‘We absolutely will not be doing that. We will double-down.’
Former minister Stuart Robert says he wanted to end robodebt but he had to support it because he was a cabinet minister. The evidence from senior public servants suggest the opposite.
Stuart Robert’s position is this: I was lying but it was my job to lie. He says this is how the Westminster system works. Even though he knew the robo-debt scheme was illegal, as a cabinet minister he couldn’t say so.
Robert, who was the minister for
Government Services, knew he was lying when he defended the scheme at the National Press Club. He did so because he saw no alternative.
“I kept my words very tight,” he told the Royal Commission into the Robodebt Scheme this week. “I’m in a hell of a position now where I know what the government has done but I can’t communicate it. It’s a dreadful position for a cabinet minister to be in.”
Across several hours of bizarre evidence, which traversed lessons from his military career and the government’s ability to “turn black to white” at the Australian Taxation Office, Robert maintained that he had to publicly support the policy despite his personal conviction that income averaging alone could never produce an accurate debt.
In media interviews at the time, he said “99.2 per cent” of debts were accurate. This was simply not true.
“I had a massive personal misgiving, yes,” he told Commissioner Catherine Holmes on Thursday. “As a dutiful cabinet minister, that’s what we do, ma’am.”
Holmes was incredulous: “Misrepresent things to the Australian public?”
According to then Department of Human Services secretary Renée Leon, Robert was briefed on the illegality of robo-debt during a phone call on October 29, 2019. This came after advice was received from the solicitorgeneral on September 24, 2019.
“Minister Robert said, ‘legal advice is just advice’ and I took it by that to mean that he didn’t share my view that advice from the solicitor-general had to be acted on, that we had to stop the program because we had advice that it was unlawful.”
On Thursday, Robert told the commission he had no recollection of this call at all. “I didn’t make a note in my diary. I’m a prolific diarist in that respect,” he said. “The department had had it for six to eight weeks. I had it for two hours, walked straight into the prime minister’s office … and said: ‘We need to stop this.’”
That was, he says, on November 7.
“I have a very strong memory of it because I was so surprised and shocked. Because I thought my advice was obvious … the only thing for an organisation that had been found to be doing something unlawful [was] to cease doing it.”
Leon has a different recollection of this meeting, too. She and other “officers of the department” met Robert in his ministerial office to discuss options. Her advice, Leon says, was that DHS ought to apologise, admit the error and repay the debts raised.
Robert, she says, was outraged. She quoted him as saying: “We absolutely will not be doing that. We will double-down.”
Leon says Robert spoke “confidently and firmly” as he responded to her advice. “I have a very strong memory of it because I was so surprised and shocked. Because I thought my advice was obvious, really – that there wasn’t any other course to take, that it seemed the only thing for an organisation that had been found to be doing something unlawful [was] to cease doing it and to remediate and to apologise.”
Robert said this was “somewhat farcical” and that he should be judged on his actions. “The idea … that I’ve come out of the prime minister’s office where I’ve said we need to stop this thing, and I’ve been granted an emergency expenditure review committee meeting to make that happen, that I would double-down on the same project, doesn’t make any sense at all.”
Under oath on Thursday, Robert claimed he was the one who ordered critical legal advice from the solicitor-general on July 4, 2019, and that he was never told about earlier legal advice from the Australian Government Solicitor, which cast doubt over the robo-debt scheme.
“I asked for the advice on the 4th of
July. I wanted it. And when they had it, they ostensibly sat on it to work out what to do,” he said, referring to the DHS.
“I also put it to you, sir, respectfully, that if that advice had been put to me then, this issue could have been resolved earlier.”
Robert testified that in the same “deep dive” meeting he was not told by the DHS that it had the draft AGS prospects advice from March 27, which explicitly recommended seeking the opinion of the solicitor-general. DHS officials, including Leon and then acting chief counsel Timothy Ffrench, have given evidence that Robert was verbally briefed on this advice.
“What I am seeing and hearing from you is that my department had legal advice and they’ve now had it for almost 100 days and they have not informed me in writing in any way, shape or form,” Robert said.
“I do not recall this being briefed to me. I do not recall my department saying on the 4th of July, ‘We have a prospects advice’ ... I would have walked into the prime minister’s office, put it down, and said we need to stop this.”
There are some jarring details in Robert’s account. He claims not to have been informed of the solicitor-general’s advice before November 7, 2019, but in a brief prepared for him, which he mistakenly signed November 6, 2019, there is a section about the judicial status or otherwise of the S-G opinion. He said on the stand that this was because he needed something strong, appearing to suggest he asked for this section to be included at a time when he was unaware of the contents of the advice.
“I had a very strong view that the numbers don’t add up, but I can’t just walk into cabinet, sir, and say the numbers don’t add up, the program needs to stop,” he said.
