The former supreme court judge overseeing a royal commission has raised the prospect public servants across two departments “colluded” to launch the robodebt scheme despite knowing it was unlawful.
Catherine Holmes AC SC also put to a key witness who helped devise the scheme that he and his Department of Human Services (DHS) colleagues may have instead “deceived” the Department of Social Services while they debated the proposal in 2015.
Scott Britton, a former national manager of compliance risk at the Department of Human Services, faced questions on Thursday about whether changes he was involved in making to the robodebt policy proposals “misled cabinet”.
Britton insisted that he had been informed by others within the department that the income averaging had been lawful and he had maintained that belief.
Under questioning from counsel assisting the commission, Angus Scott KC, Britton said it was an “extreme interpretation” to say he had attempted to deceive cabinet.
“That was simply not my intent and not part of any conversation I was part of,” he said.
Scott said regardless of his intention, the changes to the policy documents that he had approved had this effect.
The inquiry has heard the Department of Social Services had told DHS officials, including Britton, in early 2015 that the robodebt plan would not conform with social security law – making it unlawful without legislative change.
A DHS brief sent to the social services minister Scott Morrison in February 2015 noted the proposal would need legal change, but those warnings dropped off the policy proposals sent to ministers and other government departments throughout March and April. The policy was subsequently approved by cabinet.
The key change included the removal of language showing the “income averaging” method – which DSS had warned was unlawful – would be used to raise welfare debts. The new documents also now claimed, incorrectly, that the program would not change how debts were raised.
Those changes were made by Britton’s subordinate, Jason Ryman, who told the inquiry he had been directed to make them by either Britton or Britton’s boss, Mark Withnell.
Britton said he did not know why the changes were made and did not recall the period in detail.
Holmes told Britton one possibility was “you collude with DSS to remove the reference”, while the other was “you deceive DSS by removing the reference”.
“Commissioner, to be honest, what you’re suggesting in both those scenarios are deception,” Britton said. “I’ve never been part of a deception in my whole career and that’s not what I represent.”
Holmes raised the prospect of collusion or deception after the inquiry also heard from the former deputy secretary of the Department of Social Services, who denied “reconstructing events” to protect herself from claims she turned a blind eye to the scheme.
Serena Wilson repeated claims her counterpart at the Department of Human Services, Malisa Golightly, assured her Centrelink would not use “income averaging” to raise welfare debts.
Wilson was aware her department had already sought legal advice in late 2014 that found using annualised Australian Taxation Office data to assert welfare debts would be unlawful.
Wilson told the commission on Thursday she had previously felt “bullied” by Golightly about a decade ago but was not “intimidated” by her “forceful” counterpart in their discussions on the robodebt proposal in 2015. Golightly has since died.
Wilson said Golightly had told her averaging would not be used and the way debts were raised wouldn’t change in a meeting of about 30-40 minutes in her Canberra office.
She said she could not recall the details of the conversations or when it occurred. Wilson later said Golightly had repeated the assurance on other occasions, but she could not specify when.
Wilson was shown detailed slides from a March 2016 Department of Human Services presentation on the robodebt scheme.
Wilson was a speaker at the seminar but said she could not recall if she had been in the room for the robodebt presentation, conducted by Britton. She suggested it was possible she only turned up for her section. Britton said he could not recall if Wilson was there.
The senior counsel assisting the commission, Justin Greggery KC, put to Wilson that the presentation – which included process maps showing a computer would assess whether a person had a debt – clearly showed income averaging was being used.
“I don’t recall this presentation,” Wilson said. “I don’t know what I was thinking at the time … I can’t answer the question.”
Asked to comment on separate briefing documents she had personally annotated to show how the scheme worked in 2016, Wilson said the fact income averaging was being used had “slipped through”.
Holmes , told Wilson it appeared like she was “always looking the other way”.
Wilson said it was not a “hear no evil, see no evil” situation, saying the department was “extremely stretched” by its workload.
Holmes said: “It does look like you all may have found it just easier to accept the assurance and not look too deeply?”
Wilson replied that “it was not an environment ... that encouraged us to get up in DHS’s business”.
The inquiry also heard claims Wilson had initially tried to withhold the department’s unfavourable legal advice from the commonwealth ombudsman in early 2017, before being “caught out” by the watchdog, which learned of the legal opinion through other inquiries. Wilson denied this.
Greggery put a series of potential allegations to Wilson, all of which she rejected.
Greggery said Wilson and Golightly had agreed to “change the description” of the robodebt proposal in “superficial terms” without changing how it actually worked.
He claimed Wilson then “looked away” or “ignored” information that made it “obvious” income averaging was being used.
Greggery said Wilson then defended the program’s legality in her representations to the ombudsman, contrary to the department’s legal advice.
“And your evidence here today, where you claim not to recall all of the points in time at which these things ought to have been obvious, is you reconstructing events to protect your own interests,” Greggery said.
Wilson replied: “I’ve acknowledged that I wished I’d done things differently, that I had asked more questions, but I reject that entirely.”
Greggery said: “You have no basis to claim you did not know about averaging other than being dishonest.”
Wilson said: “No, I reject that entirely.”
Wilson accepted on the stand last year she had breached the public service code of conduct and could have stopped the scheme but lacked “courage”.
The inquiry continues.
