Thread by @SquigglyRick

The Robodebt Royal Commission is back today for Hearing Block 2, continuing on with the evidence of Kathryn Campbell who was tied in knots by the end of the last hearing. I will do my best to thread live tweets from here but this week may make my efforts patchy.

Fair warning, I already have the start of a headache, Wednesday is looking shot for other reasons and I am flying to Melbourne Friday morning at sparrow's fart and then coming home to move house lol. But we will PERSEVERE.

And here we go, back for what I am going to call Day Eleven of the Robodebt Royal Commission for the purposes of my own numbering system. Justin Greggery KC senior counsel assisting is back and he is looking RESTED and you know what that means.

The Commission has 442,000 documents produced to it. Yeesh.

The volume on stream is lower than the previous hearing block, I gotta say, and even though I can hear it my brain is telling me that I can't because it is much softer and I have to focus even harder. Fascinating (for no one else). Anyway, Greggery is doing his opening spiel.

Greggery mentioning documents that have been produced to the inquiry about the Centrelink employee who spoke up and emailed Kathryn Campbell about why Robodebt was a major change. This demonstrates "actual knowledge", Greggery says. See Luke's yarn here:

https://twitter.com/lukehgomes/status/1599501723084918789

Crucially, Kathryn Campbell -- who was directly told about this person's very detailed objections to Robodebt and how it fundamentally changed debt raising -- will be asked about all of that when she is up this week, scheduled for Wednesday. So that should be very interesting.

We getting new policy proposal documents which Commissioner ruled should be made available with some redactions, we getting K. Campbell back, we coming to Marise Payne and Scott Morrison next week. In other words, royal commission go brrrrr.

Jason McNamara, former G. Manager, Integrity and Information Group, Services Australia is first up this morning. Will be questioned by Angus Scott KC, counsel assisting. As an aside, whenever counsel say they've received instructions I imagine them being handed IKEA pictographs.

McNamara is not retired, he says, he is on long term leave from Services Australia. Lots of different jobs, all in audit or integrity from 26 April 2016 including acting deputy secretary integrity and information role from July 2017 to April 2018, reporting to Kathryn Campbell.

Basically, we shall remember Malisa Golightly as the deputy secretary who wrote the Robodebt ministerial brief with K. Campbell, McNamara ended up reported to Golightly and acted for her in that 10-months from July 2017.

From January 2017, even though he reported to a different dep sec in DHS, McNamara was asked to "come and help" Malisa Golightly's division. Doesn't remember if it was Malisa or Kathryn Campbell. "It was mainly because the income compliance program was in the media," he says.

McNamara was running the behavioural science team in Dept Prime Minister and Cabinet [googly looking eyes emoji]. "I had a degree of political awareness," he says.

When asked to help out Golightly's team with "significant media" problem, this actually involved briefing both in writing and verbally the Minister for Human Services at the time Alan Tudge. Including question time briefs etc. Met with him between 6-12 times, office much more.

Scott: "Did you have many dealings with Kathryn Campbell during this time?"

McNamara: "Yeah, yeah, yeah... I mean, every meeting I had with the Minister that I can recall, Kathryn Campbell was always there... Kathryn was a detail person." Ha ha ha ha ha, this is good stuff.

McNamara would prepare a response to a typical media request and it would go up through the media team and it "would have been normal for Kathryn Campbell to clear something and involve herself in the language." Malisa Golightly was "another person who liked to redraft things."

During this time, McNamara became involved in assisting DHS response to the senate inquiry into the Robodebt program that was underway. Oof, McNamara says Kathryn Campbell and Malisa Golightly told him they no longer believed what they were being told by the compliance division.

One of those people they had lost confidence in, according to McNamara, is Karen Harfield and another was her direct report Jason Ryman. (Ryman wrote the internal brief that went to Scott Britton that became Robodebt). Britton had left at this point.

"Jason Ryman was another person that they made negative comments that he doesn't know things," McNamara says. Ryman now heads the compliance group branch at the NDIS: thesaturdaypaper.com.au/news/politics/…

McNamara thought the Ombudsman inquiry was actually an opportunity as well as a risk. He thought if they recommended enhancements, he would get more money to change the program. Always gunning for those resources!

[meanwhile people are being destroyed by illegal, made-up debts]

He's being shown an email now 30 January 2017 from senior assistant ombudsman Louise Mcleod with an outline of their initial observations. Addressed to Michael Robinson (national manager ombudsman liaison within DHS) and Jason Ryman.

lol fuck Robinson writes to Karen Harfield and says the Department has been given a "a great opportunity to effectively co-write the report with the Ombudsman's Office."

Robinson then forwarded this to Jason McNamara and said they would just need to make this align "coherently" with whatever McNamara was doing on the senate inquiry input / submission. Asked about this, McNamara says it seems like Robinson meant they would be given some input lol

Robinson literally referenced Ombo was under significant time pressure and that they could "copy and paste tranches" of their talking points into the final report. McNamara says "the Ombudsman is an independent agency, they can reject our words if they want. It's quite normal."

McNamara saying they should always try to influence the reports in this way, and it happens all the time. I would suggest this is not quite the slam dunk he thinks it is.

Scott: So you don't you don't accept that what's being referred to here is the desirability of consistency of public messaging in respect to the program with what's being said to the ombudsman?

McNamara: I mean, it's desirable. Whether it's achievable is another issue.

17 March 2017 email to Kathryn Campbell from Jonathan Hutson (the DHS ombo manager) who says they met with A/ombo and his staff and that it was "productive" and there would be a "new draft" of the ombo report. Campbell would not need to respond to the ~current~ draft they had.

This meeting was attended by Jason McNamara, who remembers it, and DHS chief counsel Annette Mussolino. McNamara agrees it was the result of the meeting that the Ombo office would "develop a new draft of the report." This is pretty significant stuff, I would say.

DHS developed NEW DRAFT RECOMMENDATIONS to be given to the Ombudsman for inclusion in the new draft report.

McNamara: "This program was under hyper-care from January 2017." Apparently hypercare is a term that had been used in the public service occasionally. "You can't do anything without being extremely cautious from hereon in," McNamara says of instructions from Campbell/Golightly.

So three days after the 17 March email 2017, on 20 March, Michael Robinson forwards tracked changes on draft Ombo report back to the senior assistant ombudsman Louise Macleod.

Here's some of the messaging the DHS inserted into that draft ombo report on the tracked changes provided to the Ombo Office. This is some great synchronicity between the public messaging and what they're telling Ombo.

In another section, the DHS deleted a reference to "inaccurate debts" and replaced it with an extremely longwinded way of saying "inaccurate".

Scott: "And the effect of this was to produce a sentence that was less negative about the program."

McNamara: "Yes! Yes, definitely."

That was a refreshing burst of clarity, later muddied when McNamara tries to explain why: "They [DHS legal] didn't agree with it, I'm not the lawyer here, but they didn't agree with it as a matter of law that it's an inaccurate debt so they didn't want that in the report."

Adjourned until 11.40am AEST (12.40pm daylight savings).

We back and I managed to slam down my lunch in EXACTLY that 13-minute window. Pleased.

Next part of the tracked changes document sent by DHS to Ombo for use in its new draft report: let's not say it lacked a "clear warning" let's say all these other words that individually have meaning but collectively barely constitute English.

Commissioner Holmes is very good. McNamara tried to say there were "two phone calls" to check with recipients of social security after getting a letter. She pulls him up, saying this wasn't part of the OCI (it came later?) and there were no calls. He agrees, says she is correct.

On the debts, McNamara: "It's an estimate."

Commissioner: "Well, it's a guess."

McNamara: "It's an estimate."

Scott: "You understood Social Security entitlement under the law was defined according to what people actually earn per fortnight did you?"

McNamara: "Yeah. Yep. That's right."

McNamara says media reporting at the time re: income averaging was only about "fairness" not about the accuracy of the debts themselves. The Peter Martin article (and others!) would seem to undermine that belief, but that is what he is saying.

New par, with DHS changes. Just look at how determined they are to a.) avoid any scrutiny and b.) believe that welfare recipients are trying to steal from them / not be trusted. This is the kind of thinking that infects this program.

Commissioner Holmes: "The opening statement 'DHS has always accepted bank statements' isn't literally true, is it?"

McNamara: "We would only do it at the request of the customer."

CH: "But at the start of the OCI..."

McNamara: "You couldn't do it then."

hmmmmm

Always nice when DHS gets to just tell the ~independent~ ombudsman how it would like the recommendations (being, effectively, findings of the ~independent~ ombudsman) to be worded especially when it completely changes the effect of that recommendation.

McNamara says the Ombudsman was "very particular" about wanting the "vulnerable" cohort of welfare recipients expanded. This would mean those people would get staff assistance, which would of course reduce the savings of the Robodebt program.

McNamara: "We didn't want... we still had fairly limited staff in the program at that time." As in, we can't just offer ~human beings~ in a ROBODEBT scheme, that would make it human (?) debt. I dunno, my headache is getting a lot worse lol

23 March 2017 from Louise Macleod to Michael Robinson. This is from the Ombo office with their consideration of the DHS tracked changes. Robinson forwards to McNamara: "Hot off the press and unexpected. A final bite at the cherry." So happy they are getting such input!

Wild to me, though it shouldn't be, listening to McNamara repeatedly say that a "key concern" of the ombudsman was that "people with vulnerabilities were being reviewed." Note he never says that this concern was valid or that it was even SHARED by senior people in DHS.

Ding ding ding, this email from Jason McNamara spells out that were "deliberately" crafting recommendations in the DHS to LIMIT the volume of people to be given special consideration.

Remember, McNamara led the behavioural insight team at Dept of Prime Minister and Cabinet. He's supposed to have a modicum of understanding how humans respond to bureaucracies.

DHS chief counsel Annette Mussolino email 27 March 2017 to McNamara re: draft recommendations, including the 10 per cent recovery fee. "Our concern about this recommendation was its potential breadth." Basically: pls don't make us review every person who has had this imposed!

Here's her wording:

I just realised I've been spelling her last name with a Sussan Ley extra 'S' for which I am sorry!

Michael Robinson email to seniors at DHS notes that the ombo review of the draft report has accepted DHS proposed changes and a number of "positive" edits have been made. One that does not favour them, however, which he says they will raise with Ombo Office.

Jason McNamara, has to be said, seems to remain incredibly miffed by the "misinformation" reported in the press around 2017. He keeps bringing it up and shaking his head. Very Scooby Doo "and we would have got away with it, too" areas.

McNamara says the Ombudsman was "very constructive." Which is another way of saying "they helped us help ourselves."

McNamara said he was trying to "influence" the Ombudsman. "Yeah, they were the only people out there who wasn't giving us an extremely difficult unreasonable time, so it was great to have someone there who was constructive, while being critical."

That is the behavioural "science" buzzword, by the way. Influence. He was trying to behavioural science the independent Commonwealth Ombudsman and here's the 'funny' thing: it WORKED.

Now being shown email from Tudge's media adviser Rachelle Miller to journalist Noel Towell in which the Minister uses the Ombudsman report as cover against any criticism of Robodebt. McNamara: "It was a tactic used in a very different political environment to respond."

Basically, having 'influenced' the Commonwealth Ombudsman to report what they wanted it to report they now had "an external reference" as McNamara called it, behind which they could hide whenever any valid criticism was made of Robodebt. Nice little ecosystem!

29 May 2017, Australian Council of Social Service wrote to Minister Tudge requesting a meeting and noting a lot of concerns about Robodebt. The DHS put together a briefing pack which notes "key to addressing ACOSS' concerns" will be their "constructive" engagement.

Of course, we now know what the DHS means when it says "constructive". It means "beneficial to us." In those talking points, they again use the Ombudsman report as cover to brief out that they are perfectly within their rights to run with Robodebt.

Tudge writes back, uses Ombudsman again. "It's to counter the press," McNamara says. This guy!

lol now they are showing an application from Jason McNamara for a job as deputy secretary in the Department of Treasury. In it, he crows about "shaping" the Ombudsman report. Fuck me dead.

McNamara: "I think I was able to use my skills to influence that, in terms of my intellect and my knowledge, to change their minds."

I AM SO GLAD WE ARE ADJOURNED UNTIL 2.15PM (aest) NOW BECAUSE I AM ABOUT TO LOSE IT

We'll be back on shortly. I have managed to go grocery shopping, take two panadol, lie down in a dark room for 20 minutes and then go for a stroll in 32C to get a coffee none of which has made this headache any more bearable I'm afraid.

Refresh before we start again

OK this is kind of funny. From 2009 until late 2015, Jason McNamara was "Executive Director, Office of Best Practice, Department of the Prime Minister and Cabinet." Aaaaaaaaaaand we are back.

In 2017, Kathryn Campbell told Jason McNamara that she had engaged with PricewaterhouseCoopers / PwC to "work on the income compliance program." Procurement approved 9 February 2017 but conversation happened before that.

Campbell told McNamara that she had spoken to one of the senior partners at the consulting firm. It was a "got you some help" type conversation. "PWC, I think, the concept was the Minister had lost a bit of confidence in our advice on strategic matters and PWC was going to help."

Scott KC asks if McNamara understood in February 2017 that it was "not meeting its savings targets."

McNamara: "It was not meeting its targets, it wasn't functional."

PWC was meant to "assist the program meet its targets." That was a key objective, McNamara says.

Scott: "Did you have any understanding that PwC was engaged to examine the fundamental underpinnings of the program?"

No, McNamara says. "Essentially they were engaged to do a re-costing exercise. They were essentially re-cutting that for the government." Talking savings data.

They weren't engaged to look at the fairness of the program? No.

They weren't engaged to look at whether there were any problems in using income averaging to calculate debts? No.

Read: in crisis, you hire consultants to get your big savings program back on track

Price, Slaughterhouse, Recoup for Us

McNamara says Robodebt went from a "small, boutique, slow program to mass production." This necessarily meant, Scott says, that there was an "order of magnitude greater risk that they [welfare recipients] don't owe a debt."

McNamara: "That's right."

Despite this, NOTHING changed in the business fundamental process between the targeted old model of 20,000 people a year and the "Go Go Gadget Robodebt" phase from 2015/16 onwards. McNamara notes on the stand that 20% wouldn't have had a debt or done anything wrong.

6 Feb 2017 letter on PwC letterhead to McNamara for "proposed services - business process improvement review." Effectively this is their terms of reference / engagement.

"Further to the discussion on Thursday, 2 February..." from PwC. McNamara has no recollection of this discussion, as it happens.

9 February 2017 meeting with Kathryn Campbell, Malisa Golightly and Jason McNamara. Now McNamara shown what LOOKS like the same PwC terms of service document from before except now this is dated 8 February and has notable changes to its language.

Phrase "debt establishment" removed, as well as "recent high profile events have accelerated the need..." etc. What happened between 6 Feb and 8 Feb, do you recall?

McNamara: "Not really, no."

McNamara: "We probably narrowed it down, in terms of what we want out of them. We don't have unlimited finance, so we probably told them to do a bit less."

Scott: "Can we take it from those amendments that there was an explicit request from DHS to remove the reference to debt establishment in debt identification activities to ensure that PwC would not look at such activities in its review, such as income averaging?"

McNamara: "That's right. We didn't think there was an issue there."

On 9 Feb 2017 meeting brief, Kathryn Campbell handwrites "Agreed, need to proceed on next measure." She also notes, further down: "Needs to look at human errors we are seeing." Later, next to note about program review, she asks: "How will that work for announced measures?"

3 March 2017 meeting minutes for the Income Compliance Program Board. At this meeting, McNamara updated them on the PwC review and noted "the programme needs to be designed with a focus on savings but also needs to consider political issues such as customer experience."

McNamara: "It's a small 'p' political issue, but I think the attitude in compliance that came across at this meeting and around about that time was, 'this was just a media beat up, and we haven't done anything wrong'."

He said it was not a "pleasant" meeting.

New document. 23 March 2017 brief to Minister for Human Services for action. Signed by McNamara. This says that PwC and Data61 have "made a number of recommendations." First time we're hearing about Data61, which is CSIRO's commercial consultancy arm (wtf?).

They were brought in, McNamara says, for "case selection". "We wanted to choose the people with the highest probability of having a debt." It was either Kathryn Campbell or Tudge's idea. Data61 recommended a "complex machine learning methodology" which would take months.

PwC proposed an interim measure, given there was no guarantee the Data61 option would even work. The PwC option basically involved a spreadsheet and some form of Pretendium to come up with a formula for people most likely to have debts.

Ministerial brief noted they wanted to force people back into the online system because people with "minor" questions were being given a Centrelink compliance officer to help them. Can't have that!

Scott: "And it was essential that they did go back online for the success of the program, wasn't it?"

McNamara: "Well, at this time we thought so. But yeah, at this time we thought so."

McNamara: "We had to ask the government for another thousand staff to run the program. We moved to a situation where we had 1450 staff working on the system. The program never meets its targets at any stage, relative to what was announced."

Scott: "It never came close, did it."

McNamara still talking about this stuff like he's copywriting his LinkedIn. "We got up to about 8000 reviews a week being completed. But I think our aim was to get to 10,000 reviews a week at that time, so 8000 wasn't too bad. It was double productivity from 2017-18 to 18-19."

22 June 2018 Compliance Modernisation Programme management dashboard report. These were done weekly to McNamara's division.

The EIM (employment income matching) used PAYG data from ATO and you'll note the first program name within EIM there is the 2015-16 budget measure. Now we've clarified that, we're going back to the previous savings table (in tweet before this)

Target savings were originally $7.5 billion, McNamara says, and were revised down "because they weren't realistic... they weren't very good estimates." Here the target is revised to $3.6bn and the actual savings achieved over the life to date (Jun 2018) just a bit over $1bn.

Now being taken to a different ministerial brief prepared and signed by McNamara re: "changes to the Online Compliance Intervention" process requested by the Minister. New letters were written by Kathryn Campbell and Minister Tudge together. She bragged about this in a speech.

The letter co-written by Tudge and Campbell failed. They did "user-testing with customers." It didn't work, so they were telling him in this brief that they were using a different letter lol

On the subject of user testing, we are now being shown a March 2019 board agenda item. A Check and Update Past Information (CUPI) program user testing report is among them. CUPI was the final iteration of what we have come to call Robodebt.

Now being reminded of the flyer they developed which purported to explain what income averaging was to Centrelink customers. Here's the flyer:

So in the user testing on the letter and this flyer. This testing noted that 11 of 15 participants read the letter before reading the flyer. Only 2 of 15 understood the implications of what DHS was trying to tell them.

Worth noting, when it is pointed out to McNamara that some participants who are on welfare could not be specific about what might happen to them but said 'they would be in trouble' he laughs. Not loudly, or for long, but he laughs.

I got the sense he was laughing at their perceived intelligence. Backed up now: "It told me there's a fundamental problem with the Australian education system where people can't understand averaging. It's pretty poor that people can't understand." FUCK OFF

McNamara: "But that's where we're at as a society. So I've still got to communicate with those people." Poor, poor, poor Jason McNamara having a tough time. Honestly this guy.

McNamara tries now to say it's all very complex and they need to strike the balance between saying enough and saying too much. "That's the balance we do in behavioural sciences, the balance we do in this user testing." I would venture McNamara does not understand human behaviour.

The great irony, now, of course is that Scott KC is hammering McNamara on the fact that the social security LAW applies eligibility test to income earned in a FORTNIGHT but that is not necessarily uniform. Plot twist: McNamara doesn't seem to understand averaging.

McNamara: "They don't earn in a smooth way. Yeah, there's lots of people out there like that."

Scott: "So it's obviously a large assumption to make that in the absence of being told otherwise by the recipient, that they have earned income in equal amounts per fortnight."

I'm quite familiar with the general attitude people have to those "on welfare". But to see the derision dripping from McNamara so openly WHILE HE IS ON THE STAND is something else.

McNamara is dismissed for now, but he will be back. Adjourned for a short break. I might not make it back after because my headache is like an icepick above my right eye.

My head is killing me. Can’t work out if aneurysm from royal commission or pre-existing. But my piece on Robodebt and the transmission of shame for The Monthly seems especially relevant after today’s evidence.

https://twitter.com/THEMONTHLY/status/1599565718290300928

I'm alive! Just. We are back for Day Twelve (12) of the Robodebt Royal Commission. Thread of the live call will continue, as all things must, right here.

First witness up today is Craig Storen, the former General Manager, Customer Compliance at Services Australia.

Storen, in roles at DHS, reported at various times to Jason McNamara (our witness from yesterday) and the much-talked about but little-heard-from so far chief counsel Annette Musolino. He came into compliance division May 2017, after ombo report but implementing it.

Storen shown a Feb 2017 email trail re: ombo investigation. The email is sent to a Craig Kelly (no, not that one) who worked for Craig Storen. Lots of Craigs about. A Craig's List, if you will. Craig forwards emails to other Craig (Storen) noting response for ombo to be cleared.

Storen had earlier said he had little involvement in responding to the ombudsman report but did mention he supplied a data function. Anyway, here's the first email with the debt breakdowns.

When Craig Storen's team was trying to figure out how many debts had been calculated using averaging for the Ombo. They basically went looking for fortnightly sets of income with the same amount, which they took to be averaged or smoothed income and used that to come up with fig.

67 per cent of customers did not respond to Centrelink letters, so DHS just automatically slapped a debt on them (that was the department's preferred outcome, by the way, cheap as chips!)

Scott (counsel): "You were aware, weren't you, that by law, social security entitlement is calculated by what a recipient's actual fortnightly income is, correct?"

Storen says, at that time in Feb 2017, he was NOT aware of this. Hmmmmm.

"It wasn't a requirement of my role in February 2017," Storen says of his not knowing the very basic law that stipulates how welfare benefits are calculated. Every frontline worker in Centrelink knew, by the way. They had to.

19 October 2018 email about Andrew Wilkie MP agitating around Robodebt concerns, raising a constituent's concerns with the Ombudsman's Office (OO). Craig Storen is cc-ed on this, referenced letters being sent but no mention of these in the media releases or public talking points.

Storen sent an email himself saying "we need to give them something... tangible" re: the Minister's Office at the time and giving them cover from the Ombudsman. Basically, can we say publicly that the Ombo is happy with us?

The irony of giving the Minister something "tangible" should he be "pursued" for Wilkie's commentary. Anything tangible given to welfare recipients pursued for debts? No, just [waves hand] an average.

So anyway, on October 24 that year Michael Robinson (ombo liaison) emails Louise Macleod, the senior assistant ombo asking for help and Louise writes back via email with a statement they can use for the Minister. This is Not a Good Look for the ~independent~ Ombudsman.

Now some emails having fit about Guardian reporting on an article by Terry Carney raising serious issues with the Online Compliance Initiative etc. @Paul_Karp and @knausc getting a shout out. This is April 2018. At this stage, Storen says he knows how social sec. law works.

Counsel: "It's a big assumption to make, that income averaging will produce an accurate calculation of any recipients entitlement without some evidence to confirm they have earned income in equal amounts per fortnight. You agree?"

Storen: "Yes."

Storen now being shown proposed response to that media inquiry, into which he was CC-ed at the time. Counsel setting a little trap for him here.

Counsel: "Now would you agree with this proposition that it was a standard response at this time by the department, to adverse media publicity about the robodebt scheme, to refer to the 2017 ombudsman report?"

"Yes."

Counsel:

"And in particular to effectively rebut criticisms of the scheme's lawfulness and fairness?"

Storen: "Yes."

Now Storen is being shown the internal dashboard of the compliance modernisation programme, snapshot from June 2018. Especially this bit, only 7 per cent of customers "completing" review online. They must have been unhappy with that.

