Here is the stream for this morning's session, which is about to get underway:
#RobodebtRC
robodebt.royalcommission.gov.au
#RobodebtRC
robodebt.royalcommission.gov.au
Douglas Freeburn will be taking the affected witness, a Mr. Matthew Thompson.
He's 50 years old and currently lives in Tasmania. He receives the Disability Support Pension. He says he's had about 28 different casual jobs since he was 18, hospitality & journalism.
#RobodebtRC
He's 50 years old and currently lives in Tasmania. He receives the Disability Support Pension. He says he's had about 28 different casual jobs since he was 18, hospitality & journalism.
#RobodebtRC
THOMPSON: I've been in and out of mental health services in Tasmania all my life. Been diagnosed with schizophrenia, bipolar, and finally with GAD. Depending on the severity I can do some hours. Anything over 4 days a week, I start having to drink to feel human.
#RobodebtRC
#RobodebtRC
Thompson owns a 5.5 acre property in rural Tasmania, which he bought 11 or 12 years ago.
FREEBURN: You explain you live 'off the grid', what does that mean?
THOMPSON: Solar panels and a big battery bank to save money.
#RobodebtRC
FREEBURN: You explain you live 'off the grid', what does that mean?
THOMPSON: Solar panels and a big battery bank to save money.
#RobodebtRC
FREEBURN: Living off the grid has been good for your mental health?
THOMPSON: Essential. There's a push to get people on DSP to live near cities, but my anxiety means I have to medicate myself to do that.
#RobodebtRC
THOMPSON: Essential. There's a push to get people on DSP to live near cities, but my anxiety means I have to medicate myself to do that.
#RobodebtRC
FREEBURN: You worked for the Hobart Mercury?
THOMPSON: As a casual photographer. 15 of us when we started, 8 of us by the time we left. Politics, bushfires, everything that's in the newspaper.
#RobodebtRC
THOMPSON: As a casual photographer. 15 of us when we started, 8 of us by the time we left. Politics, bushfires, everything that's in the newspaper.
#RobodebtRC
FREEBURN: What was your financial situation?
THOMPSON: Casual. You're only as good as your last photograph.
F: What would life have been like without Newstart Allowance?
T: I couldn't live. I'd have had to sell the block of land. I've put $50-60k into that.
#RobodebtRC
THOMPSON: Casual. You're only as good as your last photograph.
F: What would life have been like without Newstart Allowance?
T: I couldn't live. I'd have had to sell the block of land. I've put $50-60k into that.
#RobodebtRC
THOMPSON: I don't really want to think about it, I don't know how I'd go living in poverty later on.
FREEBURN: You accessed Sickness Allowance?
T: Working very hard, sometimes 7 days a week. At the time I was living in a caravan. I vomited from stress one morning.
#RobodebtRC
FREEBURN: You accessed Sickness Allowance?
T: Working very hard, sometimes 7 days a week. At the time I was living in a caravan. I vomited from stress one morning.
#RobodebtRC
THOMPSON: Ended up in a psych ward 3 or 4 times.
FREEBURN: Did you understand your obligations in reporting income?
T: Have to declare your fortnightly income. Even on the DSP now, they'll reduce my pension.
F: You discharged those obligations?
T: Yes, I did.
#RobodebtRC
FREEBURN: Did you understand your obligations in reporting income?
T: Have to declare your fortnightly income. Even on the DSP now, they'll reduce my pension.
F: You discharged those obligations?
T: Yes, I did.
#RobodebtRC
FREEBURN: Have your mental health conditions affected your ability to engage with Centrelink?
THOMPSON: I've been on benefits since I was 20. There was more humanity and face-to-face then, now they hang up on you. Have to medicate myself a bit to go into a centre.
#RobodebtRC
THOMPSON: I've been on benefits since I was 20. There was more humanity and face-to-face then, now they hang up on you. Have to medicate myself a bit to go into a centre.
#RobodebtRC
FREEBURN: You received your initial Robodebt notice in September 2017. About an employer 'Davies Brothers Pty Ltd.'?
THOMPSON: Subsidiary of NewsCorp, own the Mercury. I was on my way to work. It just shocked me. I couldn't work properly with that in my head.
#RobodebtRC
THOMPSON: Subsidiary of NewsCorp, own the Mercury. I was on my way to work. It just shocked me. I couldn't work properly with that in my head.
#RobodebtRC
FREEBURN: No information about how the agency identified the discrepancy?
THOMPSON: No.
F: Did you provide any information to Centrelink?
T: Yes, payslips.
HOLMES: Did you get online?
T: I think I would have rung them. I don't really remember.
#RobodebtRC
THOMPSON: No.
F: Did you provide any information to Centrelink?
T: Yes, payslips.
HOLMES: Did you get online?
T: I think I would have rung them. I don't really remember.
#RobodebtRC
FREEBURN: Do you recognise this 'account payable' notice in July 2018? A debt raised regarding a period between Apr 2012 and Oct 2012. Payable by 1 August. It related to your Newstart Allowance.
THOMPSON: Yes.
F: And another debt of $6000 relating July 14/Jan 15.
#RobodebtRC
THOMPSON: Yes.
F: And another debt of $6000 relating July 14/Jan 15.
#RobodebtRC
FREEBURN: This related to your Sickness Allowance. They both included a recovery fee. You received these on the same day, coming to a total exceeding $11,000?
THOMPSON: A complete shock. If they were to go through with it, it would put me back years.
#RobodebtRC
THOMPSON: A complete shock. If they were to go through with it, it would put me back years.
#RobodebtRC
FREEBURN: What effect did it have on your mental health?
THOMPSON: From a GAD perspective it's just about the biggest trigger you can give somebody. My anxiety went through the roof, it put pressure on my performance at work. They might take it out of my wages.
#RobodebtRC
THOMPSON: From a GAD perspective it's just about the biggest trigger you can give somebody. My anxiety went through the roof, it put pressure on my performance at work. They might take it out of my wages.
#RobodebtRC
FREEBURN: Could you afford to service the debt?
THOMPSON: No. Maybe at $50 a week, for how many years that would take to pay off.
#RobodebtRC
THOMPSON: No. Maybe at $50 a week, for how many years that would take to pay off.
#RobodebtRC
FREEBURN: These debts were determined by a process of averaging your annual income over a fortnightly period. Were you aware that this is how they were calculated at the time?
THOMPSON: No.
F: You only realised in preparing for today?
T: Yes.
#RobodebtRC
THOMPSON: No.
F: You only realised in preparing for today?
T: Yes.
#RobodebtRC
HOLMES: Seems an obvious question, but you were doing different hours week to week?
THOMPSON: I had a good relationship with my manager that allowed me to vary my hours week to week according to my health. But as I said, if I don't work, I don't get paid.
#RobodebtRC
THOMPSON: I had a good relationship with my manager that allowed me to vary my hours week to week according to my health. But as I said, if I don't work, I don't get paid.
#RobodebtRC
FREEBURN: Debts were raised in respect of periods in 2012 and also 2014-15. You only provided some payslips initially for the latter period. Why not for 2012?
THOMPSON: It was a massive undertaking. I tried to prove them wrong on the 1st debt, to halve the workload.
#RobodebtRC
THOMPSON: It was a massive undertaking. I tried to prove them wrong on the 1st debt, to halve the workload.
#RobodebtRC
FREEBURN: Do you recall receiving this letter in April 2019? DHS advised that based on your payslips, they'd reduced the Sickness Allowance debt from $6k to $1k. The other debt remained unchanged.
THOMPSON: I was a little bit relieved...but it was still wrong.
#RobodebtRC
THOMPSON: I was a little bit relieved...but it was still wrong.
#RobodebtRC
FREEBURN: What was your response that the Newstart 'debt' remained unchanged?
THOMPSON: It just didn't make sense to me.
#RobodebtRC
THOMPSON: It just didn't make sense to me.
#RobodebtRC
FREEBURN: They've said to this Commission that the payslip information you provided allowed them to recalculate the debt using only verified income, and remove any averaged ATO data. Were you notified or aware of any of this at the time?
THOMPSON: No.
#RobodebtRC
THOMPSON: No.
#RobodebtRC
FREEBURN: After your Sickness Allowance debt was revised, you subsequently provided some further information on the Newstart 'debt' to Centrelink, in attending their Hobart office?
THOMPSON: More payslips. Had them all printed out on a great big set of paper.
#RobodebtRC
THOMPSON: More payslips. Had them all printed out on a great big set of paper.
#RobodebtRC
FREEBURN: Did you ask for a review?
