Today's witnesses. Keenan is the Minister for why we didn't hear anything out of the Government for two years.
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We're about to get started for the day. Here is the stream to follow proceedings:
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robodebt.royalcommission.gov.au
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robodebt.royalcommission.gov.au
Renee Leon is the first witness.
Michael Keenan's counsel is seeking an update on the schedule.
Greggery advises him they'll be done around 12.
HOLMES: My experience with counsel is to add at least two hours to that...
Ms. Leon is affirmed.
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Michael Keenan's counsel is seeking an update on the schedule.
Greggery advises him they'll be done around 12.
HOLMES: My experience with counsel is to add at least two hours to that...
Ms. Leon is affirmed.
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GREGGERY: You commenced as the Secretary of DHS in October 2017. Prior to commencing that role you were the Secretary of the Department of Employment, where you came to know Kathryn Campbell?
LEON: Known her for many years, back to when she was in Finance.
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LEON: Known her for many years, back to when she was in Finance.
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GREGGERY: You've been in the APS since 1990 or 1991 in the Attorney-General's Department, attained Master of Law from University of Cambridge. You left DHS in December 2019?
LEON: My appointment was terminated.
G: Your relationship with Campbell?
L: Collegial.
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LEON: My appointment was terminated.
G: Your relationship with Campbell?
L: Collegial.
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GREGGERY: Did it remain collegial, while you were DHS Secretary and she was DSS Secretary?
LEON: It became difficult.
G: Why did that change?
L: Campbell felt anything that happened in DHS may come to reverberate upon her as DSS Secretary, if not up to par.
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LEON: It became difficult.
G: Why did that change?
L: Campbell felt anything that happened in DHS may come to reverberate upon her as DSS Secretary, if not up to par.
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LEO: There was a regrettable desire to attribute blame to DHS. I maintained collegial relationships with other relevant Departments, such as Health
GREGGERY: Did your difficulties with Campbell have a limiting effect on free communication?
L: I had to be careful.
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GREGGERY: Did your difficulties with Campbell have a limiting effect on free communication?
L: I had to be careful.
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LEON: There weren't displays of unprofessional behaviour, but I was aware that at times when I wasn't present she was saying things designed to undermine my reputation with Minister Robert.
GREGGERY: Who reported this to you?
L: People in DHS, people outside DHS.
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GREGGERY: Who reported this to you?
L: People in DHS, people outside DHS.
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LEON: One was a former Secretary still undertaking consulting work with the Commonwealth.
GREGGERY: Did those comments reflect on your performance,your ability?
L: They reflected criticism of my role as Secretary and my responsiveness to policy goals of Government.
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GREGGERY: Did those comments reflect on your performance,your ability?
L: They reflected criticism of my role as Secretary and my responsiveness to policy goals of Government.
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LEON: I do want to emphasis this was an undercurrent and we engaged professionally, with the one exception in my statement. Uncomfortable personal matters weren't unknown, but we are all expected to not let that affect our performance. We were colleagues...
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LEON: I was surprised to find an element of tension in the relationship by 2019. I wondered if there was some unhappiness that I was now running a Department she'd run for some time, and found some difficulty in that.
HOLMES: The second factor you mentioned?
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HOLMES: The second factor you mentioned?
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LEON: Minister Robert had very significant plans which would have involved very significant plans, which would have involved the dismemberment of the Department.
HOLMES: What were those plans?
L: He, essentially, wanted to turn it into ServiceNSW[!]
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HOLMES: What were those plans?
L: He, essentially, wanted to turn it into ServiceNSW[!]
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LEON: So I was in the unfortunate position of being the 'bad cop', of explaining to the Minister there were perhaps some difficulties with it. Whereas Ms. Campbell was encouraging and promoting the idea to the Minister.
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GREGGERY: How would that affect DSS at all?
LEON: It didn't develop far enough to know, but the idea was to make DHS a subsidiary agency. It became clear the industrial relations outcomes the Minister wanted were not possible.
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LEON: It didn't develop far enough to know, but the idea was to make DHS a subsidiary agency. It became clear the industrial relations outcomes the Minister wanted were not possible.
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HOLMES: Your attitude wasn't appropriate?
LEON: I was told my position would be terminated as the Department was to be abolished. The five Secretaries who were terminated all believed in giving frank and fearless advice.
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LEON: I was told my position would be terminated as the Department was to be abolished. The five Secretaries who were terminated all believed in giving frank and fearless advice.
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GREGGERY: What of the practice or tendency to provide difficult advice to Ministers orally?
LEON: Became more and more pronounced in more recent years that there were consequences for people if they were unhelpful to the Government. It was a long-standing practice.
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LEON: Became more and more pronounced in more recent years that there were consequences for people if they were unhelpful to the Government. It was a long-standing practice.
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LEON: It was one of the practices recommended to be fixed from the Pink Batts RC. The point where you had to put difficult things in writing was because you were potentially on a collision course with your Minister and therefore it was essential.
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LEON: Sometimes we put our concerns in writing but euphemistically. Instead of saying 'this policy will cause significant hardship', we might be expected to say something more like 'this will cause community concern', in case it came out via FOI later.
[screaming]
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[screaming]
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GREGGERY: To your incoming Secretary Brief, dated October 2017. Covers a broad range of high-level issues. What was said to you was the OCI measure was a 'long-standing practice' despite the criticisms?
LEON: Yes, & that the concern was about 'how' it had been done.
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LEON: Yes, & that the concern was about 'how' it had been done.
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GREGGERY: You understood at an early stage that there was a degree of confidence in the lawfulness.
LEON: I didn't even know there was a question about the lawfulness. I understood it was unpopular.
G: You picked up critiques generally via media?
L: That's right.
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LEON: I didn't even know there was a question about the lawfulness. I understood it was unpopular.
G: You picked up critiques generally via media?
L: That's right.
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LEON: Possible I knew Campbell was managing the Scheme at the time it became controversial, but I didn't know anything about the nature of it.
GREGGERY: Ombudsman's report as well?
L: Asserted to me regularly in other material, informed talking points to Estimates.
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GREGGERY: Ombudsman's report as well?
L: Asserted to me regularly in other material, informed talking points to Estimates.
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GREGGERY: They relied on the Ombudsman's report to defend the scheme?
LEON: To bolster the position the system was appropriate and proper in its foundation. But I think they genuinely believed that it was.
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LEON: To bolster the position the system was appropriate and proper in its foundation. But I think they genuinely believed that it was.
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[Greggery showing Leon emails where Musolino is requesting al prior legal advices in January 2017, for the Ombudsman.]
GREGGERY: You haven't seen these?
LEON: I haven't. It's a surprise to me that they exist, as I asked Legal Services to do an 'excavation'.
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GREGGERY: You haven't seen these?
LEON: I haven't. It's a surprise to me that they exist, as I asked Legal Services to do an 'excavation'.
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GREGGERY: To your knowledge, did LSD talk with Ms. Musolino?
LEON: I think she said she had undertaken the excavation by file search and talking to relevant officers still in the Department.
G: Musolino never communicated this advice to you?
L: Correct.
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LEON: I think she said she had undertaken the excavation by file search and talking to relevant officers still in the Department.
G: Musolino never communicated this advice to you?
L: Correct.
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GREGGERY: And it wasn't for want of the topic not coming up?
LEON: Once I was aware of the concerns about legality, I expressly asked Ms. Musolino whether we were confident the program was lawful.
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LEON: Once I was aware of the concerns about legality, I expressly asked Ms. Musolino whether we were confident the program was lawful.
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GREGGERY: In your incoming Secretary brief there was a point that there would be a Budget underspend if 1000 non-APS contractors weren't engaged to do compliance work?
LEON: DHS had to lose about 1000 staff a year, although there was no reduction in staff numbers.
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LEON: DHS had to lose about 1000 staff a year, although there was no reduction in staff numbers.
