Thread by @DarrenODonovan

#RobodebtRC block 4 day 8 everyone has one eye on tomorrow, which given its ms Musolino today, says something. Important to note the briefs on misfeasance aren’t aimed at the minister, but the Secretary as decision maker. Leon stopped it. she needed to. robodebt.royalcommission.gov.au/system/files/e…

Elevating government’s right to chew over things over a pause was best snapped out of. My bet is Robert will stress he was given a a “for noting” brief. Secretary was decision maker at law, comment was indicating future policy approaches etc. #RobodebtRC robodebt.royalcommission.gov.au/system/files/e…

Btw on “legal advice is just legal advice”, I’m confused as to why the minister is reported in one exhibit as demanding legal advice at one point. on onus of proof in like 72 hours. on 30 July 2019. What was troubling him?? Senate inquiry announcement maybe. #RobodebtRC

With Ms Musolino today, her first go around was an exasperating set of responses. Answer to everything was that the 26 jan “last resort” legal advice had a DHS specific rather than dictionary meaning. That once an effort was made, all was ok. Round and round. But … #RobodebtRC

The Comission now has its hands on a dhs lawyer taking a stand against averaging on jan 11. They will try to test the dynamic with that. First witness today will speak a bit to it quickly and depart #RobodebtRC

Just for the record, should note Serena Wilson walks back some evidence from last year in her supplementary statement. Puts her date of knowledge of non last resort averaging at 2018 after she left the APS robodebt.royalcommission.gov.au/system/files/e… final report will judge it all #RobodebtRC

I’m relieved the media didn’t go with a “courage” line on the Leon evidence. A public servant had solicitor general advice for a number of weeks here. To me the evidence shows the scale of challenge - the whole thing was “FOI Friday” consultation on steroids #RobodebtRC

APS figures are rallying around the idea giving secretaries security of tenure is the bath plug that stops good governance going down the gurgler. I’d be sceptical on their line, it amounts to a “one more chance really” plea. #RobodebtRC

“FOI Friday” is a reference to the engrained practice of a heads up/consultation with ministerial staffers before issuing FOI decisions. Despite that decision making being independent at law, apparently you want to keep your minister in the loop. #RobodebtRC

I totally cop to a laughably academic take here. No public servant is going to say: “sorry, who are you?” to a staffer. Just as sadly, Leon didn’t say “I’m the decision maker, it’s on my head, we pause” immediately. Academic takes wouldn’t last 2 mins- a problem no? #RobodebtRC

Thankfully Leon put it all on the table. Thereby ensuring there can be no “state of exception” or “ unique one off” evasion by Davis and the Secretaries when the recommendations come down. The APS only listens to itself as entitled reaction to Carney/Hanks shows. #RobodebtRC

But the precipice on which she was standing there needs to be perceived as such by the APS. I’d be disappointed the chief counsel didn’t immediately escalate advice for her, to her in september. should not be the playbook going forward. #RobodebtRC

By the way, I’d love to hear what #auslaw legal nerds make of Mr Ffrench’s concept that one should avoid “undue haste” in discontinuing actions which would otherwise be open to allegation of misfeasance? It’s the second link at the top of the thread. #RobodebtRC

The advice that goes to the Minister is notably firmer. May we never again see a Sunday advice to a Secretary asking 'what am I open to?" from a colleague. #RobodebtRC

Memorable exchange, but I’d stress the Commissioner was just noting the failure to ask the basic question: “you’re across this and have legals right?”. No one was suggesting rule by academic or people “hop to” academic takes. That’d be wholly unwelcome. #RobodebtRC

https://twitter.com/strangerous10/status/1630713768085958661

We must not replace one cult of authority with another. Your title doesn’t matter, just your reasoning. And the first person who put averaging under the nose of this department was entitled to a remedy. #RobodebtRC

The more concerning dynamic is that modern academia is far less likely to produce people like Carney or Hanks any more. But that’s a bigger, navel gazing topic #RobodebtRC

Another aspect of course, is that historically the departments legal team has been the proving ground for many tribunal members. There’s very few specialised social security lawyers out there given the broader ecology of career incentives. #RobodebtRC

Shift in the witness list, looks like we are having the personal case study witness first #robodebtRC Mr Thompson from Tasmania (glad to see Tasmania represented, ground zero for stuff in 2017)