THOMPSON: Yes.
F: To date, have you been notified of any outcome of that review?
T: No.
F: Even as of today?
T: Haven't heard anything back. They have written to me to say they were taking money out of my pension.
#RobodebtRC
THOMPSON: Yes.
F: To date, have you been notified of any outcome of that review?
T: No.
F: Even as of today?
T: Haven't heard anything back. They have written to me to say they were taking money out of my pension.
#RobodebtRC
FREEBURN: Services Australia wrote to you in August 2020 to advise you your Newstart debt had been changed to zero. What was your reaction?
THOMPSON: A bit of relief but the damage had already been done. 'We no longer do this'...wouldn't it be nice to say sorry?
#RobodebtRC
THOMPSON: A bit of relief but the damage had already been done. 'We no longer do this'...wouldn't it be nice to say sorry?
#RobodebtRC
FREEBURN: What then of your Sickness Allowance debt, was it also wiped?
THOMPSON: Reduced to $1100. A current debt that I owe them. They're charging interest as well.
#RobodebtRC
THOMPSON: Reduced to $1100. A current debt that I owe them. They're charging interest as well.
#RobodebtRC
FREEBURN: Do you know why it hasn't also been 'zeroed'?
THOMPSON: One was raised by averaging and the other one wasn't.
F: Because you gave them payslips...You didn't know at the time, why that amount would continue?
T: No.
#RobodebtRC
THOMPSON: One was raised by averaging and the other one wasn't.
F: Because you gave them payslips...You didn't know at the time, why that amount would continue?
T: No.
#RobodebtRC
THOMPSON: I still don't understand where the $1100 comes from or how.
FREEBURN: While you were working at the Mercury, you had contact with other people with Robodebts?
#RobodebtRC
FREEBURN: While you were working at the Mercury, you had contact with other people with Robodebts?
#RobodebtRC
THOMPSON: Yes. I worked on a story about a single mother of three kids in Hobart. She was really stressed and panicked, very difficult to hear. Takes quite a bit of courage to put your face on the Mercury. It was an online story, it got pushed down.
#RobodebtRC
#RobodebtRC
THOMPSON: I was in tears a lot of the time. Bushfires, refugee stories, you just want to hug them. The Robodebt stories, I just knew they were wrong.
FREEBURN: Your own debt gave you appreciation of that mother's situation?
T: It wasn't a very good work day.
#RobodebtRC
FREEBURN: Your own debt gave you appreciation of that mother's situation?
T: It wasn't a very good work day.
#RobodebtRC
FREEBURN: How has your Robodebt experience affected you in general?
THOMPSON: It's taken years off my life. I had a heart attack as well. It's had a massive effect on me.
F: What's motivated you to come here?
T: I've been watching on the YouTube channel.
#RobodebtRC
THOMPSON: It's taken years off my life. I had a heart attack as well. It's had a massive effect on me.
F: What's motivated you to come here?
T: I've been watching on the YouTube channel.
#RobodebtRC
THOMPSON: I watched Scott Morrison's appearance. I was so furious I couldn't sleep. I've taken his photo before, I've taken photos of that single mum with the Robodebt. I was really moved by @JennyMi11374978's testimony about her poor son.
#RobodebtRC
#RobodebtRC
THOMPSON: I've known 4 people who've taken their lives. This took people's lives. It really messed me up, it contributed to my heart attack. It made me feel like a criminal and a cheat. Council was threatening me with a big fine at the time as well.
#RobodebtRC
#RobodebtRC
THOMPSON: I really struggle hearing politicians talking about this, it makes me feel like a welfare cheat. I was particularly offended by Alan Tudge's comments that you'd be tracked down and end up in prison. I'm still being hunted down for the SA debt.
#RobodebtRC
#RobodebtRC
THOMPSON: When politicians are called here, they're referred to as 'the Honourable'. I don't think they are honourable. People died. They continue to blame others. Robodebt made me feel ashamed. The powerful people are always able to take advantage of the vulnerable.
#RobodebtRC
#RobodebtRC
Matthew Thompson is excused.
I am through the roof that he still has a debt that they are actively pursuing.
Tracey Tozer is the next witness, affirmed to answer Justin Greggery KC.
#RobodebtRC
I am through the roof that he still has a debt that they are actively pursuing.
Tracey Tozer is the next witness, affirmed to answer Justin Greggery KC.
#RobodebtRC
She is listed as the Director, Technology Business Services Branch at DHS. She was responsible for the WPIT program, as she explains, the recipient of the email from Glyn Fiveash we saw yesterday.
#RobodebtRC
#RobodebtRC
GREGGERY: I take it you didn't have any direct involvement in the OCI scheme, in your role?
TOZER: Not in my role, but a number of large governance committees that were discussion it. I wouldn't attend those at my level.
#RobodebtRC
TOZER: Not in my role, but a number of large governance committees that were discussion it. I wouldn't attend those at my level.
#RobodebtRC
GREGGERY: You worked nearby to Mr. Fiveash, and for some time?
TOZER: Over the previous 12 months. We discussed relevant issues quite often. Working on transforming the welfare payment system.
G: Design also looked at recovery of overpayments?
T: No, delivering.
#RobodebtRC
TOZER: Over the previous 12 months. We discussed relevant issues quite often. Working on transforming the welfare payment system.
G: Design also looked at recovery of overpayments?
T: No, delivering.
#RobodebtRC
GREGGERY: Did you know Paul Menzies-McVey?
TOZER: I knew of his name. We always kept an eye on SES moves so we knew who was around in the agency.
G: Would emails go around about this?
T: A weekly announcement from the Secretary, updated structure charts.
#RobodebtRC
TOZER: I knew of his name. We always kept an eye on SES moves so we knew who was around in the agency.
G: Would emails go around about this?
T: A weekly announcement from the Secretary, updated structure charts.
#RobodebtRC
GREGGERY: Did you know Sue Kruse?
TOZER: She had worked in the WPIT program at a previous time, not sure what dates.
#RobodebtRC
TOZER: She had worked in the WPIT program at a previous time, not sure what dates.
#RobodebtRC
GREGGERY: Fiveash forwarded M-M's email on averaging to you on 9 January 2017, and you send it on to John Kilner and Jason Kallus?
TOZER: Managers in the business transformation area.
G: Recall any response from either of them to this email?
T: I don't.
#RobodebtRC
TOZER: Managers in the business transformation area.
G: Recall any response from either of them to this email?
T: I don't.
#RobodebtRC
GREGGERY: Mr. Fiveash then emails you on 11 Jan giving a brief advice relating to Kruses questions. The advice is that averaging can not be used retrospectively to calculate entitlements. Did that cause you some concern?
TOZER: It wasn't a formal legal advice.
#RobodebtRC
TOZER: It wasn't a formal legal advice.
#RobodebtRC
TOZER: To me, it was a brief overview of what Glyn's thoughts were on averaging.
GREGGERY: Which were that averaging was not legitimate.
T: I passed it on. I wasn't a subject matter expert.
G: How did you come to ask for his thoughts?
T: Jason Kallus wanted them.
#RobodebtRC
GREGGERY: Which were that averaging was not legitimate.
T: I passed it on. I wasn't a subject matter expert.
G: How did you come to ask for his thoughts?
T: Jason Kallus wanted them.
#RobodebtRC
GREGGERY: Might have been related to the issues being raised in the media?
TOZER: It might have, yes.
[Tozer then forwards Fiveash's 'legal overview' to all sorts of business design people, including in the Single Touch Payroll project]
#RobodebtRC
TOZER: It might have, yes.
[Tozer then forwards Fiveash's 'legal overview' to all sorts of business design people, including in the Single Touch Payroll project]
#RobodebtRC
GREGGERY: Was Mr. Kallus in close proximity to you?
TOZER: He was based in Newcastle. Whether he was in Canberra at the time acting as Manager I can't recall.
['Thx Trace!', this must be the 4,000th email in evidence that says some variation of this.]
#RobodebtRC
TOZER: He was based in Newcastle. Whether he was in Canberra at the time acting as Manager I can't recall.
['Thx Trace!', this must be the 4,000th email in evidence that says some variation of this.]
#RobodebtRC
[Tozer then writes 'one would of[sic] thought that someone might of[sic] asked for a legal review of letters oops!']
HOLMES: An off-the-cuff remark, but it was pretty acute...
TOZER: I don't recall why I made that remark.
[Oops!]
#RobodebtRC
HOLMES: An off-the-cuff remark, but it was pretty acute...
TOZER: I don't recall why I made that remark.