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LEON: The Government had assumed the way the OCI was designed, most people would go online. They had to revise that when they realised people were ringing up. They're known as the C1000.
[Was the C1000 from Terminator 3, or 4?]
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[Was the C1000 from Terminator 3, or 4?]
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[Looking at the tables in the incoming Secretary brief, with reference to the ASL cap and contract arrangements]
LEON: The Budget was allocated to deliver a certain level of service, we just couldn't employ public servants to do it.
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LEON: The Budget was allocated to deliver a certain level of service, we just couldn't employ public servants to do it.
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LEON: The intention of the government overall was to reduce the number of public servants and, where possible, replace that work by contracted workforce or outsourcing of services entirely, where that was appropriate.
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GREGGERY: Were you aware of the frontline challenges of contract staff employed to do compliance work, compared to APS employees?
LEON: I was briefed on the need for training and upskilling, they couldn't be as expert. They don't have security of an ongoing job.
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LEON: I was briefed on the need for training and upskilling, they couldn't be as expert. They don't have security of an ongoing job.
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LEON: There was more turnover as they'd get opportunities for more secure work. They didn't fully feel like they were part of our workforce. There were cultural reasons to do make sure that happened, so they didn't feel there was an 'us vs them' situation.
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HOLMES: We've heard from those experienced Compliance Officers, with a strong culture of customer service and assistance. A real motivation built up over a long time. Bit hard to do with labour hire?
LEON: It's one of the challenges, yes.
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LEON: It's one of the challenges, yes.
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HOLMES: What about the morale of existing officers who see labour hire being brought in around them?
LEON: Existing staff felt it was a bit insulting, this idea that their job could be done by someone with a script. They were anxious for their jobs, what it'd mean.
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LEON: Existing staff felt it was a bit insulting, this idea that their job could be done by someone with a script. They were anxious for their jobs, what it'd mean.
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HOLMES: Contractors wouldn't have felt able to raise concerns?
LEON: It was put to me that they were less likely to, as if they were seen as difficult they wouldn't get more shifts.
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LEON: It was put to me that they were less likely to, as if they were seen as difficult they wouldn't get more shifts.
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GREGGERY: You mentioned the WPIT project. Was there any relation between the funding required for that project and the OCI program?
LEON: No. The WPIT transformation was fully self-funded.
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LEON: No. The WPIT transformation was fully self-funded.
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GREGGERY: What about the 'Chief Citizen Experience Officer'? It's in the brief?
LEON: That person joined soon after I commenced. Brought in from the private sector. Although it related to the OCI failures it was part of the overall transformation process.
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LEON: That person joined soon after I commenced. Brought in from the private sector. Although it related to the OCI failures it was part of the overall transformation process.
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GREGGERY: What did you observe of the culture of DHS before you started?
LEON: I knew something about it because someone had come to me at Employment in order to escape the culture of DHS. A lot of aggression expressed at senior levels, yelling and public shaming.
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LEON: I knew something about it because someone had come to me at Employment in order to escape the culture of DHS. A lot of aggression expressed at senior levels, yelling and public shaming.
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LEON: A culture of attributing blame rather than working together to solve problems. When I arrived I made my expectations clear to the whole SES. I exited some people from the Department. Where there were outbreaks I tried to help people work together.
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LEON: When senior people get exposed to that kind of behaviour, they're then at risk of behaving that way to staff below them. People become afraid to raise problems or take risks. I made it very clear that no-one would get shot for bringing me bad news.
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LEON: I didn't see the role of the public service to just be the voice of the Government. I'd never punish someone for telling me there were issues. Consistent theme that no-one gets shot. It's much better to find out, than to find out afterwards, as I discovered.
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GREGGERY: And you're referring to the Solicitor-General's advice?
LEON: It was a terrible shock. In 30 years as a public servant I have never discovered I'd been administering a program at scale that was unlawful.
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LEON: It was a terrible shock. In 30 years as a public servant I have never discovered I'd been administering a program at scale that was unlawful.
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GREGGERY: On 26 Feb 2018 Musolino provided you information of a particular AAT decision which criticised the process by which the debt was alleged. You made a handwritten note, 'did we make an error? copy of decision please'.
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GREGGERY: It was important for you to know if there was criticism by an AAT member of the Department's approach in this circumstance?
LEON: It was brought to my attention as the view was taken that it might feature on A Current Affair, might need to brief Minister.
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LEON: It was brought to my attention as the view was taken that it might feature on A Current Affair, might need to brief Minister.
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GREGGERY: Ms Musolino provided you with an explanation why she was of the view that no error had been made in the decision to raise a debt.
LEON: That's right.
G: We'll come to that, we'll look at the decision first.
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LEON: That's right.
G: We'll come to that, we'll look at the decision first.
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GEGGERY: Mr Carney makes clear that the onus, at all times, remains on Centrelink to obtain the information and it had to relate to actual fortnightly earnings. You became aware of his later articles which came out shortly after this decision?
LEON: That's correct.
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LEON: That's correct.
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GREGGERY: Musolino's conclusion that it was defensible and reasonable, did that cause you to ask if anyone had had advice? Strange that she hadn't produced it by this point?
LEON: I didn't read the decision itself. I would read the covering email. I felt reassured.
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LEON: I didn't read the decision itself. I would read the covering email. I felt reassured.
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LEON: It didn't strike me as necessarily surprising or problematic that we'd lost a case in the AAT. Ms. Musolino's covering email reassured me that not only were we confident, but we'd looked into it following 2017 controversies, so I didn't turn my mind to advice.
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GREGGERY: Did you regularly meet with Ms. Musolino?
LEON: I had a scheduled monthly meeting with her, but a standing arrangement that my direct reports could contact me at any time.
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LEON: I had a scheduled monthly meeting with her, but a standing arrangement that my direct reports could contact me at any time.
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HOLMES: How did you find it reassuring, without any reference to a provision of the Social Security Act?
LEON: I wouldn't get down in to the details of it. I don't think I ever had occasion to get legislation because it's not my job. I didn't try to do IT's job.
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LEON: I wouldn't get down in to the details of it. I don't think I ever had occasion to get legislation because it's not my job. I didn't try to do IT's job.
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HOLMES: No, but you were a lawyer of some repute...it wasn't a very legal opinion, was it?
LEON: I probably deferred to Ms. Musolino's judgement on it as she was very experienced in social welfare law, and I was not. It was an area I knew little about.
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LEON: I probably deferred to Ms. Musolino's judgement on it as she was very experienced in social welfare law, and I was not. It was an area I knew little about.
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GREGGERY: It's your evidence that even though you requested a copy of the AAT decision, but you didn't peruse it?
LEON: That's right.
G: Have you come to appreciate it was more significant than you were informed of at the time?
L: I have.
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LEON: That's right.
G: Have you come to appreciate it was more significant than you were informed of at the time?
L: I have.
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LEON: The volume of paper and matters flowing across a Secretary's desk, you have to rely on people below you.
GREGGERY: But you sought the decision itself?
L: I asked if we'd made an error, not about averaging. Musolino helpfully gave more comprehensive response.
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GREGGERY: But you sought the decision itself?
L: I asked if we'd made an error, not about averaging. Musolino helpfully gave more comprehensive response.
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LEON: I had every confidence in her as a lawyer, I had no reason to think I couldn't rely on her expertise and judgement.
GREGGERY: After receiving the email, what steps did you take?
L: None. I was reassured by it.
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GREGGERY: After receiving the email, what steps did you take?
L: None. I was reassured by it.
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HOLMES: It seems the reason you're asking for it is because it contained critique of the Department. Did you not want to know what they were?
LEON: I thought Musolino was summarising it for me. She sets out how averaging worked, and assured me it was defensible.
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LEON: I thought Musolino was summarising it for me. She sets out how averaging worked, and assured me it was defensible.