Mr Thompson has worked in journalism, is currently on DSP. This is going to be an *on point* case study for capturing the demographics and the damage of this programme #RobodebtRC

With his mental health history Mr Thompson has been on centrelink since he was 20. Notes 'there was more humanity' and face to face then. Describing the process of just making a phonecall, and how he tries to prepare for the trauma of an interaction #RobodebtRC

"It's a full time job being on centrelink" #robodebtRC

11 September 2017 comes the initial notice - EIC debt. That date makes it one of the first "McNamara masterplan" relaunch ones. #RobodebtRC

"complete shock" as he was trying to do a day's work #RobodebtRC He had previously provided payslips from NewsCorp.

There were many freelance journos caught up in this thing, for the record. Close to home for some young journos who did some reporting on this.

1 August 2018 is when the account payable gets issued. $5,352.54 with a recovery fee. #RobodebtRC Weird date range on that letter - April to October.

That first one was newstart, he gets a sickness allowance one at the same time, for Jul 14- Jan 15. $6,011.35
He was in 'complete shock'. "the biggest trigger you can give to somebody" Anxiety went through the roof, pressure on performance at work #RobodebtRC

This witness never knew the debt was averaged and says the commission is the first time he has really understood it was #RobodebtRC

He sought a review in August 2018 'because it wasn't right' and he was lucky to be working for a [ahem] large corporation with a head office that has all the records. He provided all the payslips - so this is a new case study dynamic. Partial averaging/reassessment #robodebtRC

He provided the payslips for one debt, but was too exhausted to fight the second. Hope was "surely they would wipe the other one as well', if he nailed the first, more recent one #RobodebtRC

Payslips cut the second sickness allowance debt to $1,127.35. Thus making it impervious to a class action refund. Left the first one unchanged.
I was a 'little bit relieved' but 'didn't make me feel very good' 'still wrong' #RobodebtRC

I see this witness received an interest charge on the debt, for not engaging putatively. Not withdrawn on reassessment I see #RobodebtRC

On 3 June 2019, he attended the Hobart service centre to provide over 3 years of payslips. Flippin' heck. #robodebtRC He asked for a reassessment but has never received a response to it. Bizarre, even now. Last October, they threatened more recovery. And he asked again. Nada.

Class action notice August 2020. The non averaged debt is quashed. #robodebtRC

"bit of relief, but the damage had been done". Notes there was no sorry. The Sickness Allowance debt is still in place, $1100. Entrapped by an engagement he wasn't legally required to have #RobodebtRC

As a photographer for the Hobart Mercury Mr Thompson took photos of a single mum with two kids damaged by robodebt.
"I remember driving home after this meeting with this woman and being in tears"
#RobodebtRC
Notes story was pushed down a lot, online

'a lot of the jobs you do are heart-wrenching...the robodebt thing was...I just knew it was wrong" #RobodebtRC For him robodebt "has taken years off my life" "I had a heart attack as well"

Mr Thompson has been watching the commission on the youtube channel. "Scott Morrison's appearance...that night I couldn't sleep, I was that furious and wound up. I've taken a photo of him...I've taken a photo of a single mum who had a robodebt. That's what drove me" #RobodebtRC

Says he was moved by @JennyMi11374978 's testimony about Rhys. "I really struggle with how politicians talk about people like me...like a welfare cheat...hearing what politicians say makes me sad and sick" Good on you Matthew #RobodebtRC

Says he doesn't think architects of the scheme deserve to be called 'honourable' and condemns them for blaming others.
"the powerful people are always able to advantage of vulnerable people. As the gap between rich and poor increases"
#robodebtRC

Mr Thompson hopes that this Commission can change that broad social dynamic, but notes other commissions have failed before
Holmes, says 'I'm afraid I can't promise you that but we'll do what we can I suppose" Which was bit more moving than a tweet can capture #RobodebtRC

I mistyped, missed the 'take' advantage there sorry. That hit me, was in tears there to be honest, for personal reasons. That recalled something I said in 2020, so I'm happy as well as upset #robodebtRC theconversation.com/the-problem-is…

