A former Department of Social Services official has told a royal commission she acted as “quickly” as possible after she was accused of sitting on damning legal advice on the robodebt scheme for months before moving to a more senior job.
On Friday, the robodebt royal commission heard about a dispute between Allyson Essex, an acting group manager at the Department of Social Services, and her subordinate Kristin Lumley over a top law firm’s warning the scheme was unlawful.
In late 2018, four months after the department received the secret legal advice, Lumley allegedly warned the scandal would end up in federal court and accused Essex of “sitting on” the material.
That prompted the more senior official to respond in an email: “I do not think it will ‘definitely end in Federal Court’”.
The commission is examining why and how the unlawful Centrelink debt recovery scheme was established in 2015 and ran until November 2019, ending in a $1.8bn federal court settlement with hundreds of thousands of victims.
The inquiry heard that by the middle of 2018, after media attention of former administrative appeals tribunal member Terry Carney’s condemnation of the scheme, Lumley got permission to request external advice on the scheme’s legality, after she claimed an earlier request was blocked by her superiors.
The “catastrophic” draft advice from Clayton Utz, which has already been revealed, found the scheme was unlawful but was never finalised.
Under questioning by counsel assisting, Angus Scott KC, Lumley said the advice should have been urgently briefed to the department secretary and minister.
Emails provided to the commission show she forwarded it to Essex on 15 August 2018.
The inquiry heard Lumley briefed Essex about the advice at a meeting with other colleagues one week later and provided her with a folder with all the hard copies.
In an email, Lumley quoted Essex as saying she’d “consider the issue further and speak to [her boss, deputy secretary] Nathan [Williamson] ‘when the time was right’”.
“Surely the right time was immediately,” Scott asked.
“I would think so, yes,” Lumley replied.
By December, Lumley fired off the frustrated email to a colleague with a link to a media article quoting another top lawyer who believed the scheme was unlawful.
Lumley wrote: “I am extremely concerned that we are sitting on the legal advice ... It will definitely end up in the federal court.”
The email was again forwarded to Essex, who replied: “I am not ‘sitting on’ the advice, which could have been clarified by further discussion with me … I do not think it will ‘definitely end in Federal Court’.’”
Essex worked as a branch manager and acting group manager at the Department of Social Services until January 2019 when she moved to a more senior position at the Department of Health.
Under intense questioning from Scott, Essex denied making excuses to avoid dealing with the damning legal advice throughout 2018.
Essex said she briefed her deputy secretary, Nathan Williamson, on the advice in late August 2018. “I told him … we’ve gotten advice that it’s not legal,” Essex told the royal commission.
“His response to me was, ‘It’s legal. It’s really clear that it’s legal. By all means if we have a robust advice let’s evaluate the situation. But it’s legal.’”
Williamson is expected to appear next week.
Essex was asked multiple times what steps she had taken to respond to the devastating legal advice over the five months in 2018, before she left the department.
Scott said she had “clear advice” the scheme was unlawful.
Essex replied it was “clear draft advice” which she “wanted to explore … further”.
Asked how long that would take, she said “it was not unusual for that process to take a number of months”.
In the five months before she left her role, Essex said she had also asked another official to prepare a ministerial brief and when this did not occur “started to turn my mind to what that would look like”.
“I had regard to the fact that I could not brief … the minister without it going through the deputy secretary and in this case the secretary,” she said. “I had turned my mind to the level of force that the argument would need to have for that briefing to go forward … And I had turned my mind to the best way to protect my staff in that process.”
Essex, whose LinkedIn notes she designs “solutions to wicked problems” and likes “working with impossible timeframes”, added: “I accept that you don’t think I did that as quickly as I could have.”
“It wasn’t the case that I was ignoring the issue,” Essex said.
Aside from telling another official a ministerial brief should be prepared, “everything that you described … was simply turning your mind to various things”, Scott said.
He said Essex had “continually made excuses” to avoid dealing with the issue.
“I don’t accept that,” she responded.
Essex said she passed the folder with the paper copies of the advice to another official when she left the department.
The commission before Catherine Holmes AC SC continues.