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GREGGERY: To Professor Carney's article, emailed to you by media unit 4 April 2018. Stamped 'for information' at the top?
LEON: Categorised for different folders re: urgency.
G: You read it the same day? Marked 'for advice pls'
L: Yes.
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LEON: Categorised for different folders re: urgency.
G: You read it the same day? Marked 'for advice pls'
L: Yes.
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LEON: I wanted people to tell me what it related to. I got two pieces of advice in response, I guess my request was imprecise. One on how it was handled as a media issue. Also asked Musolino about it directly at our next regular meeting: are we confident its lawful?
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GREGGERY: Her response?
LEON: Yes, we were. I asked why, and on what that was based. She said it was a long-standing principle of administrative law to rely on 'best available evidence at the time'
HOLMES: You accepted that? Without any authority?
L: I did.
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LEON: Yes, we were. I asked why, and on what that was based. She said it was a long-standing principle of administrative law to rely on 'best available evidence at the time'
HOLMES: You accepted that? Without any authority?
L: I did.
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LEON: It did accord with my memory that when an administrative tribunal reviews a decision they make it that way. It's possible I conflated the two because it rang a bell for me. It was the wrong comparison to make.
[IT HAD ADMINISTRATIVE LAW VIBES]
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[IT HAD ADMINISTRATIVE LAW VIBES]
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HOLMES: Did you tell the Minister?
LEON: Not personally, but a matter of the media team giving him talking points for A Current Affair.
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LEON: Not personally, but a matter of the media team giving him talking points for A Current Affair.
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GREGGERY: You say you didn't read the Carney article. How did you come to press her on lawfulness? There was an academic paper!
LEON: The scale and the significance of the program. As the VC of a university, there are a lot of opinions expressed in those.
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LEON: The scale and the significance of the program. As the VC of a university, there are a lot of opinions expressed in those.
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GREGGERY: So you didn't know Carney was the author of the AAT decision?
LEON: Not at the time.
G: Did Musolino ever tell you about Prof. Hanks presentation at the AIAL conference? That he was talking about a test case?
L: I don't believe anyone told me about that.
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LEON: Not at the time.
G: Did Musolino ever tell you about Prof. Hanks presentation at the AIAL conference? That he was talking about a test case?
L: I don't believe anyone told me about that.
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LEON: I didn't know there would be a test case until one landed on my desk.
GREGGERY: Did any questions about legal challenges or criticism of the scheme ever come up when meeting Campbell as DSS Secretary?
L: Not until Masterton. I was aware of the 2016/17 issues.
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GREGGERY: Did any questions about legal challenges or criticism of the scheme ever come up when meeting Campbell as DSS Secretary?
L: Not until Masterton. I was aware of the 2016/17 issues.
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GREGGERY: Tudge mentioned it to you, did he ever mention a question about the legality or accuracy of debts?
LEON: No. He said there was criticism but located his response to the fact that the letters and online portal.
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LEON: No. He said there was criticism but located his response to the fact that the letters and online portal.
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HOLMES: Did you learn anything about the history of the scheme, who came up with it and supported it?
LEON: Not in detail, DHS concept. Kathryn tended to take credit for it. I understood it to be something she thought of. Recommended to me there was money in there.
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LEON: Not in detail, DHS concept. Kathryn tended to take credit for it. I understood it to be something she thought of. Recommended to me there was money in there.
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HOLMES: Some witnesses have said the scheme wasn't foremost in their mind, one among many?
LEON: It was significant because it was controversial, and the Government was attached to it because of how much money it was raising. Promised to balance the Budget.
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LEON: It was significant because it was controversial, and the Government was attached to it because of how much money it was raising. Promised to balance the Budget.
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HOLMES: So you wouldn't regard it as a minor matter in the portfolio?
LEON: It wasn't minor. This would have been a big responsibility, but not the only part of those responsibilities.
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LEON: It wasn't minor. This would have been a big responsibility, but not the only part of those responsibilities.
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HOLMES: What about the perception at Secretary level?
LEON: It must have had the attention of DHS Secretaries. Anything that goes through the Budget has significant implications, brief the Minister and attend Expenditure Review Committee.
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LEON: It must have had the attention of DHS Secretaries. Anything that goes through the Budget has significant implications, brief the Minister and attend Expenditure Review Committee.
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HOLMES: The attention of DHS and DSS Secretaries?
LEON: Both the Secretaries and the Ministers would see it that way.
[They adjourn for the morning tea break. Returning in 15 minutes.]
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LEON: Both the Secretaries and the Ministers would see it that way.
[They adjourn for the morning tea break. Returning in 15 minutes.]
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[The Royal Commission has returned.]
GREGGERY: You mentioned a comment from Ms. Campbell that there were potential further savings? Morrison had become Treasurer?
LEON: We all knew he was Minster when it was developed. I knew the Government was very attached.
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GREGGERY: You mentioned a comment from Ms. Campbell that there were potential further savings? Morrison had become Treasurer?
LEON: We all knew he was Minster when it was developed. I knew the Government was very attached.
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LEON: I wouldn't have turned my mind to the Treasurers' personal involvement. The whole of the Government was attached to it.
GREGGERY: Did the Department think the OCI measure would reduce staffing requirements in future?
L: Single Touch Payroll would ensure that.
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GREGGERY: Did the Department think the OCI measure would reduce staffing requirements in future?
L: Single Touch Payroll would ensure that.
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GREGGERY: Did you become aware of advice questioning the legality of the data exchange between DHS and ATO in terms of Single Touch Payroll?
LEON: I didn't. I was involved in the preparations for STP but no-one raised legality with me. It would be a better process.
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LEON: I didn't. I was involved in the preparations for STP but no-one raised legality with me. It would be a better process.
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GREGGERY: Legality of Robodebt came up with Campbell first came up in response to Masterton - did she ever convey any awareness about Hanks' paper to you? What about the Clayton Utz advice?
LEON: No.
G: Did you ask?
L: No. I didn't know it was a live question.
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LEON: No.
G: Did you ask?
L: No. I didn't know it was a live question.
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LEON: It was hard to defend the program as a good idea. We were trying to make the service delivery less difficult. But I didn't have occasion to ask her about legality.
GREGGERY: Whether DSS had considered it?
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GREGGERY: Whether DSS had considered it?
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LEON: I thought of it as a DHS measure. I wasn't about to ask Campbell as DSS Secretary about it in the context of the problems we had in our relationship. Formally, the legislation is owned by DHS. I thought that DHS had taken the primary running of it.
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GREGGERY: You were briefed by Musolino on 8 May 2018 in respect of an upcoming meeting between DHS and the Commonwealth Ombudsman. Attached was Carney's article and the media attention generated. Did you read it on this occasion?
LEON: I don't believe so.
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LEON: I don't believe so.
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LEON: Again, it was summarised in the covering briefing.
GREGGERY: The essential criticisms of the scheme are provided in dot form. This was the most detail you had about their nature?
L: Yes.
G: You saw Ms. Musolino was confident he was wrong?
L: Yes.
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GREGGERY: The essential criticisms of the scheme are provided in dot form. This was the most detail you had about their nature?
L: Yes.
G: You saw Ms. Musolino was confident he was wrong?
L: Yes.
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GREGGERY: You appreciated the risk that if Carney was correct, contrary to Musolino, that it had significant consequences for the scheme?
LEON: I don't think I thought about that at the time. I didn't know of him, nor his extensive background in social security law.
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LEON: I don't think I thought about that at the time. I didn't know of him, nor his extensive background in social security law.
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LEON: I sought reassurance that we were right, verbally and in detail in this brief, stating it firmly that he has 'fundamentally misunderstood' aspects of OCI.
GREGGERY: Their statements don't reveal the basis of the degree of confidence, do they?
