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.
