Scott Morrison has disputed that public servants felt pressure not to inform him of legal risks about the robodebt scheme, telling a royal commission they had an “obligation and duty” to warn ministers of problems and it was “distressing” they never did.
The commission 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.
Appearing in Brisbane on Wednesday, Morrison said legal advice warning of the scheme was unlawful was not raised directly with ministers until late 2019, when the program was eventually shut down.
He said if the advice had have been shared he doubted “we’d be sitting here today”.
“The critical failure in the system … was that this advice, which had been sought prior to my turning up, was not brought to the attention of ministers, and I believe there was an obligation and duty to do so,” Morrison said.
“I believe that was a reasonable expectation of a minister of their department.”
The royal commission revealed in October that the Department of Social Services had warned in late 2014 the robodebt proposal would likely be unlawful.
Senior counsel assisting Justin Greggery KC asked Morrison if he was able to say why the advice was “withheld” from him.
Morrison replied: “No, I’m not. And that is distressing.”
Morrison was compelled to appear on Wednesday because he was social services minister when the failed scheme was developed and introduced, was treasurer while it was expanded and prime minister when it faced two court challenges.
He was questioned about a February 2015 brief that outlined the robodebt plan to him, alongside other welfare compliance measures.
Morrison had signed the executive minute, telling his department to “pursue” proposals for welfare compliance measures. The minute noted that what became robodebt would need legislative change to be implemented.
However, the commission has been told that when the policy proposal was developed for cabinet, the legal concerns raised by bureaucrats had disappeared and ministers were told no legislation was required.
After Morrison quoted from the Social Security (Administration) Act and offered his “plain English” reading, the commissioner Catherine Holmes noted his close interest in the legislation: “Why didn’t you want to know how it was that legislative change wouldn’t be required?”
Morrison said that was because he believed the “department had done their job”.
He said he “would never have conceived that had there had been legal advice suggesting it was unlawful, it had never entered my imagination that would not be raised with ministers”.
Holmes pressed him: “You have a minute that says legislative changes required. And it’s your own department saying. Then you get a new policy proposal that says legislative change is not required. Why don’t you ask? How does that happen?”
Morrison: “I didn’t see it as necessary because they had affirmed to a view so strongly, and that I had great faith in the department to work through the matters that they were working through.”
The royal commission has previously been told the Department of Social Services had warned the scheme was potentially unlawful. After a row with the Department of Human Services, which backed the plan, the legal warnings “fell away”.
Morrison repeatedly defended himself by noting the final budget submission included the “clear advice” that “no” legislation was needed.
He said the “due diligence checklist” did not “refer to the existence of any legal risks”.
However, in earlier evidence, Morrison had indicated that he could not recall seeing the policy proposal when it was sent to him in draft form in March 2015.
Greggery asked how Morrison “considered that advice from that department” if “you never saw it”.
“You can’t confirm that you ever saw it,” Greggery said.
“My answer is any draft NPP … that included an answer on the due diligence checklist that was completed by the department, [it] was reasonable to for ministers to take that as advice,” Morrison said.
The commission also explored Morrison’s motivations for supporting the proposal, including the estimated $1.2bn in budget savings that never eventuated.
Morrison didn’t resile from his self-appointed “responsibility” as a “welfare cop”, which he had first raised in a Sky News interview in January 2015, only weeks after he was appointed social services minister.
“That’s how I colloquially described it,” he said. “I’m the son of a police officer.”
Greggery asked Morrison to respond to the suggestion that public servants had felt “constrained” in raising the legal problems with him due to “cumulative” factors.
These included that he had not asked to see the advice, that they knew he was keen on the plan due to his “welfare cop” rhetoric and the attached budget savings.
Morrison rejected this, repeating that it was “inconceivable” that clear “legal advice” wouldn’t have been raised “directly with me”.
“The idea I would have assumed they had advice and they weren’t giving it to me is inconceivable,” he said.
Morrison was pulled up by Holmes on a number of occasions for straying from the question.
“I understand you come from a background where rhetoric is important. It’s necessary to listen to the question and just answer it without extra detail, unnecessary detail,” she said.
The royal commission continues.
