Thread by @DarrenODonovan

Block 4 day 6. #RobodebtRC deepening seriousness last week - one shouldn’t just focus on “politician days”. A portrait of bureaucratic actions in the shadow of a political vibe. In any dept only a tiny fraction of matters are directed by a minister, but 100% can be life changing

Today will probe the January 2017 window. you have staff acting in positions handing others printed out draft legals, saying we need external advice. How does it stall? & Greggery tabled another lawyer coming out against averaging in this window to start the block. #RobodebtRC

Term starts today - I’ll be teaching seminars this morning so coverage may be spotty. Will be more fully on deck in the afternoon for two Tudge staffers who were extremely hands on during the 2017 outcry. #RobodebtRC

Mr Robert’s appearance will get headlines this week. The sensitive cohorts expansion, defence of the scheme. I’d like questions on claims about pre 2015 debts. the day he walked into the press club said he found debts, never refunded them. #RobodebtRC theguardian.com/australia-news…

I may have to take a break from tweeting if the “sample” exercise is looked at. Because it puts me in a foul foul mood. Low moment in the whole thing for me. #RobodebtRC

I really like the phrase “moral delegates” here. If this evidence continues on trend, the APS didn’t just deny people the rule of law. They also denied them the political accountability inherent in our system of responsible government. #RobodebtRC

https://twitter.com/SquigglyRick/status/1629966329506668544

Four years and not a single piece of paper escalating risk to a minister’s office so far. I mean that is spectacular in a way. And this lot held seminars giving out about Morrison’s APS speech. Maybe it was because it named and revelled in dynamics already set in. #RobodebtRC

One executive minute and a four year long silence of convenience. It’s a minor miracle the executive minute existed with the watering down, Andrew Whitecross had to run into walls to get it. #RobodebtRC

We are destined to stuff we will never know after last week. 2017 a dismal cover up, but the why of 2015 is very confronting and not addressed by the testimony. If you were making this call, why not get Ministerial buy in in the form of written briefing etc #RobodebtRC

Might elevate this reply to the main thread to complete my point. If you are frustrated at a dynamic of plausible deniability and "I was never told", 2019 tells us how engrained some approaches are #robodebtRC

https://twitter.com/DarrenODonovan/status/1629990804474273792?s=20

Mr Scott indicated just an hour and half for these three witnesses. All were acting at the time robodebt smashed into DHS. I'd love to hear about handover meetings to our major players here #RobodebtRC

6th of January this witness gets marching orders from Paul Menzies McVey (himself acting) to review the legality of averaging.
It's a 'top priority' but also
"the advice initially should be provided...as a draft"
Eyeroll
#robodebtRC

Witness indicates at this time "I didn't have a background in social security law" "I knew there was something hitting the media" "it would have been a very low level of knowledge" #RobodebtRC

Scott asked whether he thought the deliverable was a legal advice.
Witness: "not exactly"
Says the trigger for it was Mr Britton had said "get the lawyers to explain what we're doing". lol, Britton's pivot to others is such a years long trait. #RobodebtRC

Oh... witness got assistance from John Barnett, who wrote the April 2015 advice that completely missed the issue of averaging.
Commissioner notes they've been unable to contact Mr Barnett, who is retired in Tasmania but this witness is *might* have a old phone nr.
#RobodebtRC

The role of "DHS Legal: Tasmanian Division" has popped up again and again. The appearance of Mr Sparkes on Friday... will be, quite something, based on what we have seen so far #RobodebtRC

Now looking at an email chain with Lisa Carmody who has stepped in as acting. They are arranging a briefing on the draft legals that are forming up #robodebtRC

The fact the lawyer who flubbed the April 2015 advice got asked to do the earliest January 2017 legals is...quite significant. He doesn't go, oh, here's what I did in April 2015 clearly. He doesn't think they cover it does he? Somewhat damaging for DHS #RobodebtRC

Now looking at the 10 January draft legals which say "there's some reasonable arguments" but let's get external. #RobodebtRC