Senior counsel assisting the commission Angus Scott, KC, put another interpretation to the member for Fadden. “See, one view of the evidence, Mr Robert, is that the department thought it necessary to identify those issues because the secretary needed to convince you to end the program because the secretary perceived a lack of support from you.”
Robert said he “completely rejects that in the strongest possible terms”. He said he
“did accept the opinion of the S-G and the facts speak to it”.
In his own statement, however, Robert details a November 12, 2019 meeting with then attorney-general Christian Porter where he concedes he sought Porter’s view on whether the S-G advice was right.
On the stand, Robert denied that this suggested he did not agree with the opinion. He wanted options.
In her evidence, Leon said there was sensitivity in sharing the solicitor-general’s advice because of tension with DHS secretary Kathryn Campbell. “So I reasonably thought that Secretary Campbell, who had initiated the scheme, might find it somewhat uncomfortable that it had been found to be unlawful, and I didn’t want that to lead to either an uncontrolled release of the information or to obstacles in us doing what had to be done to bring it to an end.”
Leon said she was aware that Stuart Robert did not like her and that Campbell had been “encouraging and actively supporting” Robert to develop plans that would have led to the “dismemberment” of the DHS and potentially the privatisation of core features.
On the October 29 phone call, which Robert says he doesn’t recall, Leon gave evidence that the minister wanted her to find a way to deliver robo-debt that would get around the solicitor-general’s advice.
She had anticipated this and took steps to shut all avenues of escape. “In the period where we were taking the matter to government for decision – because discussions with ministers, not only my own but the discussions that were being had with other ministerial officers and conveyed to me or my staff – suggested that some ministers wanted to see whether we could stop the process but not repay the debts, stop the process but not tell anyone, stop the process and only repay debts if people appealed.”
Leon says she asked Timothy Ffrench to “prepare advice both to me and then to prepare advice to the minister to emphasise that not only did the government have obligations but if they weren’t minded to be moved by those, that the public service had obligations and the secretary had obligations that would mean we had to take action to stop the program”.
According to Leon, that is precisely what happened. The government would not act and so she did. “I ended up having to stop the program in advance of a decision by the government to do so.”
Like layers of sediment after the initial churn, the stratification of responsibility and involvement in the illegal robo-debt scheme is becoming more settled as the royal commission nears its final hearing week.
It is telling, in these late stages, to pay attention to the propositions that are put to key witnesses. These must be put in order for Commissioner Holmes to make certain findings.
On Wednesday, former DHS chief counsel Annette Musolino returned to the witness box for a third time. She was grilled over draft internal legal advice and instructions to brief the Australian Government Solicitor that were drawn up while she was on leave in early January 2017 but that were never acted on or sent.
Musolino says she has never seen those documents. Others testified they were handed to her. An email from Musolino herself appears to refer to them being “printed out”.
Angus Scott said one interpretation of the circumstances is that Musolino, as well as then DHS deputy secretaries Jonathan Hutson and Malisa Golightly, were all aware of a recommendation from the legal services division to get external legal advice regarding the incoming averaging that underpinned robo-debt.
“And I suggest to you that you were careful to avoid expressly acknowledging the weakness of the arguments in favour of averaging in response to Ms Golightly’s email on 21 January 2017 where she referred to ‘scaring the horses’ because you knew that advice to that effect was unwanted by her,” he said to Musolino.
“And I suggest to you that you failed to take any steps to properly advise the secretary [Kathryn Campbell] of the weakness of the legal position that the Commonwealth then faced ... because you knew advice to that effect was unwanted by the secretary. And you knew it was unwanted by the secretary because advice to that effect, had it been communicated effectively, would have made it difficult to explain a decision by her not to get independent legal advice.”
To each proposition, Musolino answered no, although it did not stop Scott from piling up the assertions around her.
It was put to Musolino that she also chose to withhold documents from a coroner’s inquest into the suicide of Rhys Cauzzo, which would have shown the department knew he had mental health diagnoses and a “history of suicidal ideation”. She denied this as well.
On Thursday, senior counsel assisting the commission Justin Greggery, KC, put another series of assertions to former DSS group manager Emma Kate Mcguirk. She was shown a “missing email” that suggests she, along with Catherine Halbert and Serena Wilson, both former deputy secretaries at the DSS, deliberately conspired to mislead the Commonwealth Ombudsman in 2017 and the Australian public for another six years.
“One view, Ms Mcguirk, is that everyone in that … meeting was well aware that DHS had been using averaging and had been doing so since 1 July, 2015,” he said.
“One view is that what followed this meeting is that yourself, Ms Halbert and Ms Wilson agreed to obtain, in one form or another, legal advice from Ms [Anne] Pulford and that this would then be used to justify what DHS had been doing all along.
“You predetermined the outcome of her advice and sought advice accordingly.”
Mcguirk denied this. She was unable to explain how the scheme continued for another four years, dragging thousands of other vulnerable people • into its illegal and devastating machinery.