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GREGGERY: Their statements don't reveal the basis of the degree of confidence, do they?
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LEON: Stated it as if it's just a well-known fact about how the relevant provisions of the SS Act operates. I had no personal familiarity. Some information resonated with me. I felt there were some reasons, people have obligations to keep their information up to date
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HOLMES: Did you think that obligation continued for all of time?
LEON: I wasn't aware of any qualification on it.
H: You understood people hadn't been on benefits for years, who'd reported at the time, who were asked to go back years without use of notice system?
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LEON: I wasn't aware of any qualification on it.
H: You understood people hadn't been on benefits for years, who'd reported at the time, who were asked to go back years without use of notice system?
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LEON: I had asked 'how do we get information about what people know?' which is how I found out about the coercive information gathering powers. I'd be advised on relevant provisions as they became relevant, not because I was negligent in my duties.
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#RobodebtRC
GREGGERY: There's no reference to prior advice obtained. There appeared to be a real gap in terms of what you might expect would be provided as support for her position?
LEON: I'd never heard of anything getting this far without legal advice so didn't turn my mind.
#RobodebtRC
LEON: I'd never heard of anything getting this far without legal advice so didn't turn my mind.
#RobodebtRC
HOLMES: What do you think was the normal process?
LEON: I've developed many NPPs. I was in the Attorney-General's Department for a long time. If there were issues of legality, AGS and/or external lawyers would give advice during policy development, before Cabinet.
#RobodebtRC
LEON: I've developed many NPPs. I was in the Attorney-General's Department for a long time. If there were issues of legality, AGS and/or external lawyers would give advice during policy development, before Cabinet.
#RobodebtRC
HOLMES: Are you talking about the NPP checklist?
LEON: No. The Minister is assuring Cabinet that they've dealt with all the risks. It ought to deal with legality by the time it gets there.
H: The NPP didn't refer to averaging at all, so how would AGS have known?
#RobodebtRC
LEON: No. The Minister is assuring Cabinet that they've dealt with all the risks. It ought to deal with legality by the time it gets there.
H: The NPP didn't refer to averaging at all, so how would AGS have known?
#RobodebtRC
HOLMES: To what extent would you expect legal advice to be obtained?
LEON: They wouldn't set it out in the Cabinet documents, but if there were internal doubts about legality you progress them to AGS. You can't just go on and do it without resolving that question.
#RobodebtRC
LEON: They wouldn't set it out in the Cabinet documents, but if there were internal doubts about legality you progress them to AGS. You can't just go on and do it without resolving that question.
#RobodebtRC
LEON: If DHS and DSS were communicating about how to do this with or without legislative change, if there were doubts on lawfulness, the ordinary practice in the APS is to resolve those doubts with legal advice. It's a red line for the public service.
#RobodebtRC
#RobodebtRC
GREGGERY: What possible explanation can there be for how it went through without that advice?
LEON: Possibly everyone was mistaken. When I discovered it was unlawful my conclusion was my lawyers had asked themselves the wrong questions, fell into non-legal reasons.
#RobodebtRC
LEON: Possibly everyone was mistaken. When I discovered it was unlawful my conclusion was my lawyers had asked themselves the wrong questions, fell into non-legal reasons.
#RobodebtRC
LEON: Once they'd convinced themselves of it, it seemed more correct to them as it went on. The other possibility was that people knew it was unlawful, but the Government were reluctant to withdraw due to them money involved. I hope that's not the case.
#RobodebtRC
#RobodebtRC
LEON: 'Unhelpful' advice was unwelcome under the Government for whom I served as Secretary. I had colleagues where the Minister would stop speaking to them and refuse to deal with them. Secretaries were told to move Deputy Secretaries if they were unhelpful.
#RobodebtRC
#RobodebtRC
LEON: The Minister is not supposed to have any say about the deployment of public servants, but if the Secretary didn't do that, they would be moved on. Five Secretaries lost their jobs. It wasn't popular to give the Government advice that they were in the wrong.
#RobodebtRC
#RobodebtRC
LEON: It's the right thing for the Government to be told, and for them to know. This ended up in the courts and caused harm to hundreds of thousands of people. It's the sort of thing the Government ought to have been told about.
#RobodebtRC
#RobodebtRC
LEON: On the other side of the coin, it's fair to say we knew that Secretaries were more responsive to the Government's policy agenda were rewarded?
GREGGERY: Like how?
L: I suspect rolling DHS up under DSS was a reward for Kathryn Campbell.
#RobodebtRC
GREGGERY: Like how?
L: I suspect rolling DHS up under DSS was a reward for Kathryn Campbell.
#RobodebtRC
LEON: Her elevation to Foreign Affairs & Trade was a very big reward for someone who had no background in diplomacy. Probably on a range of matters, not just being co- operative on Robodebt.
#RobodebtRC
#RobodebtRC
LEON: I wasn't popular with the Minister of the time. I received feedback on that in my performance appraisal. There was no objective failure on my part that could have underpinned that.
#RobodebtRC
#RobodebtRC
LEON: One of the former advisers told me the Minister thought I was too balanced because I'd include the union's views on staffing matters. Human Services wasn't seen as a 'sexy' Department, but I loved it. But I did feel I had been sent off there. No-one wanted it.
#RobodebtRC
#RobodebtRC
LEON: I've long been of the view that Secretaries ought not to be able to be terminated at will, as they are now. There ought to be some independent process. If Secretaries work in fear that they might lose their jobs, it has a chilling effect. NZ has such a process.
#RobodebtRC
#RobodebtRC
GREGGERY: Going to the circumstances of the Solicitor-General's engagement around the Masterton case.
[We are shown @SquigglyRick's 2019 article calling for the scheme being stopped, which he appears to be squinting to read from the gallery.]
#RobodebtRC
[We are shown @SquigglyRick's 2019 article calling for the scheme being stopped, which he appears to be squinting to read from the gallery.]
#RobodebtRC
GREGGERY: The Ombudsman's Implementation Report in Feb 2019, invited you to make comments. The Ombudsman raised question of whether the legality was certain. They recommended DHS take steps to address, a passage which you ultimately asked to be removed.
LEON: Yes.
#RobodebtRC
LEON: Yes.
#RobodebtRC
GREGGERY: The comments are in your name, but you wouldn't have drafted it?
LEON: Drafted for me by Legal Services Division. I would have read it before I signed off on them.
G: The concern is that raising legality could be undesirable in the context of Masterton.
#RobodebtRC
LEON: Drafted for me by Legal Services Division. I would have read it before I signed off on them.
G: The concern is that raising legality could be undesirable in the context of Masterton.
#RobodebtRC
GREGGERY: You would have appreciated the Federal Court would be unaffected by what the Ombudsman might say. It was not the case there was no question in DHS, despite what you'd maintained publicly?
LEON: I didn't know my LSD had doubts by then.
#RobodebtRC
LEON: I didn't know my LSD had doubts by then.
#RobodebtRC
GREGGERY: Then, on either the 5th or 6th of March the AGS through Mr. Ensbey expressed a preliminary view that the Masterton application wasn't hopeless?
LEON: I don't think that was ever said to me at the time, ultimately told by AGS there were very good prospects.
#RobodebtRC
LEON: I don't think that was ever said to me at the time, ultimately told by AGS there were very good prospects.
#RobodebtRC
GREGGERY: That advice came on 29 March 2019. Was this the first time you became aware there was merit to the criticisms of legality? Through external advice that ought to have been obtained in the first place, that hadn't been?
LEON: Yes.
#RobodebtRC
LEON: Yes.
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GREGGERY: Ombudsman's implementation report was released the same day, perhaps an hour or two earlier. It was under embargo at that stage. Is that so you can raise anything of great concern, urgently?
LEON: Or if they'd said something not factual.
#RobodebtRC
LEON: Or if they'd said something not factual.
