Main players in robodebt Royal Commission as Morrison, Tudge, Robert break silence
Scott Morrison and Alan Tudge have hit back at the report into the failed robodebt scheme, as ex-minister Stuart Robert denies he was included in the ‘sealed section’.
The Royal Commission into Robodebt was scathing of the former Coalition government in its report handed down on Friday.
Former Prime Minister Scott Morrison, Stuart Robert, Alan Tudge, and Christian Porter were all responsible for some aspect of the automated debt collecting system at some point during its operation. Three of the former ministers have quit parliament, while Mr Morrison remains the Member for Cook.
Hours after the blistering report was made public, three of the Ministers have hit back, with Mr Tudge denying there is any basis for a legal claim against him, Mr Morrison rejecting the findings, and Mr Robert revealing he has not received a notice of inclusion in a sealed part of the report where up to 20 people have been referred to be considered for civil and criminal prosecution.
Commissioner Catherine Hayes SC, a former Chief Justice of the Queensland Supreme Court, handed down her findings in a three volume document more than 900 pages in length.
Here’s what she had to say about some of the central figures in the saga, which she said was brought about through the “venality, incompetence and cowardice of those involved.”
Scott Morrison
The former Prime Minister, who is currently on holiday in Italy with his family, received the strongest criticism of any current or former politician in the report.
In particular, Commissioner Holmes said Morrison had misled cabinet and failed in his duties by not ensuring the legality of a process known as income averaging – the most controversial and ultimately illegal aspect of the scheme.
Income averaging, at its core, was the often erroneous belief that a welfare recipient’s income could be evenly distributed across Centrelink’s fortnightly reporting periods over the course of a year.
Morrison, in early 2015 as a newly-minted social services minister, described himself as a “strong welfare cop on the beat” – a mentality Commissioner Holmes found symbolic of the environment in which the robodebt scheme was established.
She found that Morrison had not made the appropriate enquiries as to why there was no legislative change required to use the practice of income averaging before the proposal was submitted to cabinet.
“He chose not to inquire. Mr Morrison allowed Cabinet to be misled because he did not make that obvious inquiry.”
“(Morrison) He failed to meet his ministerial responsibility to ensure that Cabinet was properly informed about what the proposal actually entailed and to ensure that it was lawful,” Commissioner Holmes wrote.
Morrison was also found to have given “untrue” evidence by the Commission.
He gave evidence that he was told in 2015 that income average was a “longstanding practice.”
“Mr Morrison with any documents in 2015 which provided any support for his assertion of a longstanding practice, let alone its legality,” Commissioner Holmes wrote.
She also dismissed Morrison’s reasons for finding that income averaging had been longstanding in the government.
Morrison said he relied on multiple sources, including two letters and two media releases, to substantiate his assertion over income averaging, among them two government media releases and two letters.
Commissioner Holmes said neither government media release dealt with income averaging or automatic debt recovery, while the letters were similarly inaccurate.
“For those reasons the Commission did not find the documentary evidence to which Mr Morrison pointed compelling,” she said.
In his response to the Commission’s findings, Morrison was heavily critical, calling them “wrong, unsubstantiated and contradicted” by the evidence.
“I reject completely each of the findings which are critical of my involvement in authorising the scheme and are adverse to me,” Morrison said.
“They are wrong, unsubstantiated and contradicted by clear documentary evidence presented to the Commission,” he said.
“It is unfortunate that these findings fail to acknowledge the proper functioning of Government and Cabinet processes in the face of not only my evidence as a former Prime Minister, and Cabinet Minister for almost nine years, but also the evidence of other Cabinet ministers.”
Morrison said the relevant departments maintained the lawfulness of the scheme.
“Any assertion to the contrary regarding the Department’s position is completely wrong and without any evidentiary basis.”
Stuart Robert
Stuart Robert was the human services minister in November 2019 when the robodebt scheme was wound up, after advice from the Solicitor General in September of that year revealed that the Commonwealth had no power to assess debts on the basis of income averaging.
Robert’s role is less controversial than that of other former government ministers, but he still came under criticism from Commissioner Holmes for his evidence that he tried to end the scheme as soon as he became concerned over its legality.
Instead, the Commission found that Robert had been made aware of the Solicitor General’s advice one week before he said he found out, on November 7 2019.
He was also rebuked by the Commission for defending the accuracy of the scheme in circumstances where he must have know the figures he was citing to be incorrect – in particular a claim made in July 2019 that in 99.2 per cent of cases where a debt was raised, the debt was correct.