[Oops!]
#RobodebtRC
GREGGERY: Mr. Kallus responds with an off-the-cuff comment of his own. You're both wondering how this scheme was started, if Mr. Fiveash was correct?
TOZER: I don't recall.
G: Did you continue to talk to Mr. Fiveash about his perspective?
T: Moved to another team.
#RobodebtRC
TOZER: I don't recall.
G: Did you continue to talk to Mr. Fiveash about his perspective?
T: Moved to another team.
#RobodebtRC
GREGGERY: So, did you continue to discuss it with him in light of the media pressure?
TOZER: A completely different team.
G: Which you didn't move to for some weeks. Any water cooler chat about Musolino?
T: I don't recall.
#RobodebtRC
TOZER: A completely different team.
G: Which you didn't move to for some weeks. Any water cooler chat about Musolino?
T: I don't recall.
#RobodebtRC
GREGGERY: It seems that for years you were aware that at least one internal advice was contrary to what the agency was saying publicly about the scheme, didn't strike you as odd?
TOZER: It's a large agency, I may have read media, but wasn't directly involved.
#RobodebtRC
TOZER: It's a large agency, I may have read media, but wasn't directly involved.
#RobodebtRC
GREGGERY: The Department defending it in public very strongly. Two court cases in the end. Did you become aware of the class action?
TOZER: I would have read some external media.
G: Any conversations with anyone then? Mr. Fiveash?
T: Don't believe I did.
#RobodebtRC
TOZER: I would have read some external media.
G: Any conversations with anyone then? Mr. Fiveash?
T: Don't believe I did.
#RobodebtRC
GREGGERY: Did you at any point think whether you should discuss this with anyone more senior?
TOZER: I didn't see it as my role. The legal branch and compliance branch were looking at it. Not my role.
#RobodebtRC
TOZER: I didn't see it as my role. The legal branch and compliance branch were looking at it. Not my role.
#RobodebtRC
GREGGERY: Is there a sense that if you come across something outside your role, that appears a bit off, you just leave it?
TOZER: It depends what you see. If something came up in my area I would bring it up with my Manager.
#RobodebtRC
TOZER: It depends what you see. If something came up in my area I would bring it up with my Manager.
#RobodebtRC
Ms. Tozer is excused.
With that, they decide to take the morning recess.
The Royal Commission into the Robodebt scheme will be back soon.
#RobodebtRC
With that, they decide to take the morning recess.
The Royal Commission into the Robodebt scheme will be back soon.
#RobodebtRC
Let me be very fucking clear: this is a Robodebt, and Services Australia are still pursuing it. They have been caught red-handed.
They still have not provided an explanation of Mr. Thompson's debt, which it is likely he simply does not owe.
#RobodebtRC
They still have not provided an explanation of Mr. Thompson's debt, which it is likely he simply does not owe.
https://twitter.com/maximumwelfare/status/1630729607325564928
#RobodebtRC
The Royal Commission has returned.
Angus Scott KC to question Annette Musolino, who is making another appearance.
The former Chief Counsel at DHS, and the Chief Operating Officer at Services Australia, who are the agency currently pursuing Mr. Thompson's Robodebt.
#RobodebtRC
Angus Scott KC to question Annette Musolino, who is making another appearance.
The former Chief Counsel at DHS, and the Chief Operating Officer at Services Australia, who are the agency currently pursuing Mr. Thompson's Robodebt.
#RobodebtRC
SCOTT: Since the last occasion, we've heard this draft advice to Sue Kruse was the product of a request from acting DHS Secretary Jackson in early 2017. Mr. Gladman formed the view the arguments that supported averaging were weak, and that AGS advice was necessary.
#RobodebtRC
#RobodebtRC
MUSOLINO: I have no recollection of Kruse providing me this advice or conveying that AGS advice was necessary.
SCOTT: Any recollection of any discussions with her? That Gladman thought the arguments were weak?
M: No.
#RobodebtRC
SCOTT: Any recollection of any discussions with her? That Gladman thought the arguments were weak?
M: No.
#RobodebtRC
SCOTT: This email from Gladman of the draft instructions was sent to the Chief Counsel's email address. Would you have seen it on your return from leave?
MUSOLINO: I don't recall seeing that email or checking that inbox on my return.
#RobodebtRC
MUSOLINO: I don't recall seeing that email or checking that inbox on my return.
#RobodebtRC
[Morton predicted she would do this earlier]
SCOTT: Would it be usual for a document like this t be printed by your office for your return from leave?
MUSOLINO: It would depend on the circumstances. They may have thought it was dealt with by the time I returned.
#RobodebtRC
SCOTT: Would it be usual for a document like this t be printed by your office for your return from leave?
MUSOLINO: It would depend on the circumstances. They may have thought it was dealt with by the time I returned.
#RobodebtRC
SCOTT: It was a matter of some significant media attention that had occupied the Legal Services Division for some time. Given those circumstances?
MUSOLINO: It would depend on the circumstances...I don't recall it being given to me or discussed with me.
[Hmmmmmmmm]
#RobodebtRC
MUSOLINO: It would depend on the circumstances...I don't recall it being given to me or discussed with me.
[Hmmmmmmmm]
#RobodebtRC
SCOTT: An email chain begun by you requesting legal advices, internal or external, regarding debt recovery of overpayments?
MUSOLINO: Yes.
S: Carmody responds - 'does this include the work I did as acting CC from 9-13 Jan?' Would that indicate it was printed?
#RobodebtRC
MUSOLINO: Yes.
S: Carmody responds - 'does this include the work I did as acting CC from 9-13 Jan?' Would that indicate it was printed?
#RobodebtRC
MUSOLINO: That's not how I read that.
SCOTT: Would you expect it would be provided to you in the documents you got during the handover?
M: I don't know.
S: Do you accept that it was?
M: I don't, no.
#RobodebtRC
SCOTT: Would you expect it would be provided to you in the documents you got during the handover?
M: I don't know.
S: Do you accept that it was?
M: I don't, no.
#RobodebtRC
HOLMES: Do you have access the Chief Counsel account? Have you searched for it?
MUSOLINO: I primarily looked in my personal account.
H: So if you'd looked hard enough, you would've found it?
M: If I looked and looked...
H: Would you not have thought to?
#RobodebtRC
MUSOLINO: I primarily looked in my personal account.
H: So if you'd looked hard enough, you would've found it?
M: If I looked and looked...
H: Would you not have thought to?
#RobodebtRC
MUSOLINO: I was relying on what I could get access to at time of preparing my first statement. It simply wasn't identified by me and didn't come up in those services.
HOLMES: Did you search 'averaging'?
M: Robodebt, OCI, and a variety of terms. Lots of material.
#RobodebtRC
HOLMES: Did you search 'averaging'?
M: Robodebt, OCI, and a variety of terms. Lots of material.
#RobodebtRC
SCOTT: You were provided this document by Lisa Carmody on the handover?
MUSOLINO: Yes.
S: It's quite obviously not an email to yourself...it's a draft email that was never sent. How did you identify it?
M: I believe a manual search of paper-based records
#RobodebtRC
MUSOLINO: Yes.
S: It's quite obviously not an email to yourself...it's a draft email that was never sent. How did you identify it?
M: I believe a manual search of paper-based records
#RobodebtRC
SCOTT: How did it come into your possession?
MUSOLINO: I believe it was handed to me in the handover. It may also have been emailed.
S: Not prepared to accept that you were provided anything else?
M: I couldn't find anything else.
S: I suggest you were given it.
#RobodebtRC
MUSOLINO: I believe it was handed to me in the handover. It may also have been emailed.
S: Not prepared to accept that you were provided anything else?
M: I couldn't find anything else.
S: I suggest you were given it.
#RobodebtRC
MUSOLINO: I don't think I was.
SCOTT: You were made aware of a recommendation within the Legal Services Division to obtain advice from the AGS at the handover on 16 January 2017, and made aware draft instructions were prepared.
M: That's not my recollection.
#RobodebtRC
SCOTT: You were made aware of a recommendation within the Legal Services Division to obtain advice from the AGS at the handover on 16 January 2017, and made aware draft instructions were prepared.
M: That's not my recollection.
#RobodebtRC
SCOTT: Do you accept that for that advice not to be completed, it would have to be withdrawn by the acting Secretary or Secretary?
MUSOLINO: Yes.
S: And you can't explain how you weren't aware of it?
M: I have no recollection. I couldn't find it.
#RobodebtRC
MUSOLINO: Yes.
S: And you can't explain how you weren't aware of it?