On to Ms Tozer, who receives the Fiveash email saying averaging isn't an option on January 11. She's not the primary target for responsibility as such, even I was scrambling a bit to locate her on the org chart. Let's she what she does with it. #robodebtRC

Putting this in the main thread, go well Matthew. #robodebtRC

https://twitter.com/MageeBobi/status/1630735531851280388?s=20

Tozer "It wasn't a formal legal advice from Glyn"
That's somewhat frustrating, given we've seen section 202 media release ticks in one liners literally, and email advice throughout this Commission.
She did pass the email on, notes she wasn't a subject matter expert #RobodebtRC

Once more this is a matter of Greggery KC abseiling down an email chain consisting of underlings going
FW:
Re:
Until he reaches the ground where he'll look around and see who he sees. You don't want to be seen #robodebtRC

"Acknowledging thanks Trac"
"one would have thought that someone might of [sic] asked for a legal review of letters oops"

Tozer in 2023: "my remark is a little off the cuff"
We positively encourage and welcome that here in royal commission land, Ms Tozer #robodebtRC

She gets an 'off the cuff' comment back!
"One may"...
Greggery you were wondering how this thing got started? Did you chat further?
Tozer: Don't recall, changed roles within 6 weeks...
Greggery: did you continue to talk?
Tozer: completely different team
#RobodebtRC

Greggery (innocent as a New Born Lamb KC): not even at the Water Cooler?
Tozer hits a not my circus theme.
#RobodebtRC

Greggery mentioning every event a person on the street knows, you never said anything?
Tozer: wouldn't have thought of having that conversation in my role

Do recall saying anything?
Cross paths with Fiveash?
Cross paths at conferences, meetings, corridors?
#robodebtRC

"Is there generally a sense that if you come across something outside your role..." you let it lie
Tozer: "It depends what you see"...[my focus was on what I was delivering]

Colleen could have focused on individual debts, she didn't. #robodebtRC

After that quick half hour where Greggery
(i) encouraged moral courage amongst APS executives (ii) ensured APS staff eat their lunch on their own in their offices whenever there's a controversy

Mr Scott is now resuming his discussion with Ms Musolino #robodebtRC

Looking at the "Carmody handover" when Musolino comes back to work and flagging, she says the draft instructions.
Musolino: No recollection of Ms Carmody providing documents or referring to any draft instructions
Btw Carmody spoke to AGS, it was that advanced #RobodebtRC

Email of January 11, Gladman and Carmody, copied the Chief Counsels positional inbox.
musolino: I had access to it, but I did not monitor it. I wouldn't have checked it, it was monitored by staff in her office #RobodebtRC

January 23rd email "I think I have everything that was printed"
Scott: "tends to indicate your office did in fact print everything?
Musolino: No. [reference to docs given on handover]
Scott: did that include the instructions etc
Musolino: don't recall seeing them. #robodebtRC

The draft email to Sue Kruse was handed over to Musolino. That's the one with 'best available info' etc from Kruse and Carmody's evidence. [Kruse says she never got it]. #RobodebtRC
Scott now relying on that, to ask again whether she got the draft instructions to AGS.
Denials.

Interesting moment there: for the request for legal advice that came from an Acting Secretary not to be filled, it would usually have required an Acting or full Secretary to withdraw it.
So someone failed here #RobodebtRC

They're now putting the evidence of OLSC (division of Attorney Generals) on what Musolino said to them on legals. they took her word famously, but in 2023, were willing to speak to the conversation. #RobodebtRC

Musolino cannot recall the conversation #robodebtRC

"It wasn't something I had formed a view on in January 2017"
We have arrived at conflicting evidence. Doesn't recall speaking to Ms Samios at OLSC. at all.
Says she'd never give such a warranty, but would bounce to her team #RobodebtRC

Musolino is saying that throughout january, up to 23 January 'end to end' review emails. She hadn't formed a view one way or another. #RobodebtRC

Mr Scott putting factual propositions to get the denial on the record.
"on the assumption..." questions are about securing responses to possible, not made findings. So she gets procedural fairness on all the different possible findings. #robodebtRC

Scott just testing interpretations of the emails, so for instance when Hutson says "where we have been relying on internal advice" and refers to possible AGS advice. Does that indicate awareness of Gladman stuff?
Musolino: Not how I would read it #robodebtRC

Now the Fiveash email. January 11, Deputy Counsel in the Strategy Analysis section say averaging isn't on. This is new, didn't appear in the Keeling review etc. #RobodebtRC

Musolino accepts it goes to averaging. That it says it's not lawful.

