A former Department of Social Services official has told a royal commission he was “directed” to “tone down” legal concerns about the robodebt scheme when the proposal was designed in early 2015.
The inquiry is investigating why and how the unlawful Centrelink debt recovery scheme was established in 2015 and ran until November 2019, ending in a $1.8bn settlement with hundreds of thousands of victims.
Andrew Whitecross, a former mid-level official at DSS, had been involved in commenting the initial plan for the robodebt scheme, which was briefed to the then social services minister Scott Morrison in February 2015.
The royal commission heard Whitecross and a colleague, Murray Kimber, had fiercely criticised the proposal, questioning its legality and fairness as well as the estimated budget savings.
But Whitecross claimed he was told to water down those concerns by the acting deputy secretary, Catherine Halbert, before the feedback was passed on to the Department of Human Services (DHS), which was formulating the plan. Halbert later said she had no recollection of the events described by Whitecross.
According to Whitecross’ evidence on Thursday, Halbert had spoken to her counterpart at DHS, Malisa Golightly, who “expressed her concerns about the strength of DSS’ comments”. Whitecross also said he recalled Halbert referring to the relationship between the two departments.
“[Halbert] wanted me to tone down the comments that Murray had provided in his response,” Whitecross said.
“I took it as a direction,” Whitecross added. “We had a disagreement in the conversation about that. I believed the policy wasn’t well developed and lacked merit … and we should be fairly forceful in communicating that.”
Under questioning from senior counsel assisting, Justin Greggery KC, on Thursday, Halbert said she did not recall the conversations with either Golightly or Whitecross.
She also did not recall having a disagreement with him, though she said generally they sometimes disagreed because they had different styles.
“I don’t believe I would have used that kind of language,” Halbert said. “I don’t recall giving him direction.”
Though she had just taken up a stint as acting deputy secretary, Halbert said she had the same experience as Whitecross and would not expect to have directed him.
Halbert said she didn’t think she tried to soften the warnings about the scheme and didn’t believe there were any issues between the government departments.
Emails shown to the commission indicated Whitecross subsequently provided new comments that watered down the advice, though his revisions maintained there were legal questions about the robodebt plan.
Those proposals were sent to Morrison in February 2015 after being finalised by Golightly and the secretary of DHS, Kathryn Campbell.
Whitecross said he had earlier expressed concerns about the proposal in a meeting with DHS officials including Mark Withnell, who was involved in drafting documents explaining the plan.
“I felt very strongly about this issue and I wanted to convey the strength of my feelings [about the lack of quality of the proposal],” he said.
“[Withnell] seemed to be particularly unhappy that I was suggesting we wouldn’t be able to realise the level of savings he’d estimated,” Whitecross added.
“I formed the impression there was an attachment at more senior levels to that level of savings.
“It was that sort of sense that the [$1.2nbn] number was not a number that had come out of a methodology, but that the number itself was a goal of the process.”
Whitecross assumed Golightly had been among those attached to the plan. He couldn’t comment on whether Campbell was also when asked. Golightly has since passed away. Campbell will give further evidence at a later date.
The commission heard on Wednesday the final policy proposal “misrepresented” the nature of the robodebt scheme, apparently paving the way for it to be implemented without legal change.
Withnell will appear on Friday.
Kimber, also a mid-level official at DSS but more junior than Whitecross, told the royal commission he remembered seeing the toned down advice but did not recall “thinking anything of it at the time”.
The inquiry heard that between 26 February and 4 March 2015 Kimber worked with officials from DHS on costings and a draft of the formal policy proposal that would be considered by ministers.
In an email to his colleagues at DHS, Kimber said the proposal would “need to indicate that legislative amendments will be required” so ministers were not surprised.
Shown an initial draft of the policy which stated that no legislation was required, Kimber said this reflected DHS’s position and was not based on DSS’s advice.
Kimber reiterated he believed DHS was “going to put in place arrangements that fitted within the legislative framework”.
He had no memory of a scathing eight-page email from DSS lawyer David Hertzberg, who was also called in to provide urgent advice on the robodebt plan.
The email listed several legal flaws in the plan and apparently represented a last-ditch effort from some people within DSS to kill the proposal.
The inquiry has previously heard DSS lawyers worked through the night to provide the legal feedback, which was required urgently because of Morrison’s desire for the proposal to be considered for the May 2015 budget.
The royal commission before Catherine Holmes SC continues.