Storen agrees that the original intention of the OCI / robodebt was that it be a "largely technological-driven process." As in, automatic, no staff. But this report is for the Employment Income Matching program (still Robodebt, but the replacement version).

Counsel is incredulous. Was THIS level of staff-assisted intervention, even under the EIC, contemplated?

Storen: "Not likely, no."

18 Feb 2019 email to Craig Storen from Tim French (or Ffrench??) re: a teleconference they were in regarding Madeleine Masterton's Federal Court of Australia action re: the debt raised against her. Storen was GM Compliance at this time.

This email makes explicit mention of the fact they were going to seek urgent advice from the Australian Government Solicitor (AGS) about whether the debt should be recalculated using extra information obtained by using the information gathering powers the Commonwealth ALWAYS HAD.

Counsel asks why the Department would bother getting urgent legal advice about this when, according to its view then and now, it believed income averaging was a perfectly lawful basis for calculating a debt in the absence of other information. Doesn't add up, he suggests.

Counsel: "It was correct, wasn't it, that first stage Admin Appeal Tribunal (Tier 1) decisions had found that income averaging was not a proper basis to calculate Social Security entitlements?"

Storen: "By implication, yes."

Storen: "I was aware by early 2019 of the dissatisfaction with income averaging."

Not before that? He doesn't have a clear recollection but some stuff was bubbling up in 2018, he suggests.

In any case, if the AAT made a decision and the DHS did not appeal that decision, then the department abided by those decisions. Counsel says if they ignored such a decision "unless they appealed, it would be extraordinary wouldn't it?"

Angus Scott KC (counsel) gets Craig Storen to say on oath that he would have expected the DHS to abide by the decisions handed down in the AAT. And does he know why the DHS was deciding not to appeal those decisions? No recollection, Storen says.

I'VE GOT A PRETTY GOOD IDEA WHY THEY DIDN'T

sorry I didn't mean to yell, it's like playing hide and seek with a toddler who just stands next to a wardrobe in full view

5 Mar 2019 email Tim French to Annette Musolino, now risen to dep sec level, and Craig Storen. French is at this point chief counsel in charge of legal services division. AGS had a preferred option to recalculate Masteron's debt, and it was the one that would halt proceedings.

This email also suggests that the only reason you would go with Option 1 is if the DHS ~wanted~ an official determination on the legality of the scheme from the Federal Court. Have a guess which option they went with!

"We understand that it is the Department's view that this approach is more likely to produce an accurate calculation than the use of averages." This from the Australian Government Solicitor.

And the AGS was apparently told by DHS that the department (shock, horror) did NOT want the use of income averaging or the OCI scheme itself to be the subject of an official ruling re: legality by the Fed Court.

Now, why wouldn't they want a ruling on the legality of income averaging?

Storen: "The department's position at the time, which it stated, was that the use of income averaging was still a valid approach."

Commissioner says, well, why not test that confidence?

Email from Tim Ffrench, chief counsel, which says the AGS advice was that Ms Masterton had a good prospect of success because the use of averaged income data would not establish that she had a debt.

In fact, the AGS advice was even more direct: Masterton had "very good" prospect of success.

I can't multi-task but I am Very Keen to see what @DarrenODonovan has to say about all of this

@DarrenODonovan And there it is, again, in black and white from the Aus Govt Solicitor:

@DarrenODonovan Further down, it says: "There is no statutory basis in the Social Security Act, or related legislation..." that would provide an accurate or even sufficient basis to raise a debt.

Counsel says: "The advice clearly indicates that income averaging to calculate Social Security entitlements is unlawful doesn't it?"

Storen says he thought it was relating to just the Masterton case. He then accidentally calls Annette Musolino "Ms Mussolini".

Commissioner: "So when it said there is no statutory basis for averaging, you thought that was 'there's no statutory basis in relation to Ms. Masterton but for everybody else it's fine."

Storen says he doesn't recall reading that exact paragraph.

But the AGS explicitly says that it is "aware" the advice prepared for this case has "broader implications."

Counsel checks again: "So just to be clear, are you saying that this advice did not lead you to the realisation that the use of income averaging to calculate Social Security entitlements, was unlawful?"

Storen says he understands a "process" began then to check those matters.

Counsel: "Can you think of a reason why the Commonwealth would recalculate her (Masterton's) entitlements without using income averaging if it did not accept the position stated in this advice that the use of income averaging was unlawful?"

Storen says can only assume one.

Morning break until 11.45am QLD time (12.45pm AEDT). Can I reheat and assemble two to three home-made burritos in that time? Tune in after the break to find out!

We are back, but I am still clutching a burrito so this is gonna get wild.

10 April 2019 email to Sheree Harrison, one of Storen's direct reports. Storen writes: "Too much for PM&C?" It has an attachment which is a backgrounder on the Masterton case for the Department of Prime Minister and Cabinet. This jumps out:

The document, which Storen says he has no memory of, explicitly contemplates "the question of providing specific legislative direction to authorise income averaging" and suggests this may be required in future. This is what they were going to send to DPM&C.

Now, why would Storen say in the email to his underling: "Too much for PM&C?" Storen says he would do the drafting himself and give to a "trusted colleague". He says this must be his "brain dump."

Storen says he was simply asking whether he had provided too much detail than what PM&C were after.

[I have finished my last burrito now, for those playing along at home]

Storen doesn't recall writing those words, but the language "feels like" it could have been his. We are in Patrick Swayze Ghost territory here.

Storen: "My understanding is the legal advice provided in the context of the Masterton case brought into question the use of apportionment more broadly." This is as close as we have come to Storen admitting the AGS advice was a huge problem for them.

And with that, Craig Storen is excused.

Next witness is Jonathan Hutson, former Deputy Secretary, Enabling Services, Department of Human Services. His name came up a bit yesterday, you may recall.

Annette Musolino was chief general counsel -- a very familiar name to us so far -- and she reported to Hutson during his time as dep sec enabling services. He retired July 2018.

lol Jonathan Hutson watched some of the first week's evidence at the royal commission and says he was only told on November 26 by AGS lawyers that he shouldn't watch ANY of it because it could colour his own evidence

He watched some of these hearings in the Attorney-General's Department while preparing his statement for the royal commission. He watched them on his iPad and apparently some of the AGS lawyers saw him doing this. Oh me oh my.

21 Jan 2017 email from dep sec Malisa Golightly about a whole bunch of media reports, including one from @knausc about Slater and Gordon looking at Robodebt legality, to Jonathan Hutson. She doesn't want to "scare the horses" or give "impression we are concerned when we're not."

What did she mean by 'not scaring the horses', Hutson is asked. "I am assuming that what it means is that she had a concern that if we do something like seek formal external legal advice that may give some people the view we were not as certain about our position."

Counsel says it would surely have been very important to DHS to get a definitive legal view.

Hutson: "I would have thought so."

Counsel: "Once a definitive legal advice was obtained, and assuming that legal advice confirmed the lawfulness of the program, then surely that would have the opposite effect. And it wouldn't project a lack of confidence in the program?"

In short: you all must have been concerned the program was illegal otherwise why be so scared of getting external legal advice?

Hutson writes back to Malisa Golightly on Saturday 21 January 2017 and says: "Do you think there are any parts of this where we have been relying on internal legal advice that may need the reassurance of an AGS view?" In other words: shouldn't we check?

Counsel: "Is that a recognition that AGS had available to it far superior legal expertise, compared to the legal expertise that the department had available to it?"

Hutson: "In part, yes. Advice from the Australian Government solicitor was extraordinarily valuable."

Counsel Angus Scott says, in short, the AGS had experience in court on matters of public administration and law, in interpreting statutes in the High Court. Yes, Hutson agrees. Hutson also agrees departmental lawyers were less impartial.

Counsel: "This was a program that had gone live in September 2016 and attracted substantial adverse media attention and it would be profoundly embarrassing to the department if it turned out within a few months of it going live... that it was unlawful."

Counsel continues: "And the department had a substantial interest in not acknowledging that the program was unlawful."

Hutson says it would have been incredibly be embarrassing, but much worse to find out it was unlawful later.

Anyway, Malisa responds to Hutson and says 'was that for Annette' and Musolino writes back and says the only legal challenge will come from recipients. Malisa Golightly asks all three to discuss the "pros and cons" of getting external advice on the Monday 23 January 2017.

Hutson says he thinks this meeting did occur but does not recall what was said at it. He did say Musolino emailed him separately saying they ~should~ do an "end to end" external legal advice of the program. To Golightly she only suggested this is something they ~could~ do.

Counsel: "What could possibly be a disadvantage of getting external legal advice?"

Hutson: Golightly had already said she was worried about scaring the horses etc etc

And that was the only thing?

Easy to forget, at this juncture, having not heard from any DSS people for a few weeks that they had their own internals in 2014 which WERE VERY CLEAR on the lawfulness of the concept ie: you can't do it. Fun to remember that while this is unfolding over at DHS.

Counsel: "Do you recall any discussions with Golightly or Musolino that a disadvantage of getting external legal advice is that it might confirm that the program was unlawful?"

Hutson: "I don't recall any such discussion."

Also, at the same time in January 2017 you will remember, the Ombudsman had announced it was investigating the Robodebt scheme. And Hutson, our man on the stand, was involved in responding to it.

lol when DHS are told that the Acting Commonwealth Ombudsman Richard Glenn was going to a meeting with DHS about its investigation Malisa Golightly responds to colleagues: "This means I should probably go, too."

Ombudsman did not usually hold "entry" briefings when they begin an own motion investigation but because of the "high profile" and the speed at which the OO was pursuing this, it "agreed" to hold such a meeting with DHS.

Could "I" "possibly" use any "more" silly "quotations" in my "tweets"

Hutson says the entry meeting would have been like an orientation day (my words) and everyone would hold hands and get along and say hello and maybe have a snack (my summary).

sorry I tuned out while spending more time than intended on making this

But essentially DHS prepared some dot points for the Ombudsman that said "we have the backing of the Prime Minister and the Minister" and "we're investing a lot of money in this" and Hutson says this was not about influencing them, but giving context.

Here are those points. They explicitly state that they hope the report can be done soon so they can "correct" some of the "misreporting" in the media.

Short adjournment: adj.

So we are back. Little mini-hearing about Scott Morrison. SM's counsel notes he has responded to notice from the royal commission, referred to documents etc. James Renwick SC is Morrison's counsel. No idea what is going on, go ask your father (@DarrenODonovan)

gonna use this time to rest my eyes

Essentially, Scott Morrison wants all of the docs that he refers to in his full statement that are currently SECRET due to public interest immunity claim released publicly because they are valuable to his defence. Former PM happy to overthrow cabinet confid when it helps him.

The Commissioner just revealed a tiny glimpse of Morrison’s defence by speaking it in this public procedural hearing, I’d have to check precisely but something along the lines of “Robodebt was not a priority to me.” Lol

Morrison’s counsel: “His reputation is on the line!”

I would argue that his reputation, such as it is, is already somewhat diminished.

This is very funny because part of the argument from Morrison’s counsel here turns on what happened with Kevin Rudd and the pink batts home insulation royal commission re: a former prime minister being permitted to answer allegations sufficiently.

Renwick: "He wouldn't be allowed to speak about it, or respond to it (PII doc) and that's the practical problem we have with this global claim by the Commonwealth. It is going to cause enormous practical difficulties as it would have against Prime Minister Rudd."

a beautiful moment where, with a legal gun to his head, Morrison and his team are retrospectively very concerned about the fairness or otherwise of a former Prime Minister's treatment at a royal commission. love is real!

a single tear has anointed my cheek

Morrison's counsel just got all stroppy and literally said "if you don't want the best evidence, well" and I am screaming because the Commissioner did not like that at ALL

[me, trying to sell a 1993 Alfa Romeo Spider Veloce with known and systematic ongoing, company-wide mechanical issues] well I guess if you don't feel the need... for medium speed

Commissioner Holmes apologises for a typo in the very secret copy of her documents re: Morrison. "As you can appreciate this wasn't the situation where I could get a good proofreader in." That's a very good PII joke.

my headache is back and they way I deal with pain is by getting weird

Commissioner Holmes on being able to see the Very Secret Documents: "I have to swear 42 types of oath and swear on my mother's grave before I can get to them Dr. Renwick, I don't think you're going to enjoy the experience."

Adjourned until 2.45pm QLD / 3.45pm daylight.

I’m taking an hour’s respite. Hope to be back soon if they’re still going.

OK, I am back, diving into the middle of a conversation between counsel and Jonathan Hutson on whether he understood averaging led to inaccurate debts in 2017. He says it is "a different question, I'm afraid." He says he now understands it is not very accurate!

But he is twisting himself into a knot here: he is asserting "mathematical accuracy" is determined by what the social security law said. He keeps being asked if they were accurate at the time and Hutson says, if the law authorised it as they believed, then they were. Astounding.

that was more contortion than the Cirque du Soleil

Hutson being shown the draft and final Ombudsman report, specifically a phrase inserted at the suggestion of the DHS which was copied entirely. (A line about, paraphrasing, 'in some cases, the averaging resulted in a favourable outcome')

We mentioned this earlier but now Hutson being shown the 23 January 2017 email from DHS chief counsel Annette Musolino to Hutson where she recommends getting "end-to-end" legal. And look at the "possible legal issues" she identifies, inc. point 4

Musoline, on 23 January 2017, writes: "Is it lawful to average, absent any other information?" This is a pretty wild question to be asking HALF A YEAR after the Robodebt program began and 20-months after the budget measure. And what happened to this? Hutson doesn't recall.

Fin.

Musolino*

Musoline! Get it together Rick.

Alright, I need to try and get to 15,000 steps somehow. See you never!

Coming up to Day 13 of Robodebt Royal Commission and I have made a complete mess of my schedule. Kathryn Campbell is up today and I am otherwise engaged until about 1.30pm which is bad news for the live tweeting and even worse news for my Wednesday night. Headache won't fuck off.

You know the drill: follow @DarrenODonovan @not_my_debt @lukehgomes and @maximumcuddles for live coverage. By our powers combined etc etc

And I’m back! Things have been very multi-tasky.

Kathryn Campbell is being grilled about the detail of that 2015 ministerial brief. You said in that brief, Greggery says, that the ATO data was being given primacy as evidence. "An obvious and significant change," he says. If the recipient didn't engage, Campbell says.

Commish: "If it were really going to be a last resort, DHS would use its powers to get the information from employers... can hardly say it was a last resort, just because you'd asked for customers to respond and they hadn't responded." Campbell says that's how they interpreted.

Commissioner: "It wasn't a last resort, was it, because you could have done something else to find out the facts."

Campbell: "Those actions could have been taken, yes."

Death to the "last resort" misnomer. Declared time 1.23pm.

Greggery goes back to that annual report statement from the previous hearing: "So the factual inaccuracies of this statement are at least three in number." In just one statement. Campbell agrees it is not an "accurate reflection".

This communicates "there were no changes at all" Greggery says, when, in fact, there were "significant changes."

Campbell trying to argue (came up earlier when I was unable to tweet) that the phrasing here refers to using the ATO PAYG data as "differences" which were used "as a trigger" to send letters to customers, but "not necessarily a debt." Gonna need a nano-laser to split that hair.

Campbell: "In hindsight, I would probably draft this sentence differently. I probably don't expect I wrote this paragraph. I expect someone wrote it and I reviewed it." The 'don't expect' is subject of the last 'probable', so she is not sure whether she does or doesn't expect?

Campbell does, however, accept that saying something is incorrect is another way of saying it is misleading. Glad we cleared that up.

Greggery now taking a mildly-confused Campbell back to the 2015 minute that very clearly identifies the proposed interventions are going "back in time" to collect debts, which is another thing not addressed in the misleading annual report statement.

Greggery: "Is it your understanding at the time (the brief went to Morrison) that... the proposed system was unlawful."

Campbell reiterates that she understood it was likely to require legislative change.

Campbell: "But then there was a new policy proposal that was provided to Minister Morrison, that I was not privy to, that didn't include legislative change. So I don't know that I turned my mind to to determine whether it was illegal until 2017."

Campbell: "And I was advised that once DSS understood that recipients would have the opportunity to engage with a system that they assessed and then formed the view that legislation was not required. I know that to be now flawed."

Greggery: "You understood the core function of proposed legislative change in the brief, required to implement the measure, related to the use of annual PAYG information as evidence of actual fortnightly information. That without legislative change it couldn't be used that way."

Campbell: "I think I am saying, I didn't turn my mind to that next follow-on point because I had expected that to be sorted in DSS dealing with DHS to get the new policy proposal up."

Campbell: "I didn't turn my mind too, because I wasn't focused on the legislative change."

Greggery: "Well you ought to have been because it was your responsibility to ensure the lawful delivery of the OCI."

Campbell: "And I have previously said that I wish I had done."

Greggery: "It's not a matter of wishing or not wishing, it's a matter of obligation. You ought to have been concerned about it because of your obligation."

Campbell: "I did not ask for legal advice to be sought on the lawfulness of this matter because I had relied on DSS and that's demonstrated by the fact that we relied on them in January 2017, to provide that advice to the ombudsman."

Greggery: No you didn't, you said otherwise!

I paraphrased Greggery there but he said Campbell didn't rely on DSS in January 2017 because "you gave evidence earlier that you found out about it from the [Ombo] report."

Greggery: "I'm suggesting to you that you delegated the responsibility to DSS."

Campbell: "No, I don't agree."

Greggery: "I'm asking you about the discharge of your obligation to ensure... implementation was lawful."

OK, Greggery says, you don't accept that. So what steps did you take?

Campbell goes to say "I relied on..." DSS again and then stops herself and then adds lots more words in and comes back to "I relied on."

Greggery: "So, it follows, that at the time you did not satisfy yourself of the lawfulness of the method of implementation of the OCI program. You're taking a very big risk as the Secretary to not satisfy yourself, aren't you?"

Ouch.

Campbell: "I necessarily relied on eight deputy secretaries across a department of 35,000 people."

Greggery: "You took a calculated risk."

Campbell says they are not the words she would use. Says it was necessary to delegate responsibilities to run a big department.

But can you say who DID take the steps you say you must have delegated?

Campbell: "I can't say who did because I am unable to access any of the documents... between anyone that wasn't me at the time."

But you were involved heavily in the costings for the new policy proposal? Campbell says she was involved in the costings for the ~departmental~ outlays.

Greggery: "Is it your evidence that you were closely involved with Ms Golightly in the development of the executive minute and this critical proposal in it, but then never saw the final result, which made its way to cabinet?"

Basically, yes.

Greggery: "Do you mean to convey by your response that you have no recollection of ever seeing the final result of this contentious programme?"

Campbell: "It wasn't contentious back then."

They knew it was a big deal, whether contentious or not.

Greggery zero-ing in on Campbell's attendance (as secretary) attendance of Expenditure Review Committees and fact she would have to have technical knowledge while at them, and fully briefed, and she agrees. But there were only 4 DHS proposals that year, he says.

DSS, in comparison, had about 40.

Greggery: "I'm suggesting to you the OCI proposal was of particular significance out of all of the proposals that were advanced in that budget."

It was one of the larger ones, Campbell agrees.

Greggery: "How is it that you can be involved in clearing costings for the OCI budget measure, and not see a draft or final of the new policy proposal. How is your office segmented like that?"

Campbell says she cleared costings for admin.

Greggery: "So, is it your evidence that you cleared costings in a vacuum from the other side of the ledger which was prepared by DSS. You're saying you only looked at part of the document that related to DHS?"

Campbell: "Well, I'm not sure that I ever had it [the NPP]."

Bow how can you prepare your costings in isolation from the whole proposal?

Campbell: "We would have understood what was required of DHS to do it."

"Well, how would you understand it?"

Campbell: "There would have been discussions at the officer-level."

Greggery: "How did you know how much money DHS required to implement the measure without seeing the proposed measure?"

Campbell: "That would have been worked out at the officer level."

There would have been a secretary brief to her, but she says no draft or final NPP.

Annnnnnnd lunch. Adjourned until 2.30pm QLD time (3.30pm AEDT).

Back!

Campbell being shown the 9 March 2015 email sent to her with the secretaries brief and attached costings for the new proposal. The costs for DHS admin, at this stage, $262.7 million.

This is key. In this attached document, sent to Kathryn Campbell, there is a line that says "this approach will not change how income is assessed." Can you explain how you were involved in 12 Feb 2015 minute (req'd leg'n change) to this 9 March 2015 doc that asserts contrary?

Campbell: "I cannot recall. I cannot recall noting that difference seven years ago in this document."

Oh, she did not see this one coming.

This is, uh, extremely unhelpful to Campbell's contention all along that she didn't know about the lawfulness issues until 2017. This is in MARCH 2015.

Campbell: "I don't think this was a definitive document on whether legislation was required."

Yes, but what is represented here is very different to what the exec minute contemplated just a month before (that legislation and policy change would be required).

Now show us who put that tracked change in, Greggery KC.

Greggery: "Certainly while you were Secretary of the Department of Human Services, this was the position adopted by Human Services publicly in respect of whether the program changed the calculation of income or the calculation of debts."

That's correct.

Campbell is trying to say now that the brief here asked her to "agree to the costing" and that is what she did. She, on $800,000, is attempting to argue that she didn't pick up on This Very Significant Change in a COSTING approval for a budget because she didn't read it properly.

Campbell an incredibly hands on secretary, in her time. Many have and would attest.

Campbell: "So the recommendation on this document was to agree the costing. I accept that in the documents somewhere there's material which was different to what we had put up before and that I didn't challenge why it was different."

Greggery: "It positively represented that there was no change to the way income was assessed, or differences were calculated, when that was not, in fact, the truth of the proposal."

Again, Campbell says it was a doc asking her to agree to the costing.

Aside: the number of things to which Kathryn Campbell believes she did NOT turn her mind are voluminous. By now we must conclude her mind was not turned, not once.

Campbell: "I didn't notice it was significantly different to what we had proposed."

Greggery: "Or any difference at all."

Campbell: "I don't think I said that."

Reader: she did say that earlier.

Greggery: "This explains why no legal advice was sought by you, doesn't it, because there was no need for legal advice on the misrepresented position."

Campbell: "I did not identify there was a misrepresented position here."

Greggery: "How can you be so confident about that, given the passage of time?"

Because, she says, she had to do the costing and "did not necessarily consider the words of what was being agreed." Fuark.

22 Jan 2015 email from Campbell to her dep sec Malisa Golightly re: revised brief Campbell had asked for. In it, she apologises for being "detail obsessed." LOL.

Greggery: "You were obsessed with the detail of all of the documents you signed off on, weren't you?"

Campbell: "Noooooo, not all of the documents. To make the assumption that I picked up a typo in a brief to say that I went through every line of every document in that job..."

Yet she has picked up a typo here in this brief and this one didn't even have legislative or policy changes in it! Campbell says that's because it was going to the Minister.

New email, Campbell approving the costings brief to go to Finance. She "could have" deleted the misrepresentation in it "but I did not notice." Now being shown the final brief, no tracked changes, no changes to that offending paragraph asserting no legislation required.

10 April 2015 email to Kathryn Campbell with a "draft letter for your consideration and response to the ERC decision" of the welfare new policy proposal. This should be interesting.

This is a draft letter to the Finance Minister from Minister [Scott] Morrison. There is a PII claim over this letter, so Campbell is being shown a hardcopy. Campbell, in this email, is being asked to approve it.

Campbell's exec officer communicated (10 April 2015) on her behalf saying she is OK for this to be discussed with Finance. Malisa Golightly and Mark Withnell should go to that meeting, it is noted.

