boss as a “media tart” so obsessed with making a name for himself that he, a junior minister, sometimes did even more media appearances than his senior minister, Christian Porter, who held the Social Services portfolio at the time. 

Turnbull had forwarded to Tudge an article by the Fairfax economics editor Peter Martin, a former Treasury official and economist, in which Martin confidently – and presciently – declared the raising of Centrelink debts by use of income averaging could not be legal. 

Tudge flew back to Melbourne on January 9, 2017. From there he went immediately to Canberra, where “every second or third day” he held meetings in his parliamentary office, in committee meeting rooms or in the Department of Human Services, with the most senior leaders. 

“When I came back I very quickly had confirmed for me that this was a program that had been through the cabinet process,” he told the commission. “They are a rigorous process that always have a legal overlay through it so Social Services lawyers would have to have formed a view that it was lawful.” 

Later, Tudge claimed it was “unfathomable” to him that a secretary of his department would ever continue with a scheme that he or she knew to be illegal. That said, he didn’t expect them to bring their concerns to him, if there were any, without first “resolving” them within the department. 

 And so his self-described “laser-like” focus on fixing the scheme never went to the issue of lawfulness in this period. It apparently never went there at all during his time as minister. 

“I did not know the full context about the legalities,” he said. “It just had not crossed my mind until the [2019 federal] court case.” 

One of the “hurdles”, as Justin Greggery described it, was that Tudge knew how important these welfare compliance schemes were for the Coalition government because he had unwittingly, or otherwise, helped further them in the July 2016 election. 

Tudge was sworn into the ministry in February that year and told the royal commission that the then Finance minister, Mathias Cormann, had asked him if there was anything more they could get out of welfare compliance – that is, he was asked by one of the most senior members of the government if there were budget savings that could be made from welfare recipients. 

After this conversation, Tudge spoke with his department’s secretary, Kathryn Campbell, to pass on this request. Her department dutifully sent a raft of so-called “new policy proposals”, or NPPs, with attendant savings figures that could be pursued. 

The April 28 brief noted there were “five NPPs that will increase compliance and debt activity and deliver significant savings commencing July 2016”. 

That year was an election year. Tudge agreed that, once announced, there would be added political pressure making it more difficult to walk-back any money-saving measures if they were later deemed too hard to implement. He noted Cormann would “have absolutely been aware” of the figures. 

Tudge’s office had sent an email to then treasurer Scott Morrison or Cormann, or both, with the new policy proposals attached “for the purpose of announcing during the election campaign, literally a few days before the election”. 

According to estimates shared with the commission, robo-debt was expected to add $1.2 billion to the 2016-17 bottom line. If the debts were raised under the older, manual, lawful system, that number dropped to $150 million. 

One post-election measure was to extend the robo-debt scheme by two years. By early December 2016, Tudge had been given a brief from his department responding to questions about the fiscal savings robo-debt programs were expected to produce for the budget over the forward estimates. 

That figure was $4 billion. Tudge was quick in instructing his staff to drop this story with the “friendly” newspaper The Australian, where it ran on page one on December 5, 2016, with the headline: “Welfare debt squad hunts for $4bn.” 

The interview with A Current Affair followed on December 6, but, according to the national media manager for the Department of Human Services, Bevan Hannan, Tudge was so “bullish” in his approach that it put a big target on their backs. “It conflated welfare fraud with compliance activities,” Hannan told the inquiry on Tuesday. “The rest of the story had nothing to do with putting people in jail, but that – that grab seemed to galvanise everyone. “And so suddenly instead of being a story which would explain what we are doing, it put a big target on things, and the program and the minister became the hunted.”....

When problems began being reported in the press, Tudge fought back with the only weapon he had bothered to sharpen in his political career: a dependent and obsequious relationship with the right-wing media. 

In January, on his instruction, the Department of Human Services put together a dossier of all of the people with debts who had complained in the media. This information contained their protected Centrelink information, albeit anonymised, and special legal sign-off from DHS chief counsel Annette Musolino. It was sent to The Australian’s political editor, Simon Benson. He ran the story as the front-page splash in the next day’s edition: “Debt scare backfires on Labor.” 

This tactic of tying a neat bow around a story and handing it to a favoured journalist, Greggery said to Rachelle Miller, was to ensure the story was written “or at least presented in a way that the minister liked”. 

She agreed. “And Simon Benson,” she said, “was very good at doing that.” 

This preoccupation with establishing a “counternarrative”, as Miller described it, may have clouded the minister’s judgement. But there were at least three concurrent and damning threads running as Tudge faced the royal commission this week. Many of them involved the at times clandestine behaviour of his own department. 

One prominent figure in this is DHS chief counsel Annette Musolino, who herself spent nearly one-and-a-half days in the royal commission witness box this week. During Musolino’s own leave over the new year break in 2017, lawyers within her team at the Department of Human Services drew up draft instructions to seek advice from the Australian government solicitor that could have settled once and for all whether robo-debt was legal. The instructions were never sent.....