M: I have no recollection. I couldn't find it.
#RobodebtRC
SCOTT: You would expect that Kruse would have communicated the existence of the request in her handover when Jonathan Hutson returned?
MUSOLINO: Yes.
S: The Commission has received evidence the request was hand-delivered to Kruse, would that then go to Golightly?
#RobodebtRC
MUSOLINO: Yes.
S: The Commission has received evidence the request was hand-delivered to Kruse, would that then go to Golightly?
#RobodebtRC
MUSOLINO: Y-yes.
SCOTT: And if that was the case, the recommendation to seek AGS advice would go to Ms. Golightly?
M: Yes. I follow, yes.
S: That would be consistent with usual practice?
M: Yes.
#RobodebtRC
SCOTT: And if that was the case, the recommendation to seek AGS advice would go to Ms. Golightly?
M: Yes. I follow, yes.
S: That would be consistent with usual practice?
M: Yes.
#RobodebtRC
[We are looking at some handwritten notes from 17 February 2023.]
SCOTT: Not contemporaneous, but it's a file note recounting a conversation in Jan 2017 between yourself Sara Samios at the OLSC (Attorney-General's Department). 'No legal issues' was the takeaway.
#RobodebtRC
SCOTT: Not contemporaneous, but it's a file note recounting a conversation in Jan 2017 between yourself Sara Samios at the OLSC (Attorney-General's Department). 'No legal issues' was the takeaway.
#RobodebtRC
SCOTT: You're familiar with the obligation to report to that office under the Legal Services Directions? In particular, where there's a significant legal issue?
MUSOLINO: Yes.
S: And given the significant media interest, doesn't that indicate a reportable issue?
#RobodebtRC
MUSOLINO: Yes.
S: And given the significant media interest, doesn't that indicate a reportable issue?
#RobodebtRC
MUSOLINO: It may have. It wasn't something that I'd formed a view on by then. If I'd been asked this by Ms. Samios, and I don't recall speaking with her at all, my practice would have been to seek advice. I don't believe I would have given this response.
#RobodebtRC
#RobodebtRC
[I'm very sure someone who currently works in the Attorney-General's office has completely made up evidence to a Royal Commission. Thank you, Ms. Musolino.]
SCOTT: On the assumption you did say this to her, that was false?
MUSOLINO: I don't accept that I did.
#RobodebtRC
SCOTT: On the assumption you did say this to her, that was false?
MUSOLINO: I don't accept that I did.
#RobodebtRC
MUSOLINO: If I had, I hadn't formed a view on the legality on that stage.
SCOTT: The lawfulness of averaging was clearly a live issue by the time you returned from leave. Mr. Gladman says the arguments in favour were weak, and you had to approach AGS.
#RobodebtRC
SCOTT: The lawfulness of averaging was clearly a live issue by the time you returned from leave. Mr. Gladman says the arguments in favour were weak, and you had to approach AGS.
#RobodebtRC
SCOTT: Your email here on 23 Jan to Mr. Stipnieks, which you say was completely independent of awareness of Gladman's instructions, recommended external legal advice be obtained?
MUSOLINO: Yes.
S: So you were all aware of it?
#RoboebtRC
MUSOLINO: Yes.
S: So you were all aware of it?
#RoboebtRC
HOLMES: Ms. Golightly makes the statement 'not sure we need formal external advice just yet', doesn't that suggest she's seen Gladman's advice?
MUSOLINO: I don't know what she was referring to. It may have been. I can't shed any light on that, sorry.
#RobodebtRC
MUSOLINO: I don't know what she was referring to. It may have been. I can't shed any light on that, sorry.
#RobodebtRC
SCOTT: 21 Jan email from Hutson, 'Fwd: Weekend Top Stories'. 'Do you think we may need the reassurance of AGS'? Did you all understand draft instructions were in existence?
MUSOLINO: Not my understanding. If we were doing end-to-end review, would have gone to AGS.
#RobodebtRC
MUSOLINO: Not my understanding. If we were doing end-to-end review, would have gone to AGS.
#RobodebtRC
SCOTT: 11 Jan email from Mr. Fiveash to Tracy Tozer. Do you accept that would appear to be a brief email advice on lawfulness of averaging?
MUSOLINO: It goes to that issue.
S: And it says that it isn't lawful to use in calculating entitlements?
M: Yes.
#RobodebtRC
MUSOLINO: It goes to that issue.
S: And it says that it isn't lawful to use in calculating entitlements?
M: Yes.
#RobodebtRC
SCOTT: It went to your Chief Counsel email, in the context of the work that was being done by the Legal Services Division on the lawfulness of averaging?
MUSOLINO: Yes.
S: In those circumstances, you must recall receiving this advice?
M: I don't recall that.
#RobodebtRC
MUSOLINO: Yes.
S: In those circumstances, you must recall receiving this advice?
M: I don't recall that.
#RobodebtRC
MUSOLINO: I sent out a request to all General Counsels. I got a lot of responses back on the first day, around 13 which had substantial attachments. I put in place a process for Stipnieks and his branch to consider and collate advices.
#RobodebtRC
#RobodebtRC
SCOTT: You simply missed this email?
MUSOLINO: Not just that I missed this email, I wasn't reading them as they can be. Stipnieks got back to me with advices he considered relevant for the Ombudsman. It's apparent from emails he was delegated that task.
#RobodebtRC
MUSOLINO: Not just that I missed this email, I wasn't reading them as they can be. Stipnieks got back to me with advices he considered relevant for the Ombudsman. It's apparent from emails he was delegated that task.
#RobodebtRC
MUSOLINO: The process was that advice were to be printed and provided to Mr. Stipnieks.
HOLMES: Is there some documentation to show us exactly what he was looking at?
M: I don't think there is, can only see what he came back to me with.
#RobodebtRC
HOLMES: Is there some documentation to show us exactly what he was looking at?
M: I don't think there is, can only see what he came back to me with.
#RobodebtRC
SCOTT: In any event, external legal advice was not sought, despite the request of advice from the acting Secretary.
MUSOLINO: That's correct. Despite the fact I'd recommended the end-to-end legal review.
S: Suggests a conscious decision, doesn't it?
#RobodebtRC
MUSOLINO: That's correct. Despite the fact I'd recommended the end-to-end legal review.
S: Suggests a conscious decision, doesn't it?
#RobodebtRC
MUSOLINO: That's ultimately a question for Malisa Golightly. She also didn't accept my recommendation for end-to-end review.
SCOTT: Communicated that decision to you?
M: I believe she did. I can't tell you the date or time, but it's my belief we had a conversation.
#RobodebtRC
SCOTT: Communicated that decision to you?
M: I believe she did. I can't tell you the date or time, but it's my belief we had a conversation.
#RobodebtRC
SCOTT: To the series of emails between Stipnieks and yourself, Bevan Hannan and Cathy Sear reporting on what was said by Peter Hanks at the AIAL conference in July 2017. He was quite critical of the Robodebt scheme, including that it wasn't consistent with SS law.
#RobodebtRC
#RobodebtRC
SCOTT: He was also critical of the Ombudsman's failure to ask that question. You're familiar with Mr. Hanks, an eminent silk, popular admin law textbook?
MUSOLINO: Yes.
S: An opinion from a silk with those credentials was a serious matter?
M: Yes.
#RobodebtRC
MUSOLINO: Yes.
S: An opinion from a silk with those credentials was a serious matter?
M: Yes.
#RobodebtRC
SCOTT: Identified to you here Hanks suggested someone should look to test the matter in the Federal Court?
MUSOLINO: Yes.
S: You weren't aware of any formal independent legal advices on the lawfulness of averaging?
M: No. I believed Cabinet had seen legal advice.
#RobodebtRC
MUSOLINO: Yes.
S: You weren't aware of any formal independent legal advices on the lawfulness of averaging?
M: No. I believed Cabinet had seen legal advice.
#RobodebtRC
SCOTT: Assumption you made on an email from Mr. de Burgh, made no explicit mention of such an advice?
MUSOLINO: Contextual information he'd provided.
S: An email where he identified that DSS had 2014 advice that it was unlawful?
M: And explanation of 2017 advice.
#RobodebtRC
MUSOLINO: Contextual information he'd provided.
S: An email where he identified that DSS had 2014 advice that it was unlawful?
M: And explanation of 2017 advice.
#RobodebtRC
SCOTT: The 2017 advice didn't deal with averaging, it was on 'last resort'. To put it bluntly, in involved some pretty weak legal analysis?
MUSOLINO: I can see that now, yes.