“Services Australia had not reviewed 99.2 per cent of the cases where the income discrepancy had not been explained, let alone found the debt to be correctly raised,” Commissioner Holmes said.
In his evidence to the Commission, Robert explained this and other “misleading” statements as part of his duty under the principle of cabinet solidarity.
“If Mr Robert did not know at the time he made the representations that the claim of a 99.2 per cent effectiveness rate was false, he at least had a very good idea, ‘a massive personal misgiving,’ that it was most unlikely to be right,’ Commissioner Holmes said.
“Nothing compels ministers to knowingly make false statements, or statements which they have good reason to suspect are untrue, in the course of publicly supporting any decision or program,” she said.
On Friday, Stuart Robert defended his actions and said he was not aware of any referral made against him in the sealed section of the report.
“As the Minister that worked hard to get the legal advice and close down the Income Compliance Scheme I welcome the RC report and its sensible recommendations.
I have NOT received a notice of inclusion in the ‘sealed section’ and I understand they have all gone out.”
Alan Tudge
The royal commission found the actions of Alan Tudge, who was human services minister from February 2016 to December 2017, to be a reprehensible “abuse of power”; and that he failed to take any meaningful action, despite having been made aware of legality concerns and suicides as a result of the scheme during his tenure.
Ms Holmes said Mr Tudge was “not open to considering any significant alteration, or cessation, of processes underlying (the) fundamental features” of the robodebt scheme.
She found Mr Tudge had used the media to release information about social security recipients in the media to “distract from and discourage commentary about the scheme’s problem” which was a significant “abuse of power”.
“It was all the more reprehensible in view of the power imbalance between the Minister and the cohort of people upon whom it would reasonably be expected to have the most impact, many of whom were vulnerable and dependent on the department, and its Minister, for their livelihood,” Ms Holmes wrote.
She said as a Minister, Mr Tudge had a “significant amount” of public power and knew there were issues with the debt averaging system, but did nothing.
Ms Holmes said she accepted that Mr Tudge believed he had been “bound by the cabinet decision to implement (the scheme), but that did not mean he could not have investigated the problems with them and raised any concerns with the appropriate senior Minister”.
Mr Tudge was given one of the earliest and most detailed warnings about problems associated with the scheme in December 2016, shortly before departing for leave, in a letter written from ACOSS chief executive Cassandra Goldie.
Ms Holmes found Mr Tudge had taken some steps to address the problems raised, but did nothing to change the fundamental concerns of reversal of the onus and income averaging was done.
The report found Mr Tudge was made aware by July 2017 of at least two people who had died by suicide, and that their families had identified the impact of the scheme as a factor in their deaths.
Ms Holmes said despite this knowledge, Mr Tudge “failed to undertake a comprehensive review into the scheme, including its fundamental features, or to consider whether its impacts were so harmful to vulnerable recipients that it should cease”.
In response, Alan Tudge said the report made “no finding” he had knowledge the scheme was unlawful.
“It (the scheme’s lawfulness) had not crossed my mind given that both the Departments of Social Services and Human Services gave written statements that the scheme was lawful,” Tudge said.
He said he “strongly rejected” claims made by Commissioner Holmes that he had abused his power.
“At no stage did I seek to engage in a media strategy that would discourage legitimate criticism of the Scheme.”
“It is part of a Minister’s role to publicly defend government policy when that policy is subject to criticism.”
Mr Tudge also rejected the claim that he was indifferent to suicides caused by the scheme.
“It was standard practice to investigate every suicide that was said to be linked to Centrelink,” he said.
Regarding the ‘sealed section’ of the Commissioner’s report, which contained the names of those involved recommended for civil or criminal prosecution, Tudge said: “My legal team has not identified any legal basis of which any civil or criminal prosecution could successfully be made against me.”
He did not specify if he had been notified of any referral or proposed referral.
His full response can be read here.
Christian Porter
Christian Porter was sceptical about the legality of the robodebt scheme but did nothing to take those concerns further, the royal commission found.
Then-social services minister, Mr Porter assumed the role of acting human services minister over the Christmas/ New Year period in 2016/17 while Mr Tudge was on leave and as criticism about the scheme was ramping up in the media.
If he had taken his scepticism a step further and probed the legality of the scheme around the time he was acting Minister, the scheme could have ended months earlier, Ms Holmes found.
Mr Porter told the royal commission that initially he accepted the department’s position on the issues, including as they were represented in the talking points, circumspection, which then turned to scepticism”.
The report found while Mr Porter may not have completely understood at some point he began to view the information he was being given with “a degree of what the processes were, he did know income averaging was involved.