23 April 2015 to Kathryn Campbell notes "these are the options that have been discussed in detail with yourself, Malisa and in general with Finance." Campbell thinks these related to other measures that did NOT go ahead.

"Attached also is the original brief for the proposal." Reference to that Secretary Brief we were discussing earlier. Zooming in on the attachments. Look at her straining.

Following morning, colleague says "Secretary agreed to only send Option 2." We will soon see what that means, I imagine.

Now between the Thursday night email with the attachments and the Friday email above, Campbell emails back to Golightly mentioning she will "call Finn tomorrow to alert him to the issue."

Greggery: "Were you concerned that the position, that that misrepresentation, may have made its way into the Cabinet?"

Campbell: "No, I didn't, I had not identified there was an issue."

Greggery: "This was a development of a proposal in conjunction with your own minister, or the senior minister in the department. Your minister had made significant or rather detailed changes to it which had to be incorporated back in." And she didn't notice the language changed?

Campbell: "I am concerned, counsel, that you indicate this was the only thing we were doing at the time. But there were many such proposals."

Commissioner: "This was a measure that made demands of people to do things in a way they had never done before." Commissioner Holmes getting at the human cost angle here.

Commissioner Holmes: "But it was a very large number of people... would you not be concerned to make sure what you were asking was fair and reasonable, let alone legal?"

Commissioner: "You know that this program is going to be put in place. Would you not want to know about how it's going to work to some extent, to some level of detail, so that you can be sure that it's a fair thing to do to this very large client base?" THANK YOU.

GREGGERY: Well, what you knew in the start of 2017, was that the program had been implemented as you described it would be in the 12 February 2015 minute."

Campbell: "Yes."

Which was not lawful, you understood.

Campbell: "I'm not sure I went back and... did a comparison of what we said we were going to pursue versus what we were looking at."

Biggest HMMMMMMMM

So we get the exec minute 12 Feb 2015, costings through March 2015 and April 2015 etc and Greggery adds: "You really were looking elsewhere other than this aspect of the detail of these documents because you were very busy." KC got claws.

Now to the 23 April 2015 costings brief, follow-up to the 9 March one. Option 2 preferred. The case cleansing component of Option 2 didn't proceed, Campbell seems to recall. But the one we interested in is PAYG element of Op.2

Campbell being shown the attached calculations, detailed ones, that underpin the various appropriations / funding values for the budget measure. She pre-emptively says she probably wouldn't have looked at these.

Haven't even got to the question about them yet and she's like "yeah I wouldn't have opened these lol"

They assumed appeal rates of 2.5 per cent. Does she knew where this comes from, if it's higher than average? "I don't know."

Now Campbell is being shown the volume of payments and asked if this represents the other side of the ledger (the one she says she didn't see as part of the costing the measure). Yes, I know, I can't see it properly either!

1 May 2015 email to Campbell with the revised costing for the budget measure. Ministers Morrison and Cormann had agreed, or at least their offices.

Now we are going through the New Policy Proposal. Greggery: "I appreciate you say you haven't seen it or you can't recall seeing it and you haven't seen any evidence that you've seen it."

Campbell clarifies, she did see it for this measure when she became DSS Secretary 2017

Greggery: "That all looks very familiar, doesn't it, Ms Campbell?"

She doesn't recall seeing the regulatory issue (?) but otherwise, sure.

Oh that's the regulatory issue Scott Britton was on about, how the Coalition didn't want to bother employers by ringing them up to check income details all the time (the powers available to DHS to gather info it needs).

Greggery: "And again, the representation that there would be no change to how income is assessed or overpayments are calculated contained in this document was inconsistent with your understanding of the proposal as it was described in the 12 February 2015 executive minute?"

Campbell agrees with this now, knowing what she says she knows now. Maintains she did not know the discrepancy at the time.

In any case, contains very same language as in the secretary's briefing and the costings documents that she approved. But Campbell says she does think there are SOME changes between the briefs she had (but says she didn't read) and what is in this NPP. Like the regulatory issue.

Greggery: "You can't explain, I take it, because you didn't pay any attention to the language in the document 9 March 2015 how this representation, that the program would not change how income is assessed... ended up being the DHS/DSS position in the ERC?"

Campbell: "I do not recall seeing this, I do not recall clearing this and I haven't been able to find any evidence where I saw it." But there was a BUDGET COSTING so someone in her department, surely, knew what was happening in order to prepare that costing.

Greggery: "Because you say you never saw what your department prepared in respect of the budget measure, you can't help the commission in any way. Someone else must have done it, without your knowledge, at a point in time you can't identify." That is sarcasm, folks.

Greggery: "So, the limit of your assistance is that you had an understanding that legislative and policy change was required as at 12 Feb 2015 and by 9 March 2015 someone in the department had changed that position without you noticing and without your intervention."

Greggery: "And suddenly, things slip through to the point where Cabinet is told something that couldn't be true."

Campbell: "But I didn't tell them."

Greggery is exasperated. "I take it on your account you might not have seen any of the documents that might have went before ERC." Not a good look for Campbell here.

Now on to a different subject, re: Campbell's involvement in media matters in respect of a particular issue in January 2017. About explosive new Centrelink whistleblower document (Colleen?)

Not Colleen! Anonymous account from a Centrelink compliance officer.

Do you recall this critique?

Not directly, but Campbell "remembers there were matters like this by people who claimed to be employed by the Department." She says some were with the DHS but when anonymous she couldn't be sure. Would the union bowl up someone who wasn't? Not sure.

Greggery: "Well there was a lot of scurrying in the Department in response to this purported whistleblower, wasn't there?"

Campbell: "There was a lot of media activity at this time."

Was it in crisis, as staff said earlier on the stand? "I dedicated most of my time to this."

Greggery: "Do you recall settling language in respect of a media statement to dispute the claims made in this document?"

Campbell, foreshadowing: "I don't recall whether I did but it may be that I did I, I don't have that in front of me, but you may have it."

Greggery: "You're not claiming though, that you're excused from implementing an unlawful system because you didn't know the law. Because that's an excuse that wouldn't wash with most people."

Campbell, up a register: "Sorry, what's the question?"

This is wild, and I am having trouble tweeting because I just want to watch.

But essentially, Campbell says she knows DSS changed their advice because she's now been shown the NPP that had the table at the end where the box was ticked saying "no legislation required". Greggery says, where's the advice. Campbell: "THAT IS ADVICE!"

Commissioner: "And your evidence is that you had no clue about how that was being implemented."

Campbell: "I wouldn't say I had no clue."

Commissioner: "Well I am interested in whether you had a clue or not."

Commissioner: "A couple of thousand customers who might have had an incorrect calculation of their debt didn't attract your attention to understand what actually happened?"

Escalation brief said it had been rectified, Campbell says. And did you go looking for WHAT went wrong?

22 December 2016 email from Kathryn regarding issues with welfare recipients being sent to debt collectors without even being reminded via notice. Demonstrates she DID take an interest in the program:

Now in October 2016, when 75 age pensioners had their pensions cancelled because of the OCI. They blamed the ICT system, not the averaging, because [drum roll] "I don't think we had turned our mind to it at that time."

Commissioner: "It's hard to understand when you were hitting problems like this, people being cut off their pension altogether... why you wouldn't be looking at the mechanics of the system to work out how it worked and why it was wrong. Since you're a details person."

Campbell: "I note that we were advised that there was an ICT problem and they'd implemented a fix and it was now working correctly. When I've gone back to look at the documents I see this as the first indicator that there was an issue with the system."

Commissioner asks the obvious: if you KNOW you have an ICT system that is bugging out and getting this wrong, isn't that all the more reason to take an interest in what was going on with the program? Campbell says "I believed what was written there."

So when Campbell was overseas on a posting and NOT at DHS between May and August 2016 she took an interest in the Robodebt program. "Didn't you?"

Campbell: "Did I?"

Cue email!

Campbell: "Does it mean I'm not allowed to talk to anyone?"

Greggery: "I never said that."

Campbell: "We're very boring public servants, sometimes we talk about these things."

Greggery: "It's direct, it's to the point and it's an interest in the robodebt budget measures that have been proposed."

Campbell tries to suggest she was just saying hello to Malisa. About a budget measure!? Well...

Commission is adjourned until tomorrow, but Campbell will be back Friday.

Love and light, I am going for a 7km walk!

As @DarrenODonovan would advise: steps were taken

We are back for Day 14 of the royal commission with some Dept of Social Services witnesses, beginning with Andrew Whitecross. I am madly trying to finish filing the guts of my piece but will keep up.

OK, I've been half listening and half writing and half wishing for an end to the noise and my brain feels like a pudding but we are going through some stuff we're dimly aware of from the first Hearing Block about what DSS was expected to do for Morrison's agenda as Min.

Keep coming back to the hope that the ATO Single Touch Payroll could have prevented all of this, but back then it was a number of years off. Like a reverse Footprints in the Sand, where were you when we needed you most, single touch payroll?

Whitecross confirms, while being shown the proposal that was shared by DHS with colleagues at DSS: "This proposal clearly wasn't using ATO data as a last resort."

Greggery: "Would you say, Mr Whitecross, that the proposal in those terms represented a radical departure from existing compliance activity?"

Whitecross: "Absolutely."

This is from the 19 January 2015 email sent by Melissa Ryan (DHS) to Cath Halbert and Andrew Whitecross requesting DSS input on the proposals. Halbert writes back thanks, we'll have a look etc etc

On 20 January 2015, Murray Kimber at DSS notes that DHS are meeting to discuss the brief with their Minister Marise Payne that day (Tuesday) and that DSS comments are being developed.

The full consolidated DHS brief was sent to DSS before lunchtime that day, 20 January 2015, attached to an email on which Whitecross was copied. DHS wanted the comments from DSS that day because they wanted to finalise the brief "really quickly" following meeting with Payne.

The draft brief is addressed to Morrison from DHS. Morrison is the senior portfolio minister, in cabinet, Payne is not. But in any case Whitecross said it was a "little bit unusual" for DHS to be crafting a brief direct to someone who is not their Minister.

And in the Attachment B of this brief is the same, or very similar, language and format regarding the policy proposal as was forwarded earlier between DHS and DSS. It mentions possible legislative change, as did earlier discussion notes. Income smoothing remains.

Same day still, Ian Joyce from DSS notes that there is some new detail in here but its substantially the same and he is worried the "high number of customer interventions indicative savings [from DHS] increases our concerns the approach will be applied universally."

Greggery C: "It's a big net to capture a large range of alleged debt."

Whitecross: "Yup."

In the email, Ian Joyce raises a "broader concern" which is that the DHS savings assumption of $1.2bn suggests a significant level of non-compliance with income reporting of welfare recipients that would need to be addressed proactively, rather than waiting for a debt.

Same day, 20 Jan 2015, DSS dep sec Serena Wilson notes she would need "very strong advice" to convince her that they could use income smoothing on welfare fortnightly payments.

Murray Kimber brings up the Keating precedent in the High Court on retrospectivity (and you'd best believe everyone in DSS knew about that case!) and other major concerns, produced in a breakout box for the brief.

This is a hall of fame round-up of every problem with robo-debt that was later "identified" as it eventually rolled out: it hurts vulnerable people, significant scrutiny, legal concerns, what the hell are DHS's costing assumptions etc etc etc

Thanks to some legal minds, we called the Keating (and other precedents) matter way back in February 2021. thesaturdaypaper.com.au/news/politics/…

Whitecross on the stand now: "Even if an attempt were made to legislate, it may be not be possible to give effect to them [debts] for entitlement periods prior to when it had been legislated."

In short: uh, you probably can't go back to that mountain of "discrepancies".

So now some of these DSS comments are being taken into the brief drafting process, with reference to a very basic point [a lot of what you ~think~ is welfare fraud is an incredibly complicated system tripping up people~!]

sorry, phone rang so lost the thread after this for a bit

But we do see here Serena Wilson's (at the time) very strong aversion to the proposed changes makes it into the comment on the draft brief. And, we are adjourned for 15 minutes.

For those asking, yes, seems to me that Whitecross is a good witness. Answering questions, attempting to be helpful where he can, relatively clear in hi responses. Hasn’t escaped my notice the best and most humane witnesses so far have all been DSS. (But not every DSS witness)

Murray Kimber emails Andrew Whitecross on 21 January 2015 with some data on ~existing~ compliance activity, which raised some $356 million in debts in a particular financial year (2013-14) but the vast majority (1/8) of compliance reviews resulted in a debt.

20 Jan 2015 email from DSS (Halbert) to Melissa Ryan and Mark Withnell at DHS with all of their concerns in the comments. "We feel particularly strongly about the clean-up the PAYG measure." Ryan forwards to Malisa Golightly. This is key!

Andrew Whitecross details a meeting with Cath Halbert (acting dep sec while Wilson on leave) with DHS's Mark Withnell, a key player in this, where Whitecross discussed why income averaging couldn't work. He notes that Withnell appeared "frustrated" by this feedback.

anyway, GOOGLY EYES LOOKING EMOJI

Whitecross: "I recall being quite aroused, in my mood at that time. I felt very strongly about this issue and I wanted to convey the strength of my feelings about the quality of the proposal."

Greggery: "Or the lack thereof."

Whitecross: "Indeed."

Whitecross: "Mr Withnell was indicating that he felt that there was an amount of unrecovered debt out there that had accumulated over a number of years because DHS had not been able to apply as many resources to it as was needed to recover it."

Whitecross: "He seemed to be particularly unhappy that we were, or I was suggesting, that he wouldn't be able to realise that level of savings. And I formed the impression that there was quite an attachment at more senior levels to that level of savings."

Whitecross: "It was that sense, not that this number had come out of a methodology but that the number itself ($1.2bn) was the goal of the process."

Did you consider Ms Golightly was one of those higher-ups with an attachment to that savings figure? Whitecross thinks so.

Whitecross said, after that meeting, he never expected to hear about the proposal again. Why? Because of the "bluntness" with which he made his point and the "strength of the reasoning we were providing."

Whitecross emails colleagues with a proposal to set out what was discussed at this meeting. He noted he thought the issue of retrospectivity was "pretty fatal" to the proposal.

23 Jan 2015, Malisa Golightly from DHS sends revised revised draft brief to Cath Halbert at DSS. Purports to "address" DSS comments. One of the changes in this document is "the deletion of any reference to income smoothing." Fuck it can't be that simple can it, just pretend!?

Here's the side-by-side (top-bottom) comparison. Top, is what DSS sent to DHS with the sentence beginning "the assessment will use an income smoothing". Bottom, what DHS sends back. That sentence: GONE.

if you pull the blanket over your head, the monster cannot get to you.

Anyhow, in response Cath Halbert says she only had a minor comment, anyone else? Halbert's comment: "I don't think we need to say this." Doesn't mention fact income smoothing ref. deleted.

Whitecross is out of the office, gets Murray Kimber to respond on their collective behalf to Cath Halbert to add commentary to the revised brief. In this, Kimber notes that DHS has been "keen" to downplay impacts, but Kimber and Whitecross not tricked by absence of smoothing.

Whitecross: "We didn't think the change in language was a change in the proposal."

Note the vibe we continue to get here that DHS, according to these DSS folk, have a habit of going after "savings" from things that are "important" to the admin of the welfare system.

Forgot to attach the email!

And Murray Kimber, among many other changes in a very short timeframe allowed by DHS, gets this back into the revised draft minute. This is very important detail.

Now, when Whitecross is returning to the office (having asked Kimber to provide this commentary) he says he received a call from Cath Halbert (acting dep sec DSS) "she indicated that she had had a conversation with Golightly."

Halbert said that Golightly had "expressed concern about the strength" of our comments in the proposal and "she wanted me to tone down the comments that Murray had provided." HOO BOY.

Why did she say this was needed?

Whitecross: "I don't know whether she conveyed it to me in so many words but the gist of it was something along the lines of 'Malisa is unhappy with what we say and can't we just it'll present legislative problems leave it at that'."

Golightly, in a sort of "compensatory" offer, said they would include a line saying DHS would work with DSS to explore the policy and legislative requirements. "They just didn't want us to go in so hard, I guess," Whitecross says. He says he and Halbert had a disagreement.

Whitecross: "As a general matter... when giving advice, it is poor form to create the impression that there is more latitude in relation to an option than there really is. I think she [Halbert] felt we needed to have more regard to the relationship. She asked me to change it."

So, Whitecross gets back into the office. Emails Cath Halbert and says "I have pared back the edits in the brief and in the covering words below." He says he considered whether to preface that email with "as directed" but "chose not to." The brief is attached.

Whitecross makes his changes, as he says he was directed. But he still tries to keep the substance of the concerns there. He also again points out, in the comment [and I paraphrase here] that DHS appear to have plucked their savings out of thin air.

So 10 minutes after Whitecross sends his email, Halbert CCs him into her email to Golightly. It all seems pretty OK, despite everything, but definitely still toned down.

Whitecross suggests this is "polite public service speak" for: you can't keep developing this. This is a "red flag:,

But in attached brief, Cath Halbert has changed "fundamental impacts" to social security legislation to "significant impacts." What's the difference? Who knows, but it seems like a softening of the language. Otherwise, she made no change to his key comments on the PAYG measure.

Now, in December 2016, Whitecross does a double-take. Cartoon character AWHAAAAAAA. Media reports of a "compliance regime that seemed to have the same features of the scheme that we'd advised on in January 2015 which was very surprising to me."

Whitecross: "I hadn't had any visibility that this proposal was still doing the rounds, let alone that it had been implemented. So I went back to my previous advice to try and refresh my memory about what we had said about it. It seemed to have all the same features."

Whitecross then sends some emails. We love an email. He then learns about ombudsman inquiry, referral to the national audit office. Jump cut to February 2020, acting group manager has a "corridor conversation" with Whitecross about whether he had any involvement in robodebt.

I missed name, but Whitecross says "I believe she was conducting some sort of review." Likely in relation to "what they [the govt] were going to do to clean up the mess." She had been asked to look into what advice had been provided to DHS previously, esp. interested in legals.

Of course, by this time, Kathryn Campbell is the secretary of DSS (having moved across from DHS) and she was one of the people who asked for this internal review to be done. Oh, what a loop. What a loop. Cosmic. And that's Whitecross done. Adjourned until 2.30pm QLD time.

tfw you gave very firm advice against an illegal program and then see some reports around December 2016 that suggest that very same program has been running for some months

Commission is back, I was writing some more copy and checking some stuff, but Whitecross' buddy-system partner from the previous round, Murray Kimber, is up now. He's the one that wrote the really good strong comments in the draft exec minute about how, to wit, this would be bad.

Many of the emails on which Andrew Whitecross was copied also went to Murray Kimber, working closely together etc. Always have an email buddy! That's an important lesson.

Kimber does not recall that the legal advice itself that DSS had from late 2014 had not been forwarded outside the agency, including to DHS. He said this was usual practice to not forward unless it was asked for.

But the SUBSTANCE of this advice was communicated very clearly between DSS and DHS, Kimber (and others) note. And of course, that being the case, there was nothing stopping (indeed everything recommending) DHS get their own advice.

Email had an attached brief, the attached brief had attachments. This is not an important point but I am enjoying the nesting doll phenotype of online communication.

The other important lesson from all of this is: NEVER GO ON HOLIDAYS.

Murray Kimber, having gone back to read his emails, found that his acting dep sec Cath Halbert (the one who asked Whitecross to tone down the comments) had also removed some of his key points from his email to her in version she sent to DHS Golightly.

Kimber notes this but also points out the overall message still noted the approach would require overall legislative change, and that the issue of retrospectivity was a live one. DHS still aware of problems, in other words.

No one acts perfectly, of course, and other stuff may come to light but right now I gotta say Whitecross and Kimber evidence has been very good for my mental health / general wellbeing because boy was this whole inquiry slowly destroying my already wafer thin faith in systems.

Anyway, back to this email trail. Golightly says on 23 January 2015 that she will make the changes suggested by DHS (Whitecross and Kimber via Halbert) and that she is happy to keep talking on legislation.

Between 23 January and 26 February 2015 (when Scott Britton at DHS forwards a copy of the brief that went to Minister Morrison and was signed by Morrison to Murray Kimber) Kimber had no further opportunity to see it or have input to it.

Kimber forwards the signed brief he now has from Britton to Cath Halbert, Serena Wilson and Paul McBride in DSS. Of course, by this point, Morrison has marked the options given to him that he wants to pursue.

And, as we know, this signed Morrison brief contained the line that "DSS has advised legislative change would be needed" to implement the particular initiative.

Flash forward to Sunday 15 January 2017, two years hence, and Kimber is asked for his recollections about what had happened back in 2015. In his response, (stick with me here) Kimber casts his mind back to a 27 February 2015 (fifteen!) meeting with DHS Withnell, Britton, Ryman.

And in THAT meeting in Feb 2015, Kimber says the DHS triumvirate of Withnell, Britton ad Ryman (in descending order of seniority) claimed to him the new process signed off by Morrison would not change the way income or overpayments are assessed.

Greggery: "Do you recall pressing for any detail about how that was different to the proposal that had been advanced?"

Kimber: "I think... I took the view that our advice had been taken on board and they were going to put in place arrangements that fit the legislative framework"

On 4 Mar 2015, Kimber emails Paul McBride, Catherine Dalton in DSS and again notes that some "lego change" may be required. Suggests this be noted in the new policy proposal so the govt is "not surprised."

So, refresh: this is after the 27 February 2015 meeting where Kimber formed the view that DHS had decided to run with a program "within the legislative framework" and then on 4 March DHS sends over the draft new policy proposal and Kimber notes here that it probably needs leg'n.

Aside: I used to think I wanted to be a lawyer but I could never be this organised. I know there's teams of 'em and what not, but still, I would be the guy trying to shove a USB into a wall socket in the hopes of printing out something important mid-evidence.

And in the draft new policy proposal sent to DSS - drafted and created by the Department of HUMAN Services - it says legislation is NOT required. Fuck me dead.

And there it is again, the haunted ghost with unfinished business just hanging around: "The new approach will not change how income is assessed or overpayments calculated."

DHS out here just trying to MANIFEST an illegal policy

Day after the NPP is given to DSS, Kimber emails Scott Britton at DHS in which he notes Britton told him there had been changes to the NPP "as a result of Exec considerations." Kimber again notes the NPP does need to advise legislation is required.

Now back to Jan 2017 meeting notes by Emma-Kate McGuirk re: Ombo inquiry. Kimber attended, doesn't remember. Her notes "not averaging all the time, if left with no other option, average" and over the page "not income smoothing, using averaging when no other info"

And that's the last for Kimber. Commonwealth counsel notes it was not a meeting but a teleconference and I know there is a difference (OR IS THERE) but really

Cath Halbert, of recent "called Andrew Whitecross and asked him to tone down comments" fame is being sworn in now. No one cares about journos and you shouldn't but I am so tired.

What a time to be acting for Serena Wilson as deputy secretary, between 23 January 2015 and 9 February 2015, smack bang in the middle of the free-for-all drafting of the exec minute that would go on to Scott Morrison.

You may recall the "strong views" conveyed at a meeting between Mr Whitecross and Mr Withnell and others. Halbert not sure she does, but accepts there was. And what do you recall of your interactions with Ms Golightly up to this point? "Cordial."

Greggery: "The sequence of emails that day indicates that despite the strong opposition advanced by DSS earlier that week... Ms Golightly sends you a draft of the exec minute to go to Minister Morrison on the Friday morning and asks for your comments."