HOLMES: You could have found out why DSS had made that change?
M: I could have.
#RobodebtRC
MUSOLINO: I can see that now, yes.
HOLMES: You could have found out why DSS had made that change?
M: I could have.
#RobodebtRC
MUSOLINO: I could have asked a lot more questions, knowing what I know now. I accepted what I was being told, and that was - I was wrong.
SCOTT: By that stage it was clear the Commonwealth faced substantial legal exposure from the use of averaging?
M: If correct.
#RobodebtRC
SCOTT: By that stage it was clear the Commonwealth faced substantial legal exposure from the use of averaging?
M: If correct.
#RobodebtRC
SCOTT: You weren't in a position to say his arguments had no merit, were you?
MUSOLINO: No, not based on this material.
S: You subsequently read his paper?
M: It was received by us, and considered by the experts in my team. I don't recall if I read it.
#RobodebtRC
MUSOLINO: No, not based on this material.
S: You subsequently read his paper?
M: It was received by us, and considered by the experts in my team. I don't recall if I read it.
#RobodebtRC
HOLMES: Headed by Mr. Stipnieks?
MUSOLINO: Yes.
SCOTT: Did you understand him to be an expert in admin law?
M: Highly qualified in social security law. I understood him to be experienced in admin law.
S: What expertise did you understand him to have in admin law?
#RobodebtRC
MUSOLINO: Yes.
SCOTT: Did you understand him to be an expert in admin law?
M: Highly qualified in social security law. I understood him to be experienced in admin law.
S: What expertise did you understand him to have in admin law?
#RobodebtRC
MUSOLINO: Long history in DHS and preceding master programs.
SCOTT: Did that experience include the lawfulness of administrative decision-making?
M: Based on his experience and exposure and what he was dealing with.
S: What did you base that on?
M: His seniority.
#RobodebtRC
SCOTT: Did that experience include the lawfulness of administrative decision-making?
M: Based on his experience and exposure and what he was dealing with.
S: What did you base that on?
M: His seniority.
#RobodebtRC
SCOTT: This email from yourself to the Secretary on 20 July includes a summary of Mr. Hanks' talk.
MUSOLINO: Yes.
S: Including lawfulness regarding averaging, that someone should look to challenge the program in court?
M: Yes.
#RobodebtRC
MUSOLINO: Yes.
S: Including lawfulness regarding averaging, that someone should look to challenge the program in court?
M: Yes.
#RobodebtRC
SCOTT: You discuss whether it will be picked up in the media, monitoring social media. Why didn't you mention the potential legal exposure to the Commonwealth?
MUSOLINO: At this stage I didn't have any information that I needed to provide advice of that nature.
#RobodebtRC
MUSOLINO: At this stage I didn't have any information that I needed to provide advice of that nature.
#RobodebtRC
SCOTT: If true, it was a substantial legal risk!
MUSOLINO: Yes.
S: Why wouldn't you acknowledge that in this email?
M: A heads-up email, I hadn't formed a view. I didn't turn my mind to the impacts at that point.
HOLMES: You identify they're not new criticisms...
#RobodebtRC
MUSOLINO: Yes.
S: Why wouldn't you acknowledge that in this email?
M: A heads-up email, I hadn't formed a view. I didn't turn my mind to the impacts at that point.
HOLMES: You identify they're not new criticisms...
#RobodebtRC
SCOTT: The extent of what you did in response to the AIAL conference is in your statement. You refer to a 27 July 2017 email from Stipnieks to Nicole Clark, with some dot points.
[We're taken to the email, 'Programme Advice & Privacy dot points']
#RobodebtRC
[We're taken to the email, 'Programme Advice & Privacy dot points']
#RobodebtRC
MUSOLINO: This system allowed me to keep across the breadth of the work of the Legal Division, informing me what was going on in the branches, anything I needed to escalate.
SCOTT: The last dot point is 'OCI related issues following Hanks' AIAL conference lecture'.
#RobodebtRC
SCOTT: The last dot point is 'OCI related issues following Hanks' AIAL conference lecture'.
#RobodebtRC
SCOTT: A week after the conference. To your knowledge, was anything else done by the LSD in relation to Mr. Hanks' presentation in relation to this matter?
MUSOLINO: The papers from the conference came in on 18 August. I believe they were analysed and considered.
#RobodebtRC
MUSOLINO: The papers from the conference came in on 18 August. I believe they were analysed and considered.
#RobodebtRC
SCOTT: Can you point to any document indicating you were advised it was being analysed and considered?
MUSOLINO: No. That would be my assumption. It's my view they would have been considered, and any matters brought to my attention.
S: Any follow-up email?
M: No.
#RobodebtRC
MUSOLINO: No. That would be my assumption. It's my view they would have been considered, and any matters brought to my attention.
S: Any follow-up email?
M: No.
#RobodebtRC
SCOTT: As far as you're concerned, unless Mr. Stipnieks specifically raised this with you in following meetings, there was nothing to follow up?
MUSOLINO: I could have done more follow-up.
S: Wasn't it your duty to do that as Chief Counsel?
M: I should have, yes.
#RobodebtRC
MUSOLINO: I could have done more follow-up.
S: Wasn't it your duty to do that as Chief Counsel?
M: I should have, yes.
#RobodebtRC
SCOTT: Given the summary of what he had said at the conference, wasn't it obviously essential that you follow up with Mr. Stipnieks and his team to ascertain what analysis had been done?
MUSOLINO: I don't recall doing that. I should have. It would have been prudent.
#RobodebtRC
MUSOLINO: I don't recall doing that. I should have. It would have been prudent.
#RobodebtRC
SCOTT: Can you think of any reason not to follow up with him?
MUSOLINO: It wasn't an intentional decision not to do so. It was on the radar. A lot of issues at the time. He was very responsive in terms of following up on matters. I didn't believe I had to.
#RobodebtRC
MUSOLINO: It wasn't an intentional decision not to do so. It was on the radar. A lot of issues at the time. He was very responsive in terms of following up on matters. I didn't believe I had to.
#RobodebtRC
The Royal Commission has adjourned for lunch.
They will only take an hour today, given the volume of questions remaining for Annette Musolino.
#RobodebtRC
They will only take an hour today, given the volume of questions remaining for Annette Musolino.
#RobodebtRC
While you've got a minute, please read Oliver's story, told to SBS of being ordered by @APM_Au to ride a bike five hours into Hobart to do Work for the Dole.
#RobodebtRC
#RobodebtRC
https://twitter.com/Chocobalt/status/1630734007230140416?s=20
[The Royal Commission has returned.]
SCOTT: You became aware on January 2017 upon your return from leave of the draft instructions to the AGS?
MUSOLINO: That's not my recollection.
robodebt.royalcommission.gov.au
#RobodebtRC
SCOTT: You became aware on January 2017 upon your return from leave of the draft instructions to the AGS?
MUSOLINO: That's not my recollection.
robodebt.royalcommission.gov.au
#RobodebtRC
SCOTT: You were aware of the need to seek advice from AGS. It was apparent to you from the draft advice prepared within the LSD, that the arguments in favour of averaging were weak.
MUSOLINO: No.
#RobodebtRC
MUSOLINO: No.
#RobodebtRC
SCOTT: You were careful to avoid acknowledging that weakness, in reponse to Golightly's email about 'scaring the horse', because you knew that advice was unwanted by her.
MUSOLINO: No.
#RobodebtRC
MUSOLINO: No.
#RobodebtRC
SCOTT: Would've made it more difficult for the Secretary to explain why she didn't get legal advice, if you'd communicated that?
MUSOLINO: No.
S: It was obvious to you that had it been obtained, there was a high chance it would confirm averaging unlawful?
M: No.
#RobodebtRC
MUSOLINO: No.
S: It was obvious to you that had it been obtained, there was a high chance it would confirm averaging unlawful?
M: No.
#RobodebtRC
SCOTT: Do you recall advising then-Secretary Leon on this September 2017 AAT case, decided by the same tribunal member as we discussed last time, in early March 2017? It comes to the same conclusion?
MUSOLINO: It appears to follow that same reasoning, yes.
#RobodebtRC
MUSOLINO: It appears to follow that same reasoning, yes.
#RobodebtRC
SCOTT: This email from you on 6 March 2018 to the Secretary deals with that same September 2017 decision?
MUSOLINO: Yes.
[She is having a quick read of the decision.]
#RobodebtRC
MUSOLINO: Yes.
[She is having a quick read of the decision.]
#RobodebtRC
SCOTT: It's addressed to the Secretary?
