Thread by @lukehgomes

We're expecting the #robodebtrc to today focus on the crucial period 2017 when the robodebt scheme exploded into public view. This was widely acknowledged by previous witnesses as a "crisis" for the program.

Mark Gladman, former deputy general counsel of the programme advice and privacy branch at the Department of Human Services, is the first witness at the #robodebtrc

Straight into it. It's Jan 2017, most key people in the department are on leave. Gladman gets a request for a paper on the department's practice of income averaging

Gladman asks John Barnett to prepare the advice. Commissioner Holmes says the commission is struggling to contact him Barnett. Gladman says he lives in Tasmania now but doesn't know any more than that.

10 Jan 2017 - Gladman sends his draft advice to Lisa Carmody, former general counsel at DHS

Oh boy. Gladman says in his statement he told Carmody in a meeting that he thought the arguments for averaging was "weak". Says he recommended the AGS's opinion should be sought

Gladman says he didn't think there were reasonable arguments for income averaging, but needed to explore this further

Gladman says he recommended to Lisa Carmody on 10 Jan 2017 that DHS should seek external advice on robodebt from the Australian government solicitor.

Might not be obvious from fairly dry factual nature of the evidence this morning but this is all devastating. If DHS gets AGS advice in early 2017, the program is stopped years earlier, hundreds of thousands of people are spared

Staying with 10 Jan 2017. Gladman emails Lisa Carmody a draft email that would ask an AGS lawyer for advice on robodebt

Carmody writes back saying they need to check first with the DHS policy team (Scott Britton). Gladman says he is not aware of this ever occurring.

Gladman says he was under the impression they'd be checking with another official, Sue Kruse, who was senior to Britton.

Goodness. The AGS lawyer spoke to Carmody about potentially doing the work. He had capacity to do so.

Here are the draft instructions. We saw these before with Musolino's last appearance

Gladman said in his statement there'd been a meeting between Kruse and Carmody about getting AGS advice. He's changed this in a supplementary statement however, saying he's not certain that was the purpose of the meeting.

Next witness is Lisa Carmody of DHS

Carmody accepts DHS created a draft advice on averaging.

Does Carmody remember Gladman saying the arguments for averaging were weak in a meeting on 10 Jan. Carmody doesn't recall this specifically, only that there were discussions

This is interesting. The draft advice said there were "some reasonable arguments" for averaging that could be put. But Carmody accepts Scott's suggestion that this sort of phrase is often used by lawyers to say the case is not strong

Carmody also didn't check with Scott Britton about getting legal advice

Carmody doesn't recall going to see Sue Kruse

Carmody thinks getting AGS advice would have taken some time. She says the current questions to AGS were very much in draft form. (Gladman thought it might have taken a week...)

Another version of the draft advice which was delivered in hard copy to Sue Kruse on 13 Jan 2017

The advice was never delivered in "final" to Carmody's knowledge.

Carmody says at this point she thinks they re-prioritised things to focus on the Commonwealth Ombudsman's own motion inquiry. But she's speculating.

Angus Scott KC tries to deal with that claim by showing that the initial briefing email for the legal advice was that it could be provided to the ombudsman.

Did you tell Sue Kruse that the DHS legal services commission advised that AGS's opinion should be sought. She doesn't independently recall doing so. But she "I would expect that would be something I flagged" with Kruse.

Did you tell Kruse the arguments appeared to be weak? Doesn't recall a specific discussion to that effect. Believes she would have kept Kruse "broadly informed".

Carmody says she likely indicated there was some "uncertainty"

Holmes taking Carmody to task over what the advice actually says. There is a reference to "best available evidence at the time", where did that idea come from? How could a lawyer come up with such an argument, if the evidence is not probative?

This is me speculating but sounds like the theory is that this line might have come from DHS policy people? "I wonder how a lawyer could say that?"

Holmes: To put it bluntly, this is about as "lame" as advice could get. It's "unconvincing".

Carmody agrees it's unconvincing.

Holmes: Did you tell Sue Kruse that this advice wouldn't hold up?

Make of that facial expression what you will...

Carmody says it was "clear to me" that the best option was to get external advice.
Scott: can you think of any reason why you wouldn't have raised this with Sue Kruse?
Carmody thinks it was likely raised with Kruse.

Scott: Did you tell Kruse about the potential risk if AGS advice was not obtained?
Carmody: I don't recall anything as specific as that.

This is all crucial. Kruse was acting as deputy secretary at this point. A very senior role. So if these concerns are communicated to her, then what did she do with that knowledge. If not, then she says she wasn't informed by more junior staff

Hard to escape the fact that none of this was communicated in writing. Carmody's only note is she communicated the advice in hard copy. There is no email chain to this point.

Back from the morning break, Holmes still stuck on this "best available evidence" line. Says it it pops up "like an infection". Carmody not sure where it came from, maybe discussed with DHS, but not sure

Carmody expects she put the averaging advice and AGS draft instructions in the handover docs to Annette Musolino. Carmody expects she'd have communicated to Musolino "in the broad" that the arguments for averaging were unconvincing

Scott working to establish Musolino's potential knowledge of these legal advices and docs. This email sent by Carmody was sent to the general chief counsel email - which Musolino had access to. She's on leave when this is sent

Sue Kruse is the next witness. She is acting as deputy sec in early 2017 and attends meetings with Tudge staffers and then Christian Porter and staff. This is to brief Porter on the program before the minister does an interview with 7.30.