And was received by her on 23 January 2017. When she sent her All: give me everything call out #RobodebtRC

"I don't recall receiving this advice, if I could perhaps explain the process..."

#RobodebtRC

"I got a lot of responses back...I got 13 responses back...I put a process in place with my office...to collate and print and return to Mr Stepnieks and team to consider..."
#RobodebtRC

"It's not that I missed this email...it's that I wasn't reading them as I came in"
Pivot to Stepnieks. He told me what was relevant and for the Ombudsman. #RobodebtRC

No written instructions to Stepnieks, but it is clear Stepnieks was point guy on contacting the Ombo, but printing the things is weird ??!!! #RobodebtRC
Commissioner wants documents that show what Stepnieks was looking at. All we have is it going to Musolino

Pivot to Golightly as the person who said 'naw, no external legal advice'. #robodebtRC No documentary evidence for it, as it was that in person meeting invite when it went down

Now on to the National Administrative Law Conference 2017. #robodebtRC

I must ask:
why not direct the advice emails to the Chief Counsel email account you CC'ed?
Why clutter up your personal inbox, just do the call out and say 'and put it here'?
Amateur sleuthing from an academic nerd #robodebtRC

We've reached the "and you thought that Pulford 'general basis' fig leaf was better than Peter Hanks?"
I assumed it had been legally cleared in the cabinet process. #RobodebtRC

"I think it was clear that if he [Hanks] was correct there was substantial legal exposure"
"I wasn't in a position to make judgment."
Hanks paper was being considered by the 'experts in my team', I didn't receive the paper, can't recall if I ever read it in detail
#RobodebtRC

Jeez Stepnieks is getting a hammering today. "did you understand Mr Stepnieks to be an expert in administrative law?"
Musolino: I don't know if expert is the right...experienced #RobodebtRC (Like Stepnieks was straight about his skill level in his evidence)

She passes a summary to the Secretary...not something you do if it is minor. Raises the fear of media.
Scott: why not mention potential legal exposure to commonwealth?
We had no paper at this stage...
#RobodebtRC

As Scott bends to furiously reach the critical tab, Australia gets full vision of a live blogging journo typing furiously. Could hang it as an artwork @SquigglyRick

Hanks' lecture received a single dot point in a weekly report. refers to "consideration" of it.
"Can you point to any other documents where it was being analysed or considered?"
No. It was my assumption the paper would be analysed. #RobodebtRC Paper was received in Aug 2017

No paper record of Mr Stipnieks' analysis, any follow up. She falls back on weekly meetings with him on work of the team. Relied on him to raise it. "My expectation was the matter was in hand...and advice would be brought forward if it was considered appropriate" #RobodebtRC

"In hindsight I should done more...I thought I had controls in place"
She believes Stipnieks and team had it hand. they didn't express views there was a risk to get address by legal advice. Accepts she should have followed it up #robodebtRC

She does not recall, and there's no record, of them coming back to her with any view on it. #RobodebtRC
Scott: wasn't follow up essential?
Musolino: Should have done that, don't recall if I did.

"It wasn't an intentional decision not to follow up...[I was very busy]" #RobodebtRC Lunch break.

This was Matthew Thompson earlier, watch to the end for Commissioner's response, which was, at once, wholly professional and human. Realistic about limits and role but committed. #RobodebtRC

https://twitter.com/strangerous10/status/1630746273560268801?s=20

I suspect that interaction with the Commish could be the last 30 seconds of whatever documentary gets made ahead of the report release. No expert report is going to make the change that's really needed, that's on everyone. #RobodebtRC

We're back, Scott KC
"I probably did" read the Hanks article, "but I simply don't recall". Doesn't remember reading it in 2019.
Reading it now accepts it raises substantial questions #RobodebtRC

Suggestions 'for fairness'
"you did become aware in Jan of the draft instructions to AGS?"
not my recollection
"You did become aware of a specific draft advice recommending external advice?"
Not my recollection
"Knew steps had been taken to retain AGS?"
No