MUSOLINO: The Secretary's positional inbox.
S: It's addressed to the Secretary in the body of the email...the first point says the Secretary has asked for a copy of the decision we've been discussing.
#RobodebtRC
MUSOLINO: The Secretary's positional inbox.
S: It's addressed to the Secretary in the body of the email...the first point says the Secretary has asked for a copy of the decision we've been discussing.
#RobodebtRC
SCOTT: Secretary asks whether an error had been made. You say no error was made by the Department. You articulate the reasons, but don't at any stage identify the principle of admin law that decisions be based in evidence?
MUSOLINO: It doesn't, no.
S: It's central.
#RobodebtRC
MUSOLINO: It doesn't, no.
S: It's central.
#RobodebtRC
SCOTT: Given the question you were asked, and the criticism made by the Tribunal regarding the reliance on averaging, it required an examination of that principle, did it not?
MUSOLINO: It reflects our view that we didn't agree with the reasoning in the decision.
#RobodebtRC
MUSOLINO: It reflects our view that we didn't agree with the reasoning in the decision.
#RobodebtRC
SCOTT: Why not even address the relevant legal principle, in this advice?
MUSOLINO: It's a summary. It's not comprehensive. It effectively summarises the position of the LSD that averaging was sufficiently probative.
#RobodebtRC
MUSOLINO: It's a summary. It's not comprehensive. It effectively summarises the position of the LSD that averaging was sufficiently probative.
#RobodebtRC
SCOTT: It's your advice, isn't it? You had to be satisfied it was legally correct?
MUSOLINO: Yes. I was satisfied.
SCOTT: Even though you knew there's no discussion of the relevant legal principle. Surely you would analyse that, in response to the Secretary?
#RobodebtRC
MUSOLINO: Yes. I was satisfied.
SCOTT: Even though you knew there's no discussion of the relevant legal principle. Surely you would analyse that, in response to the Secretary?
#RobodebtRC
SCOTT: If you were to properly advise the Secretary, you would have to identify the error found to exist by the tribunal.
MUSOLINO: Our position was that no error like double-counting was made. We were applying the scheme as designed.
#RobodebtRC
MUSOLINO: Our position was that no error like double-counting was made. We were applying the scheme as designed.
#RobodebtRC
HOLMES: How did the the LSD get to a firm view, by March 2018, that averaging was suitable to raise debts?
MUSOLINO: By March we'd received what I considered firm advice from DSS, and it became entrenched.
H: You just took on the DSS view?
M: I think we did.
#RobodebtRC
MUSOLINO: By March we'd received what I considered firm advice from DSS, and it became entrenched.
H: You just took on the DSS view?
M: I think we did.
#RobodebtRC
MUSOLINO: I reflect that we were doing a lot of advocating, and not doing enough to go back to basics when those issues were raised.
HOLMES: You say Department's put in place measures to reduce risks associated with averaging?
M: It was known it was inaccurate.
#RobodebtRC
HOLMES: You say Department's put in place measures to reduce risks associated with averaging?
M: It was known it was inaccurate.
#RobodebtRC
MUSOLINO: Gave customers more opportunity to contact us, our staff were using coercive notices to employers etc more often.
HOLMES: There's nothing that would stop that risk, though?
M: We thought it was lawful, but it was readily displaced by other information.
#RobodebtRC
HOLMES: There's nothing that would stop that risk, though?
M: We thought it was lawful, but it was readily displaced by other information.
#RobodebtRC
SCOTT: You said the view was entrenched, did you hold that view yourself?
MUSOLINO: I felt very assured by the assurances of DSS. It was a blunt statement from the Secretary of DSS. In retrospect, I think we overly relied on it. Lawyers didn't raise other views...
#RobodebtRC
MUSOLINO: I felt very assured by the assurances of DSS. It was a blunt statement from the Secretary of DSS. In retrospect, I think we overly relied on it. Lawyers didn't raise other views...
#RobodebtRC
SCOTT: You retained that level of assurance, notwithstanding taking no steps to follow up with Stipnieks on work being done on Mr. Hanks paper?
MUSOLINO: I believed they would have been raised with me. They weren't.
#RobodebtRC
MUSOLINO: I believed they would have been raised with me. They weren't.
#RobodebtRC
SCOTT: Aree that Prof. Carney's article quite strongly argued that averaging was unlawful?
MUSOLINO: Yes.
S: Notwithstanding his arguments, you retained your level of assurance?
M: Lawyers looking at article and analysing it, provided that to me. No red flags.
#RobodebtRC
MUSOLINO: Yes.
S: Notwithstanding his arguments, you retained your level of assurance?
M: Lawyers looking at article and analysing it, provided that to me. No red flags.
#RobodebtRC
[Scott takes us to one of the analyses, by Matthew Roser]
SCOTT: Did Mr. Stipnieks also do a similar analysis?
MUSOLINO: Yes.
S: Are they substantially different?
M: They both don't call out any particular concerns.
#RobodebtRC
SCOTT: Did Mr. Stipnieks also do a similar analysis?
MUSOLINO: Yes.
S: Are they substantially different?
M: They both don't call out any particular concerns.
#RobodebtRC
SCOTT: Can you identify any judicial authority in this analysis?
MUSOLINO: No.
S: Carney's article contains extensive references to judicial authority? Roser's analysis doesn't deal with any legal principle, does it?
M: It lists some principles of decision-making.
#RobodebtRC
MUSOLINO: No.
S: Carney's article contains extensive references to judicial authority? Roser's analysis doesn't deal with any legal principle, does it?
M: It lists some principles of decision-making.
#RobodebtRC
SCOTT: It doesn't refer to the central issue?
MUSOLINO: In hindsight, no.
S: You've read Mr. Carney's article?
M: I don't know it off by heart, but I have read it. I accept that it would be a key principle.
S: Well, I don't want to be unfair, so let's make sure.
#RobodebtRC
MUSOLINO: In hindsight, no.
S: You've read Mr. Carney's article?
M: I don't know it off by heart, but I have read it. I accept that it would be a key principle.
S: Well, I don't want to be unfair, so let's make sure.
#RobodebtRC
SCOTT [reading the article, line by line, to Musolino]: The first reason is that ATO based evidence isn't indicative of a debt at all.
MUSOLINO: Yes.
S: And the lack of evidentiary relevance of averaging.
#RobodebtRC
MUSOLINO: Yes.
S: And the lack of evidentiary relevance of averaging.
#RobodebtRC
SCOTT: Doesn't it raise squarely, the prinicple of admin law, that decisions are required to be based on evidence?
MUSOLINO: Yes.
S: A principle which finds no analysis in substance by Roser or Stipnieks?
M: Yes.
S: And you were still assured?
M: Yes.
#RobodebtRC
MUSOLINO: Yes.
S: A principle which finds no analysis in substance by Roser or Stipnieks?
M: Yes.
S: And you were still assured?
M: Yes.
#RobodebtRC
SCOTT: Did you critically analyse this document at all?
MUSOLINO: I read it. It sounded reasonable to me.
S: Did you critically analyse it?
M: No, I did not. I accepted the advice at the time.
HOLMES: Most lawyers would go back to the Act, to see what it says...
#RobodebtRC
MUSOLINO: I read it. It sounded reasonable to me.
S: Did you critically analyse it?
M: No, I did not. I accepted the advice at the time.
HOLMES: Most lawyers would go back to the Act, to see what it says...
#RobodebtRC
MUSOLINO: Some of the advices do refer to sections of the Act.
HOLMES: Provisions that deal with rate calculators and basis of entitlement...
M: It's hard for me to explain why that is.
H: Nowhere in the requirement for actual earned income is averaging possible.
#RobodebtRC
HOLMES: Provisions that deal with rate calculators and basis of entitlement...
M: It's hard for me to explain why that is.
H: Nowhere in the requirement for actual earned income is averaging possible.
#RobodebtRC
MUSOLINO: I think we accepted it was lawful.
HOLMES: I don't think you stopped looking at it, I think you never started!
#RobodebtRC
HOLMES: I don't think you stopped looking at it, I think you never started!
#RobodebtRC
SCOTT: You were briefing Secretary Leon in meeting the Ombudsman on a meeting about Prof. Carney's article. It had raised their attention.
MUSOLINO: Yes.
HOLMES: Did you verbally discuss the AAT case with Leon, did she read it?
M: I believe she would have read it.
#RobodebtRC
MUSOLINO: Yes.
HOLMES: Did you verbally discuss the AAT case with Leon, did she read it?
M: I believe she would have read it.