Did you note that any changes had been made, in that draft minute? Halbert says she thinks DSS comments "were incorporated in one way or another. But maybe I am mistaken."

Greggery: "Can we have exhibit 2064."

That was a minor mix-up, nothing serious, but the tactic of "I don't know" and then hearing Greggery say "can we have exhibit XXXX" must be chill-inducing.

Halbert says she has "no recollection" of Golightly asking her/DSS to go a little less strongly in their comments. (The conversation Whitecross relayed to us earlier).

Halbert now being asked about her "minor comment" on the draft exec minute where she said "I don't think we need this" re: a bit about social security law being beneficial in nature. This was a point she felt had already been made.

Does Halbert remember the convo over the telephone that Whitecross says happened where she asked him to "soften the language." No, but she has seen an email to that effect. She doesn't remember a disagreement but notes they had different approach to "style" of writing.

Greggery: "I take it, then, you don't recall that any exchange you had on that day could be construed as a direction to him to tone language down?"

Halbert: "I don't believe I would use that kind of language."

"Any any recollection of bearing in mind the relationship between DHS and DSS, at least at the deputy secretary level, as a factor in the way in which advice was conveyed?"

Halbert: "It's always incumbent on departments to work together and where possible, provide advice that is agreed by both. It's not a good look to be providing minister conflicting advice."

That said, they were being frank and firm with DHS she said.

Halbert says she doesn't recall why she changed "fundamental impacts" to "significant impacts" for social security law. She doesn't think this was to soften the statement, but perhaps she just preferred the word significant or it was a style thing. OK.

I have the "call, call, Carpet Call, the expert's in the trade" jingle in my head because of all the 'I don't recalls' currently on offer.

not sure if that's a QLD thing or not, but if ya get me ya get me

Just in time for my sanity, we are adjourned until 9.30am QLD time tomorrow (half an hour earlier than usual).

Here’s a photo of Murray Kimber trying to get those comments in anywhere he could stating that legislation was required to enact the policy

We are back for Day 15 of the Royal Commission, resuming with Cath Halbert who was still giving evidence yesterday. Then Mark Withnell (v. important) and Kathryn Campbell (also v. important).

Halbert being shown email from Kimber on to which she is copied, where Kimber again says this stuff needs to have legislative and policy change. DHS gonna propose some "descriptive words." This is 26 Feb 2015.

4 Mar 2015, Cath Halbert is sent email with the New Policy Proposal. She doesn't remember opening the attachment on that email. Again, this NPP asserts that there was "no change to how income is assessed or overpayments calculated." The magic phrase, cures us of ills (it doesn't)

She concedes now that "on the surface it is largely the same proposal." As in, the one they had all these legal and policy concerns about vs the "no change" one.

Halbert becomes responsible for debt and compliance division in Dec 2016, and involved in the Ombo inquiry the following January 2017. This is when DSS starts an internal review. "We were just trying to work out what had happened," Halbert says. Emma-Kate McGuirk contacts Kimber.

This is the email where Kimber casts his mind back to that 27 February 2015 meeting which appears to have changed the "narrative" about the proposal. Pretty significant meeting, I would suggest.

Greggery: "At that meeting, there seems to be communication orally that the new approach would use newly available data sources and analytical tools, such that it would not change how income is assessed or overpayments were calculated." Which, we know, is bullshit.

On the precise formulation of the program, recipients being "afforded opportunity to explain, correct, update or challenge."

Halbert: "Without trying to be difficult... I didn't have that level of detail in 2015."

Greggery: "I suggest you did have that level of detail in 2015."

Halbert: "I think DHS was saying that there would be no change from previous practice, despite this proposal."

Greggery: "OK, I might just clarify what your understanding of that meant in a practical sense."

Greggery: so what did you think that meant? That income smoothing was always used and this represented no change or there was a misrepresentation and income smoothing WAS now being used.

Halbert: "I don't think we as a dept knew about income smoothing prior to 2015."

Then, still in 2017, Emma-Kate McGuirk finds the email trail with the devastating policy advice from David Mason all the way back in 2014. That's the very first advice ever given where Mason nails every major issue with this concept: wrong, morally, legally, practically.

1 March 2017, Halbert emails Serena Wilson (her dep sec) at DSS. This is the proposed response to ombo which had asked for the legal advice that was talked about in the Feb 2015 exec minute (before this was taken out of the NPP).

And here is part of that email (dealing with it in chunks) where Halbert indicates that DHS "took DSS concerns into account and made adjustments to the process." Greggery very rightly asks: what adjustments?

Halbert: "From our research, we understood DHS had put several steps in place... our understanding was they had broken the nexus between the availability of the ATO data and the raising of a debt."

Commissioner: "So you understood ATO data would not be used to raise debts?" Yes.

The other steps here, getting pretty hair-splitty, was that the customer (welfare recipient) would not just be given an opportunity to respond to the "debt trigger" letter but be "given every opportunity." But how does that break the nexus, Commissioner presses again.

Halbert keeps reiterating her understanding was that "DHS would take every possible step" and might I add that you can't just say steps were taken if you can't name the fucken steps. A step is not a policy response! It's a unit of measurement!

Greggery asks Halbert about the "legislative requirements" referenced in her proposes response to the Ombo. But those requirements were "to calculate actual fortnightly income before a debt could be raised."

Halbert: "Correct."

Greggery: "The legislation that you're considering here doesn't address the question of opportunity [for customer to respond], it addresses the question of proof of actual income."

Halbert tries to interrupt and Greggery says: "Let me finish."

Greggery not having any of this dance.

Greggery: "What you described then in your answer is not contained in Mr Kimber's summary to you in 2017, is it? This last resort and the income smoothing. So how could you possibly represent that by early 2015 DSS had gained a better understanding of the revised proposal."

Halbert has more knots than a shipyard, here.

Commissioner: "What you are representing here is that in early 2015, once you were told that customers would get the opportunity to correct the information, you thought that smoothing of income data was fine, and no legislation would be required."

Commissioner: "Look a the words here Ms Halbert! That's simply untrue."

Halbert: "It may be badly worded, Commissioner."

Commissioner: "Do you say that DSS expressed that view when it came to them, that we can find? By who and when?"

Halbert: "That is what I was told."

Commissioner: "Can you point us to any shred of evidence that that ever happened?"

(me, whispering: no)

Commissioner Holmes asking for the Kimber email to be brought back up. We are about to do some reading comprehension, people.

Commissioner: "Now, can you just point me to where there's some indication in there that DSS reached the view that if an opportunity was given to customers to correct information, averaging was not a problem and no legislative change was required."

Halbert thinks that DHS saying "no change to the way income is assessed or overpayments calculated" as evidence.

Commissioner: "This is nonsense, isn't it?" Halbert says she is not trying to talk nonsense to her.

Commissioner: "That is not what you are saying here. DSS could have said to the Ombudsman, 'look, we've been had, they were averaging, they gave us the understanding they weren't, so it's a surprise to us."

Halbert: "We did have that conversation."

Commish: "Ms Halbert can I put one interpretation of events to you is that DSS in 2015 very firmly said income averaging is not within legislation. That was firmly conveyed to DHS. DSS then, perhaps turning a bit of a blind eye, came to believe that averaging was being used."

Commissioner, notes that by 2017, the context was that "Government ministers had already gone out in the media and supported this program, saying nothing is wrong" and DSS now finds itself in the position where they have a choice to make.

Halbert: "We were not looking for an excuse for DHS. There was certainly anger at what we were finding out. People in DSS believed that they had been given assurances by DHS."

Even so, Commish says, email to Ombo is "just not true." Halbert: "We were not trying to hide this."

Commish: "That is just not reconcilable with the 2014 advice that averaging did not fit within the legislation, is it, last resort makes no difference."

I am dizzy from doing this bureaucratic circle-work.

Commissioner: "One possible interpretation of this is that having found this out, you then went looking for some legal advice which could support the business case for this." Remember, DSS had unequivocal legals in 2014 but prepared another bite in 2017 for Ombo.

H: "We felt that we were going to have to accept this DHS position. We felt it was a different thing to what we had got advice on previously."

Comm: "Why was it different?" You had advice avg-ing not legal, they were avg-ing, this was advice on avg-ing that didn't address law."

Greggery, hawk-like, notes that Halbert says there was surprise and anger when DSS found out what DHS were up to. "What you represent in your draft letter to the Ombudsman [2017] is in fact that DHS came to the view in 2015 that legislation was not required."

Wow, Halbert tries to say "I believe" and Greggery almost shouts, cutting her off: "I'm not asking you what you believed, I'm asking you what you represent."

How can you be so shocked and angry at this news in 2017, if what you are telling the Ombudsman that TWO YEARS EARLIER you had come to a view that this was all OK. That's the guts of this exchange. Greggery asks Halbert to accept the proposition.

Halbert: "We were not trying to cover anything up."

Questions being asked, answered by the t-shirt I am wearing meme

Greggery: "Ms Halbert... my questions to you are about what you are ~representing~ to the Ombudsman in this draft letter in a response to their very specific inquiry." And in this, he says, you represent that DSS "became comfortable with the concept of income smoothing."

This is difficult because the letter to the Ombo was 2017 but in it they were talking about the position held by DSS in 2015, two years earlier, which is allowing a little bit of wriggle for Halbert. Because, remember, in 2015 DSS was STRIDENTLY uncomfortable with the proposal.

And they are telling the Ombo the opposite, that despite mountains of evidence that DSS said "this should not be allowed" in 2015, that the department was actually content.

Commissioner: "I don't know if you are doing this deliberately or not. That is beside the point. You are on affirmation, you are required to tell the truth. Did you seriously have any basis for saying that?"

Yikes

Halbert: "I don't believe that we were endorsing income smoothing in..."

Commissioner: "You are NOT answering the question."

Halbert says it was "not the spirit in which we provided the advice to the Ombudsman" when asked if they were trying to reconcile the irreconcilable.

Commissioner: "This is your own doing, nobody told you you needed to come up with something like this?"

Halbert: "No, there was no direction, we had a request from the Ombudsman, we were responding to the Ombudsman."

Halbert: "I'm a little affected by the suggestions of deception. There was no deception. If we haven't conveyed the concept correctly, then that's on us."

Commonwealth's counsel intervenes and tries to get a break for Cath Halbert. Halbert says she is fine.

Greggery: "I will make my position unmistakably clear." He outlines her evidence yesterday, tries to nail each individual element of the testimony. He is still doing this, too complex to fit into a tweet, but brick-by-brick, bird-by-bird he is comparing her words.

The change in belief (back in 2015) was because you believed that income smoothing was not being used. But that's not what you're telling the Ombudsman. Greggery: "Your evidence was, smoothing was off the table in 2015 as a result of the advice."

Halbert: "I don't believe we were trying to unpick our original position."

Greggery: "I am suggesting that is contrary to your evidence yesterday and today."

This is brutal. Greggery calls for an exhibit.

Now Halbert is shown Wilson's response to Halbert on this key email. Happy with this, she says, but can we use the word apportioning rather than smoothing. Now shown final sent to Ombo, that change is made by Halbert.

Greggery: "What is happening here is that you are giving evidence that you in fact did not try to manipulate the truth to the Ombudsman. And it is abundantly clear from your written words, that you did."

Greggery notes the second part of the Ombo request was to supply notes, documents, material etc that went to the legal and policy advice.

Halbert: "I believe they had access to those other documents. Perhaps we didn't feel it was necessary."

My God.

Halbert: "There is no reason why we wouldn't have provided them."

Greggery: "Unless you were trying to manipulate the truth to the Ombudsman..."

H: "We were not!"

Greggery: "Please let me finish, this is important to you."

Greggery: "They didn't have access to your emails, did they?"

Halbert: "No."

Greggery: "And they weren't provided, were they?"

Halbert: "No."

Commonwealth counsel Dominique Hogan-Doran is examining Halbert now. But there will be a morning break now, back at 11.15am Brisbane time. 12.15pm AEDT.

I've taken up smoking again because of that.

[I am fully kidding]

OK, we are back and the document that wasn't in evidence yet that the Commonwealth wanted to show Halbert is interesting enough to Greggery that he is now asking some supplementary questions of the witness. I'm curious.

It's an email trail starting with senior assistant ombudsman Louise Macleod's request. 24 February 2017-ish. The document hasn't been redacted so I don't think we'll be getting it on the live feed screen.

So the letter to Ombo which concerned all that fiery testimony before the break was drafted by Halbert's colleagues Russell de Burgh and a Mr. Herman, and she copied and pasted it into email to Serena Wilson. Halbert still made the changes Wilson requested re: income smoothing.

Commissioner: "At whose request did Mr de Burgh or whoever drafted it, at whose request did they do it?"

It's just in response to the Ombo, Halbert says. Now Greggery has been provided with another new document, which the Commonwealth doesn't have. We are being KIND and sharing

28 Feb 2017 email from Janean Richards, chief legal counsel, who spoke with Cath Halbert about these requests. "They're looking for advice that bridges/explains why our approach has changed." This is the 'oh no, how do we explain the 2014 legals' moment.

We knew about this moment, I have written about it in first week of the hearings, but I don't remember seeing the actual email as above.

Commonwealth counsel just trying to gently put across the fact that, because Halbert wasn't provided the email that provided nuance re: her staff preparing the draft letter for the Ombo, it should be clarified. Halbert says she still accepts she presented it to Wilson. End.

New witness, Mark Withnell, the hinge-point at DHS between the Campell-Golightly power duo at the top and the Britton-Ryman pair below Withnell who actually came up with the Robodebt concept. Withnell their boss and he should have some VERY interesting insight.

Angus Scott KC is giving Justin Greggery a Well Earned Break in the counsel assisting stakes.

Juts going over some basics in his statement. Withnell says he does not have any recollection of the drafting process "for this particular executive minute." Is it still your recollection? "I've been provided with access to some emails from that time, and there were some."

Scott: "Would you now accept that you were intimately involved in the drafting of that minute?"

Withnell: "I was involved, yes."

Substantial involvement. Well, that depends what you mean, Withnell says.

9 Jan 2015 email from Withnell "here is my first full draft of the draft for Min Morrison." You recognise this email? No. But he has subsequently seen it.

And he doesn't know if he would call it an early draft of the brief "but it was certainly a gathering together of information which will go on to provide a basis for the brief." And I ask you, dear reader, to tell me the difference.

We are going through this draft, which is very familiar so far.

Scott: "You of course understood that PAYG data by itself did not provide a safe basis for an assumption as to the actual fortnightly income of the recipient in most cases." Yes. And Withnell, in his statement, says he "repeatedly reminded" Malisa Golightly (and others) of that.

Withnell: "Because we were unable to do a large number of reviews, probably less than 5% of the potential discrepancies, large numbers of people were remaining non-compliant for three and four years and therefore having quite substantial debts by the time we got to them."

And now Withnell is explaining the origins of using PAYG data in the Department of Human Services, going back to the 2011-12 budget where they used data-matching to identify people who were at risk of getting into debts by not declaring.

This is them trying to use PAYG data as a way to stop debt being incurred. But, of course, once the data is there, people start sniffing around and wondering: well, hey, why can't we go back in time and find the debt and collect it? W: "I felt a little bit uncomfortable with it."

Withnell: "The further we went in, the more it became apparent to me that... it was not possible to look at some of the similar things we've been looking for prospectively, to look at those retrospectively." In short: stop future debt, don't raise past debt with this.

But, this is key, they started looking at how they could do something in between. Still go back in time, still use PAYG data, but use it only to "prompt... recipients to self-correct." So technically they wouldn't be raising a debt, but getting customers to fix their affairs.

Anyway, back to the draft-of-the-not-a-brief-but-information-gathered-that-would-become-a-brief. Kathryn Campbell told Withnell, after her meeting with Morrison, that she was going to put Malisa Golightly in charge of this area and they were to come up with policy options.

This is Withnell's draft. "In effect an early articulation of what is now known as the Robodebt scheme," counsel Angus Scott says. Withnell agrees it is the transition to looking at whether it could be that "retrospective" approach.

Scott: "But even in this early form, a fundamental aspect of this proposal is the use of an income smoothing methodology to apportion the customer's income over the time of their employment." Agreed? Withnell says some things that I cannot make head nor tail of.

Withnell says because they only had a couple of days to come up with options after they were asked by Campbell/Golightly, so they were essentially getting some ideas together that may have been "leftover" in the department. They were bower-birding.

Withnell, responding to some particular question, "an assessment is different to an application." Commissioner, and I am absolutely paraphrasing here, says 'what is the fucking difference'.

I haven't eaten anything today, two flat whites, and I am starting to fade.

Commissioner: "How are you going to get this $1.2 billion in savings from returned outlays and debt if you were not going to act on the responses [from income averaging]."

Withnell suggests they hadn't figured this out yet. Yes, that is what he suggested.

Withnell is doing a better job than Halbert of pleading innocence, more calmly, but this doesn't check out at all in the terms of what was proposed in the DRAFT HE WROTE.

You can:

1. Use PAYG data to trigger customer behaviour change without acting on their responses

or

2. Raise $1.2bn in BUDGET SAVINGS by using those responses to raise debt

You cannot have both

Anyway, Withnell says he made the point that income averaging would have led to incorrect assessments.

Scott: "And this description of anticipated $1.2 billion of gross savings made no account of that."

It did, Withnell says, because otherwise it would have been higher.

The budget assumptions would have been done by the data-matching team that sat within Scott Britton's branch, Withnell says.

Scott: "You can see the words, 'there would need to be a change to departmental policy in relation to the application of income smoothing to assess a customer's income from employment' you see that?"

Yes. Withnell thinks they could use it in exceptional cases. Last resort.

Withnell now being shown the exec minute with further drafting done, it is very similar to the "information gathered" by him in the "wasn't a draft of a brief" draft brief. Counsel says this proposed a "fundamental change" to how income was assessed by using ATO data as default.

Withnell says this is "still a very early stage." I don't know what he hopes to achieve with that response. This is being drafted to be sent to a Minister, for God's sake. But he eventually agrees it is a fundamental change.

And that fundamental change is the default use of PAYG data rather than "in exceptional circumstances."

Withnell says it wasn't the intent. Here we go, Scott pounces.

Counsel: "I suggest to you that that was always the proposal and it never changed."

Scott: "The words, Mr Withnell, used in this passage explicitly acknowledges that customers are given the opportunity to provide information."

W: "Correct. That's always been the case."

And if they didn't, their entitlements to social security would be assessed using smoothing.

Withnell: "That's not my view."

Well, what was your understanding, if they didn't provide the information, what would happen?

Withnell says, again, that this is "still very early days." But that's not the question.

I am getting very frustrated by the witness' approach here. "Unfortunately that editing process still left quite a number of proposals and we were trying to juggle effectively 10 ideas in a very short timeframe across multiple sorts of areas. PAYG clean-up evolved slowly."

It all happened very fast OR it happened very slowly. Pick one.

Withnell mentions the fact that "income smoothing" disappears from the documents and by NPP is replaced with the now famous line that this presented "no change to the way income is assessed" etc. Counsel says he is "trying to understand your evidence." SAME.

Withnell gets sent the DSS comments on the brief. Withnell sends to a colleague: "DO NOT FORWARD."

Why?

Withnell: "Because at that stage, my understanding was that it was relatively confidential."

Now Withnell being shown the attachment, remember DSS comments in the special breakout box from yday which list, in bullet points, everything that is wrong with this proposal. Ref. to DSS Public Law Branch would imply legal advice, yes? Withnell accepts this.

Commissioner asks if someone can see what the noise is they can hear. I can't hear it.

The noise is inevitability, Mr Anderson.

Counsel: "This was clearly expressing the DSS position that the use of income smoothing to assess a customer's social security entitlements was both unlawful and contrary to policy."

Withnell: "Correct."

Counsel: "And it was emphatically stating it."

Withnell: "Correct."

And, further, the proposal "explicitly contemplated that this methodology would be used after attempts were made to engage with the customer."

Withnell: "Ummm, I'm not sure it says that. Can you point me to that?"

Counsel: "1.B."

Withnell currently getting run down by a velvet steamroller.

Withnell: "And the customer will have an opportunity to update the information provided to me prior to it being applied." He thinks he is on a winner here. But Commissioner points out, "it follows that the smoothing happens after the customer is given the opportunity."

Withnell playing dumb here. Commissioner sighs.

"The order of events as presented in this paragraph..." and goes on to lay it out sequentially.

Withnell trying to say because the document doesn't say "oh and btw if they don't correct their record, well do everything here as stated" then it doesn't count. But that's the proposal!

Counsel: "How on Earth could the savings proposed in this... be realised."

The proposal is to give customers an opportunity to respond and damn them if they don't. I am going insane!

Withnell: "Again, that's where I have trouble." OK Mark, do you also have trouble with THE PASSAGE OF TIME.

you ever visited the past from the future, mark? No?

how do you deal with entropy, mark

Withnell: "You seem to be proposing there that the only way an impact could be made on a recipient's entitlement was by income smoothing, is that correct?"

It's the only one mentioned in the DSS comments, counsel says.

Commissioner: "Did it ever dawn on you that it might have been used?"

Withnell, like a newborn who has never seen a new day: "I don't know that it ever dawned on me."

Lunch, thank fuck. Adjourned until 2pm QLD / 3pm AEDT.

I ate, a lot, and quite fast. But fair warning, I don't know how much of this afternoon session I am going to be able to ensure. Been up since 4.45am and I need to sleep!

21 January 2015 email from Scott Britton to Mark Withnell being shown now, and from a very quick glance it is somewhat unhelpful to Withnell's position.

Counsel intent on making Withnell recognise the time it was sent: 2.40pm in the afternoon. Earlier that day, at 9.37am, is when the DSS comments on the brief were forwarded to Withnell. So now he get this Britton email: "Mark, in response to the points made by DSS."

Now, given the time and date, this must be a response to the points raised by DSS in that attachment (the one Withnell said DO NOT FORWARD). He agrees with this proposition.

Counsel: "What I suggest to you is that Mr Britton is purporting to describe the proposal that was the subject of the DSS comments in the attachment to the earlier email that day." And lo, these comments are all about income smoothing.

I would add, personally, that not only is Britton talking about income smoothing he is doing it to defend the policy proposal that clearly always existed. Withnell said he is "reiterating the process with some amplification at this point in time." wtf man

Withnell doing some pretty naked filibustering here.

Withnell still stalling, eating up time trying to compare Britton's dot points here and the proposal. He is trying real hard not to move on from dot point one lol. Counsel shifts him along to two. I drew the red around dot point three.

So far, excruciatingly, we have managed to get agreement that dot points one and two are consistent. Third one?

............
[an eternity]
............

"The first statement, I think is different, to the draft or potential priority proposal."

Withnell: "It's written quite differently but it is to a degree consistent with Point C." lol

Counsel: "Are you saying that this third dot point was, in effect, a proposal by Mr Britton to change what had, to that point, been proposed or do you accept he was... just describing."

Counsel says, quite rightly, that if Scott Britton was here proposing to CHANGE the policy, then Mark Withnell would "surely have corrected him, wouldn't you?" W: "My sense is there were, at this time, a range of ideas going backwards and forwards."

We try again. Are you saying the third bullet point is inconsistent with what you understood the proposal to be at this time?

Withnell is stalling again, and I might possibly throw my laptop at the wall.

Withnell: "I can't give you a definitive answer, I don't think."

Counel: "Are you seriously suggesting at that stage, only a matter of hours after DSS had provided their comments, Mr Britton is proposing a variation?" Not sure! Heavens.

