The royal commission into the robodebt scandal will begin its final public hearings from Monday, with key questions remaining to be answered.
So far the commission has uncovered damning evidence about the Coalition’s debt recovery scheme, which culminated in a $1.8bn settlement with hundreds of thousands of welfare recipients wrongly accused of owing Centrelink money.
The evidence has included:
The departments that ran the scheme held legal advice saying it was unlawful.
One senior public servant admitted to breaching the Australian public service code of conduct in not taking action to stop the program.
The departments – and some ministers – were aware of suicides linked to the scheme.
The departments got legal advice in 2014, 2018 and early 2019 that suggested the scheme was unlawful, but the government only wound up the program in November 2019. By then, it had issued 532,285 unlawful welfare debts.
Based on the commission’s outline of the upcoming hearings, here are the big lines of inquiry that are likely to be explored.
Who gave the final ‘OK’?
Mystery still surrounds who determined the scheme was legal when it was presented to ministers for approval in 2015. We know that the Department of Social Services (DSS) had warned the robodebt program couldn’t go ahead without legal advice.
And the paper trail shows that, despite the efforts of a few public servants, these concerns simply fell away as the robodebt proposal made its way through the budget process. We also know officials at the Department of Human Services (DHS) – which spearheaded the plan with the backing of Scott Morrison – were pushing back against their DSS colleagues.
Among the witnesses who will be recalled this week are DHS officials Scott Britton, Jason Ryman and Mark Withnell. On the DSS side, the former deputy secretary Serena Wilson, who admitted failing to raise the scheme’s unlawfulness due to a lack of “courage” when she appeared last year, will be pressed further about why the department let the proposal through.
What did Coalition ministers’ offices know about the scheme’s legality?
This question is specifically noted in the commission’s outline of these hearings. Scott Morrison, Alan Tudge, Christian Porter and Marise Payne have already taken the stand. Stuart Robert, who oversaw the government’s response to the successful legal challenges that finally killed the program, may also be called.
So far, the evidence has shown that, aside from Morrison being told of the possible need for legislative change when the robodebt scheme was being developed, the department never passed on its legal warnings to ministers.
Among the notable witnesses for this week’s hearings are Morrison and Payne’s former chiefs of staff. Morrison was social services minister when the scheme was developed and implemented in the 2015 budget, while Payne was the more junior human services minister. The former staffers are Charles Wann (Morrison) and Megan Lees (Payne). A key question is what these individuals knew – or were told – about the plan’s legal foundation.
How did the Commonwealth Ombudsman get it so wrong?
Social security recipients rely on the ombudsman to hold the government to account for its administration of the welfare system. Yet the evidence adduced by the commission shows the ombudsman failed on robodebt.
It was handed the brief for Morrison that outlined the robodebt scheme in early 2015. The brief suggested the scheme needed legislative change. (This document was hidden from the public and only the ombudsman had access until the royal commission). It also had access to the conflicting legal advice held by the department. Yet it failed to pick up any legal questions about the scheme when it handed down its first report in 2017 – a document the Coalition used to defend the scheme for years.
By 2018, the ombudsman had formed the view there were legal doubts about the scheme. But it never made these concerns public, even removing potential questions about its legality from another report in early 2019. As Guardian Australia revealed, it did so after a top department official pressured the watchdog to remove passages of its report.
It remains to be seen whether a representative of the ombudsman’s office will take the stand. It cannot be compelled by the royal commission.
Was the government ‘recklessly indifferent’ to robodebt’s unlawfulness?
This is the question senior counsel assisting, Justin Greggery KC, put on the table in his opening address in October. It is a serious claim connected to a potential civil action of misfeasance in public office.
The commission has heard that the then government services minister, Stuart Robert, was warned in November 2019 that continuing the scheme may amount to misfeasance in public office. That was because the government had finally sought and received advice from the solicitor general that the scheme was unlawful.
Of course, departmental officials had already received other advice saying the scheme was unlawful – as well as one heavily caveated opinion suggesting it was lawful. Crucially, they never sought an authoritative opinion from a top barrister or the solicitor general.
Greggery told the hearings in October he anticipated the evidence could show the reason public servants failed to get authoritative advice was because they expected it would be unfavourable. This raised the question of whether the government was “recklessly indifferent to the lawfulness” of the program.
It is likely Kathryn Campbell, the secretary of the Department of Human Services (which ran the scheme) and later the secretary of DSS, will be recalled to give further evidence. Renee Leon, who succeeded Campbell at the DHS, is also expected to be called.
The commission has final hearings scheduled between 20 February and 10 March.