I don't think the document identifies reasonable arguments on my reading of it...Scott might go there #RobodebtRC

Witnesses statement says that in an oral briefing with Ms Carmody he thought the arguments identified by the advice were "weak". His bottom line was AGS advice. "The arguments didn't support that there was a reasonable basis on the material before me..." #RobodebtRC

Witness is basically saying his personal view was that averaging was not lawful, no reasonable arguments. he was open to further investigation of the issue, but he is now speaking to his 'levels of concern' #RobodebtRC

"the more I looked at our arguments, the more I started to question...I remember I kept thinking how would this apply to a student for instance..."
He started to question himself because it seemed so wild factually. #RobodebtRC

What was the basis for your understanding averaging had been done as a last resort?
He cites the guide, but surely he means the operational blueprint. A practice is not actually obvious off the blueprint though #robodebtRC

Hey, @SquigglyRick I assume your editor has been in touch:
You're to live blog this thing
You're to file next Saturday
AND get on the first flight to Tasmania and track down Mr Barnett for the RC
Your executive minute has been ringed "pursue". Get on it.
#robodebtRC

Another quiet morning in the Commission, where pressure will squeeze up the witness list. This witness is clear that beyond the advice document he thought Barnett's arguments are weak, we must go to the APS. Next witness will also need to tag someone #RobodebtRC

Lol there's even a draft email to Leo Hardiman at AGS! This witness drafted it for Ms Carmody

Hardmian is now the information commissioner of course, he'd have nailed robodebt #RobodebtRC

Jebus like. #RobodebtRc Carmody writes back. To get legals:
1. Scott Britton's area will need to want the legals
2. We need to check the existence of other government legals that might trigger the LSD
Witness not aware of any inquiries to Britton's team.

Witness believed Ms Carmody was going to go to Kruse who was acting dep secretary (over Britton). So he thinks he thought it wasn't needed to go to the compliance branch in that context. #RobodebtRC

Oh. my. god. Carmody even went to the point of sounding out Leo Hardiman - "I have had a preliminary discussion", he was ready to go. just wanted the work order. Draft instructions were 'in train' according to the witness.
#RobodebtRC

Gladman says it would have taken a week to get advice from AGS in his experience. #robodebtRC

I've got to go teach some administrative law ironically. We are now at the point of the printed out legals being brought to a decision-maker stage. #RobodebtRc

Frantically scrolling Rick's blog after bursting out of class. Didn't go well I see. widespread view in the internal legal team the arguments were weak, and no firm source of instructions. #RobodebtRC

I have a theory 'best available evidence' came from some DHS-er robbing it, plundered of all logic and context, from a random 2012 AAT2 called Halls. It's too weird to coin. #robodebtRC

https://twitter.com/maximumwelfare/status/1630029267764649986?s=20

I'd really like it to be Halls, because I spent so much time asking myself "If I were them, how would I have shonked some legals together". That time is time I'm never getting back. #robodebtRC

Scott trying to pin it down precisely what Musolino was told on this January window. Witness: documents provided, and 'continuing correspondence' with Gladman. Can't recall the specifics of her conversations with Musolino but need for advice would've been "inherent' #robodebtRC

She believes she would have communicated her approach to AGS, but limited direct recall. #RobodebtRC

Wey, Podgers report on APS reforms has just gone in. high up on my nerd exhibit "want" list. A zip file folder called historical is my currently number 1. Some good quality pre 2015 nerding in that one I'm thinking. #RobodebtRC

Ms Musolino runs an entire 'history of averaging' project in 20/21 apparently. I want to haul all of it over the coals. #RobodebtRC

Looking at January 4 Outlook invites - 4.30 Minister Porter. Minister Porter's appearance on 7.30, alongside Victoria Legal Aid's querying lawfulness, is about to go to air.
#RobodebtRC

"I'd been in the role 24 hours when this was occurring". Glad to see there's some focus on this 7.30, I think it should be prominent as the moment they dug in. The Minister was typing up his own notes of the over phone briefing. #robodebtRC