Counsel is taking Withnell back to Britton's three dot points that we have been stuck on since, it seems, the Cretaceous. Withnell still refusing to concede he thinks the third dot point is "how I understood the process at that point in time or is a slight variation."

What slight variation? Withnell: "The use of income smoothing was starting to become less and less possible and less likely and less attractive as a means of going forward." He says the third was "in some transition and some doubt at that time."

Now to the rest of Britton's bullet points. Would you agree that these seek to justify the process described in the ~previous~ three. Withnell: "Yes, I think they do."

Britton provides an excerpt from a debt policy advice some years later. This is breathtakingly refreshing: "A debt is purely the difference between what the customer was paid and what they were entitled to." Entitlements defined earlier as fortnightly. EASY.

Counsel: "Would you agree with me that that excerpt does not provide
a legitimate basis to justify the use of income smoothing to calculate Social Security entitlements."

"Not explicitly," Withnell says.

Counsel: "And therefore it doesn't at all."

Counsel asking some more questions about "what, in effect, Mr Britton was trying to do. [He] was trying to justify the proposed process in those first three bullet points." Yes, Withnell agrees. And what follows, provides "no basis whatsoever" to conclude it was lawful.

Withnell: "I'm not trying to dodge the question, I'm happy to answer it. I just need to compose myself before I answer it. I had hoped it wouldn't come to this." Here we go, he's "revealing" something re: "relentless pressure" at the time which he says now leads to focus trouble.

Withnell: "At times my brain tries to shut down, as a defence. It's something I attribute to this 18-months or so [period]. I am just struggling to read, comprehend and articulate at this particular time."

Counsel: "Are you able to answer the question, Mr Withnell?"

I'm not sure if Withnell is trying to explain he has a medical condition, or if he experienced something else in that 18-month period which has led him to have a "seriously impaired" memory. But so far, he has not given an actual explanation of its cause. 5 minute break.

OK that was... supremely weird. I hesitate to say anything too harsh if there was some kind of awful incident or similar but... what Withnell just said is so non-specific, so nebulous as to sound entirely made up.

To clarify, I know that bullying and micromanagement and intense pressure (all of which I know for a fact was present at the time in DHS) can cause extreme suffering. But Withnell is going to have to be more specific because he WAS a key player. Let RC have all the facts.

Equally, of course, sometimes people confuse feeling terrible because of things they have done with being the victim of something terrible. Consequences suck! We all face them.

Commissioner says we could adjourn "but you would need to come back."

Withnell: "It's not a question of whether I want to, it's a question of whether I can articulate it. I'm happy to try again."

Anyhow, back into the Britton dot points. Scott Britton says there is "no legislation" that stipulates how a debt should be calculated." Hello, the Social Security Act would like a word Mr Britton! (The funny thing is, he already defined this with the policy advice!)

OK, you know what, I can't do this. I'm out! Words are not penetrating my skull.

Coming back to do Day 16 (is it 16? I can't remember) of the Robodebt Royal Commission. It's my final work week of the year or is it my final work year of the week? Who can say. We'll be underway shortly. Hold on to something; a loved one, a balustrade, your butts.

It's a Four Horse-Witness of the Robocalypse day, tax office before lunch, Community and Public Sector Union after. First: Tyson Fawcett. Director – Data Management for the
Australian Taxation Office.

Tyson Fawcett is in the Smarter Data Team, and I'm thinking they missed an opportunity for more rhymes. Smarter Data Medulla Oblongata. Anyway: Fawcett had most contact with Ben Lumley at DHS, but also Scott Britton and Jason Ryman.

About 2014-15 Fawcett came to know Michael Kerr-Brown who reported to him. Kerr-Brown had more of the day-to-day contact with DHS / Services Australia. Now just checking the two management forums on data-sharing that Fawcett would attend.

As at June 2015, what was your understanding of the legal framework under which the ATO provided its data to the DHS?

Fawcett: "The mechanism of exchange was the Data Matching Programme (Act)." At least, he said, until July 2015.

A number documents referred to in Fawcett's statement are emails from Ben Lumley at DHS which indicate a "need" to move away from the Act to a "less limiting process", but are there any ATO documents or policies that deal with that [Lumley] proposition?

Fawcett not aware of any ATO docs that corroborate Lumley's position.

Greggery: "Does that suggest, to your mind, that the basis on which the ATO shared data was really guided in large part by the nature of the request from Centrelink?" In short: did Centrelink control process?

Fawcett says the ATO is guided by the "lead agency" that requests the data and the circumstances under which they request it.

Greggery: "That is, the ATO adopted a rather passive role." That could be a correct assumption, Fawcett says.

Starting November 2015 workshop with DHS, an email trail is kicked off in ATO and DHS regarding action items. This included looking at the legal framework under which data was shared between the agencies.

18 January 2016 legal/policy advice from Simon Murray within the ATO. We are back to the general exemption point from a few weeks ago, that ATO data can be shared with agency heads IF that data is for the "purposes of administering the Social Security Law" (in this case).

Greggery: "In preparation for your statement, have you been able to identify any requests, that is documents requesting ATO data for the purpose of administering the Social Security law, which refer to that provision?"

Fawcett: "Not that I can recall, no."

Handy reference / refresh for the existing process of bi-annual data sharing between DHS and ATO, from Fawcett's statement.

And, sometimes, DHS would make requests regarding "specific individuals" for the purposes of "income compliance", at least as Fawcett understood it, though he doesn't know how this was done at DHS.

From July 2016, Fawcett becomes aware that the DHS wants to move away from data-sharing under the Act to the "more flexible arrangement" of a voluntary guideline.

Around this time, Fawcett understood ATO was sharing annual PAYG summary data twice a year with DHS, in October/November and February/March each year. At any point to mid-2016 did you "become concerned about the legal basis the ATO was supplying data to Centrelink" for the OCI?

Fawcett: "In my mind back in mid-2016, I am of the belief that the way I was thinking of it was that it was annualised income data being cross-checked with income data being provided to DHS to then reconcile with the level of benefit being paid out."

Commissioner: "But what about the legal basis on which it was done?"

Fawcett says he doesn't recall turning his mind to it, because there was a longstanding relationship between the agencies. Did you assume somebody must have sorted it out? Not even that, tbh.

8 April 2016 minutes from the DHS-ATO Data Management Forum. Fawcett is listed as an attendee, giving an update on a consultative forum that had already happened. What does he remember of this forum, what was the update about?

What was this "Optimisation Plan" in relation to?

Fawcett doesn't recall. Greggery says "the suggestion that work was required by July 2016 indicates that something had to happen." Was it related to the Online Compliance Intervention (Robodebt)?

This is the bulk-data exchange that needed to happen and Fawcett agrees that this was part of the OCI.

Greggery: "When there is a reference to people in Canberra, from DHS, taking an interest in the work. Do you recall what that was about?"

Sadly, no.

Data to support budget measure. Big file landed! Fawcett, in this meeting, queries DHS about whether they are seeking "legislative change". You'll recall because of changes, they couldn't use Tax File Numbers for identity matching.

Why did you ask if legislative change was being sought?

Fawcett: "It only leads me to believe it was a question more related to use of tax file numbers and amendments around that. I don't have precise-ness around what occurred at that time."

What about privacy rules barrier?

29 August 2016 meeting minutes, also from the Data Management Forum. Lumley from DHS mentions that the budget measure "had to proceed quicker than originally thought." Does this refer to the large data file to be provided, 100,000 matches?

Do you recall that the original expectation for the implementation of the measure didn't involve the urgency that is referred to here?

Fawcett unable to say.

Were you aware of significant media interest by the end of this year, in the OCI? Correct.

There were a number of requests from the ATO to DHS along lines of "what the hell is going on". Early 2017 you understood there were circumstances in which DHS was using the ATO data to calculate debts where there was no other info available by averaging? Correct, maybe Dec 2016.

By July 2017 "you have become quite frustrated by DHS responses to requests about how they were using the data." That is correct, Fawcett says.

"The frustration emerged out of the media reporting in relation to tax office annual data being used in an averaging environment."

Fawcett: "Also in relation to the level of engagement with DHS, to engage with the tax office in relation to the use of the data."

That frustrated existed even though ATO was putting out media releases saying it was happy with what DHS was doing? Unsure.

What do you mean by frustration with DHS engagement, Commish asks.

Fawcett: "I am unable to recall whether I was seeing the precise-ness in relation to what they were doing." Greggery: you found out via the media. Yes.

Friday 7 July 2017 email to DHS Ali McRae. This is the one where Fawcett says "what the fuck are you doing with our data" (I'm paraphrasing) and then asks if they cannot give an assurance as to its use that they "cease and desist."

Greggery: "Whatever assurances had been given up until that point, you considered those to be inadequate."

Fawcett says it might be better to say "I required more assurance."

Greggery: "You used very strong language, Mr Fawcett. You wouldn't ordinarily this sort of language would you? You must have appreciated that this had some significance at the time?"

Fawcett says at the time he didn't think it was a significant email. What triggered it?

Fawcett unable to recall, of course. He thinks it is a "continuation of things". Greggery attempts to help fill in: "The questions raised by the ATO about the use to which DHS was putting the PAYG data had not been satisfactorily answered." Fawcett says this a "fair inference."

Greggery: "That is, the lessons documented within the ATO or DHS, which you've been able to identify rather suggests that you were referring to adverse media criticism, and the inquiries which followed."

Fawcett: "I believe that would be a fair assessment."

Greggery: "You've had a meeting with her (McRae), and perhaps others, which doesn't appear to be documented. And within a couple of hours at the most, the issue is so significant in your mind that you decide to commit to writing and request an urgent meeting." Why so fast?

Greggery: "You understood that what you were asking of DHS was a very significant thing, because you were representing to DHS that the ATO would not permit the [Robodebt] scheme to continue without the assurance that you required?"

Fawcett: "From memory, I actually cannot recall, but reading that last paragraph it was that I was wanting much stronger assurance around what was happening."

Greggery: "But it wasn't just that, it was a request that was followed by a big stick."

Really what you were asking, Greggery repeats, is that they stop Robodebt if they don't meet your terms.

Fawcett: "I had concerns and wanted greater assurance around how it is that tax office data was being used and more importantly I wanted that urgently."

It is fair to say, Fawcett says, that he was asking them to stop the use of that data "which we all understood was being used by the OCI program." He says OCI, but it was EIC by this stage, but he really just understood it to be the same thing (and it was, basically). Robodebt.

What about 2019, when the Fed Court class action happens, or later that year when govt announces suspension of debts. Fawcett, you'll not be surprised to learn, doesn't remember but expects that he would have been aware of it. Like looking through Vaseline this bloke.

Greggery: "What I'm getting at Mr Fawcett, is that there must have been a time when you look back on the moment when you asked the Department of Human Services for assurance about the use of the data and [if they didn't] that they stopped the program, but didn't follow through."

Fawcett: "In assisting this commission that is something I have reflected on, yes."

Now, Fawcett says he "can't recall the way in which I was using the word law". Perhaps he didn't say it "in a strict sense but in a more general sense." OK then.

Greggery, re the way DHS used the tax office data: "And if it wasn't fit for purpose, you obviously had some concerns about it, which were significant?"

That is a fair assessment, Fawcett says. He appreciates an assessment that is fair.

Greggery says irrespective of whether it was a legal question of a factual question (that the debt calculations wouldn't be accurate) "the result is the same in your mind, that is without an assurance, DHS should cease and desist the program?"

Fawcett can't recall precisely!

Fawcett: "It's annual data and it's a little bit... probably, not well understood. It's probably me saying 'should they require insights into how to use annual data' we should have a talk pretty quickly." Fawcett has never met a point at which he can precisely arrive.

Greggery: "Have you identified any records, documents, file notes, other emails, which follow from Monday 10 July 2017 about any assurance you received which satisfied you?"

Fawcett: "There is nothing."

Now looking at DHS McRae's response in which she subtly points out there are a "range of measures which the Government has asked us to deliver." Effectively disregarded your response, Greggery says "and there is some government or political pressure to continue the scheme."

Commissioner: "It looks very much as if she's telling you to back off, because this is what the government wants? How did you take it?"

Fawcett: "I provided a later response, that was somewhat shorter, on the 10th."

Commissioner: "You stopped saying cease and desist and instead said, I can explain to you what the problem is if you can't grasp it."

That's a... fair assessment. If you do a fair assessment drinking game and started 45 minutes ago you would be clinically dead.

Greggery: "Did you consider taking this issue to your superiors, an assistant commissioner, someone at that level?"

Fawcett believes he provided a copy of this to his assistant commissioner at the time but "there was no official follow-up." Greggery has seen a forwarded email.

Greggery: "Has it occurred to you that you may have been the lone voice in the ATO questioning the lawfulness or application or the purpose for which the data was being used? To the cease and desist level?"

Fawcett unable to say.

Greggery: "Throughout your 32-year career, can you think of an occasion which was more significant than the position you took on 7 July 2017 where you took a personal position, with whole of government consequences?"

Fawcett: "This is an event that stands out." DOES IT THOUGH.

Greggery: "You're still employed by the ATO. Are you feeling any pressure to adopt a sense of loyalty to the ATO in giving your evidence today?"

No, Fawcett says.

I was inclined to go a bit easier on our witness here, but Greggery is having none of it. And, on very sound fact-finding grounds of "WTF my dude", is right.

Fawcett is turned off (excused). Morning break, adjourned for 20 minutes.

We are back with Fawcett's direct report Michael Kerr-Brown who I will just call MKB because, at this point in the year, typing a hyphenated surname over and over again may just be the thing that breaks me.

Currently, MKB is Assistant Director in the Data Availability and Transparency Act implementation team within data management, Smarter Data (that is quite the job title). He did report to Fawcett from about 2013 to March this year.

In September 2014, MKB's job title changed to that of "data matching gatekeeper." Were gates kept? Tune in after the break!

Between 2013 and March 2022 "one of the primary tasks was managing and coordinating requests for ATO data from Commonwealth, state and territory agencies including the basis on which the ATO could provide the data." That is correct.

Looking at the Mar/Apr 2014 services schedule between DHS and the ATO. This is heady stuff, not sure how @DarrenODonovan is coping with this level of access. MKB involved in preparing it.

@DarrenODonovan First sub-paragraph under the responsibilities section is, how inconvenient, that each party is responsible for meeting their obligations under any relevant laws.

@DarrenODonovan Abridged agreement came into effect in 2014 but "wasn't executed until 2016." We'll cross that Abridged when we come to it!

@DarrenODonovan Craig Storen, DHS, and Greg Williams ATO executed / signed the document for their respective agencies. The legislative authority is noted here, in the agreement, but MKB says he can't recall ATO ever being given a notice citing the leg'n.

Those are s.196 notices, I should clarify.

MKB: "I was aware they were compulsive powers that Services Australia had to compel the ATO to provide the data." But DHS never exercised those powers, from at least 2013? Correct.

And here is what MKB understood to be the "primary data set" relied upon by DHS to run the Online Compliance Intervention / Robodebt. Do you have knowledge they relied on other data sets? MKB: "No, but it's a possibility."

Greggery: "In respect of the OCI program, is what is set out here the legal basis agreed between the ATO and DHS for the provision of the PAYG data?"

And what role did the Data Matching Programme Act have to play with respect of the OCI?

MKB: "From 1 July 2016, it had no role. It had been put to us by Services Australia that... they wanted to step outside of that Act."

MKB: "Based on the legal information that they have or legal advice they had obtained [DHS said] that we could still facilitate the exchange of the same data using other provisions within Tax Law and Social Security Law."

Did ATO ever get that advice? Don't believe so.

Fast forward to January 2017, MKB is briefing ATO Second Commissioner Neil Olesen about media reporting on the program. They seem "very satisfied" but a couple of follow-up questions are put to DHS. Confirms no Tax File Numbers were transmitted form ATO to DHS.

MKB calls this an "ad-hoc exchange". Because these files were "in addition to our annual bi-annual exchange." Annual twice yearly exchange probably clearer way of saying that.

MKB is asked about the guidelines from the Office of the Australian Information Commissioner: "So the focus of those guidelines is purely centred around compliance with the Privacy Act, operating separately to Social Security law and tax law." You can't "centre around" but still.

MKB: "It had been something that we, it was a data exchange that, to the best of my knowledge, had been going on for 20 years plus at this stage."

But that was under the Act, wasn't it? Yes, under the general exemption.

So, uh, did you just take their word for this being the same process?

"Initially, I took their word for it," MKB says.

At what point did you satisfy yourself? Later in 2016. "We kept being assured 'it's the same thing, just more of it'."

Greggery: "Surely the ATO would have been concerned to ensure that these millions of records were provided to DHS lawfully in the latter half of 2016?"

just remembered I have to do my tax

A rare moment in this RoCo where a witness remembers MORE than was expected. MKB points out that this table here is a "typographical error" in the ATO legals which actually sits under 355-65(2) not 355-65 (1) as stated here. I'm gonna need a moment.

MKB asked if the ATO data was of "sufficient quality" for the purpose for which DHS wanted it, noting they needed fortnightly. "In the absence of us having data available for shorter periods at this point in time, that was the best data that we could supply to Services Australia"

MKB, on the fortnightly calculation purpose: "My understanding is it was an ~indicator~ of potential under-reporting but that it was not definitive in and of itself of fortnightly earnings." But you were told by Malisa Golightly in Jan or Feb 2017 that they WERE raising debts.

As last resort, he says. Greggery: "It's still not fit for purpose, though, is it? Whether it's a first or last resort? MKB: "I was certainly flagging internally that we had concerns with the averaging." Who with? My manager Mr Fawcett but "I was also engaged with SES officers."

Assistant Commissioner George Halton, Deputy Commissioner Greg Williams, second Commissioner Neil Olesen and
Commissioner Chris Jordan are the senior people MKB says he raised this concern with, via a briefing note.

Part of that briefing, in January 2017:

Did ATO believe it had no obligations under this guideline?

"We were not the matching agency," MKB says.

Greggery: "But you did match identities and provide financial information as a result."

This briefing, prepared by MKB, is "identifying a fitness of purpose issue with the information", Greggery says.

Greggery: "It wasn an obvious flaw in the program."

MKB: "It was."

Commission adjourned until 2pm AEST / 3pm AEDT.

Back from the break. On MKB's briefing (above) he attached links to more than 50 media articles. That's what I do when I am trying to Make A Point.

MKB being shown the Office of the Australian Information Commissioner's data-matching guideline. Did it apply to ATO? No, MKB says. Did it apply to DHS? Yes.

Greggery very helpfully draws him to 3.2 where it says each entity should satisfy itself in relation to the protocol. Would you agree that applies to the ATO? Yes.

Greggery: "And if the ATO had participated in the program, as it was recommended to do by the guideline, it would have been able to identify what who conceded just before lunch, that the calculation of actual fortnightly income by reference to annual PAYG data... not sufficient."

You agree? No, MKB says.

"At all times, Services Australia indicated that averaging was a methodology that they had used for identifying potential discrepancies and that it was not something new." Not an answer to the Q. Greggery res-tates. MKB now concedes.

res-tates isn't a typo, actually, it refers to potatoes owned as personal property

6 January 2017, MKB sarcastically emails: "What media interest? Am I missing something?" You sassy little binch. I love it.

Assistant Commissioner Fawcett (scary, that phrase). lololololol

Anyway, I am being petty. This line of questioning is really about that email (above) where MKB says the ATO is a "data-matching agency" for the purposes of the guideline. MKB says he was using shorthand.

Greggery, picking up on MKB who now says they weren't: "I would suggest only a contorted reading of the Guideline arrives at that view."

MKB tried to pull a "well actually, I consulted with the OAIC and they told me I was right" before. Which is a bold strategy, in front of Justin Greggery KC.

Greggery: "So given that the ATO was captured by the Guideline and had an obligation to participate in the development of the protocols, did the ATO make a conscious choice not to do that or did it fall through the cracks?"

MKB: "It fell through the cracks."

Greggery: "Even at the time you were drafting the minute in January 2017, there was still no protocol developed by DHS in consultation with the ATO under the Guideline was there?"

MKB: "There was a 2004 protocol."

Greggery: "It's a 2014 Guideline."

MKB eventually comes around to this.

Greggery: "How could you represent that it was done under the Guideline if there was no protocol?"

MKB: "I don't have an answer to that question."

Greggery: "By 13 February 2017, almost a month after you sent the briefing to Mr Fawcett, you sent the briefing to Mr Halton. And it had been re-worked in the intervening four weeks?"

MKB: "Correct."

In this re-worked brief, as Greggery notes, what had been a problem identified by the ATO in the brief has now become a problem identified in media reports that DHS has now denied. How did that come to change in just four weeks? That's a big shift in significant, I would add.

Greggery: "So, what you had confirmed to you by senior executives from DHS was that, in fact, where people did not respond at all, or did not update information to demonstrate their actual fortnightly earnings, there was a maths problem with the program."

Yes.

Greggery: "So, how is it, given that the ATO - you particularly - identified the problem, did you end up attributing it to the media? Was it somehow less of a maths problem because the media had identified it? It was a lot of data to disclose on an assumption, wasn't it."

MKB: "We had been providing the data for many years."

Greggery: "Not under the Guideline you weren't."

Greggery: "The difference was, under the OCI program, the data was not being used merely to identify a discrepancy but there was a default component of it which calculated debts."

MKB: That became apparent over time.

Greggery: Well, ATO had actual knowledge of that in Jan 2017.

Greggery: "What you are saying is that the ATO continued to provide data, even where it realised that the calculations didn't add up." Now being shown a [GOOGLY EYES LOOKING EMOJI] email sent by MKB in January 2017. "I suspect this is being driven by the Government."

Greggery: "Did that make it more difficult for you to speak directly in the briefing minute about what you perceive as the fundamental mathematical problem with that, with those numbers?"

MKB: "As a public servant, I need to remain apolitical and not express an opinion."

Greggery: "But you also have a duty to give full and frank advice, where you can see a flaw in a program."

MKB: "We constantly raised that issue with Services Australia."

Greggery: "But that wasn't working, though, was it? Service Australia continually rebuffed the ATO."

MKB: "Nobody suggested it [there was ministerial pressure] to me."

Greggery: "You did it of your own volition?"

MKB: "I did it of my own volition."

Greggery: "Why?"

Greggery: "It wa sa briefing that allowed the ATO to step away from the issue it knew existed in the program and allowed the program to continue."

MKB: "Yes."

Greggery: "And that was the approach adopted by you in response to a series of media inquiries in 2017, correct?"

That's a qualified yes. They wanted DHS to answer them for sure.

Greggery: "Surely the independence of the ATO made it the perfect voice to stand up against the pushback from DHS?" Yes and no, MKB says.

Now Ben Butler's questions to the ATO (when he was at The Australian) being shown in evidence. Ben, unsurprisingly, nailed the guts of it. I do remember him saying they flicked him to DHS. Proposed response from the public affairs team:

MKB corrects the assumption from public affairs that this was being done under the Act, stating that it is being done under the Guideline. And here he notes that he has written to DHS asking for a copy of their protocol. He anticipates the response being "affirmative" from them.

Greggery: "Was it about that date that you realise there was no protocol prepared under the Guideline?"

MKB: "I accepted that the 2004 protocol that was published satisfied the requirements of the 2014 Guidleines."

Well, why didn't you attach the 2004 one?

Commissioner picks up a point from earlier, MKB said "yes and no" when asked if an independent ATO would surely be the perfect agency to push back against DHS. MKB says it's because there were budget savings on the line.

Commissioner: "It turned out you might have saved the bottom line quite a lot, but I suppose you weren't to know that."