Kruse says Malisa Golightly did most of the talking because she was the program owner.

Kruse suggests the potential of looking at the legal arguments put by VLA on the 7.30 report (they suggesting averaging was unlawful). Golightly pushed back on that

Back from lunch. Dominque Hogan-Doran for the Commonwealth says they've tracked down former DHS lawyer John Barnett. That's good news.

Ah. Kruse says she never saw the averaging advice or the draft instructions for AGS. (Carmody said she probably communicated these but couldn't recall it specifically)

So we have a conflict in the evidence. Kruse says she has no recollection of discussing this advice with Carmody

Kruse has no recollection of getting this document, but not saying it wasn't. Just that she doesn't recall this occurring

Angus Scott puts to Kruse it's "quite strange" she has no recollection of the advice ever being communicated to her. Kruse maintains she has no recollection.

Justin Greggery coming off the bench for the final two witnesses today: both former Tudge staffers.

First, Tudge adviser Andrew Asten. Asten is legally trained and worked very briefly as a solicitor.

Asten says he first remembers hearing about the robodebt scheme in late 2016. Tudge staffers Rachelle Miller and Mark Wood were discussing it.

Interesting line of questioning here... Greggery asks him if he had sought docs from the Commonwealth. Asten says he hadn't, and didn't know he could. Why isn't he legally represented? Asten again unaware that was possible until recently, but says he didn't think this necessary

Again, Asten hasn't read emails of media summaries relevant to the commission. Says he wasn't aware he could have requested this

Asten says there were regular meetings with senior DHS staff including Kathryn Campbell, Malisa Golightly, Malisa Golightly and Garry Sterrenberg

Asten says he trusted those public servants. He doesn't recall asking if robodebt was lawful.

Asten suggesting it wasn't part of his role to ask those sorts of questions, says Tudge wasn't the policy minister.

Holmes: What about asking which part of the social security act allows this to occur?
Asten: Says his role was focused on implementation

Asten says DHS officials had insisted averaging was. a"long standing practice". Holmes replies, yes, burglary also a long standing practice. Ouch.

Did you ever get any sense about whether the program should be stopped?
Asten: "There was no sense of any room or [authorisation] to pause or cancel the program." Reiterates that Tudge's role was implementation. (Tudge said the same)

Greggery says Asten was happy for the scheme to "roll on".
Asten says he doesn't agree.
Greggery, bluntly, "So did you do anything?"

Greggery taking quite a fierce tone with Asten it must be said

Asten asked about his involvement in Tudge's offices response to Rhys Cauzzo's death. Asten says it would be unwise to discuss the details in public

Looking at another case which Tudge was asked about. Another suicide case. In this situation, it's not clear an investigation was launched. Asten says he called Tudge to brief him on this

Asten says the potential media response was not a significant concern in this case.

So - what did you do about this?
Asten says he told Tudge about the information from the department. And asked for a further update. "I have a memory" that Campbell and Tudge discussed the matter in depth.

Asten says he recalls Tudge expressing great concern and wanting further information

Asten insisting whether the woman went to the media was not his concern.

Asten says one "particularly troubling" issue was the woman didn't have a vulnerability indicator. But he can't recall any action on that.

Wowee, Greggery to Asten: "perhaps if you just stick with answering my questions rather than talking around them."

Questions about the PWC robodebt report (which was never handed to DHS in the end).

This is brutal. In simple terms, PWC warned the ATO was creating inaccurate debts. Greggery asking what did you do about this?

Asten: "With respect I think you're assuming a much greater role for me in this scheme than what I played."
Greggery: "What is your purpose in going to the meeting if not to be informed so you can advise the minister?"

Asten says he doesn't recall seeing a final report on robodebt from PWC.
Greggery: Did you ask where it was?
Asten: I don't believe so.
Greggery: Why not?
Asten: I don't know.

Asten now says the PWC report would not have been "an authority or complete view of the whole situation". Says it was based on outdated information. (Glad taxpayers paid nearly $1m for it then.)

Greggery: "One view is that you were well aware that the report would describe deep flaws in this scheme ... which really indicated the scheme should be stopped. It was so deeply flawed, and you did not want to see it?"
Asten: "I completely reject that."

Asten not sure he saw another report (from Data61) either. That report was Turnbull's idea, the inquiry was told

We're done with Asten. That was quite something.

Mark Wood is the next witness. He's a senior policy adviser in the officer of Peter Dutton! Has been there since July 2022. Was a senior policy adviser with Tudge during the robodebt scandal.

Sorry I wasn't able to tweet that, but fair to say it was Asten who copped the tougher treatment, likely because he held a more senior role. That's been the commission's practice

Tomorrow is former DHS secretary Renee Leon and former human services minister Michael Keenan. Should be interesting!