"I suggest you new the advice in favour of averaging was weak?"
No I was not aware of the draft Kruse email advice
"that you avoided responding to legal risk due after the 'scaring the horses' email"
No
#robodebtRC

Super suggestion levelled:
"That you failed to take any steps to advise of the weakness of a position as you knew such advice was unwanted at the Secretary level"
No
Full denials on the record. We had been waiting for the procedural fairness phase #RobodebtRC

We jump to the personal warranties to Secretary Leon now. We know the importance of these from yesterday. Let's see if she attributes any and all content to Pulford/juniors/herself #robodebtRC

"This answer reflects our view of the legal position" "This would have been drafted for me by the Programme advice team"
Scott portraying the response in the legal advice as evading the central issue.
Musolino accepts she endorsed it #RobodebtRC

Says "the pretty firm view of the legal division" and "provided sufficient information" to the Secretary and gave her assurance. Pivot to pulford, and the Pratt warranty #RobodebtRC

"It became an entrenched view...on reflection we stopped going back to threshold questions" "we took on the DSS view"
Musolino accepts as in house counsel she slid into advocacy of a departmental position not doing enough on basic advice #RobodebtRC

Musolino says she felt assured by the assurances of DSS. Note the way she is going to Pratt's letter of warranty to the Ombudsman not Pulford's 'general basis' 'last resort' legals #RobodebtRC

Hanks didn't shake her.
Scott: 'you took no steps whatsoever on what work was being done to analyse the Hanks paper"
Now to Carney. #RobodebtRC

When it comes to Carney, she had Stipnieks 'analysis' (which he insisted it was defence of a departmental position, not legal advice btw). #RobodebtRC

Can you identify 'any judicial authority' in the analyses?
No
Does it deal with the requirement for administrative decisions to be based on evidence?
No, doesn't refer specifically to what you have described #RobodebtRC

At the time I didn't realise the issue with the analysis
Scott: did you critically analyse it?
Musolino:...no I did not
SCott: did you feel it addressed all legal principles
Musolino: I accepted the advice that was given
#RobodebtRC

Commissioner: A recurring feature in all legals is a 'studious avoidance' of the Act, the provisions of the act

Statutory interpretation and legal education moments here #robodebtRC

This thing was a dysfunctional game of whispers with copy pasted policy chunks from non lawyers

Musolino accepts Commissioner position that they never "got started" with a statutory analysis.
Which is a hell of an admission for a lawyer. #robodebtRC

I'm currently like reflecting on the all the efforts by lawyers and academics to argue against this thing.

And they never looked at the Act! by their own admission now!
Well, that was time we're never getting back #RobodebtRC

Musolino on the "Carney? he confused" memo
"I think it's objective in the sense that reflects the genuinely held view, it's not coloured by any other intention but I would say it's not comprehensive, it's not detailed."
#robodebtRC

Scott now nailing the idea in house legal were advocacting a position not giving objective advice.

"I think this is an example yes" says Ms Musolino

Time to move to all lawyers are seconded from Attorney General's model? not a golden bullet for the dynamics though #RobodebtRC

Musolino says she doesn't recall saying 'best available evidence' line to Leon. It was her canard throughout all this, over and over #RobodebtRC

Musolino cannot instance any judicial authority that supports the principle of best available information

Some suggestions now.
That it was used to cover up the true weakness of the department's legal position and past failure.
Witness rejects the suggestion
#RobodebtRC

That was a howitzer of a suggestion by Scott. rejected.
Those were the closing suggestions on her actions as Chief counsel. Holmes will be the arbiter of course.

Now to her role as instructor - she moves to be Dep Secretary in charge of the programme #robodebtRC

Asked if she instructed Ensbey to manage us away from a test case
Musolino: does reject, she was looking to manage litigation risk, pivot to obligation to resolve matter in light of prospects #RobodebtRC

"A strong desire to get some definitive advice on averaging", accepted Masterton raised a significant issue right from the early March advice [big hmmm for the Ombo representation] #robodebtRC

Scott: why in March were you reluctant for a court ruling
Mussolino: Masterton's facts were bad for us "it was obvious there was an issue"

I'm like looking at my calendar marked ombo response here #RobodebtRC

Solicitor General's advice gave us control on variables and offered a 'definitive view' on the programme. So wanted to avoid public hearing #robodebtRC