MKB: "In retrospect, it would have saved the Commonwealth a lot of money."

A lot = at least $2 billion. Likely a lot more.

Oh my word, so then DHS gets in touch. As Greggery reads from the emails: "Media Team at DHS have been in touch and have asked us not to include copies of the documents in this response. They've asked us to amend the statement slightly as follows."

Oh my word, so then DHS gets in touch. As Greggery reads from the emails: "Media Team at DHS have been in touch and have asked us not to include copies of the documents in this response. They've asked us to amend the statement slightly as follows."

Greggery: "What was removed by DHS from the ATO media statement was, 'we provide this data under the data matching program protocol prepared by DHS in accordance with the office of the Australian Information Commissioner Guideline."

Greggery: "How is that the ATO was content to let DHS draft its media statements? Media spin is one thing, Mr Kerr-Brown, but factually inaccurate information is another."

MKB: "That was the prerogative of our media unit."

Well, it was yours as well, based on this:

MKB: "We had no basis to believe that they were not using the data lawfully."

My transcription app had that as 'not using the data awfully' which also works.

Commissioner asks, what were those "opinions" on the DHS response that MKB referred to cryptically in his email.

MKB: "So again, I was relying on the limited evidence that was available to me... that indicated there were perhaps broader issues with what they were doing."

Greggery: "What you are getting at is that you were highly sceptical of the accuracy of the DHS media comments?"

MKB: "Yes, I thought there was spin."

Greggery asks for another exhibit on the screen.

Ben Butler comes back with a follow-up question, one that only the ATO can answer. It asks whether ATO itself is comfortable with how its data is being used. How does it end up being deflected to DHS to answer?

Greggery: "Doesn't that just mean that the ATO was prepared to let DHS speak to its own mind?"

There is a pause so long that even the Commissioner intervenes and asks: "Are you still thinking?"

Yes!

Commissioner: "But what do you say to the proposition? That the fact was, if you're represented, you would have said no it isn't [ATO not comfortable with how its data is being used]."

MKB agrees that would have been his response.

Greggery: "Would you agree that, despite your view, by letting DHS answer for it, and providing the media response in the form that it was provided, the ATO, by acquiescence, supported DHS use of the data that way?"

That's one reading, MKB says.

Now on to inquiry from the Good Boy @knausc

Same deal, you knew the DHS response couldn't have been true etc etc

Now questions from ABC 7.30, who got the same response as the Guardian and The Australian

Greggery: "Can you explain why the ATO embarked on a course of conduct to not address the issue that was being asked on it by the media?"

You'd have to ask the media unit, MKB says. Well, the ATO is a very big place, Greggery shoots back, I'm asking you. What do YOU think.

MKB: "We were making a consistent response across the Commonwealth."

Greggery: "Even though it was inaccurate."

MKB: "As you said, counsel, it's a non-answer. It's not accurate, it's not inaccurate. It's not saying anything."

MKB then says it was not their "remit" to tell DHS what to do. "I would be offended," he says, if they tried to tell him how to respond. The irony is THAT THEY DID. And it very much was the ATO's business, Greggery says, to say.

What would the impact have been if you intervened? Millions of family payments, for a start, MKB says.

Greggery: "Are you saying the greater good required you to continue to provide the information for a purpose which the ATO knew was being applied in a flawed way to create debts for hundreds of thousands of Australians?"

Concerns were ethical, not legal, MKB says.

Greggery should be investigated by transport safety bureau for causing so many trainwrecks

MKB: "There was only so much at my seniority that I could do."

Greggery says he is not suggesting otherwise. But you were there at a critical point in time "in letting DHS speak for the ATO. I appreciate you still work there but you have to answer the question."

MKB: "My view is that the questions from the journalists are loaded in the first instance to elicit a response."

Oh come the fuck on

MKB says the media unit did it.

Greggery: "You might anticipate that they might say 'we rely on EL1s with practical knowledge to tell us what's actually happening so we can craft our response'."

Smiling, pouring water, MKB agrees he might have said something else. Excused.

Having caused such havoc, Greggery is being rested and replaced by Ms Marsh whose first name I have not been able to catch yet. Now on the stand we have CPSU nat sec Melissa Donelley and former deputy national present Lisa Newman.

Salwa Marsh, counsel assisting is the full name :)

DHS is the largest APS agency and largest single membership base in the CPSU. See, that's the kind of maths that is pretty easy to understand. Like averaging!

Looking at staff responses to CPSU survey regarding the Robodebt program in early 2017.

Lisa Newman: "We would have got very similar feedback from debt management teams as well, who were reporting that they were similarly overwhelmed." Another snapshot from another employee. In short, LISTEN TO YOUR STAFF.

Another employee: "If they can't explain and prove the debts are correct, they need to shut it down."

Newman: "What we were getting reports of were the different types of errors that staff could easily identify, such as different names of the same employer. They noted PAYG information. They were able to pick that up at at a glance, but were directed not to fix it."

Newman: "Prior to the robodebt scheme, staff had a lot of discretion about how they treated the data that they came into contact with. They also had the ability to identify vulnerable clients."

Newman, on when they found out averaging was being used: "People were alarmed at its use and and the circumvention of staff reviewing that data before a debt was raised."

Now being taken to @beneltham's reporting in early 2017.

Talking about the GetUp whistleblower (anonymous) which Centrelink dismissed as they asserted the claims "do not accurately reflect how the system works." But CPSU was able to verify the substance of it.

Some things in whistleblower statement CPSU could not independently verify at time, but they got a lot of feedback.

Newman: "We got confirmation very quickly from members ... that we needed to do everything in our capacity to raise these concerns and try and stop the system."

Marsh: "Would it be appropriate to say that, by the end of January 2017, the alarm had been raised loud and clear about Robodebt?"

Melissa Donnelly: "Absolutely, in our view, the alarm was well and truly raised by those front line workers and the union... and recipients."

Tudge's office response to CPSU was short.

Lisa Newman wrote to Kathryn Campbell also. 19 January 2017. And did you receive meaningful engagement with that?

"No."

Newman notes the only meaningful action they got was more security for Centrelink offices and training for staff to deal with "aggressive customers." Which is a bit like posting an extra guard on the increasingly angry imprisoned circus bear; symptoms, not causes.

And then, of course, DHS threatened its staff for speaking out. Blurry photo alert. A classic of the genre.

DHS investigated a staff member for taking their lunch break "ahead of the approved start time". They used their lunch break to hand out copies of the CPSU open letter. Allegation was handing out info that brought DHS into disrepute. No misconduct was found but the process hurt.

Newman: "It had a chilling effect and we had to take precautions in what activity we asked people to participate in from this point on."

@DonnellyMel: "Overwhelmingly, the feedback we got and continue to get is frontline workers knew there was a problem, frontline workers raised it with the department. They raised it through the union, and their concerns were variously dismissed or ignored or no response at all."

The witnesses are excused. And that closes out evidence for the day. Adjourned until 10am tomorrow (Brisbane time).

Now, usually around this time I would go and do something that makes me happy (like work on my book) but I can't because I am MOVING HOUSE THIS WEEK rickmorton.substack.com/p/the-inspirat…

Robodebt Royal Commission, Day 17 coming right up. We are due for Senator Marise Payne later, barring last minute changes. But first up, some personal testimony from a person affected by this scheme.

Posted too soon! Greggery says we'll have Payne, then Colleen Taylor (a DHS whistleblower who wrote directly to Kathryn Campbell to sound the alarm).

And Marise Payne is sworn in.

Just doing the basics up front. Greggery helpfully checking that the Secretary of DHS under Payne as Minister for Human Services was Kathryn Campbell. Morrison becomes senior minister in the portfolio when he takes on Social Services in Dec 2014. Payne not in Cabinet.

But she did attend expenditure review committees and cabinet on some occasions, but said the opportunity to not usually arise.

24 Dec 2014 until 9 Jan 2015, Payne is on leave. When she returned, according to her statement, there was the first of a series of meetings on what was ultimately a new budget measure in the 2015 budget.

Greggery: "Before you went on leave you signed a letter to Mr Morrison which really introduced him to the portfolio and offered that your secretary Ms Campbell would meet him during the break."

Correct, Payne says.

Priorities for 2015, identified by Payne in her letter to Morrison, refer to "passage" of some measures from the previous (2014) budget, and others starting on 1 Jan that year 2015. Greggery asks Payne for her recollection of the make-up of the senate.

There is some chuckling about whether Greggery has the right senators named. Commissioner thought there were three Palmer United Party senators. "They came and went," Payne says.

Greggery: "In terms of the Coalition position, in respect of the budget, there was a general approach that sought to deliver a balanced budget over a number of years. You would agree with that?"

Payne: "That's correct."

Payne gets back from leave and then on the Monday 13 January 2015 she met with the Secretary Ms. Campbell and her chief of staff. She noted that Morrison had a "compliance focus", which came up with his meeting with Campbell. Payne's notes from diary:

Payne: "I can say... the Secrteary would have detailed to me her meeting with Min Morrison in that discussion." Briefs done up, discussed with Payne. This version is not signed or marked by her but she can't recall if this is because it was sent back to dept for further work.

This sheds some light on the sequence of events. "MO [Min Office] requested unsigned brief be returned as Minister Payne provided her feedback directly to the secretary, deputy deputy secretary and GM at their meeting."

Meeting 20 Jan 2015 with Campbell in the "Bubble Room." Won't be asking about that. In this meeting, Payne notes the Data Matching Act (apparently 1993, although it is a 1990 Act)

Payne being shown the brief that goes to Social Services Min Morrison (we've all seen it many times by now). Payne is being asked about the administrative arrangement orders (the same ones Campbell was asked about re: DHS policy responsibility for implementation)

Greggery: "Did you understand that policy responsibility to extend to this particular measure?"

Payne: "Yes, because compliance and integrity were core business for the DHS in the making of payments."

That sound is Kathryn Campbell being behaviourally nudged under a bus.

Greggery: "In your experience as Minister were you aware that there were also administrative errors or administrative inaccuracy in the delivery of Social Security payments?"

Payne: "From time to time... dept is staffed by over 30,000 people and they are not free of human error"

Payne is being asked about the debt calculation process. "I can't say I turned my mind to the fortnightly nature of the process," she says re: fact that welfare entitlements are assessed fortnight-by-fortnight on income earned.

Greggery: "Do you recall a discussion about a new method by which the department would approach the issue of non-compliance in the meeting of 20 January 2015?"

Payne: "Not in a way... that meets the question. I can't now say if there was a specific discussion."

Greggery: "Do you recall when you first learned of the proposal that would deliver more than a billion dollars in proposed savings?"

Payne: "I would say I recall, generally, that it was a significant savings measure."

Payne: "The approach I understood as the priority was we were paying the right people the right amount of money and ensuring that where payments were were made in the wrong context, or where fraud occurred, that we could recoup those savings."

Was that govt policy? Yes.

23 Jan 2015 exec minute drafted by Malisa Golightly (the one drafted after 20 Jan meeting) and received by the departmental liaison in her ministerial office. (Not MO staffers). Payne signs the document 30 January 2015 (discussed 2 Feb 2015, she notes, in her handwriting).

Payne requested DHS split up briefs into two. First would outline current approach and options for strengthening integrity. Second brief not relevant for our purposes.

I'm keeping my tweets at more breathable pace at the moment, in preparation for tomorrow but also because Greggery is doing his excellent brick-by-brick walk through of the briefs / documents to establish agreed facts. We know this so far, and Payne is agreeing.

Re: making the customer go online to provide their own details. Greggery: "Did you understand that to be a departure from what in, broad terms, you understood to be a cumbersome process?"

Payne says she might provide some context.

Payne: "We were identifying opportunities to enable an easier digital interaction for recipients of payments. This is part of that, but also a continuation of the very long term engagement the Department of Human Services had with the ATO over many years."

Payne: "Where it points out the significant number of customers with 'likely incorrect payments' that that would always come to a minister's attention as a significant issue to be addressed."

Payne says it did register with her that this was about "going back" retrospectively.

Commissioner: "Did you notice anything odd about the figures?" They just seem a bit "loose" she says.

Can't say for sure. There is some debate about customers vs interventions as some customers would have multiple years worth of overpayments etc etc

Greggery: "This was a proposal being advanced which fell into that broad category of requiring some policy change, but as to the nature of that policy change it's not something that you, from your reading now, recall identifying."

Basically, no.

The process here from January to Feb, developing a budget measure for May, is that a tight timeframe in your experience? Payne says "later than, perhaps, other proposals but I have seen much later."

Asked about welfare system as it stood at the time, described in brief she says it was accurate to her understanding. She would have added an additional observation that the "supplementary payments we use in our social welfare system regularly increased complexity for customers."

But also that the that "IT system was extremely old and most definitely described as cumbersome." This made things very hard, she says, for both customers and the Department. Now, Payne being drawn to line that shows fortnightly assessment requirements of the system.

She agrees that, having seen this at the time, she would have been aware of the fortnightly eligibility requirement for welfare and difficulty with assessing income that is annual etc

Payne, being shown her mark-up of the exec minute / brief. "I am known to correct errors, in my professional approach. But I am also known to annotate in this way after reading a document."

She changed the "fraud" warning from "they could be next" to "you're next."

Greggery suggests this isn't just about correcting an error but making a "correction of intent" because it is stronger language than what was there.

Feb 2 meeting (2015) with Malisa Golightly and Payne's then chief of staff Henry. Possibly with Kathryn Campbell or Golightly was acting Secretary, who knows. I got waylaid after this bit so no idea what happened. Sorry!

Greggery, showing updates to brief: "When you reviewed this document, on or about 11 February 2015, do you recall what reaction you had to the strengthening of language about the need for legislative change to implement this potentially significant measure?"

Not specifically.

Back from the break, back with the 11 Feb 2015 brief signed by Payne.

Greggery: "In a practical sense, if this measure did require legislative change that could not occur prior to the May 15 budget."

Payne: "No it could not."

G: "Do you recall communicating to Ms Golightly or Ms Campbell in the course of this process, that anything that did require legislative change could not be advanced as a proposal for the May budget?"

Payne: "No, I don't recall that at all."

But surely that would have been obvious to Campbell or Golightly, Greggery suggests. Payne: "I wouldn't have had as a standing view that we wouldn't present a proposal that required legislation."

Payne: "After the 2015-16 budget, if I was to examine the record, I'm sure there would have been measures that required legislation across government that had to be taken to the parliament."

Being shown 23 Feb 2015 email from DLO indicating Morrison has signed the brief, and his office has kept Attachment B (17 pages, but sending 11 pages back) for records.

Being shown Attachment A3 which is the Strengthening Welfare Integrity measure that went to ERC / Cabinet.

Proposal description in that meeting, which Payne attended but cannot recall having seen the document being shown:

Payne does not recall, at this ERC that she attended, if she was asked any questions or made any comments about the proposal because Morrison was the lead minister once it gets to Cabinet.

Commissioner: "Wouldn't it be extraordinary if a new policy proposal - which entirely depended on implementation by your department, and in which staff of the department were heavily involved in the preparation of - if you didn't see it before it went to the ERC?"

Payne reverts to having no recollection. But Q, Commissioner reminds her, is whether it would be extraordinary if she did not see it. Payne: "It may be that not every NPP, which is not in my name, which is in the cabinet minister's name, does not end up coming across my desk."

Payne: "There is certainly no record to show that I approved an NPP."

Commissioner: "Well, alright, but you do seem attentive to detail, if I can say that, from the notations we've seen on the executive minute."

Commissioner: "It would be remarkable if you didn't look at the policy proposal, wouldn't it, when you're attending cabinet about something that you've been involved with?"

Payne says she was aware of the features of the proposal, but not the NPP itself.

Payne attended an ERC meeting with her department at 8.30am, an ERC preparation meeting with Morrison at 12.30pm and at approximately 4pm the ERC meeting itself started. Greggery notes it seems the entire day was set aside for this stuff. Paynbe says, well, between Senate obligs.

So, in the document that goes to ERC Greggery notes what we now know: "What doesn't appear there is the suggestion that there would need to be legislative change or policy change to introduce the measure." Would you have expected there to be something in there? Yes, Payne says.

Greggery reminds her that the exec minute specifically noted there would be new reliance on ATO annual PAYG data to assess income but in the ERC document, it says there is "no change." Greggery: "There appears to be an inconsistency."

866,000 apparent discrepancies but this brief ain’t one

This is my best work and only those following along will get it :(

Looking at the ERC attendance list. Payne was there, Kathryn Campbell was there. New document, not previously tendered!

Morrison is Minister responsible. Payne is "co-optee" which is language specific to cabinet re: people who are brought in for additional info or whatever.

Finance did not support this proposal at this point in time.

Finance wanted an "evidence-based business case" brought to them, by implication saying: this ain't it, chief.

Greggery zeroes in on Finance claim that the estimated savings or $1.1bn "may or may not be realised." Did you have any involvement in that side of things, he asks Payne, was that an issue that was resolved? In corro, Payne suggests, this was sorted out.

Finance also notes that the statute of limitations on 2010 debts was soon up, which meant that they would need to be collected in 2015-16 to avoid this.

Moving from March 2015, into January 2017, "you became aware of criticism of the scheme" even though she was now Defence Minister. G: "Did that cause you to reflect on how this process had developed in 2015?"

Payne: "Not that I can specifically recall."

Then when program suspended late 2019 and canned in 2020, did you consider it then? Payne: "Certainly in terms of the impact that was being described at the time on individuals or families who had been subjected to the operation of the scheme, yes."

G: "How did the identification of the problem in the lead-up to the executive minute drop off the radar by the time it reaches the expenditure review committee?"

Payne: "Counsel, I don't know the answer to that in all transparency." That's a new phrase.

Payne: "Clearly there is an expectation, however, that when agencies advise you, on the face of the brief, that they are working together to address these issues and that is specific in that paragraph about policy and legislative issues, that they are doing as it says."

G: "Do I understand part of your answer to say that, although you can't explain how the issue dropped away, you would expect the DSS to brief its minister as the portfolio minister, on the detail of the legislative change and policy change identified in the executive minute?"

Well, whose responsibility is the preparation of the leg and policy advice, at this stage? Payne says she understands these to be "high level" advices, without identifying specific legislation or laws that are impacted. "I would expect the agencies to work together," she says.

G: "Does that mean responsibility is borne by both ministers?"

Payne: "Essentially, responsibility is always borne by ministers."

Commissioner: "Would you not say to the Secretary of the Department, who's given you this brief, well what kind of legislative change are we talking about here? Wouldn't it have been a fairly burning question?"

Payne says not necessarily.

Payne says she has "seen the Senate do extraordinary things" in its function. Same, Payne. Same.

Payne: "If the advice to government is that there are over 860,000 customers who may have received incorrect payments, that number over $1 billion, in terms the integrity of outlays, and integrity of payments, that's an issue for... the taxpayer."

Commish: "Yes, but it might also be an issue to say to a Social Security recipient 'we assess your income on the basis of what you declared as your annual fortnightly income or your actual fortnightly income. Now we're going to take an annual ATO figure and apply that instead'?"

Lunch break, back at 2.30pm AEST / 3.30pm AEDT.

And back, with a joint Payne/Morrison media release from 10 April 2015 (after the ERC meeting). "Coalition IT reboot to drive welfare reform." This is about overall architecture but notes "this will also help us stop the rorts." Didn't stop this rort though did it!

This is the kind of language which is the atmosphere in which something like Robodebt just gets waved through.

This quote from the MR specifically attributed to Payne, although she doesn't remember this process of finalising this release.

Greggery: "Would agree with me, though, that there's a difference between those who deliberately or in a calculated way defraud the system and those who receive overpayments because of the complexity of the system and the complexity of reporting?" Yes, she says.

Greggery: "This joint media release appears to lump everyone in together. Would you agree with that?"

Payne: "I don't think I do agree with that, Mr Greggery."

Payne: "A press release is never a thesis... I expect by economy of expression you may be left with the impression that you have had."

Greggery, on 2020: "Did you understand though, in general terms, that the issue in 2020 related to the raising of debts without evidentiary basis under the scheme?" Not actually in 2020, she says, but now she agrees.

G: "I suggest you're in a unique position to identify where the process fell down in 2015, given identification of the need for legislative change in respect of the need to apply income fortnightly... being incorporated in the executive minute, but then disappearing [by ERC]"

Payne says she left the portfolio in September 2015. "My expectation would have been that that [leg and policy] work was being done by those departments [DHS and DSS], and would be brought to ministers as needed."

Payne: "I don't have any recollection of receiving advice on those matters." Greggery suggests that this makes sense, given the representations made to a sub-committee of cabinet that they were not needed.

G: "It contained a position about the measure which we can see now was inconsistent with the position adopted in the executive minute."

G: "Why would it be that someone rewrote the language to avoid the question from the ERC?" Can't say.

G: "A number of features of your evidence suggest that there was a government interest in the continuation of the proposal without legislative change."

Payne: "That's not a proposition that I think I have put. The desire to pursue both integrity of payments and outlays, improved compliance, was not for me contingent on legislative change or not."

G: "That appears to identify that there was a shortcoming at the departmental level about the adequacy of the advice given to yourself and minister Morrison."

Payne: "That is a question that I have asked myself, in recent weeks, preparing for for this engagement."

G: "One of the questions this commission has to answer is how maladministration... a failure of administration in this sense, can be avoided in the future. Surely on a scheme of this scale the answer can't simply be 'someone didn't do what they ought to have done at some point'."

Payne: "I don't think I can answer that, Mr Greggery."

She seems to think this scheme, re: calculating debts, only began on 1 July 2016. But the manual phase began mid-2015, using same methodology. It was manual, not online.

G: "Would you agree with me, that when we turn to question of the Dept's advice to yourself, for info and to Min Morrison for action in the exec minute, that up to the time that minute was progressed to Min Morrison, the dept was very responsive to all of your feedback to it?"

G: "And if you'd asked for more detailed information, there's no reason to think that that would not have been provided to you."

Payne: "I can't speculate on that."

Payne again mentions the work DHS said it was doing with DSS on policy and legislation. Commissioner: "But you didn't see the outcome and you didn't go looking for it."

Payne: "Not specifically."

Commissioner has a few questions about Payne's notes on the brief. Why, for instance, did she put a '?' next to the line that noted the welfare system was "beneficial in nature." Payne says she wasn't disagreeing with the statement, but wanted more info. Quickly adds: "I think."

Commissioner: "You'd appreciate that the tax office didn't get fortnightly figures?" Well, yes, Payne takes point. Commissioner notes even when new policy proposal comes along without "income smoothing" the saving is the same, and they still using ATO data, so averaging obvious.

Payne: "Whether they did that with averaged information or otherwise is not immediately clear to me but, again, I appreciate what you are saying about the material the ATO provides."

Commissioner: "All I'm saying to you is that it stands to reason."

Commissioner: "Even if you don't specifically say 'we're going to average it', you're still going to get a billion dollars back, averaging must be implicit.'

Payne: "I'm not sure whether that is the case, Commissioner."

Commissioner chips Payne on the language re: the measure. It was always criminal this, fraud that. "Putting the measure in a context which will suggest to the public at large that this is really the pursuit of criminals." Payne, not inaccurately, says fraud is fraud. Not the Q.

Commissioner: "Don't you think that somebody reading that might think oh, okay, those people who are the subject of the [PAYG] measure are all in this category There's no distinction."

Payne: "I would say that that is because the subject of this particular statement, for example, is about three different sets of welfare fraud."

Commissioner, but the budget measure is about more than just fraud. I understand that, Payne says, but this is about fraud.