#RobodebtRC
GREGGERY: You'd appreciated your advocacy to the Ombudsman to remove those comments on legality was successful. In the context you'd represented the legal position wasn't uncertain?
LEON: I don't think I turned my mind to the reply to the Ombudsman.
#RobodebtRC
LEON: I don't think I turned my mind to the reply to the Ombudsman.
#RobodebtRC
LEON: Once I'd received the Solicitor-General's advice, and secured the Government's agreement to stop the program, I rang the Ombudsman to apologise for the fact we'd said we were so confident for so long. It had turned out were wrong.
#RobodebtRC
#RobodebtRC
GREGGERY: What is the explanation for the delay between the Department being advised to get legal advice in March 2019, and receiving it from Solicitor-General in late September?
LEON: Been advised it'd take S-G some months to provide. I asked on progress in June.
#RobodebtRC
LEON: Been advised it'd take S-G some months to provide. I asked on progress in June.
#RobodebtRC
LEON: We wanted to be very certain. We were having to go to the Government and they would almost certainly want us to find some way to continue the program. I wasn't surprised we were still working on questions in June. In late July/early August I asked again.
#RobodebtRC
#RobodebtRC
LEON: By then, this was in the context of Minister Robert's plans to dismantle the Department, bringing in external consultants, weekly stand-up meetings. There was an existential threat to us. In any event, by August it had been too long, and I hurried it up.
#RobodebtRC
#RobodebtRC
GREGGERY: Mr. Hanks made an allegation in Masterton that he Commonwealth acted in bad faith by zeroing the debt. Were you aware that there was an obligation to report such an allegation to the OLSC, a breach of model litigant provisions?
LEON: I wouldn't have known.
#RobodebtRC
LEON: I wouldn't have known.
#RobodebtRC
GREGGERY: A clear view in DHS the correct response was to zero the debt, leading to the end of the litigation?
LEON: We had advice our prospects weren't strong, still waiting for S-G's advice.
G: Still would have sought if Masterton resolved?
L: Absolutely.
#RobodebtRC
LEON: We had advice our prospects weren't strong, still waiting for S-G's advice.
G: Still would have sought if Masterton resolved?
L: Absolutely.
#RobodebtRC
HOLMES: Did it occur to you that a court decision might be more compelling to convince the Minister to cease the program, rather than Solicitor-General's advice?
LEON: They wouldn't want to look like they'd been forced to do it by losing in court.
#RobodebtRC
LEON: They wouldn't want to look like they'd been forced to do it by losing in court.
#RobodebtRC
HOLMES: Was that Minister Robert's perspective?
LEON: I hadn't asked him at that point, but that would have been my expectation in my years of dealing with Ministers.
#RobodebtRC
LEON: I hadn't asked him at that point, but that would have been my expectation in my years of dealing with Ministers.
#RobodebtRC
GREGGERY: In view of the AGS advice in March 2019, what steps were taken by DHS to put in place contingencies in the event the S-G agreed and the scheme would have to cease?
LEON: Difficult to put anything like that in place without a Government decision.
#RobodebtRC
LEON: Difficult to put anything like that in place without a Government decision.
#RobodebtRC
GREGGERY: There was a delay of 5-6 weeks before the S-G's advice was provided to Ms. Campbell, can you explain that delay?
LEON: I wanted it to remain confidential. We did not have a high degree of trust. I didn't want an uncontrolled release of information.
#RobodebtRC
LEON: I wanted it to remain confidential. We did not have a high degree of trust. I didn't want an uncontrolled release of information.
#RobodebtRC
HOLMES: She might have tried to prevent the cessation?
LEON: Not to that level, perhaps, but I wanted to be the person to relay it to the Government as accurately as possible.
GREGGERY: You called Minister Robert on 29 October?
L: Yes.
#RobodebtRC
LEON: Not to that level, perhaps, but I wanted to be the person to relay it to the Government as accurately as possible.
GREGGERY: You called Minister Robert on 29 October?
L: Yes.
#RobodebtRC
GREGGERY: You didn't destroy any diaries when you finished as Secretary? These are the notes of your call with him.
LEON: I did not [!] I tried to record what transpired. Deputy Secretary also present, so I wasn't the only one with knowledge.
#RobodebtRC
LEON: I did not [!] I tried to record what transpired. Deputy Secretary also present, so I wasn't the only one with knowledge.
#RobodebtRC
LEON: I told him the thrust of the advice, that we couldn't use averaging. I told him I hadn't told DSS, asked him if he told Ruston to let me know. We were to prepare a brief for him to inform the Prime Minister. Pressure on timeframe re: Amato matter by then.
#RobodebtRC
#RobodebtRC
LEON: Minister Robert said, as a direct quote, 'legal advice is just advice'. I took it to mean he didn't share my view that the S-G's advice needed to be acted on. His tone was as if it was some low-level advice. That was shocking to me. The Solicitor-General!
#RobodebtRC
#RobodebtRC
GREGGERY: What do you recall of telling Ms. Campbell some days later?
LEON: I said we'd been exploring options for continuing the scheme consistent with the S-G's opinion. I apologised for not telling her but there'd been some leaks recently. She was quite unhappy.
#RobodebtRC
LEON: I said we'd been exploring options for continuing the scheme consistent with the S-G's opinion. I apologised for not telling her but there'd been some leaks recently. She was quite unhappy.
#RobodebtRC
LEON: She drew to my attention that I'm required to share it with the policy Secretary under the Legal Services Directions. I was generally aware of those but I hadn't considered it was an obligation.
#RobodebtRC
#RobodebtRC
GREGGERY: Did she ever suggest to you at any point during Masterton/Amato that legal advice was a responsibility of DSS?
LEON: I don't think there was any controversy about that.
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LEON: I don't think there was any controversy about that.
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GREGGERY: You recall a further conversation with Minister Robert on 7 or 8 November 2019. You advised the best response was to apologise and admit the error and take steps to correct.
He said 'We will absolutely not be doing that. We will be doubling down.'
#RobodebtRC
He said 'We will absolutely not be doing that. We will be doubling down.'
#RobodebtRC
LEON: He said it confidently and firmly. I was shocked. My advice was obvious, really, there was no other course to take for an organisation which had been found to be breaking the law.
#RobodebtRC
#RobodebtRC
LEON: I asked the Department to prepare a brief that very firmly set out that the Minister couldn't just disregard the S-G's advice. He and the public service had obligations to not act in a way that was unlawful.
GREGGERY: You sought advice from Mr. Ffrench?
#RobodebtRC
GREGGERY: You sought advice from Mr. Ffrench?
#RobodebtRC
LEON: I asked him about my obligations on several occasions. Ministers wanted to stop the process but not repay the debts, or only repay if they were appealed, a lot of ideas going around that were inconsistent with out obligations that meant we had to stop it.
#RobodebtRC
#RobodebtRC
LEON: I ended up having to stop the program in advance of the Government decision to do so. Eventually, Porter observed at meeting with Ruston and Robert that the Solicitor-General's opinion was correct. Only after that point, did they realise they had to do stop it.
#RobodebtRC
#RobodebtRC
Back-and-forth on a proposal to expand scheme to vulnerable cohorts and over-65s around this time which butts up against Cabinet confidentiality. Holmes considers she's heard enough anyway.
Ms. Leon is excused.
Adjourned for lunch, returning in around one hour.
#RobodebtRC
Ms. Leon is excused.
Adjourned for lunch, returning in around one hour.
#RobodebtRC
Thank you for joining me this morning for an utterly dense & revelatory session. It's set up Stuart Robert's evidence deluxe. Yesterday's travails and frustration made up for in spades.