Here's the 7.30. I went big on this the day porter appeared and it didn't come up! Also: it's not listed on the DSS Minister's website but I saved a transcript at the time. Dan Nicholson from VLA challenged them. Straight. #robodebtRC

January 5: asks about absence of response, and raising whether they want to be "hitting the legal angle the legal aid lawyer seems to be pushing" Very happy to see the 2017 efforts of VLA having an impact, it goes with the Peter Martin piece that reached the PM
#RobodebtRC

And in response all they have is the Harfield email nonsense that averaging goes back to 1981. Which didn't even come from a lawyer or speak accurately to policy. Seeds of it all. Kruse said her request was for media lines not advice. #robodebtRC

Barry Jackson "did we find out whether the Averaging is in the lego or guidelines and if whwere [sic]?"
Witness can't recall if there was a conversation about averaging that was seeking to loop back on. #RobodebtRC

Random detail I spotted was reference to lawyers being consumed with the public interest certificate on the customers featured in 7.30. Come late January, that section 208 procedural protection had been dispensed with in favour of section 202 releases by email #RobodebtRC

What is this! Mr Greggery's Emporium of Compelled Paper does not normally deliver on this timescale, but the Podger reform report is now up for all APS wonks/outraged Aussies #robodebtRC

robodebt.royalcommission.gov.au/publications/a…

So far, on form stuff, Podger's APS review submission was lionised by many in 2019. Predictably, goes straight to job insecurity of Secretaries - obviously there's more in his take than that, read the whole thing. #RobodebtRC

Repeats thodey on the Secretaries really. Performance management, training. Standard call for post commission investigation references to APSC seen as needed by Commission #RobodebtRC

To be honest, the first one that made me go, oh that's new, nice, is this one. But that's just because I've seen most of the emphasis in the report before #RobodebtRC

Aha, I heartily co-sign his record making one. It's got the "take APS practices to Mount Doom and tip them into the fires of law reform" vibe I like. #robodebtRC

Alright stop the bus I want to get off.
Nope, nope, nope. It's a measure of the esteem in which I hold Podger that I am genuinely surprised he made this recommendation after his APS review sub.
And there are no court rulings, it's 6 years and an AAT at the moment. #robodebtRC

Just in case he sees this: hey @jpwarren - apparently the lesson learned from all your struggles is we need to give them more powers to block you. #RobodebtRC

I will leave the Podger report. but it is as I expected in its emphasis. The good and... the bad. #robodebtRC

Kruse had I known about the draft instructions "I believe I would have considered it significant" and would have taken steps included taking the matter to Malisa Golightly as the program manager. #RobodebtRC

Basically no recollection of seeing or discussing the advice which flagged the need for external advice. No recollection of any uncertainty about the lawfulness of averaging or a recommendation to go to external lawyers. "I was not aware that was occuring" #RobodebtRC

"I had assurance from the programme area that everything was fine". So far not much progress beyond pivots Harfield/Golightly and emphasising nothing was put in front of her from legals. #RobodebtRC

Witness says she does not recall the carmody printed out email being given to her. Acknowledges it says it was handed to her, but she does not recall. If she had seen it says she would have talked to the programme area whose job it was to look after #robodebtRC

She has no recollection effectively of Ms Carmody raising anything with her #RobodebtRC
Scott "seems a bit extraordinary given the circumstances we've discussed, that you have no recollection of this draft document?"
On absence of recollection: "I wish I did, I don't"

"I would have actioned what I'd have been asked to action by Ms Golightly". Scott confirming awareness of the existence of legal advice being in train. No recollections all around. Scott: "I suggest to you that's quite strange"
No recollection.
that's the evidence. #RobodebtRC

Hogan Doran asking her to address what assurances she relied on a bit more. Effectively it's all the material that was fed into media and ministers etc - from Harfield and Golightly #RobodebtRC

I bet those watching are having the standard reaction to political staffers: wow he's younger than I thought he'd be. Common dynamic #RobodebtRC

Oh boy, oh boy. Signs the witness is naive about the searching forensic nature of a royal commission. has arrived somewhat underprepared in terms of searching his own documents #RobodebtRC

Have you checked your emails. "No counsel I was not aware that I could request that documentation..." #robodebtRC He's just speaking to the bundle now.