As Wittgenstein says, and I'll say it over and over again, the borders of my language are the borders of my world.

Commissioner, straight to the eyes of the hideousness: "One view of this kind of use of media is that it was really designed to give the impression that the people who were the subject of the budget measure deserved no sympathy at all because they were really criminals."

Greggery points out that welfare fraud cases in this release couldn't have been caught by the budget measure in the first place. Payne says, the media releases are not suggesting that, just that this is why govt is investing. Greggery says, yes, but the old system caught them.

Greggery, back to the Finance comments on ERC sub, that there was a statute of limitations on collecting debt from 2010 and was that another reason why people apparently didn't want to slow things down with legislation? Payne says that's the only reference she ever saw. Excused.

Angus Scott is taking the next witness, Colleen Taylor, the phenomenal, courageous Centrelink employee who emailed Kathryn Campbell and said: "We should not be the ones stealing from our customers."

Taylor started her career in the Australian public service (in Commonwealth Employment Service, as it happens) in 1984. Before they gutted and privatised the whole thing, of course.

Taylor: "We got absorbed into Centrelink when it was created." She remained with Centrelink until she retired. In 2010, though, she became a compliance officer which included quality checking work done by other officers, debt calculation tools etc

Taylor was good on discrepancies between their data and info from other sources. "Because I had a lot of experience across all different benefit types, I had that experience I could bring to it. We needed to know whether we could explain a discrepancy."

Scott: "Just because there was a discrepancy doesn't mean, necessarily, that there has been a mis-declaration of income, Correct?"

Taylor: "Yes, absolutely. There were lots of reasons why you could explain the discrepancy & there was no fault or blame or debt or anything."

Colleen Taylor, a worker bee in Centrelink, understood clearly and easily what many very highly paid directors, managers and senior executives within the DHS apparently could not: that a discrepancy was not a fait accompli.

Taylor: "I think I can only remember one case where somebody had a complete set of payslips."

Taylor, on averaging: "It was up and down, up and down, it's just straight across the board, from the start to the finish date of whatever the dates we've got. And that's why we would always check the customer records if there was anything we could find."

Taylor: "So we went to all those lengths to try, as much as possible, to have the exact figure." That would be, using the powers long available to DHS to do the investigative legwork that made the system so "cumbersome" to verify. This was dispensed with at huge scale.

Taylor on the "rapid response model" after hearing about the changes that would become Robodebt. "The difference was, I suppose, that we would no longer write to the employers and that was the big difference."

Rapid Response 1 was also known as the manual compliance intervention, which became the online (OCI) / Robodebt.

Taylor: "Because people doing rapid response were newly recruited and, you know, may not have even had very much experience even in a clerical area, their work had to be checked. So everything they did, whether it was the coding, assessment, what they looked at, came through us."

Taylor gives an example, where Sickness Allowance was one of the allowances included and it shouldn't have been. One person who had a "debt" said they would rather pay the debt back than get in touch with their old employer. Taylor intervenes.

Taylor points out that many people would work for a business but the PAYG data would be under a labour hire firm's name. Or a company trading as another name. One person declared Big W as employment, but the data-match said Woolworths. So, so many duplicates in the system.

People "knew they had to declare their earnings" but when confronted with those drop-down suggestions of potential employer names and couldn't find the one they wanted, they'd just put in an old employer. They would declare their income, but employer would be wrong. So what?

Well, down the track, Centrelink comes knocking. They untangle these weeds when staff are involved but when staff are removed, suddenly, bang. You've been earning too much income and now you "owe" money.

Taylor being shown an email she sent on 28 Feb 2016 to Business Integrity - Quality Development Officer re: her very serious concerns about information being provided to staff about whether they need to interrogate the customer record.

I don't know I wrote February, it was January.

why, don't know why* I wrote fuck

The bad advice was: "COs do not need to interrogate the customer record to search for payslips or other documents that the customer may have supplied in the past, prior to the intervention start date."

Taylor knew this was an issue because these contained "so much information."

Taylor writes "as a compliance unit, we should not be the ones stealing from our customers."

Asked about it now: "If we know there's no debt, and we're sending out the debt notice, expecting them to pay that back, how is that not stealing?"

Taylor, on an amazing point that should echo through government policy everywhere: "Particularly because we were a compliance unit, making sure people were doing the right thing. And here we were doing the wrong thing."

Scott notes that she pursued this issue, looking at the various emails. "Can we take it that the response was, consistently along the lines of what we can see." Which is: if they don't tell us, we press ahead.

Taylor: "You're assuming that the customer gets the letter, for a start, but the way the letters are worded there is often no reason for the customer to contact us." Centrelink notes "checking your employment income" and customer thinks 'yes, that's what I sent to the tax office'

Scott: "What the customer is not being told in the letters is that if the customer doesn't respond, the data that's been declared to the ATO will be averaged over each fortnight." Taylor says, what customers saw, there was no reason to disagree with Centrelink.

Colleen Taylor's evidence is so refreshing but fuck it is making me angry, for how clearly she saw this and how deliberately muddy they made it.

Taylor was asked, once Robodebt kicks in fully in September 2016, to go and check on the online compliance team's work. She only stayed in that role "for a couple of days." "Do you want to know why," she asks counsel.

Taylor: "Well, what happened was the first three cases we came up against were duplications of employer." One was an apostrophe missing, one was wrong entity. And the mistakes happened "because no human eye had seen it." Taylor's team was told they couldn't critique for facts.

Taylor: "We were to check that the debt was being calculated correctly, we weren't there to check that the data inputted was correct." In other words, she was told to check the instruction manual but not if what they were building was a bomb.

National Manager Gary Clarke emails compliance team members after the Christmas break 2016-17, says there has been media interest but assures them "debts are being calculated correctly." Reminds all staff to be careful on social media.

Taylor notes that the national manager said if you have any concerns, put them through your "local leadership team." So that is what she dutifully did, because Colleen Taylor wanted to follow the rules. She emailed her direct boss.

Taylor: "You can't assume that the data match implies that there's a debt there. If you carry on that attitude, that there's a whole lot of people ripping us all off, so when there's a discrepancy well, there's something in it, and it just bleeds into how you treat people."

Taylor, on her email: "I just wanted to challenge what he was saying."

Now, 25 January 2017 Kathryn Campbell sends an email to all staff at DHS, responding to "media commentary" to "address some recent incorrect reporting."

Campbell said there has been "no change" to how we calculate debt. What did Taylor make of this?

"Quite clearly, particularly how we calculate. We absolutely had changed how we calculate debt. And recovery, I used to work in recovery and it was absolutely last resort."

Of course, this being Colleen Taylor, she will not let this injustice stand. She's reported her concerns locally and then to her boss, now she responds to Kathryn Campbell and Hank Jongen, the general manager. Finally get a Jongen mention in.

Here, Taylor writes to Campbell. "There has been a very dramatic change in the last 18-month to the way in which Compliance assesses income and recovers debt."

It is fair to say that Taylor went into great detail, for what she thought was Kathryn Campbell's benefit in case the Secretary was being misled, as to why this program really WAS a dramatic change. She was the Justin Greggery of her day.

The same day, Taylor gets a response from manager Karen Harfield and Adrian Hudson to set up a phone meeting for the following day. She thought "oh wow, I couldn't believe it." Taylor thinks her concerns are being heard and acted upon.

In this meeting, Taylor walked Karen Harfield (Scott Britton's boss, in the middle of the hierarchy with Mark Withnell) and Adrian Hudson through all of her concerns: reversal of onus, debt calculation, sources of info, everything she raised in her email.

What happened?

Taylor: "Well, after me going on and on and on, at the end, she said 'well, what you are saying is the old system used to be very time consuming and lengthy and this is going to be quicker' and I think my jaw just about dropped to the floor."

After that, Karen Harfield goes to Brisbane to meet with Colleen Taylor. Taylor doesn't recall specifically, but says she is sure she must have. Now, Malisa Golightly responds on Campbell's behalf to Taylor's email.

Taylor: "I just felt it was a sort of standard reply. At that stage I wasn't confident that things would change."

Colleen Taylor retired in July 2017. "I was just spent, I think. It was the callous indifference and you just thought, is this what people do to each other and it was just so sad and you thought nothing is going to change."

I am so tired but Colleen making me cry

Taylor: "You are just so sorry for what was being done to our customers and it was just starting to come out in the media, all the dreadful consequences."

What a note on which to end Colleen Taylor's evidence. She holds her head so damned high.

Adjourned. Morrison tomorrow.

A thought on Colleen. It's not just what she said that was so devastating to other claims. It's HOW she said it. Calm, in total command of her brief, lucid, without pause or delay, retired 5 years ago but only one "can't recall". She has what we want for institutions: our trust.

Welcome back, nerds. It's Day 18 of the Robodebt Royal Commission. It'll kick off shortly with, we are expecting, Scott Morrison who was Social Services Minister from December 2014 and Treasurer from 21 September 2015. The removalists have agreed not to mock me for not helping.

Morrison is in the house, and his counsel Dr Renwick who made waves during a hearing earlier.

Morrison is already having a crack about the redactions in his statement when asked if it is complete and true. "I can't say that it is complete and comprehensive statement."

Commissioner: "I think the statement was just true and correct, not comprehensive."

30 December 2014 meeting with Kathryn Campbell "to the best of my recollection." Morrison: "I understand that is Ms Campbell's recollection and I would agree with that." He does remember it was very soon after being sworn in, which was only a few days before Xmas.

Just going over the fact that Payne was Human Services Min, that she sent a letter to Morrison when he was sworn in, offering Campbell for briefing. "That meeting was held with the foreknowledge and agreement of the Minister [Payne]." Already being sure to keep her in this.

Greggery: "In broad terms, previous government decisions is a reference to the government's desire to produce a balanced budget over time."

Morrison: "No, I don't think you can presume that from that statement."

Morrison says he believes this to mostly be about the Welfare Payments IT reform program which was an "enormous and complex" transformation of the IT system and payments. But asked again, he agrees that government priority should always be to deliver a balanced budget.

Morrison gets a mention of them "balancing the budget" just prior to the pandemic. The infamous Back in Black. Political talking points, can't imagine that will enthuse the Commission.

Morrison being asked about Payne's letter mentioning DHS working with DSS to develop potential new policy proposals for the 2015-16 budget. This in itself is not unusual, of course, as both Greggery and Morrison agree.

Greggery: "The measure which was introduced within some months, the Strengthening Integrity of Welfare Payments measure, was not as you understood things in Dec 14 part of the group of new policy proposals that was being referred to?"

SM: "I can't confirm either way."

Morrison says earlier discussions, which he was not aware of, had indicated "the Department of Human Services had already fashioned quite a bit of that proposal in some specificity" before he became Social Services Minister.

What do you recall of your meeting with Kathryn Campbell?

SM: "Let's note the context, first. The DHS with DSS has a sort of supplier-client type of relationship. It is important in my experience you have an understanding of those you work with."

SM: "And, so talking to the policy and program implementers was an important, early conversation. So the purpose of that, sought in concert both with Ms Campbell and Minister Payne, was of a general nature to understand how they process payments."

SM: "We spent quite a bit of time just going through the the Centrelink handbook and the various benefits that were there which was explained to me."

Commissioner: "I think you were actually asked about directions you gave to Ms Campbell?"

SM: "Happy to answer."

SM: "I obv. expressed interest about how they ensure integrity of welfare system... and asked them for ways we could do that better. This was a budget that was a third of the federal budget. And even the smallest changes to entitlements and programs can have serious implications"

SM: "I can't recall how long the meeting was."

Greggery: "Well, it couldn't have been quick if you were diving into the Centrelink handbook."

SM: "I don't think you could say it was hours, I don't know if it was even an hour."

Greggery: "You talked about getting into the Centerlink handbook with Ms. Campbell... this is the general discussion about a person's entitlement on a fortnightly basis and the delivery of payments on a fortnightly basis?"

SM: "No I don't recall going into those details."

G: "When you refer to entitlements, are you talking about the basis on which someone is entitled to a payment? That is it is a fortnightly basis.

SM: "No, it's more I'm referring to the eligibility for payments and people's income."

Which is assessed fortnightly.

G, puts the language in the exec minute about how DHS was asked to prepare a brief. Does he agree?

SM: "I was interested in learning on how we could do that better. I had no specific questions about that."

Can't work out if he is denying he asked for a brief?

OK, no he's not, he's saying he "asked the Department how we could do it better." Greggery re-states if he asked Campbell for a brief and SM "defers to my previous answer."

Commissioner: "So is that a no?"

SM: "I think the meaning is probably the same."

SM: "I accept that is how the dept in the brief has characterised that, and I don't know if there is a great difference in what we are saying, I am just choosing my own words as to what I believe I said."

WHAT THE FUCK MAN

G: "Would you accept that you did ask for options for, particularly, strengthening those arrangements?"

SM: "Well of course! Because, I mean, that's one of the most important issues that Australians, and particularly taxpayers, had expressed great concern about."

So why didn't you just say you asked for the brief I am gonna jump out a window

SM: "I think we are getting a bit bogged down in semantics."

ha ha ha ha ha you think

G: "Did you consider that the brief was responsive to the conversation that you had with Ms Campbell?"

SM: "Yes."

Seem that was easy

Morrison taken to an interview he did with Richo on Sky News. Let's get the band back together! 21 Jan 2015. Richo asks him "who are you going to crack down on" because Morrison is not going to "sit there and do nothing." Morrison replied "anyone who is trying to rip it off."

Morrison doing that thing he does where he talks so fast he mangles words. Age pension just became "haish pensch" somehow.

Greggery gets to the bit where Morrison says "there is going to be a strong welfare cop on the beat." Morrison agrees with this, because he says "I want to make sure this system helps the people who most need it."

Greggery points out further down where NDIS is mentioned and SM says "there are still billions that need to be found to make sure this program actually runs, I see achieving the NDIS as one of the worthy goals of going through the hard tasks of reforming the welfare system."

G sees this as SM linking NDIS to welfare reform. SM responds, Commissioner interjects: "Can I just get you to the stick to answering the question a bit more. I do understand that you come from a background where rhetorics important but it is necessary to listen to the question."

Greggery goes back to point of Morrison linking paying for NDIS to welfare reform. SM: "You can increase taxes or you can ensure that you are removing any expenditure that is not appropriate, that is waste, or that has been overpaid above what the legislative arrangements are."

G: "This cost of the NDIS that you are talking about is a feature of consideration within the government's objective of arriving at a balanced budget."

SM: "The NDIS was a very good example of one of those worthy purposes."

G: "You use the phrase cracking down here in the third line in respect of eligibility for getting on to the Disability Support Pension."

SM: "Yes, that was a big problem."

G: "And your use of strong language reflected, I take it, your strong views about welfare reform and the need to achieve... savings that you outlined to the commission."

SM: "That's right, yep."

Moving to Morrison's office receiving exec minute on 12 February 2015 and it was reviewed by him / signed by Morrison on 20 Feb. SM agrees. Now, a few days later is 25 Feb address to the National Press Club.

G: "The point I'm wishing to highlight is Minister Payne's significant involvement in the process with you."

NPC speech, Payne present. SM says Labor had policies and often failed to implement them. "We won't be repeating that mistake."

HELLO, HINDSIGHT HERE

That is, failed on implementation of those policies.

SM: "I should stress at this point, this was a proposal under development. There was no decision at this point for a submission even to ultimately be taken to Cabinet."

Commissioner: "I think you're wandering a bit."

Again, Morrison reiterates the principal discussions he had with Payne at this point was about the WPIT Program (pronounced Whippet, Welfare Payment IT reform).

14 September 2015 interview with Ray Hadley. He again credits Senator Payne with their welfare compliance budget measure. "I have got to commend Minister Payne, she is all over this, all over it." Lol.

G: "All I'm suggesting to you is that throughout the year there was close collaboration between you and Min Payne on the Strengthening the Integrity of Welfare Payments measure."

SM: "We both had our roles in relation to the measure and both performed them."

Morrison is making another dig about redacted documents. "I want to be careful not to transgress your ruling," he says. This is dripping with calculated sarcasm.

Anyway, Min Payne chief of staff email to Morrison's senior adviser Charles Wann on 3 March 2015. This was the first time the draft New Policy Proposal arrived in SM's office. Remember, Morrison signed the exec min 20 Feb. Tight timeframe? SM: "Not necessarily."

SM: "They recommended in that minute to further work with the DSS, what was represented in that executive minute was not a definitive position." Morrison marks "pursue." Gets cranky when Greggery says "proceed." SM: "That's an important distinction. Pursue does not mean agree."

Payne was involved in the NPP because it "emanated from her office."

SM: "Well, it emanated from the Department of Human Services. That's where this measure was initiated and, and she was the Minister responsible for human services." Yes, G says, but Payne's office involved.

G, of the draft NPP attached to the email 3 March 2015: "Do you recall reviewing that?"

SM: "Well, I'll refer you to my statement, I think I say that I don't at that time. I'll just refer you to my statement."

Back to the exec minute, which came before the NPP, it had 17 pages which included the attachments A and B. Why did Morrison keep Attachment B? SM: "Just to refer to, to read more carefully after an initial read."

Anyway, this attachment was missing when the RoCo went looking for it so witnesses could prepare their statements. G: "DSS did in fact locate a copy of the 12 February 2015 brief returned by Mr. Morrison with all 17 pages present."

SM: "I'm pleased they did."

But we can't now say for sure who put highlight markings on this brief, which may or may not have been "reconstructed" back in DSS. We have Morrison's signed pages 1 to 11 with black markings, there is not highlighting on his but in the discovered document there is highlighting

SM: "I can't remember who made those markings, I have no idea. I can't offer any comment about who made the highlights or for what purpose. I don't think there's anything here to suggest I made them or not."

This is a confusing point, so here's a side by side comparison:

Obsv: Morrison keeps trying to play chess here and answer questions he thinks are coming, neglecting the fact that it is Greggery's job to actually be very precise and let Morrison answer precise facts / assertions clearly. It is very annoying, like a child running into traffic.

G: "Did you mark up briefs from time to time to draw your attention to matters?"

SM: "I don't recall, it's not impossible. I mean, that's a fairly normal thing for one to do."

Greggery building a case that few people would have marked a brief for a Minister

Greggery: "If you wanted advice on legislative change as a result of what you read in this minute, you would have made a note about that under that box on that first page, Right?"

SM: "Yes."

Adjourned until 11.40am. For the love God, that is QUEENSLAND time.

An aside: finding this hard to keep up with tweet-wise, moreso than any other witness. I'm fast at live transcription but NOT at arbitrary live editing where I have to condense a key point surrounded by 1500 characters into 280, especially not when they are one after another lol

Aaaaaaaand back.

Morrison said he only had pages 1 - 11 of the exec minute when he prepared his statement. SM asks if there are any material differences between documents brought up on the screen.

Commissioner: "Minister Morrison, better if you just wait for the question."

MISTER Morrison, sorry

Greggery just double-checking what Morrison is agreeing to when he circles "agreed" next to elements of the brief. This is the "high water mark of your knowledge at this particular point" about what will become the budget measure.

SM: "The only knowledge."

Now, Greggery takes SM to the detail in the brief that he suggests reflects what then Minister Morrison agreed to under "Recommendation 2."

SM, of course, does not agree with this assessment. "That's all it agreed to, that further work be done."

G: "I'm relating the specific paragraphs [9, 10, 11] of the document with the action you took with respect of Recommendation 2. Do you understand the question?"

After getting him to re-state it, Morrison eventually agrees.

Pars 9, 10 and 11 for reference about policy and legislative change may be needed:

SM: "I simply noted that there were issues to be worked through here and brought to some finality in terms of advice to government."

Par 11 refers to package of policy and legislative developed to take forward. G: "It's clear a package was not developed... did you ask why?"

SM: "Well, what came back at the end of that process was a cabinet submission from the department that said no legislation was required." Morrison refers Commission to Serena Wilson, then dep sec DSS, statement.

SM: "Now, that indicates that they did discuss it, they did work it through and they did come to a view in their formal advice that legislation was not required and that is what was contained in the cabinet submission that was drafted by the department."

SM: "At no time, from this time all the way through to the advice from the SG being relayed to govt, had the dept ever relayed any issue despite multiple opportunities over multiple budget submissions over multiple years, that there was any legal question in the dept's mind."

Commissioner: "You've 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?"

SM: "Well, I take this commission very seriously, Commissioner."

Greggery: "The answer is no, you've given your answer." Greggery is getting cranky and gurl, who can blame you.

G: "In preparation for this evidence and having looked at the draft attachment... you'll note that that draft checklist had the word 'no' next to the question of whether any legislation was required."

SM: saying stuff

C: "Mr Morrison please, just listen to the question."

Greggery: "Mr Morrison please. Please, Mr Morrison. My question was not whether that is advice from the department. My question was whether you considered that draft NPP as advice from the dept, and you never saw it so I take it your answer is you're unable to answer that."

things are deteriorating, folks, myself included

Greggery: "The last 10 mins has been consumed because the simple answer 'no' to my Q about did you ask why these things were provided to you has strayed off into other areas, which we will come to."

SM: "I'm available to the Commission."

G: "Well you might not be tomorrow!"

Greggery asks, in a practical sense, if the measure did require legislation than that could not be achieved by 1 July 2015. SM: "Well no, I wouldn't say that." There are more words that follow but I am not typing them.

Commissioner: "You understood averaging was dividing annual income by 26 if it were for a year and so what you're saying is that if they needed to start that in a pilot program on 1 July you wouldn't need to get legislation?"

SM: "They've been doing it for at least 20 years."

Morrison is taking a long time to say that nobody, in his view, ever raised an issue with him in this time with income averaging.

Greggery: "I understand, from the lengthy answers that you have given..."

Burn.

Greggery: "You'll be answering something you assumed I asked, better if I ask it again."

SM: "The question is hypothetical."

G: "Well everything was hypothetical because you're looking into the future."

Reminder: all G is asking is if it was POSSIBLE for legislation to be passed between March and 1 July 2015.

G: "My question to you is having that flagged to you did you appreciate at that point that if the measure needed to be introduced on 1 July 2015, and required legislative change, whether that could be achieved in a practical sense?"

SM: "Let me just give you an example..."

Commissioner: "Oh please don't give us an example."

In short, Morrison is saying he didn't turn his mind to whether legislation could be passed in time because no one told him it was needed (despite this being flagged in the exec minute).

SM: "There were new elements but the fundible [fundamental] proposition of using income averaging, and automation for the purpose of identifying and raising debt was not."

Do you disagree with how the Department put it, then?

SM: "I think there were new features."

SM: "If I may, I go back to 1989."

NO

Under duress I just told a removalist to cut the hose coming from my fridge, which I assume will be fine but I have no executive function left

wait is he still in 1989

Oh yes, this is the PAYG data matching stuff from 2011 (Plibersek and Shorten). We heard in Withnell's evidence that this was the first iteration of them using that data as a "trigger" point for proactive debt identification.

But once they started using PAYG data this way, it was just a hop, step and a jump to getting greedy.

Anyway, Commissioner: "Do you appreciate that what was happening with the data from ATO was that it was being used to flag discrepancies. And the evidence before the commission, is that when discrepancies were flagged a review would be... are you listening at all?"

SM: "I am."

Commissioner: "I've given you a good deal of leeway on this."

Morrison refers to some tabled documents.

Commonwealth counsel: "This is a matter that is trespassing into parliamentary privilege territory..."

Commissioner: "Mr Morrison, you do understand about parliamentary privilege don't you?"

lol

SM: "Of course I do."

Then he immediately tries to break privilege again, within seconds.