Holmes the recalculation done was done on a 'specious basis' right?
Musolino: 'there was a policy called the verbal assurance policy" that "I recall seeing sometime"
Haha, oh we are accepting verbal assurances now! News to us all, there's always a policy somewhere #RobodebtRC

Needs to be marked: the concept verbal assurances were accepted is deeply offensive to the frontline reality people faced here #robodebtRC

Absolutely ferocious, shameful email from Musolino opposing counsel advice that they offer to pay Ms Masterton costs. A threat to our narrative. That's a hell of an exhibit. Wanted to chase VLA away too - discourage further challenges #RobodebtRC

Victoria Legal Aid's resources are a bloody precious resource to the vulnerable people. Very angry at this one. #RobodebtRC

VLA rejected the offer and got costs thank goodness. #robodebtRC

On to the Ombusman representation. Bit of a circle to square
"We knew there was an issue" in early March.
Leon would say she wasn't aware of their concern but, clear the lawyers were concerned from Musolino. #robodebtRC

she accepts the email 'overstated' the department's confidence
It's in the context of an advocacy 'of it not being appropriate for things to be put in the public domain'
"It was about being firm with the Ombudsman at that time."
#robodebtRC

You watching Ombudsman/OAIC/ANAO/all watchdogs?
don't assume co-operation, don't take a 'we work department's approach...'
Have your defences up and get ready to punch.
#robodebtRC

We're getting a little more on Manthorpe's proposed wording at last. he didn't intend commenting on merits. Just an observation of open question and how to handle legal doubts. #robodebtRC

They freaked at a lettuce leaf slap #robodebtRC

He said 'advice should be obtained and cited to reassure the public' not even full publication of the legals ala Solicitor General and MP eligibility. #RobodebtRC
This is even more ludicrious than I expected

We jump back to Rhy Cauzzo. We might be getting into section 202, OAIC and the release of information #RobodebtRC
And the information they released turned out not to be accurate we know now (it was an interim manual, averaged debt)

We could be here a long time on this, but I suspect Scott just wants to show how she er worked OAIC to her preferred outcome in the eventual investigation? #RobodebtRC

This witness has such extensive involvement in the timeline, I've guessed wrong, the Commission is putting interactions with the Victorian Coroner to her. #robodebtRC

This, rightly, is a priority. Let's see this timeline. #robodebtRC

Musolino says the decision to exempt documents relating to disability reflecting consultation with the Coroners' court.
Commissioner notes they wanted documents relevant to the debt, including debt recovery, including the VI aquired on earlier payments etc. #RobodebtRC

Commissioner: "what centrelink knew about his mental state could not be more critical?"
Musolino says she sent this email, after it was drafted by others, thinking it reflected consultation.
#robodebtRC

Commissioner levels the suggestion:
One view might be a desire not to provide documents
Musolino: rejects it.
#robodebtRC

"I didn't take it to be us deciding not to comply"
"fairly administrative matter"
Between senior leaders.
#robodebtRC

Mr Scott putting the signed statement of Ms Samios to Musolino. Pretty detailed, line by line
Musolino: does not recall such a conversation. #RobodebtRC

The coroners' stuff was grim. Maybe they'll follow up the Coroners' Court take on it? #RobodebtRC

Scott testing if there was a flip flop on advice relating to penalty
Commissioner: "this was politicians getting cold feet in January 2017?"
Commissioner: "it's of a piece...[with the Masterton settlement]"
Ouch. Even after a full day, she is *all over* this. #RobodebtRC

I love the fact that Holmes is such a lawyer she is just as intense about the fudgey thinking on the removal of penalty for political convenience as any other issue.

It is the law you see. It has to be done right.
#RobodebtRC

Mr Scott was ahead of time for once! Well done!!
#RobodebtRC
For the record, having to take middle managers means Mr Scott has an absolute ton of paper, trucks of it.
Mr "senior leaders and Ministers" Greggery gets checklists and Pratt dot points. And has all the fun.

Excellent capstone for the #RobodebtRC day from @CiaraEJones two great grabs that capture the day’s dynamics. Eloquence from a victim. And *that* admission of “never starting” on the law…

https://twitter.com/ciaraejones/status/1630846350584848386