“It did not take a genius to see that averaging a person’s annual income to arrive at a fortnightly figure was likely to produce inaccurate results, unless the person was on a consistent income. Mr Porter… clearly appreciated this,” Ms Holmes wrote.
“It was not a big step from there to ask whether the Social Security Act allowed this. Mr Porter, as minister for social services, should have made that inquiry.”
Ms Holmes found if he had directed his department to produce him any legal advice in respect to the legislative basis of the scheme in late December 2016 or early January 2017 when he was the acting Minister responsible: “he would have discovered that the only legal advice DSS possessed (the 2014 legal advice) advised that the income averaging proposal might not be consistent with the legislative framework”.
If he had inquired after January 24, 2017, he would have been provided with the updated 2017 legal advice which would have told him the use of income averaging should only be used as a “last resort” and that there was no legislative provision which authorised income averaging”.
“In either event, the proper and obvious next step would have been to obtain external legal advice as to the legislative underpinning for the scheme as it was operating, with the probably result that its unlawfulness would have been identified and the scheme ended.”
After the report had been handed down, a spokesperson for Mr Porter said there was nothing in the findings that contracted the “fundamental truth” he had acted in good faith.
“As Mr Porter had noted at the Royal Commission, it is a matter of significant regret that during the short period that was Acting Minister he did not detect issues relating to the lawfulness of the Robodebt Scheme,” the spokesperson said.
“However, as the evidence revealed, he asked questions and received assurances which he was reasonably entitled to act on as an Acting Minister.”
The former minister also noted in the statement he had not been made aware that any referral had been made against him in the sealed section of the report.
“Mr Porter has not received any notice of referral (or proposed referral) to any investigative body for civil action, criminal prosecution, or otherwise,” the statement read.
Mr Porter’s full statement can be found here.
Kathryn Campbell
A blistering assessment of Kathryn Campbell, who served as secretary of the Department of Human Services from March 2011 to September 2017, found she did “nothing of substance” when exposed to information about the illegality of robodebt.
The royal commission found Ms Campbell had been responsible for a department that had “established, implemented and maintained an unlawful program”.
“When exposed to information that brought to light the illegality of income averaging, she did nothing of substance,” the report said.
“When presented with opportunities to obtain advice on the lawfulness of that practice, she failed to act.”
Ms Campbell was found to have instructed DHS officers to stop responding to a request for legal advice from acting secretary Barry Jackson while she was on leave in 2017 over concern the illegality of the scheme could be exposed.
“The Commission finds that Ms Campbell instructed DHS officers to cease the process of responding to Mr Jackson’s request for advice, motivated by a concern that the unlawfulness of the Scheme might be exposed to the Ombudsman in the course of its investigation,” the report said.
The royal commission was also damning of Ms Campbell’s handling of the policy proposal for robodebt that went to the powerful expenditure review committee in 2015.
The proposal said nothing of income averaging, or of the need for legislative change – despite previous advice from the social services department that such a change would be needed.
The report found she knew of both the intended use of income averaging, and the DSS advice that legislative change would be needed, but did nothing to change the policy proposal taken to government.
The royal commission found she had done so because she knew Mr Morrison “wanted to pursue the proposal and the government could not achieve the savings” that were promised without income averaging.
“In oral evidence, Ms Campbell accepted that the NPP [new policy proposal] was apt to mislead Cabinet. She contended that her failure to eliminate its misleading effect was an “oversight,” the report said.
“That would be an extraordinary oversight for someone of Ms Campbell’s seniority and experience.
“The weight of the evidence instead leads to the conclusion that Ms Campbell knew of the misleading effect of the NPP but chose to stay silent, knowing that Mr Morrison wanted to pursue the proposal and that the Government could not achieve the savings which the NPP promised without income averaging.”
Ms Campbell was appointed as an adviser on Aukus, a job worth nearly $900,000 a year, in June 2022.
When grilled on the appointment in Senate Estimates last month, Foreign Minister Penny Wong said the decision was made prior to the royal commission beginning and that the evidence that emerged during the hearings went “beyond what I anticipated”.
‘Nightmare’: Albo marks grim anniversary
20 years after the catastrophic Boxing Day tsunami devastated Australia’s island neighbour, Anthony Albanese has led a moving tribute.
Big move 50 years on from Cyclone Tracy
Survivors of “the destructive force of nature at its very worst” have gathered with politicians to mark 50 years since the Australian tragedy.
Fresh blow for would-be homeowners
The International Monetary Fund has poured cold water on a key housing policy which would make it easier for first-home buyers to get a loan.