We'll sort this out in the lunch break. Back to Justin Greggery. Thank God.

SM: "The use of averaging income was not the new element of this approach."

Commissioner: "Look, you're just being asked a question: did you understand it involved income averaging."

Brief talking about the online approach which "puts the obligation on the customer" to ensure their info is correct. Then says "ATO data would be used as the trusted source and remove the need for the dept to be dependent on customer or business information." Not just a trigger.

Did you understand the reversal of obligation (to customer) and the ATO data being used as "primary evidence not just a trigger" to be the new features of this proposal? Morrison says it has always been customer obligation to keep Centrelink informed. (Which never stopped btw)

This process, of course, was about discrepancies between what the CUSTOMER HAD ALREADY TOLD CENTRELINK and this so-called "trusted" data from ATO. Morrison is being obtuse here.

Commissioner Catherine Holmes and senior counsel assisting Justin Greggery KC hearing evidence from Scott Morrison

Commissioner: "You seem to have been quite familiar with the legislation. So why were you not interested in what legislative change was required? How is it that you were content to see 'no legislation required' and leave it at that?"

Because Cabinet.

SM: "In the executive minute I received, it noted there were issues, that is not uncommon, I've seen that many times."

Commissioner: "And then that vanished. So why were you content with that? Why don't you ask your own Department 'how does that happen'?"

They muted the feed temporarily "for privacy". Maybe it's like that time I lip-synched "Be Prepared" from The Lion King during high school talent quest and my own friend's pulled the CD player off the power so I had to finish early.

Anyhow, Greggery says is it right that you didn't consider these to be "significant changes."

SM: "I understood that the significant changes involved scale."

Greggery, on the $1.2bn savings. "This is an attractive proposal, isn't it?"

SM: "Yes because this is money that is being paid that was not due."

G: "Do you recall asking for some detail about how that was calculated? It's a big number."

That was an estimate they had.

G: "Did you recall questioning on what basis it was suggested that there might need to be a change in policy about this?"

SM: "There was no response here by me that said 'I don't agree with legislation'."

G: "I think you're on to legislation, I'm asking about policy."

Now on to question of legislative change. The data we currently use is "limited by legislation." Par 16: "The ability to change this process is limited by legislative and policy constraints." This is referring to current compliance processes within DHS, and this is from brief.

G: "Did you appreciate what was being described here is a legislative limit identified by the department for the use of average data to calculate actual fortnightly income?"

SM: "That was the issue they were flagging."

I want you to know that the removalists are laughing at this evidence

SM says it would have been "premature" to ask for more detail on the legislative or policy issues. Greggery, I'm paraphrasing, so you just move straight on to a new policy proposal? SM doesn't like this characterisation. He expected the proposal back to deal with the question.

Commissioner: "You say that this brief had drawn to your attention a billion dollars a year in overpayments, but all I can say is that for a four-year period there was a billion dollars."

He'll check. But this just says "likely overpayments" and you took that to be actual debt?

Commish: "Did you appreciate that sometimes there'd be very good reasons for the discrepancies?"

SM: "Oh of course!" And that is why, he says, it was "so important" to get the customer to engage.

Now moving to 25 March 2015 meeting of the Expenditure Review Committee (ERC).

Morrison is asked if Kathryn Campbell would have been provided the proposals when attending ERC meeting. SM: "Absolutely, it's her Department's document."

Greggery is suggesting,he asks Morrison, that the due diligence checklist for the Budget Process Operational Rules deals with the question of legislative authority for expenditure?

SM: "No."

The document:

Greggery, happily and immediately, "thank you Commissioner, is that a good time?" We are adjourned for lunch. Back at 2.30pm AEST / 3.30pm AEDT

Just realised my latest LRB just have arrived in the mail and the removalists used it to keep one of the foyer doors open! God damn it!

We'll back momentarily with more of:

Greggery: "Mr Morrison, I put it to..."

Morrison: "BLUE!"

Greggery: "You are answering a question you think I'm ask..."

Morrison: "Pluto!"

First back, Greggery: "I'm no longer confident we'll reach Mr Barford [next witness] this afternoon."

Thanks Scott Morrison.

Morrison's counsel Renwick also concedes the point argued earlier, when Morrison tried for like the 5th time to mention a document that had parliamentary privilege attached to it. Morrison was wrong to do so.

To the New Policy Proposal with infamous line "new approach will not change how income is assessed or overpayments calculated." G draws SM to the fundamentals re: PAYG clean-up. That is ATO data presented, customer goes online "to update". Not much different from the exec minute?

SM agrees it's broadly similar. Greggery: "What I'm suggesting flows from that..." Morrison cuts him off and says, well, there is one point of difference. "The text referred to by the deputy secretary... where it says the new approach will not change how income is assessed."

Yes, Greggery says, "that's where we are coming to."

SM: "The bullet points I read on the bottom of page 22, and with the inclusion of the wording that I understand Ms [Serena] Wilson insisted on, and that was quite material in the DSS having a change of view."

Greggery: "The timeframe is 20 Feb, when you signed the minute. And that is the position you understood DSS to make representation about the requirement for legislative change." Then, the draft on 3 March, then 25 March, language remains basically unchanged ~except~ for that.

G: "So although the process remains materially the same... the characterisation given to the process of DHS and DSS is the opposite of the characterisation of DHS and DSS in the Executive Minute. You agree with that?"

SM: "All I am agreeing to... is the inclusion of the phrase."

Commissioner: "Look, can we just have your evidence Mr Morrison, never mind Ms Wilson's evidence, just answer the question if you could."

Morrison says he is. Because Wilson's advice mattered.

G: "I take it you're also agreeing to the proposition that putting aside those characteristics - change, no change - that what is described as the process in the NPP and the draft NPP is the same process as described in the Executive Minute."

SM: "No I'm not saying that."

Greggery: "No, please do not interrupt me, I have given you the courtesy of not interrupting you, I expect the same, Mr. Morrison. Fair enough?"

SM: Fair enough."

Greggery: "point we are coming to is how there are polar opposite descriptions of what was the same process in a period of about four weeks?"

SM: "Process of... discussion and collaboration between v. experienced public officials who know these issues better than any of us."

fighting between the two of them about agreement or not between DHS and DSS, Morrison denies assertion from Greggery so G calls him on it and says "take me to it"

Commissioner: "Mr Morrison, this has got nothing to do with the question you were asked."

The feed goes muted for privacy reasons again. I assume because someone had an aneurysm. Back again.

Commonwealth seeking to be heard on what Morrison just said. Commissioner literally cannot be bothered making a public interest immunity order. We continue.

Greggery very methodically going through the many steps in which Morrison "did not ask for any advice" on the glaring omissions that became evident from minute to draft NPP to NPP.

G: "As I understand your evidence... your position is, this happening for a long period of time, you had that view when you received Feb minute and you maintain when you receive the draft and final NPP the only Q revolved around suggestion that it required legislative change?"

Now he's being asked about his assertion on the budget rules which said they needed Australian Government Solicitor opinion for the legislative authority to make the expenditure. Morrison says NPP didn't need this.

Greggery: "I suggest your understanding of the NPP due diligence checklist is wrong according to the budget process rules."

Morrison is getting very tetchy now, when G asks him to show him the rules that prove he is right: "I'ver got eight years as a cabinet minister."

Morrison: "I've got eight years of experience in the budget process rules."

Greggery: "You can see that in order for your experience-based position to be correct you rely on more than what is set out in Section 26 of the rules?"

Yes, Morrison says, and he could prove it too! If only the Commonwealth would let him spill hundreds of Cabinet submissions unrelated to this royal commission.

Greggery: "You didn't consider that, perhaps given the position adopted by the DSS, that is your own department, that you would want some greater assurance?"

SM: "I had great confidence in my officials and I had every reason to have that confidence I believe."

History proves you wrong. It was unthinkable that he wouldn't be told, Morrison says.

G: "And yet it happened."

Morrison: "Yes."

Greggery: "You would agree where process went wrong and how it affected so many people, that's a pressing issue, surely?"

That's why he's here, SM says, and pointedly adds: "These are matters that I would certainly hope would be addressed by the Public Service Commissioner."

Did you worry about it in 2019 and 2020? Well, the pandemic happened. And Morrison also adds that he the bushfires were a priority for him. The gall of this man!

Now being shown the Finance Green Brief, 25 March 2015. Greggery: "Familiar as you are, with your eight years' experience as a cabinet minister, you will recognise this document."

lolololololol

Looking at this chart, proposed budget figures vs Finance numbers. Does the fact that they are zero reflect they did not have Finance support? Morrison again answers a question that was not asked.

SM: "I agree that this is what Finance is saying, that they questioned DHS
resourcing and how that would deliver the outcome set out in the NPP."

SM: "No department can just put any old numbers they like in there, Finance goes and tests those assumptions and in order for estimates to be relied upon in terms of what a department is putting forward Finance has to agree to those." He notes PM&C took a different view.

SM: "Well what they were saying was that... they were questioning whether if you went and spent that $280 million that that would lead to that recovery [of debts] actually occurring." And look, turns out Finance were right.

What about the Finance question re: the statute of limitations on recovering debt from 2010, did you get any advice on that? From anyone?

SM: "No, that's not how the process works."

SM: "In the room was the Secretary of the Department of Human Services and the Secretary of the Department of Social Services and they would have been available to answer questions, as the matters were being dealt with there and then." Would that stop you asking questions after?

Morrison: "The matter had been concluded."

Greggery: "That would stop you asking the question on..."

Morrison: "The matter was resolved, it was concluded."

Wait, Greggery says, you just give up after that?

SM: "At this stage, we were in a Cabinet process where all ministers collectively were making a decision. There was nothing arising from that meeting, Commissioner, that led me to do that [raise issues subsequently]."

Telling when Morrison starts to get wound up.

Greggery: "You referred to the rigorous process and your understanding of the budget process operational rules, and the you also referred to advice by the AGS that is the Australian Government solicitor, did you ask for a copy of that?"

That was about the constitutionality.

Morrison: "The AGS was only advising on the constitutionality of the measure and that was not the question so no."

Wait, so the legality of the scheme outside of constitutional risk WAS in question?

Weird framing for someone who says there was no question.

12 May 2015 budget measures media release from Morrison. Morrison says "that's the one with Marise Payne and myself." No. He tries to correct the Commissioner. He's wrong.

Anyway, this is his release: "Strong welfare cop on the beat". G: "You agree with me that the language you use in the media release following the adoption of the measure in the budget is very similar in its strength and tone to the language you used in the [Richo] interview?"

Yes he does agree.

Now, speech 19 August 2019 to the Institute of Public Administration (that is also where Campbell gave a speech a year earlier on Robodebt and other matters).

This is where Morrison, in speech, identifies six "guide posts" that are important for the public service and future governance. We are going over his "respect and expect" relationship management: public servants are experienced, but politicians make the calls.

Old Version of Morrison unhelpfully (to him) notes that ministers must never leave a policy leadership vacuum and that Westminster system is very important and other things that make Current Version of Morrison's job more difficult on the stand.

Greggery: "You set the pace on the policy direction. Tough welfare cop on the beat, the crackdown language such as that, before receiving the executive minute, which contained the proposals that you'd asked for."

SM: "What you're implying, that I had particular initiatives in mind at the time of saying that, which I did not."

Greggery: "I'm talking about the tone and the policy direction in which you were taking the department."

Morrison says his goal was "entirely unremarkable."

"I note this is the same speech cited by Mr Shorten in the parliament recently," Morrison says. That he's basically accusing senior counsel of asking Labor's questions makes me feel better about our 2018 kerfuffle when he announced the aged care royal commisssion.

Commissioner: "So the answer is, you didn't think that in those circumstances, that clear legal advice wasn't required?"

SM: "The department was saying it wasn't. I trusted their judgment."

Greggery showing Morrison Justice Murphy's judgment which said it should have been more than obvious to the "responsible minister". G: "It was in fact obvious to you at the time you introduced the policy to the ERC."

And what about the next sentence, that recipients had income that may not be even. Did you have an actual understanding of that at the time?

SM: "Well, it may or may not be."

Commissioner: "Did you ask DHS, at any stage, for advice about how averaging had actually been applied for the last 20 years?"

Morrison: "It was a given in the system, it had been done for so long."

Commish: "How did you know that?"

SM: "Because I'd gone through my briefings."

SM: "The objective here by DHS was not to raise debts that didn't exist. Quite the opposite!"

He says the process "would have come up in verbal briefings" because "I was aware of it."

Commissioner notes SM was familiar with the Act, which includes fortnightly payment assessments. He agrees. "Here is a completely different approach which is to take a year's income and divide it by 26, which, common sense will tell you is not the same thing." You didn't ask?

He's back to saying welfare recipients were obliged to provide their info. Sure, whatever, Commissioner essentially says, what if they don't respond? "In the absence of any other information provided by the recipient and the irregularity...

... then you couldn't have a situation where simply by failing to cooperate with the Department of Human Services that you could be in receipt of overpayment."

Commissioner notes the exec minute said legislative and policy change may be required to allow the averaging of annual PAYG data with the fortnightly eligibility requirements. We've been here, and Morrison repeats: yeah, that's why I told them to work on it.

Commissioner, re: stakeholders: "Could it be that nobody was raising income averaging as an issue because it wasn't happening on a regular basis?"

It was! He says.

Greggery: "Do I take it from your answer that the practice of averaging was not referred to in any of the written briefings that you received?" OK, he says. "And in terms of the oral information that you received, you can't identify who gave that to you?"

And yet, Greggery says, it was this "verbal briefing" info "you say you heard about it being a long time practice of the department, which led you to question whether there was anything new about the proposal in the executive minute other than the question of scale."

Greggery: "It was the information you'd received orally, from someone you can't identify, at some point in time you can't identify that led you to not be troubled by the assertion that it was new."

Is this a statement that reflected your state of mine at the time you brought the proposal in March 2015 to ERC? No, I wouldn't say that, Morrison says.

Morrison uses his own income as an example, which is consistent, and the same in every fortnight. But that's not what is reflected in this paragraph, Greggery says. Do you accept that you understood that in circumstances where someone was NOT earning stable or constant income...

...that the Robodebt system may indicate overpayment where there was none? Yes, Morrison says, finally answering a question that feels like it was asked in 1927

And the final point in that par, that if customers didn't respond, this is how they would raise a debt, you understood that?

SM: "I'm not sure on what other basis then, in the absence of other information, you could base it on. That was the practice and I didn't question it."

SM: "Commissioner, you're asking me to try and describe to you how I knew something in 2015, in January, and I'm seeking to give you as best a recollection as I can."

Mr Morrison, I'm paraphrasing here, "to make an apple pie first you must create the universe."

Morrison refers, for the 11 hundredth time, to "a process going back to 1994" and I'm like bish, that's The Lion King

Greggery: "Mr. Morrison... you suggested about my position in your answer there you said, 'that I may have a different view about that, and it may not suit' And I assure you my questions are directed towards the gathering of evidence, not my personal view."

Greggery: "Do you appreciate irony of position you are now in, having to recall events from 7 years ago, to position that this measure placed welfare recipients... in, in having to prove evidence of income from as much as 6 yrs earlier, in order to avoid the raising of a debt?"

I had to edit that down a bit, but that landed because eventually Morrison is forced to say well, actually, he was "glad they changed the process."

Greggery: "Putting to one side the question of legality, and whether you sought advice or didn't seek advice or all of those issues. Did you appreciate that this was a measure which asked a lot of a potentially vulnerable cohort of Australian?"

Morrison tries concern trolling.

Greggery: "One view which may be open to the Commission on the evidence, which has been given so far (caveat!) there are a number of features which give rise to a possible finding about why legal advice was not drawn to your attention."

G: "The first is that it was not asked for by you, when you have the opportunity to ask for it from your department." Second is the short timeframe between exec minute and development of proposal 2-5 weeks.

G: "The third, is that the identification of the need for legislative change in the executive minute was not practically possible for the introduction of the measure, in practice, by 1 July 2015." Four, the composition of the Senate.

G: "5 is that you had communicated a policy position prior to receiving the executive minute on the radio, which used strong language about welfare reform and cracking down."

G: "Six is that the matter had real attraction to you because of its significance as a savings measure towards a balanced budget."

G: "And 7, the feature identified in Finance comments about the statute of limitations and the urgency from that perspective." Take all of these together, "members of your department may have felt constrained in whether they could freely and frankly raise with you [the facts]."

SM: "Had that [legal] information come forward in the way that I've now seen it, which I did not see at the time and certainly before late 2019... then I doubt we'd be sitting here today."

SM: "If we had the view, and there was a fair view that we already had as a government, a fairly long docket of legislative measures, and that had this measure required legislation, then we may well not have pursued it. In fact, it would have been unlikely that we would."

On the welfare cop language: "With response, I think you read too much into that. I was simply articulating, I think, a fairly, I think, un-extraordinary principle."

SM: "The non-coming forward of the advice is so disappointing. Had it come forward, I sincerely believe we would not be sitting here today. We would not have pursued it as a government, and I would not have pursued it as a minister."

SM: "I can't conceive of any arrangement, on any of these things, that would say to a department who had that advice in the form that I have now seen it, and to withhold that from ministers."

SM: "The critical failure in the system, and I'm making no judgment of any individual, 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."

Are you able to identify what it was that stopped them bringing that advice to you?

SM: "No I'm not, and that is distressing."

Morrison's counsel asking 10 mins of questions now.

I have a very unpopular view about all of this.

Distracted! Morrison excused. Greggery taking up an issue as he exits, about the constitutional advice from the Aus Govt Solicitor which is "so heavily redacted that it obscures" what the advice is actually about. More will be unredacted, as we discussed today.

Adjourned. I stupidly said yes to doing radio lol. Like, now-ish? I can't remember.

royal commission back, and what have you

I have given up on life lol

Karen Harfield first witness, former General Manager who worked with / alongside Mark Withnell and to whom Scott Britton reported (although Britton said she was new, very green, and he had to help her a lot).

Harfield is still a gen manager, with Services Australia (formerly DHS) but not in compliance / integrity anymore

Can you give evidence about the extent of Mr [Mark] Withnell's involvement. Well, it was all underway by the time she arrived in 2016. He was leading this. Scott Britton, Jason Ryman getting name-checked. Reckon they might not be enjoying those reminders.

Harfield says, when she arrived, she was given briefings by people including Ben Lumley (another familiar name) that nothing had changed re: how compliance division assessed, raised or recovered debts.

Was there any pressure, that you felt, on accelerating the program, given it was behind time and not meeting budget forecasts when you got there? Why yes, there was!

Harfield: "So there was a very, very strong focus on the achievement of the budget measures, particularly from the Secretary, almost daily, sort of interaction, about where the system was up to."

Harfield says she wasn't aware of the massive departure in how PAYG data was used by DHS to calculate overpayments but now understands this was the first time it had been used in such a way.

Harfield is now giving evidence that is different from her statement. Here she is saying it's the first time the ATO data was used to trigger an initial review. But the statement say it's the first time it was used as the ~main methodology to calculate income.

Harfield: "I appreciate it is not what that sentence says."

Commissioner: "So why did you say it."

GOOD QUESTION

If you have to ask [for legal advice] you can't afford it [stealing from poor people]

this tweet is about yesterday's evidence but it just forced its way into my head now, so here it is

Anyway! Back to Scott questioning Harfield.

Justin Greggery KC is having a rest, btw. Which is just as well, because I reckon Harfield's current testimony is the cartoon-feather-on-the-comically-teetering-wagon-over-the-cliff that would push him over the edge.

Harfield just mentioned "presentational briefing documents".

This is not Karen Harfield's fault, but the combination of the frequency or pitch or tone of her evidence voice with my depleted brain means I am almost entirely incapable of engaging with the content of what she is saying.

Scott: "It was more than half, wasn't it, of recipients who had been sent these letters in the testing phase that did not respond."

Yes, Harfield agrees.

Well, it was "abundantly clear" then that for those who did not respond (Commissioner points out it is 60 per cent) "averaging was going to, by default, become the main methodology of calculating these recipients' income, wasn't it?"

Yes.

phone call, dipped out, too hungry to catch up, will come back later (?)

Surprise, bet you didn't expect to see me again. I see Harfield is still not having a great time.

Scott: "That is, the department was purporting to make decisions based on the best evidence available to it the time. And that was simply false, wasn't it?"

Harfield: "Well, I mean, not necessarily exclusively."

fucking hell

Scott: "Is the case you didn't do anything about that because you're indifferent about the falsity in that paragraph that we've been discussing?"

Harfield: "No."

Golightly tells Harfield, when H comes back from leave in March 2017, Golightly apparently told her "that we had to do something with you because you don't get on with Mr Withnell." Harfield doesn't agree, says it was because she was trying to assert a response to their problems.

Harfield: "She saw Mark as a person to provide her with, I suppose, strategic input, and she very much felt that when I raised issues with her that that was about a challenge to her, and it was unacceptable to have any sort of contestability around the budget measures."

Harfield: "I was unable to influence Malisa in terms of any sort of shift from the focus, or the direction of, 'deliver the numbers'."

Commissioner diving into 2016. There had been pilots in place from July to September, then we ramp up to 60,000+ cases. Whose decision was that? Harfield: "That was at Malisa's request."

Do you remember Jason Ryman expressing any concern about that? Harfield: "I don't know that there was a specific concern from Mr. Ryman, I'm not saying there wasn't, but I think... we were collectively concerned with 'how are we going to achieve that, the increased numbers'."

Harfield: "My sense of Mark [Withnell], Scott [Britton] and Jason [Ryman] were actually the people who were most confident in the measure. I was the person with the least experience of the type of activity they were undertaking."

Harfield: "So Malisa was very clear about the requirements to increase the numbers by the end of September." Says she would have passed this on to Jason Ryman. Harfield is done. Amazing how fast that can go if you duck out for a few hours in between.

Ooooooooh, we finally got ourselves a DHS Ben Lumley on the hook. He of the many discussions with the ATO about data-matching and things.

Like me, it's a slow start. But Ben Lumley being taken through the Office of the Information Commissioner voluntary guideline on data-sharing and how it asserts a program protocol needs to be developed, and made public.

This is the kind of questioning where they take the witness through each element of the thing and get them to agree before zooming out and saying, 'then why the fuck didn't you do any of these things'.

Scott: "Were you aware of this requirement at the time?"

Lumley: "I became aware of it."

When?

"It was when reviewing the program protocol for the matching in response to I guess, media inquiries or media attention."

Lumley: "I was aware that the guidelines did require, or did recommend, destruction of data and timeframes around that."

Have you read this entire section though, at the time of manual intervention? Or OCI? Can't recall.

this guy is so underwhelming, now in the private sector probably earning very good money, plus ça change

Why didn't DHS send a notice under s.196 of the Social Security Act? Lumley: "I can't be clear on the exact motivation."

Lumley now being shown the Dec 2016 email that Michael Kerr-Brown sent to him from the ATO where they were freaking out about media attention and their leadership was worried about "any exposure" they may have.

It has been 15 minutes since I tweeted, because I jammed my head in a door just to feel something. I am gonna go for a walk!

Driving across Syd listening to robodebt RoCo on phone. Sandra Bevan, single mum, giving evidence about how they hounded her. This is actually really difficult to listen to, she reminds me so much of my mum. The meticulous note-keeping, the honesty, the indignity of Centrelink.

Bevan: “I felt that what they were doing was dodgy and I was not going to be paying my hard-earned money to them.” Yes Queen! She used to over-report her income to make sure this never happened. Same with my Mum. Because they knew what the system was like. Fuck these bullies.