It is worth noting that these instructions were drawn up within a day of Alan Tudge arriving back in the country from his aborted overseas holiday to deal with the unfolding catastrophe. 

Did he know anything about them? 

“I’m asking you,” Greggery said on Thursday, “whether you can explain why, if you didn’t turn your mind to legality in the first couple of days when you came back, your legal department would be preparing instructions to the Australian government solicitor about the lawfulness of averaging?” 

Tudge said he couldn’t explain it. 

“It’s the first I’m even aware that that was occurring,” he said. 

Musolino was not in the dark about potential legal issues with the scheme. From at least late 2016 and then into 2017, her team was closely monitoring and providing reports on the outcomes of Administrative Appeals Tribunal decisions that were either rejecting the use of income averaging to raise debts or waving them through. 

In one particular matter, in a March 2017 decision by then AAT member Terry Carney, Musolino’s own lawyers agreed Carney had made no error of law in his reasoning. Despite this, and model litigant obligations placed on Commonwealth agencies, Musolino said DHS didn’t have to agree with the decision. It only had to implement it. If there was no appeal against the decision, it was very unlikely it would receive attention – and so the scheme could continue. 

“So how does the position get resolved where the AAT is making decisions that a significant program is being conducted on a basis which isn’t lawful?” Commissioner Holmes asked. 

“It just ticks along, and as long as nobody ever recommends an appeal, which they never need to because you can always implement the decision without regard to the program, it just goes on forever, does it?” 

Musolino said the AAT decisions “were cutting both ways”. Commissioner Holmes was unimpressed. “Okay,” she said. “I think you’re either missing my point wilfully or inadvertently.” 

The March 8, 2017, decision from Professor Carney did involve a general point of law that Musolino eventually accepted, after much circular argument. Essentially, it found a fundamental aspect of the scheme was unlawful. “That’s … yes,” Musolino finally said. 

This was a significant moment in the hearings, although it was dealt with carefully by Commissioner Holmes.

Musolino was shown a ministerial brief, prepared well over two years later, on November 6, 2019, for then minister for Government Services Stuart Robert, following the unequivocal receipt of legal advice from the solicitor-general, which declared robo-debt had no basis in law. 

Even though the solicitor-general’s opinion was “not a declaration of law” it was sufficiently alarming to DHS officials that they recommended robo-debt be terminated. 

“There is considerable legal and reputational risk should the Department continue to administer the program in its current form,” the document says. 

“[Then] Secretary of the Department, Ms [Renée] Leon, also carries personal risk associated with the continued administration of the program in its current form by reference to various obligations that she had as a public servant.” 

Crucially, the brief also put in writing a case that is being built brick by brick by the royal commission. “The continued administration of the program in its current form may amount to misfeasance in public office,” the Robert brief says. “This is because continued administration of the program after receipt of the opinion would contribute to an argument that the Department had been raising and recovering debts in bad faith.” 

Commissioner Holmes thought that the Carney decision might have put a concrete time line on when officials ought to have acted. A key element of the offence is acting with “reckless indifference” to the use of an official power that was reasonably expected to cause harm. 

“The fact is that the AAT was finding that averaging was not a legitimate procedure in cases – not all of them, but in some – and that proved to be perfectly correct as the solicitor-general’s opinion demonstrated,” Holmes said on Tuesday. 

“So that went on through 2017, 2018, to some time in 2019, when, around about March 2017, somebody could have been having a look at this. Is that a fair summary? You were getting decisions from the AAT pointing to a problem?” 

When then senior minister in the Social Services portfolio Christian Porter took the witness stand on Thursday afternoon he was asked about whether, while acting for the holidaying Tudge in late December and early January 2017, he formed the view that there was a “reticence” from DHS to publicise detail about how the online compliance system worked. 

“I recall … a sort of acceptance of the position and the talking points,” he said. 

“That then turned, at some point, into circumspection. Then I became sceptical and in the end I was extraordinarily frustrated with the level of information being provided.” 

There was another suicide after Rhys Cauzzo’s. It involved a woman who killed herself just five days after receiving a debt “discrepancy” reminder letter. The woman had previously sought social work support through the department but had no “vulnerability indicator” on her file. 

Despite the fact an employment separation certificate was already on the woman’s Centrelink file, which contained more detailed employment information, compliance officers were not permitted to consider this because, under the design of the scheme, it could never have allowed the government to recoup billions of dollars. 

This was an element of the scheme Tudge had promised to fix five months earlier, in January. He never did. 

Unlike with Cauzzo, whose case had been the subject of reporting, Tudge never ordered an investigation into this case. 

Greggery noted this difference and the reason for it. “I am suggesting,” he said, “the reason you didn’t order an investigation into this case, and you did for Mr Cauzzo, is because you were confident this wouldn’t reach the media.” 

 Tudge denied this.