Basically standard line for anyone in the political sphere: unquestioning reliance on the advice provided by the APS "given their expertise" #RobodebtRC

"As adviser, your job is to assess the information the Mnisteris being given and ensure the wool is not being pulled over his eyes? "
Witness: Yes, but I had a high degree of trust in...the public servants
#RobodebtRC

Greggery asking him if he sought a warranty on law: "It's one thing to say we've always done this, it's another thing to say it is lawful"
Witness: It's implicit
Greggery: you didn't ask
Witness: I don't recall if I asked #RobodebtRC

Witness saying "this was a budget measure which had been decided years previously, which implementation had already commenced on...[responsibility was to deliver]" Weird defence when your PM is pinging you with Peter Martin's questions. #RobodebtRC

Greggery "how could you find out?" if Minister met Wilson. "what would record the meetings...who was the Minister's executive assistant..." I love Greggery in his "have you checked" mode, reminds me of him orally ransacking Mr West from PwC #RobodebtRC

Like for a staffer, all it takes is a bit of curiousity and a phone call to a few people. Chatham house contacts with legal knowledge, safe options as sounding boards. #robodebtRC

Basically "a high degree of confidence" they had been doing it a long time.
"you can't just say, it's been decided we inherited it, we have to press on"
Witness: there may have been conversations I haven't been involved in.
"Did you do anything?"
#robodebtRC

"We've done this for a long time, with both governments"
Greggery: which isn't legal advice, you appreciated it's got nothing to do with the law?...
Witness: I would have understood that that was not legal advice
Look out #robodebtRC

I remember it [averaging] being discussed. But witness can't recall what was said in chats six years ago.
"I'm doing my best to assist the commission" #robodebtRC Advisory: now to the two suicide escalations. This is grim stuff.

On hearing of the 2nd case, which hadn't hit the media, witness says he briefed Tudge by phone mid afternoon. to get an immediate response.
Says media "not a significant factor in my mind" #robodebtRC Greggery asks what about if the debt was accurate?

This vision from earlier is well worth your time - particular administrative law types #RobodebtRC

https://twitter.com/strangerous10/status/1630085123462041601?s=20

Witness recalls Minister Tudge wanting further information and 'great concern' when Greggery asks him about ordering of investigation #RobodebtRC

"The urgency had gone out of by 6pm because of the response of the sister?"
Ouch.
"No recollection of the topic coming up again?"
Says it was discussed at a weekly Tudge-Secretary Campbell briefing. No notes. No recollection.
#robodebtRC

Greggery gets him to admit that the absence of a vulnerability flag was troubling in the case.
"what did you do in respect of that particularly troubling feature?"
Witness: does not recall doing anything
#robodebtRC

"with respect I think you are assuming a larger role for me in this scheme than I played"
Greggery responds with a what's your job if not advising type question.
"What does that mean" to the witness' next response. #robodebtRC

Witness cannot answer why he did not ask for the PwC robodebt report, when he knew it was coming after a sequence of weekly meetings ... #RobodebtRC
Witness: "the report was being prepared for the department..."

This is getting pretty ferocious now #Robodebt
"what did you do to express your interest [in the PwC report"

I probably did discuss the points PwC raised, but can't recall details. #robodebtRC Greggery now smashing into the idea the external report was important because he tried to position it as outdated, background etc

So far: this is like a performance review whose conclusion is “if we take you at your word, what even is the point of you?”. And that’s if things *go the way* of the witness. #RobodebtRC

Probably the highest proportion of can’t recalls to substance today. At least, it has emerged that Mr Barnett is contactable and we can say the Commission’s work will be exhaustive (if exhausting) examination #RobodebtRC