Please consider supporting my coverage if you're able:
#RobodebtRC
gofundme.com/f/robodebt-roy…
Please consider supporting my coverage if you're able:
#RobodebtRC
gofundme.com/f/robodebt-roy…
I'd once again like to draw attention to the continuing problems with Centrelink 'debt recovery'. The community legal sector is raising the alarm time and again. This, from @ej_australia at yesterdays hearings of the #PovertyInquiry:
#RobodebtRC
#RobodebtRC
https://twitter.com/ej_australia/status/1630007695842455553?s=20
I love walking past these to get lunch every day. Both within 200m of the #RobodebtRC hearings.
The Royal Commission has returned.
The stream again for this afternoon's evidence, from former Human Services Minister Michael Keenan. Angus Scott KC and Douglas Freeburn appearing for this session:
robodebt.royalcommission.gov.au
#RobodebtRC
The stream again for this afternoon's evidence, from former Human Services Minister Michael Keenan. Angus Scott KC and Douglas Freeburn appearing for this session:
robodebt.royalcommission.gov.au
#RobodebtRC
Michael Keenan is affirmed. He was Minister for Human Services between December 2017-May 2019, while Renee Leon was Secretary.
SCOTT: How would you describe your relationship with Ms. Leon?
KEENAN: Professional.
S: And her conduct as Secretary?
K: Professional.
#RobodebtRC
SCOTT: How would you describe your relationship with Ms. Leon?
KEENAN: Professional.
S: And her conduct as Secretary?
K: Professional.
#RobodebtRC
SCOTT: Her work as Secretary?
KEENAN: I thought it was very good.
S: You say upon becoming Minister, you were responsible for all aspects of the Robodebt scheme?
K: Yes.
S: That's a reference to the idea of Ministerial responsibility?
K: Yes, it is.
#RobodebtRC
KEENAN: I thought it was very good.
S: You say upon becoming Minister, you were responsible for all aspects of the Robodebt scheme?
K: Yes.
S: That's a reference to the idea of Ministerial responsibility?
K: Yes, it is.
#RobodebtRC
SCOTT: You refer to your incoming Ministerial briefing pack. Can you explain what that is?
KEENAN: Information that's provided by the Department for a new Minister, an introduction to your new responsibilities you've taken on as Minister.
#RobodebtRC
KEENAN: Information that's provided by the Department for a new Minister, an introduction to your new responsibilities you've taken on as Minister.
#RobodebtRC
SCOTT: The following paragraphs of your statement, that's information from your briefing pack?
KEENAN: I think that's fair, yes.
S: Including that criticisms of the scheme had been remedied, via the scheme being refined?
K: Through initial contact with DHS, yes.
#RobodebtRC
KEENAN: I think that's fair, yes.
S: Including that criticisms of the scheme had been remedied, via the scheme being refined?
K: Through initial contact with DHS, yes.
#RobodebtRC
SCOTT: 'Lessons from the Online Compliance Initiative' part of the briefing. Refers to the Ombudsman's comments that the system could accurately calculate debts. What did you take from that?
KEENAN: Informed my views of where the scheme was when I became Minister.
#RobodebtRC
KEENAN: Informed my views of where the scheme was when I became Minister.
#RobodebtRC
SCOTT: There were follow-up meetings with the Deputy Secretaries of DHS on January 9 and 10?
KEENAN: To explore that and understand the topics in the briefing in more detail.
#RobodebtRC
KEENAN: To explore that and understand the topics in the briefing in more detail.
#RobodebtRC
SCOTT: A presentation by Craig Storen on the scheme, including a more detailed written Robodebt briefing?
KEENAN: That would seem that way, yes.
S: Recall reading this document for the purpose of this briefing?
K: Don't recall. Usually would have read carefully.
#RobodebtRC
KEENAN: That would seem that way, yes.
S: Recall reading this document for the purpose of this briefing?
K: Don't recall. Usually would have read carefully.
#RobodebtRC
SCOTT: Did you rely on this document for your state of satisfaction outlined in your statement that the issues with the program having been addressed?
KEENAN: I expect it would have been instrumental in forming my view, yes.
#RobodebtRC
KEENAN: I expect it would have been instrumental in forming my view, yes.
#RobodebtRC
SCOTT: Apparent to you that it had a controversial past?
KEENAN: Yes. Also through the media in 2017.
S: Were you aware of scrutiny of the way debts were calculated?
K: Not at the time.
S: When did you become aware of that?
K: Over time in my portfolio.
#RobodebtRC
KEENAN: Yes. Also through the media in 2017.
S: Were you aware of scrutiny of the way debts were calculated?
K: Not at the time.
S: When did you become aware of that?
K: Over time in my portfolio.
#RobodebtRC
SCOTT: You were alerted to the fact that the accuracy of the debts had been examined by the Ombudsman's report?
KEENAN: It looks like the Ombudsman's report was attached, and I would have read it.
#RobodebtRC
KEENAN: It looks like the Ombudsman's report was attached, and I would have read it.
#RobodebtRC
SCOTT: Later in the briefing there's reference to revised savings projections, were you aware that the scheme hadn't performed as expected in this sense?
KEENAN: It was probably the first time that was raised with me. Wasn't aware how shortfall had occurred yet.
#RobodebtRC
KEENAN: It was probably the first time that was raised with me. Wasn't aware how shortfall had occurred yet.
#RobodebtRC
Scott circulates the full version of the Ombudsman's report to Keenan, his lawyer, and the Commissioner.
Reading group!
#RobodebtRC
Reading group!
#RobodebtRC
SCOTT: You said you'd read the whole report just before?
KEENAN: That would be my practice, yes.
S: This first passage explains the fortnightly income test is applied to determine a daily rate of payment, paid in fortnightly instalments, and the 'last resort'.
#RobodebtRC
KEENAN: That would be my practice, yes.
S: This first passage explains the fortnightly income test is applied to determine a daily rate of payment, paid in fortnightly instalments, and the 'last resort'.
#RobodebtRC
SCOTT: It identifies the difficulties with the use of averaging, including if employment isn't over a full year?
KEENAN: Yes.
S: Another example, 'if income varied greatly over the year, the result would be incorrect'. Reasonably early on, you were aware of this?
#RobodebtRC
KEENAN: Yes.
S: Another example, 'if income varied greatly over the year, the result would be incorrect'. Reasonably early on, you were aware of this?
#RobodebtRC
KEENAN: I wouldn't agree with that. I wouldn't have expected I digested the details on the first sitting, no.
SCOTT: But after reading this document, as you said, that wouldn't have taken you very long?
K: You might be giving me too much credit, Mr. Scott.
#RobodebtRC
SCOTT: But after reading this document, as you said, that wouldn't have taken you very long?
K: You might be giving me too much credit, Mr. Scott.
#RobodebtRC
SCOTT: You asked DHS whether it had done modelling on how many debts were likely to be over-calculated, as opposed to under-calculated, and they advised they did no such modelling. You said it should have been the subject of further analysis, was it?
KEENAN: No.
#RobodebtRC
KEENAN: No.
#RobodebtRC
SCOTT: You have a general recollection with issues around labour hire staff in 2018?
KEENAN: Certainly aware of it, yes.
S: And that would have included Compliance Officer work?
K: This was specifically for Compliance Officers, yes.
#RobodebtRC
KEENAN: Certainly aware of it, yes.
S: And that would have included Compliance Officer work?
K: This was specifically for Compliance Officers, yes.
#RobodebtRC
SCOTT: One thing that's been suggested in evidence is that bringing in labour hire staff can have a negative effect on morale, that they might feel they were replaced, any comment?
KEENAN: My Department didn't brief me on that.
HOLMES: Did you give it any thought?
#RobodebtRC
KEENAN: My Department didn't brief me on that.
HOLMES: Did you give it any thought?
#RobodebtRC
KEENAN: Government of the time had rules about ASL caps, I was keen to improve service delivery, and this was the only way to get more staff in re: those rules.
HOLMES: Would you still do it this way without those rules?
K: I don't know. Decision was already taken.
