Former prime minister Scott Morrison has told a royal commission he was given "very explicit" advice no legislation was needed for the scheme which would ultimately become Robodebt.
Mr Morrison has given evidence at public hearings in Brisbane in a session that became fiery at times, with an exasperated Commissioner Catherine Holmes at one point asking if he understood parliamentary privilege.
Mr Morrison was the minister for social services in 2015, and gave evidence that by late 2014 the Department of Human Services (DHS) had already done "extensive" work on the proposal.
The inquiry previously heard evidence that a need for "policy and legislative change" was included in a February 2015 executive minute to Mr Morrison, but a budget submission a short time later did not contain that phrase.
Senior Counsel Assisting Justin Greggery drew Mr Morrison's attention to a paragraph in the executive minute which said DSS had advice some proposals in the minute "may have significant implications" for social security policy and legislation, and would need to be assessed.
"Do you recall what you understood to be communicated there?" Mr Greggery asked.
"It was not uncommon … in my experience of new policy proposals that departments would flag potential issues, and that's what I simply noted that to be. That there would be issues that would need to be worked through here and brought to some finality in terms of the advice to government," Mr Morrison said.
A later paragraph said DSS and the Department of Human Services (DHS) would continue working together to do that analysis.
"I was comfortable that those issues would then be worked through between DSS and DHS, informing a definitive position to put to government," Mr Morrison said.
Mr Greggery asked him if he had enquired further when a package of policy and legislative changes was not developed.
"What came back at the end of that process was a Cabinet submission from the department that said no legislation was required," Mr Morrison said.
Mr Morrison then referred to evidence given to the commission by several other witnesses, including Serena Wilson.
"The department made very clear that at no time, from this time all the way through to the time of that advice from the Solicitor-General ultimately being provided to the government, had the department ever relayed any issue, despite multiple opportunities over multiple budget submissions over multiple years, that there was any legal question in the department's mind," he said.
"You've effectively made submissions on the evidence Mr Morrison, rather than giving evidence. But you seem very familiar with the exhibits, you've gone through everything have you?" Commissioner Holmes asked.
"Well, I take this commission very seriously, Commissioner," Mr Morrison said.
Mr Greggery then pressed him again if he asked any question about why the package of policy and legislative changes wasn't produced.
"No, and that was because I had confidence in my department," Mr Morrison said.
"The clear advice given to me, and the advice therefore to the Expenditure Review Committee of Cabinet, was very explicit. There was no legislation required."
Parliamentary privilege
Mr Morrison's legal representation had argued for a public interest immunity claim over Cabinet documents to be lifted, so documents attached to a written statement to the commission could be published and openly referred to.
Lawyers held a closed hearing to discuss the matter last week.
Mr Morrison's lawyer told the commission the ruling would not pose a practical problem.
But when he was asked at the start of his evidence if his statements were true and correct, Mr Morrison replied: "Well I can't say that it's complete, but I can say that the statement that's redacted, the items that are not redacted are true. But I cannot say that redacted statement is a complete and comprehensive statement."
Commissioner Holmes said he had only been asked if his statement was true and correct.
Later under questioning, Mr Morrison was referring to documents from parliament and was interrupted by the Commonwealth's lawyer, Trent Glover.
"I'm sorry, commissioner, this is a matter that is trespassing into parliamentary privilege territory," Mr Glover said.
Under the Parliamentary Privileges Act, it is not lawful for evidence or statements to be made concerning proceedings in parliament for several reasons, including drawing or inviting conclusions or establishing any person's credibility, motive, intention or good faith.
Mr Glover said there may be a way to obtain non-privileged documents from the department.
After a few minutes of legal back-and-forth, the commission heard Mr Morrison may have been referring to two letters tabled in the parliament that would fall under parliamentary privilege.
"Mr Morrison, you do understand about parliamentary privilege don't you?" Commissioner Holmes asked.
"Of course I do," he responded.
Mr Morrison again began speaking and was again interrupted by Mr Glover to say he could be trespassing on parliamentary privilege.
"Mr Morrison, you can't advert in this commission in documents that were before parliament. That's not the commission's doing, that's the subject of parliament's own legislation," Commissioner Holmes said.
"One might have thought that as a parliamentarian, you'd appreciate the significance of parliamentary privilege."
Mr Morrison told the commission he had been talking about a different public statement issued by the government.
'You appreciate the irony?'
Mr Morrison was questioned by Commissioner Holmes about how he understood the use of income averaging prior to the new policy.
Mr Morrison told the royal commission it was an established practice and not the subject of any controversy.
When Mr Greggery took up the questioning again, he said he wanted to raise Mr Morrison's "repeated reference" to the difficulty of recalling events from 2015.
"You appreciate the irony of the position that you are now in — having to recall events from seven years ago — that the position that this measure placed welfare recipients or former welfare recipients in, in having to prove evidence of fortnightly income from as much as six years earlier, in order to avoid the raising of a debt?" Mr Greggery asked.
"Well the difference that I would only note is this — you're asking me to recall an oral conversation of seven years ago," Mr Morrison said.
"If I needed to know what my bank statement said seven years ago, I'd be in a position to go and look it up. And I note that, as DHS worked through the implementation of this scheme — because it came in in September 2016 — in early 2017 they were already making adjustments to the program… and that included accepting bank statements in relation to income.
"They are two different things, I would suggest."
Mr Greggery : "You're of course comparing your position to someone who might have casual work, seasonal work, intermittent income, work for multiple employers. Some of whom might no longer be operating businesses. You're well educated, this might not be a big matter for you to get bank statements from years ago but as you identify, that wasn't permitted in the early stages of the scheme. People had to find pay slips.
"It presented some real challenges, didn't it, to people you were asking this very high bar of?"
Mr Morrison: "It did, and that's why I'm pleased they altered the program."
Mr Greggery: "Putting to one side the question of legality, and putting to one side the question of whether you sought advice or didn't seek advice, all of those issues — did you appreciate that this was a measure which asked a lot of a potentially vulnerable cohort of Australians?"
Mr Morrison: "The management of the social security system is a very difficult task for those who administer it," Mr Morrison said.
"They deal with these difficulties, whether it's this program or any number of others, every single day."
"So in seeking to ensure the integrity of the system, then that does of course put obligations on individuals who have been the recipients of payments. That is unavoidable.
"Pretending that overpayments aren't made, I'm not sure is a way that we can deal with that, in fairness to the taxpayer as well."
The hearing continues.