#RobodebtRC
SCOTT: The Secretary was clearly concerned enough to seek a briefing to understand DHS' position in relation to Carney's article?
MUSOLINO: I don't think the Secretary requested this briefing...it's to advise her the meeting is to be held.
#RobodebtRC
MUSOLINO: I don't think the Secretary requested this briefing...it's to advise her the meeting is to be held.
#RobodebtRC
SCOTT: Fair enough. Either way, it's a meeting between the Secretary and the Ombudsman in the context of interest in Carney's article. You agree it would require frank and candid advice about the accuracy of Carney's assertions of law?
MUSOLINO: Yes.
#RobodebtRC
MUSOLINO: Yes.
#RobodebtRC
SCOTT: Objective advice?
MUSOLINO: I'd agree with that.
S: Do you think this briefing provides an objective analysis?
M: Objective in the sense that it was a genuinely held-view...
[That's not how 'objective' works, at all]
#RobodebtRC
MUSOLINO: I'd agree with that.
S: Do you think this briefing provides an objective analysis?
M: Objective in the sense that it was a genuinely held-view...
[That's not how 'objective' works, at all]
#RobodebtRC
SCOTT: Doesn't it suffer the exact same flaw as Roser & Stipnieks' advice?
MUSOLINO: It's more of a critique of Prof. Carney.
S: Is this an example of advocacy for Department's position, rather than objective analysis of the legal foundation?
M: I think so, yes.
#RobodebtRC
MUSOLINO: It's more of a critique of Prof. Carney.
S: Is this an example of advocacy for Department's position, rather than objective analysis of the legal foundation?
M: I think so, yes.
#RobodebtRC
HOLMES: When you said you believed Leon would read it, is that a different approach from the previous Secretary?
MUSOLINO: She was very detail-oriented, and an accomplished lawyer as far as I'm aware.
H: Thank you.
#RobodebtRC
MUSOLINO: She was very detail-oriented, and an accomplished lawyer as far as I'm aware.
H: Thank you.
#RobodebtRC
SCOTT: Did you have regularly scheduled meetings with Secretary Leon?
MUSOLINO: On an ad hoc basis.
S: She says you had a regular meeting...she says at one of these meetings she asked you if Department were confident in legality?
M: I don't recall that...
#RobodebtRC
MUSOLINO: On an ad hoc basis.
S: She says you had a regular meeting...she says at one of these meetings she asked you if Department were confident in legality?
M: I don't recall that...
#RobodebtRC
SCOTT: Her evidence is you said 'yes, we are'?
MUSOLINO: I don't recall that, but it's not inconsistent with or position.
S: She said you told her 'best available evidence, a long-standing principle of administrative law'...
M: I don't recall saying that.
#RobodebtRC
MUSOLINO: I don't recall that, but it's not inconsistent with or position.
S: She said you told her 'best available evidence, a long-standing principle of administrative law'...
M: I don't recall saying that.
#RobodebtRC
SCOTT: I suggest you did say that to her. With no basis for the assertion.
MUSOLINO: I don't recall saying that.
S: You did so to bolster your assertion that the Department was confident in the lawfulness of the program.
M: No.
#RobodebtRC
MUSOLINO: I don't recall saying that.
S: You did so to bolster your assertion that the Department was confident in the lawfulness of the program.
M: No.
#RobodebtRC
SCOTT: If you had represented that, you'd be asked why you didn't properly advise the previous Secretary of the weakness of the position.
MUSOLINO: No.
#RobodebtRC
MUSOLINO: No.
#RobodebtRC
SCOTT: Was it part of your role to provide instructions to the then-Chief Counsel, regarding the conduct of the Masterton proceedings?
MUSOLINO: Yes. On most things, on some things we sought instructions from the Secretary.
#RobodebtRC
MUSOLINO: Yes. On most things, on some things we sought instructions from the Secretary.
#RobodebtRC
SCOTT: Do you recall at an early stage of Masterton, attending a case conference with Mr. Ensbey of AGS, Mr. Ffrench and perhaps Mr. Roser?
MUSOLINO: I think there were a few of those with those people, yes.
#RobodebtRC
MUSOLINO: I think there were a few of those with those people, yes.
#RobodebtRC
SCOTT: Do you recall saying that the Department didn't want to treat this as a test case?
MUSOLINO: No, but one of our obligations is to try and resolve the matter quickly, settle if possible.
S: Was there a desire to avoid a determination on averaging?
#RobodebtRC
MUSOLINO: No, but one of our obligations is to try and resolve the matter quickly, settle if possible.
S: Was there a desire to avoid a determination on averaging?
#RobodebtRC
MUSOLINO: Clear we would need advice on it, as a significant issue in the application. Was recommended in earlier email we seek Solicitor-General advice, so we did.
SCOTT: Ensbey used the words 'prospects are not hopeless'?
M: That's the one I was thinking of, yes.
#RobodebtRC
SCOTT: Ensbey used the words 'prospects are not hopeless'?
M: That's the one I was thinking of, yes.
#RobodebtRC
SCOTT: This might not be the email you were talking about, but by this stage it had been realised there was a double-counting error in calculating the debt. The options articulated here are to recalculate with averaging, or recalculate without averaging.
#RobodebtRC
#RobodebtRC
SCOTT: AGS thought Masterton's prospects weren't hopeless, and that her application raised a serious question?
MUSOLINO: Yes.
S: Option 1 appears more attractive, 'unless DHS had a positive desire for a Federal Court ruling' that averaging is lawful?
M: Yes.
#RobodebtRC
MUSOLINO: Yes.
S: Option 1 appears more attractive, 'unless DHS had a positive desire for a Federal Court ruling' that averaging is lawful?
M: Yes.
#RobodebtRC
SCOTT: Says they don't believe you have such a desire. Can you explain where Mr. Ensbey got that understanding from?
MUSOLINO: Conversation between myself and Mr. Ffrench.
S: Can you assist us as to why?
M: May not have been the best case re: duplication error.
#RobodebtRC
MUSOLINO: Conversation between myself and Mr. Ffrench.
S: Can you assist us as to why?
M: May not have been the best case re: duplication error.
#RobodebtRC
SCOTT: One possible explanation is it might be thought to be the best course to attempt to settle this matter without a Federal Court ruling that would cause reputational damage, and advice from the Solicitor-General would be privileged, and involve no such risk?
#RobodebtRC
#RobodebtRC
MUSOLINO: No doubt running a public matter would have been a consideration. Solicitor-General would give us a definitive view of the program to inform litigation. If I may add to that, it also says recalculating would satisfy Model Litigant Obligations.
#RobodebtRC
#RobodebtRC
HOLMES: The recalculation that was done, was done on a completely specious grounds. Ms. Masterton's solicitor said in his affidavit that she had told him she believed she'd declared properly. And that was the sole ground on which it was done?
#RobodebtRC
#RobodebtRC
MUSOLINO: There was a policy called the verbal assurances policy, which meant you could accept those.
HOLMES: But this wasn't a verbal assurance. If Centrelink customers said the declared their income properly, no debt would be raised?
M: It wouldn't fit squarely.
#RobodebtRC
HOLMES: But this wasn't a verbal assurance. If Centrelink customers said the declared their income properly, no debt would be raised?
M: It wouldn't fit squarely.
#RobodebtRC
SCOTT: The recalculation didn't itself settle the litigation, because there was still the issue of costs?
MUSOLINO: Yes.
S: Made an offer for both parties to walk away, without either party paying costs?
M: Yes.
S: The Commonwealth advised it would be rejected...
#RobodebtRC
MUSOLINO: Yes.
S: Made an offer for both parties to walk away, without either party paying costs?
M: Yes.
S: The Commonwealth advised it would be rejected...
#RobodebtRC
SCOTT: You say in response, that Victoria LegalAid being engaged meant she had no costs, and you aren't sure how valid Counsel's advice is. You say agreeing to pay her costs would damage your narrative that Masterton could have avoided this by engaging with you.
#RobodebtRC
#RobodebtRC
SCOTT: Had you recalculated Masterton's debt based on what the Department already knew, no debt should have been raised in the first place?
MUSOLINO: The additional info was in a sworn format.
HOLMES: Not sworn by her, it's a hearsay account!
#RobodebtRC
MUSOLINO: The additional info was in a sworn format.
HOLMES: Not sworn by her, it's a hearsay account!
#RobodebtRC
HOLMES: You're clutching at straws for a fig leaf to cover the settlement? Sorry, that was a terrible mixed metaphor.