#RobodebtRC
HOLMES: Would you still do it this way without those rules?
K: I don't know. Decision was already taken.
#RobodebtRC
HOLMES: Was it met by you with any reluctance?
KEENAN: I don't think so, Commissioner.
SCOTT: Less job security, therefore less likely to raise problems?
K: They have less job security on a limited contract, I'm not sure I can comment on the second part.
#RobodebtRC
KEENAN: I don't think so, Commissioner.
SCOTT: Less job security, therefore less likely to raise problems?
K: They have less job security on a limited contract, I'm not sure I can comment on the second part.
#RobodebtRC
SCOTT: Did you subsequently become aware of a number of innocent reasons why there might be a discrepancy between ATO and reported data?
KEENAN: Inadvertent reasons, yes.
HOLMES: Not just inadvertent, they may have reported quite correctly. Did you appreciate that?
#RobodebtRC
KEENAN: Inadvertent reasons, yes.
HOLMES: Not just inadvertent, they may have reported quite correctly. Did you appreciate that?
#RobodebtRC
KEENAN: I didn't, no. I was told that as long as the recipient had inputted their data correctly, then the calculation would be correct.
HOLMES: Different figures come back from the ATO for a different period than reported?
K: Yes, I understood that.
#RobodebtRC
HOLMES: Different figures come back from the ATO for a different period than reported?
K: Yes, I understood that.
#RobodebtRC
SCOTT: We've heard from Centrelink employees that they had experience in identifying explanations for discrepancies that resulted in no debt. Would you say labour hire staff were at a disadvantage there?
KEENAN: Dependent on the training and onboarding process.
#RobodebtRC
KEENAN: Dependent on the training and onboarding process.
#RobodebtRC
SCOTT: They'd be there for a relatively short period of time? They wouldn't have the experience.
KEENAN: It would depend on training and ability to access that expertise.
HOLMES: It's unlikely people on 6 month contracts would have a sense of Department's culture?
#RobodebtRC
KEENAN: It would depend on training and ability to access that expertise.
HOLMES: It's unlikely people on 6 month contracts would have a sense of Department's culture?
#RobodebtRC
KEENAN: Refer to earlier answer.
HOLMES: It's more about the level of commitment to the Public Service...
K: I don't have any evidence of that. It wasn't raised with me.
H: People would leave for an offer of more secure work?
K: That wasn't apparent to me.
#RobodebtRC
HOLMES: It's more about the level of commitment to the Public Service...
K: I don't have any evidence of that. It wasn't raised with me.
H: People would leave for an offer of more secure work?
K: That wasn't apparent to me.
#RobodebtRC
SCOTT: Which stakeholders did you meet with, as you mention in your statement?
KEENAN: @ACOSS.
S: Meeting with them early in 2018, as outlined in this letter?
K: I assume that was the case, yes.
S: Here is the agenda from that meeting. Yourself, Goldie, Crowe.
#RobodebtRC
KEENAN: @ACOSS.
S: Meeting with them early in 2018, as outlined in this letter?
K: I assume that was the case, yes.
S: Here is the agenda from that meeting. Yourself, Goldie, Crowe.
#RobodebtRC
SCOTT: First item being developing a debt recovery system that is accurate and humane?
KEENAN: I'm prepared to accept that was raised.
S: They would have indicated to you that it wasn't accurate and humane?
K: That appears to be their view.
#RobodebtRC
KEENAN: I'm prepared to accept that was raised.
S: They would have indicated to you that it wasn't accurate and humane?
K: That appears to be their view.
#RobodebtRC
SCOTT: Given what you knew about the use of averaging under the scheme, and the concerns raised by ACOSS, did you reflect at all on the inclusion of Robodebts to this measure to expand interest-raising measures on debts from students to all welfare recipients?
#RobodebtRC
#RobodebtRC
KEENAN: I'd been told the issues were resolved.
HOLMES: But you knew the debts were inaccurate, surely Ms. Goldie made that clear.
K: I was proceeding on the basis that those debts were legitimate, as there was opportunity to provide information.
#RobodebtRC
HOLMES: But you knew the debts were inaccurate, surely Ms. Goldie made that clear.
K: I was proceeding on the basis that those debts were legitimate, as there was opportunity to provide information.
#RobodebtRC
HOLMES: So if they weren't able to produce payslips from 2010, debt is raised, and interest applied.
KEENAN: We changed it so the Department would help find information if there was a genuine barrier to it.
H: People who didn't respond would be charged interest.
#RobodebtRC
KEENAN: We changed it so the Department would help find information if there was a genuine barrier to it.
H: People who didn't respond would be charged interest.
#RobodebtRC
KEENAN: That was a possible outcome, yes.
HOLMES: Why should they have engaged with the process?
K: I thought it was legitimate, ample opportunity for people to provide info.
#RobodebtRC
HOLMES: Why should they have engaged with the process?
K: I thought it was legitimate, ample opportunity for people to provide info.
#RobodebtRC
HOLMES: But they weren't notices given under the SS Act, so there was no reason to respond.
KEENAN: I didn't understand that, no.
#RobodebtRC
KEENAN: I didn't understand that, no.
#RobodebtRC
SCOTT: You describe in your statement process of being briefed by your media advisers for upcoming stories, incl. response recommended by the Department. You say you'd take it for granted that DHS' responses were cleared by their lawyers, and reflected their views.
#RobodebtRC
#RobodebtRC
SCOTT: Here's an email chain regarding Guardian article on 4 April 2018, dealt with by your adviser Mr. Cantwell?
KEENAN: That seems right, yes.
[The article is on the paper produced by Prof. Terry Carney, by @knausc and @Paul_Karp]
#RobodebtRC
KEENAN: That seems right, yes.
[The article is on the paper produced by Prof. Terry Carney, by @knausc and @Paul_Karp]
#RobodebtRC
SCOTT: Mr. Carney was a member of the social services division of the AAT. The longest-serving member until his term concluded, oversaw the writing of the Social Security Act. You expected this to be brought to your attention?
KEENAN: That would be my expectation.
#RobodebtRC
KEENAN: That would be my expectation.
#RobodebtRC
SCOTT: Do you have a recollection of it?
KEENAN: I can't recall it from April 2018, no.
S: The longest-serving member of the AAT had identified there was illegality in how debts were calculated under the Robodebt scheme, by use of averaging?
K: Yes.
#RobodebtRC
KEENAN: I can't recall it from April 2018, no.
S: The longest-serving member of the AAT had identified there was illegality in how debts were calculated under the Robodebt scheme, by use of averaging?
K: Yes.
#RobodebtRC
SCOTT: You were provided by Daniel Mumford, another adviser in your office with 'holding lines', while more information was being sourced?
KEENAN: Yes.
S: They would seem to not accept the criticism of the scheme by Mr. Carney?
K: Yes.
#RobodebtRC
KEENAN: Yes.
S: They would seem to not accept the criticism of the scheme by Mr. Carney?
K: Yes.
#RobodebtRC
SCOTT: Do you recall responding to this article by making inquiries to the Department on any legal advice they had?
KEENAN: No. That generally wouldn't be my response to an article, probably dozens of articles. I didn't consider the media to be an equal source.
#RobodebtRC
KEENAN: No. That generally wouldn't be my response to an article, probably dozens of articles. I didn't consider the media to be an equal source.
#RobodebtRC
HOLMES: An academic paper that a Government scheme was illegal, long history in social security law and the AAT. The Guardian is just reporting on it. Surely that's not common?
KEENAN: In my experience it's actually quite common.
H: Well, that's concerning.
#RobodebtRC
KEENAN: In my experience it's actually quite common.
H: Well, that's concerning.
#RobodebtRC
SCOTT: The Ombudsman, while not confirming it was unlawful, specifically identified problems with averaging?
KEENAN: Correct.
S: This wasn't just any article...
