The Department of Human Services’ former top lawyer has denied claims aired at a royal commission that she sought to withhold documents from a coroner investigating the suicide of a robodebt victim.
Fronting the inquiry into the Centrelink scheme again on Wednesday, Annette Musolino faced questioning about her role as the department’s chief counsel and later a deputy secretary responsible for oversight of the robodebt scheme.
Musolino denied withholding legal advice from her boss, the DHS secretary Kathryn Campbell, because she knew the information was “unwanted” – saying she had no recollection of seeing the documents in question.
Under questioning from counsel assisting, Angus Scott KC, Musolino also rejected allegations she misled her next boss, DHS secretary Renee Leon, by not conveying legal concerns about the scheme in an effort to hide her own alleged failings.
In this case, Musolino said she had no recollection of the conversation and denied knowing the scheme’s legal basis was weak.
The inquiry investigating a scandal that led to a $1.8bn settlement with hundreds of thousands of victims heard last week from Jennifer Miller, whose son Rhys Cauzzo took his own life in 2017 after being told he owed $17,000 in what turned out to be unlawful debts.
After saying she was stonewalled by the Coalition government, Miller sought an inquest in 2018 from the Victorian coroner, who sought documents from the department as part of initial inquiries.
On Wednesday, the commission was shown an email written by Musolino and sent to other top DHS officials that outlined what would be provided to the coroner.
The email proposed excluding information relating to other payment claims made by Cauzzo, such as for the disability support pension.
The inquiry has heard Cauzzo confirmed in a claim for the disability pension two years before his death that he experienced suicidal ideation. The commission has heard Centrelink’s policy at the time of Cauzzo’s death was to exclude people with a “vulnerability indicator” from the robodebt scheme.
Musolino, who said she was aware of the background of Cauzzo’s case when she sent this email, said the document was written by another official in the litigation branch.
She said she believed there were discussions between the department and the coroner to understand the “scope of the request” and she was “just reading that as those documents don’t fall within the scope”.
The commissioner, Catherine Holmes SC, put to Musolino that the documents were directly relevant.
“In the context of considering an inquest into the suicide of somebody dealing with Centrelink, what Centrelink knew about his mental state could not be more critical,” Holmes said.
Musolino said she agreed and noted the department’s interpretation might have been “overly narrow”.
But she distanced herself from the decision, saying it was handled by the litigation branch.
“I sent this email, I understood it to be correct and I understood it to represent what had been agreed by the court,” Musolino said.
Holmes said: “One view is you made a decision not to provide relevant documents to the coroner?”
Musolino said that was not the intention, reiterating she did not draft the email or handle the discussions with the court.
“I didn’t think there was anything improper here,” she said.
It was not clear from the evidence whether the documents were ultimately provided to the coroner, who elected not to hold an inquest.
The exchange with Holmes came after Musolino was shown several emails and documents pointing to serious legal doubts about the scheme.
This included a draft request for the Australian government solicitor (AGS) to provide advice on robodebt, prepared by Musolino’s legal team staff while she was on leave in early 2017, and academic papers from two esteemed law experts in 2017 and 2018.
Musolino disputed evidence from other witnesses that she had likely been shown paper copies of the AGS instructions and an internal departmental opinion showing its position was weak.
Asked directly by Scott, she denied withholding the advice from Campbell under the belief it was “unwanted” by the secretary.
“You knew it was unwanted … because [that] would have made it more difficult for the secretary to explain her decision not to get independent legal advice,” Scott said.
“No,” Musolino replied.
Musolino claimed that by the middle of 2017, after separate advice from the Department of Social Services had offered some backing to robodebt legality, an “entrenched” view formed among officials that the scheme was lawful.
Speaking generally, Musolino acknowledged she could have asked more questions but said she had relied on advice from other legal staff with more experience.
Later, Musolino faced questions about her motivations for legal assurances the then department boss, Renee Leon, claims she was offered in 2018.
Scott said Musolino had confidently asserted that robodebt was legal in a conversation with Leon because otherwise “you would have had to admit you failed” properly advising Campbell a year earlier.
She replied: “I don’t accept that.”
The inquiry continues.
• In Australia, the crisis support service Lifeline is 13 11 14. In the UK and Ireland, Samaritans can be contacted on freephone 116 123, or email jo@samaritans.org or jo@samaritans.ie. In the US, the National Suicide Prevention Lifeline is at 988 or chat for support. You can also text HOME to 741741 to connect with a crisis text line counselor. Other international helplines can be found at befrienders.org