K: Department had a very significant legal division.
S: Who you didn't ask?
K: It wasn't my practice.
#RobodebtRC
KEENAN: Correct.
S: This wasn't just any article...
K: Department had a very significant legal division.
S: Who you didn't ask?
K: It wasn't my practice.
#RobodebtRC
SCOTT: You were briefed by Mr. Storen, who wasn't a lawyer?
KEENAN: I wasn't aware of his qualifications.
S: What assurance did he give you?
K: Just a general one that it was sound.
S: He didn't descend into lawfulness of averaging. What advice did DHS give you?
#RobodebtRC
KEENAN: I wasn't aware of his qualifications.
S: What assurance did he give you?
K: Just a general one that it was sound.
S: He didn't descend into lawfulness of averaging. What advice did DHS give you?
#RobodebtRC
KEENAN: Never got specific advice on lawfulness. Just general advice about the scheme.
SCOTT: As the Minister accountable to Parliament for its lawfulness, you didn't think it was necessary for DHS to provide advice to you?
K: They had a very extensive apparatus.
#RobodebtRC
SCOTT: As the Minister accountable to Parliament for its lawfulness, you didn't think it was necessary for DHS to provide advice to you?
K: They had a very extensive apparatus.
#RobodebtRC
SCOTT: Had you been a Minster before you were Minister for Human Services?
KEENAN: Yes.
S: Notwithstanding that you weren't a lawyer, do you understand the onus of proof? A party alleging a debt must prove it in a civil proceeding.
[Centrelink still don't do this]
#RobodebtRC
KEENAN: Yes.
S: Notwithstanding that you weren't a lawyer, do you understand the onus of proof? A party alleging a debt must prove it in a civil proceeding.
[Centrelink still don't do this]
#RobodebtRC
HOLMES: The Secretary doesn't have to bring proceedings Mr. Scott, that's the whole point. A bit confusing, but it seems anomalous that it shouldn't be assumed the Department would have the onus?
KEENAN: I wouldn't have considered matters like this myself.
#RobodebtRC
KEENAN: I wouldn't have considered matters like this myself.
#RobodebtRC
[Executive Minute on Departure Prohibition Orders. Signed by Keenan on 29 June 2018, with handwritten comments by him 'we can go harder on this measure'.]
KEENAN: It was an opportunity for the Department to go after people with significant debts who didn't respond.
#RobodebtRC
KEENAN: It was an opportunity for the Department to go after people with significant debts who didn't respond.
#RobodebtRC
Oh, like over $75, when I take one month to respond to one letter?
#RobodebtRC
#RobodebtRC
https://twitter.com/maximumwelfare/status/1622014662463336449?s=20
SCOTT: Recommendation for criteria to issue a DPO is amended to remove the exclusion for Robodebts?
KEENAN: Yes.
[One of the criteria for a DPO to actually be issued, is for the debt to be over $5000. Is that more, or less, than $75?]
#RobodebtRC
KEENAN: Yes.
[One of the criteria for a DPO to actually be issued, is for the debt to be over $5000. Is that more, or less, than $75?]
#RobodebtRC
SCOTT: Did you, at this stage, reflect on whether it was necessary to ask DHS for advice on lawfulness of averaging?
KEENAN: No.
#RobodebtRC
KEENAN: No.
#RobodebtRC
[There is a story in The Age about Gavin Silbert QC providing pro bono representation on a debt. His media advisers look for AAT decisions and the Ombudsman's report, but not legal advice.]
#RobodebtRC
#RobodebtRC
[I'm not reporting all of this, because it is mostly garbage, to be fair to me. Receive media alert, let whoever say whatever. Department are a repository of Social Security law (full of people who haven't even read the Social Security Act and are fine with it).]
#RobodebtRC
#RobodebtRC
SCOTT: As the responsible Minister, rather taking steps to request legal advice on the lawfulness of that, you through your office focused on responding to adverse media publicity about the issue?
KEENAN: It was a very low level of media, I had confidence in DHS.
#RobodebtRC
KEENAN: It was a very low level of media, I had confidence in DHS.
#RobodebtRC
SCOTT: You referred to the Cabinet process, did you ever call for any advice that was provided to Cabinet?
KEENAN: It wasn't open to me to seek that.
S: Why not?
HOLMES: You would have been able to look at the NPP? Although that was a DSS one, DHS had access..
#RobodebtRC
KEENAN: It wasn't open to me to seek that.
S: Why not?
HOLMES: You would have been able to look at the NPP? Although that was a DSS one, DHS had access..
#RobodebtRC
SCOTT: You could have instructed DHS to make inquiries of the Attorney-General's department?
KEENAN: In theory, yes.
S: And inquiries of the AGS?
K: I suppose it could have been explored. I accept Ministerial responsibility in this case.
#RobodebtRC
KEENAN: In theory, yes.
S: And inquiries of the AGS?
K: I suppose it could have been explored. I accept Ministerial responsibility in this case.
#RobodebtRC
HOLMES: The Masterton litigation commenced early that next year? The application for a Federal Court declaration on averaging was made against the Secretary of your Department. Did you think maybe it's time for advice from AGS?
#RobodebtRC
#RobodebtRC
HOLMES: It didn't raise any qualms that there was proceedings in the Federal Court?
KEENAN: If there was a concern DHS would have raised it with me as I outlined.
H: You made several media releases that appear to designed to intimidate people into paying up...
#RobodebtRC
KEENAN: If there was a concern DHS would have raised it with me as I outlined.
H: You made several media releases that appear to designed to intimidate people into paying up...
#RobodebtRC
KEENAN: [speculative invective about hypothetical dole bludgers]
HOLMES: Did it occur to you that people who had debts raised against them unfairly under the Robodebt scheme would feel intimidated? People would just pay up, not able to leave the country...
#RobodebtRC
HOLMES: Did it occur to you that people who had debts raised against them unfairly under the Robodebt scheme would feel intimidated? People would just pay up, not able to leave the country...
#RobodebtRC
KEENAN: This was aimed at people with significant debts.
[Uh huh. See above Centrelink debt letter sent to me <3 months ago.]
HOLMES: This one about interest charges. 28 days to enter a repayment plan. Might make you think you didn't have many options?
#RobodebtRC
[Uh huh. See above Centrelink debt letter sent to me <3 months ago.]
HOLMES: This one about interest charges. 28 days to enter a repayment plan. Might make you think you didn't have many options?
#RobodebtRC
KEENAN: They could have contacted my Department, and they would have helped them with sensitivity.
HOLMES: Did you know debt collectors were presenting this to people?
K: No...
Michael Keenan is excused.
The Royal Commission is adjourned until 10am AEST tomorrow.
#RobodebtRC
HOLMES: Did you know debt collectors were presenting this to people?
K: No...
Michael Keenan is excused.
The Royal Commission is adjourned until 10am AEST tomorrow.
#RobodebtRC
That was a pretty productive day's work for the Commission, all told. To speculate, Stuart Robert's lawyers will be deep in consultation ahead of his appearance on Thursday.
Renee Leon also implied some involvement from Anne Ruston, who was the portfolio Minister.
#RobodebtRC
Renee Leon also implied some involvement from Anne Ruston, who was the portfolio Minister.
#RobodebtRC
Given Ms. Leon's evidence that Minister Robert was intending to roll DHS into a subsidiary store-front agency of DSS, it seems quite strange that the senior Minister has been absent. Morrison was certainly functionally calling the shots as Social Services Minster...
#RobodebtRC
#RobodebtRC
Much to think about, much to chew on for the recipient and welfare rights communities once again.
Tomorrow's schedule of witnesses. It will, as always, be a welcome relief to hear from an actual Centrelink recipient:
#RobodebtRC
Tomorrow's schedule of witnesses. It will, as always, be a welcome relief to hear from an actual Centrelink recipient:
#RobodebtRC
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