MUSOLINO: We were trying to get rid of the matter, I accept.
SCOTT: In such a way that there'd be no public acknowledgement of averaging?
M: Yes.
#RobodebtRC
MUSOLINO: We were trying to get rid of the matter, I accept.
SCOTT: In such a way that there'd be no public acknowledgement of averaging?
M: Yes.
#RobodebtRC
SCOTT: As it happened, the offer to resolve the matter was rejected by Victorian LegalAid, and settled on the basis that the Commonwealth pay Ms. Masterton's costs?
MUSOLINO: Yes.
[But I thought she didn't have any, because LegalAid was free 🤪🤪🤪]
#RobodebtRC
MUSOLINO: Yes.
[But I thought she didn't have any, because LegalAid was free 🤪🤪🤪]
#RobodebtRC
SCOTT: Then the Ombudsman's 2019 report, which was to comment on legality, during the Masterton litigation. Members of your Department successfully advocated for comments on legality to be removed?
MUSOLINO: Yes.
#RobodebtRC
MUSOLINO: Yes.
#RobodebtRC
SCOTT: These are proposed draft words to brief the Secretary to meet the Ombudsman. 22 February 2019. You indicate Mr. Ffrench's points look fine, identify your additions?
MUSOLINO: Yes.
S: They express a high degree of confidence in the lawfulness of averaging.
#RobodebtRC
MUSOLINO: Yes.
S: They express a high degree of confidence in the lawfulness of averaging.
#RobodebtRC
SCOTT: By that stage, you knew the legality of averaging was anything but 'certain'.
MUSOLINO: We certainly knew there was an issue from the AGS advice on Masterton.
S: A substantial legal issue?
M: Yes, I'd agree.
S: Comments clearly not supported by that advice
#RobodebtRC
MUSOLINO: We certainly knew there was an issue from the AGS advice on Masterton.
S: A substantial legal issue?
M: Yes, I'd agree.
S: Comments clearly not supported by that advice
#RobodebtRC
SCOTT: You endorsed a briefing to the Secretary that completely overstated the strength of the Department's legal position?
MUSOLINO: It overstates it. I accept that. It's in the context of advocacy of it not being appropriate for certain material to be made public.
#RobodebtRC
MUSOLINO: It overstates it. I accept that. It's in the context of advocacy of it not being appropriate for certain material to be made public.
#RobodebtRC
SCOTT: Advocacy to the Ombudsman, you mean?
MUSOLINO: Yes. It was directed towards being very firm with the Ombudsman. We had more uncertainty through what we'd learned in Masterton, but the position hadn't changed yet.
#RobodebtRC
MUSOLINO: Yes. It was directed towards being very firm with the Ombudsman. We had more uncertainty through what we'd learned in Masterton, but the position hadn't changed yet.
#RobodebtRC
SCOTT: Advocacy to the Ombudsman, on the basis of assertions of the strength of a legal position, which was overstated.
HOLMES: Why so anxious about the Ombudsman? He wasn't proposing to comment on the merits of the litigation...
#RobodebtRC
HOLMES: Why so anxious about the Ombudsman? He wasn't proposing to comment on the merits of the litigation...
#RobodebtRC
MUSOLINO: Our view was if we publicly accepted the Ombudsman's view on legality, we were making an admission. There was concern about the timing re: the litigation.
HOLMES: I'm just not sure why...
SCOTT: How does publication by Ombudsman create an admission?
#RobodebtRC
HOLMES: I'm just not sure why...
SCOTT: How does publication by Ombudsman create an admission?
#RobodebtRC
MUSOLINO: If we disagreed, Secretary Leon would have had to make public statements to that effect. Not uncommon for us to respond by published letter if we disagreed. But at this point, Leon had accepted it was appropriate to talk to the Ombudsman about our concerns.
#RobodebtRC
#RobodebtRC
SCOTT: To a brief to Minister Tudge, concerning a complaint by Ms. Jennifer Miller and the circumstances of the death of her son. Do you have a sufficient recollection of the reviews done relating to his receipt of Newstart Allowance?
MUSOLINO: Yes.
#RobodebtRC
MUSOLINO: Yes.
#RobodebtRC
SCOTT: Prior to the OCI going live, but in the manual process that used averaging.
MUSOLINO: Yes.
S: Talking about a vulnerability indicator, and the consequences of someone having one applied to their file. The need to exercise caution with vulnerable clients.
#RobodebtRC
MUSOLINO: Yes.
S: Talking about a vulnerability indicator, and the consequences of someone having one applied to their file. The need to exercise caution with vulnerable clients.
#RobodebtRC
SCOTT: One of the requirements relating to vulnerability indicators was that debt collectors not be used?
MUSOLINO: I don't know if that was the case at this time. I know there was a decision to exclude vulnerable people from the program in 2017.
#RobodebtRC
MUSOLINO: I don't know if that was the case at this time. I know there was a decision to exclude vulnerable people from the program in 2017.
#RobodebtRC
SCOTT: Various instances where Mr. Cauzzo had a vulnerability indicator on his file, do you see that?
MUSOLINO: Yes.
S: In relation to his DSP claim, conditions listed as depression and anxiety, do you see that?
M: Yes.
HOLMES: Also reported suicidal ideation.
#RobodebtRC
MUSOLINO: Yes.
S: In relation to his DSP claim, conditions listed as depression and anxiety, do you see that?
M: Yes.
HOLMES: Also reported suicidal ideation.
#RobodebtRC
SCOTT: Do you agree such an indicator ought to have been recorded?
MUSOLINO: Common sense tells us it should have been. I would be guessing if I said this fit within the policy at the time. I don't know.
#RobodebtRC
MUSOLINO: Common sense tells us it should have been. I would be guessing if I said this fit within the policy at the time. I don't know.
#RobodebtRC
SCOTT: Refers to a note of your then awareness of the Victorian Coroner's Court, advising that intended to reactivate its administrative review into his death?
MUSOLINO: Yes.
#RobodebtRC
MUSOLINO: Yes.
#RobodebtRC
SCOTT: They made requests for any relevant information and communications between Centrelink, Mr. Cauzzo, and any other person related to the debt. You propose to 'exempt' information relating to any other payment than his Newstart Allowance? Not to provide it?
#RobodebtRC
#RobodebtRC
MUSOLINO: It says communications between Department and the court took place to narrow the scope of the request.
HOLMES: Wasn't it relevant that he had debt collectors calling him, that the Department knew he had suicidal ideation from his DSP application?
#RobodebtRC
HOLMES: Wasn't it relevant that he had debt collectors calling him, that the Department knew he had suicidal ideation from his DSP application?
#RobodebtRC
MUSOLINO: Common sense tells us it is, yes.
HOLMES: It's a coronial inquest into his death by suicide.
M: I can only rely on what's here, I accept what you've said.
H: It couldn't be more critical, could it?
M: I understood it to represent what had been agreed.
#RobodebtRC
HOLMES: It's a coronial inquest into his death by suicide.
M: I can only rely on what's here, I accept what you've said.
H: It couldn't be more critical, could it?
M: I understood it to represent what had been agreed.
#RobodebtRC
HOLMES: Doesn't it represent what you're *proposing* to go to court?
MUSOLINO: I believe I would have read this as 'this is where we've landed in terms of what's within the scope for the response'.
#RobodebtRC
MUSOLINO: I believe I would have read this as 'this is where we've landed in terms of what's within the scope for the response'.
#RobodebtRC
HOLMES: Well, one view is you made a decision not to provide relevant documents to the coroner.
MUSOLINO: I don't believe that was the intention.
H: You were familiar with this matter, you knew the background. It didn't occur to you to say 'there's something else'?
#RobodebtRC
MUSOLINO: I don't believe that was the intention.
H: You were familiar with this matter, you knew the background. It didn't occur to you to say 'there's something else'?
#RobodebtRC
MUSOLINO: We were providing quite a lot of information. I took this as advice about the initial request, what had been agreed with the Coroner's Court. I didn't take it to be us deciding not to comply. I didn't think there was anything improper here.
#RobodebtRC
#RobodebtRC
[Scott reads Sara Samios of the OLSC's sworn statement to Musolino, to which she again says she has no recollection of having that conversation with her.]
#RobodebtRC
#RobodebtRC
[Scott takes Musolino through advice about the 10% recovery fee, where she says it's open to challenge on procedural fairness grounds.]
SCOTT: You then express 13 days later that it's fine to include them in the letters?
MUSOLINO: The whole thing was redesigned.
#RobodebtRC
SCOTT: You then express 13 days later that it's fine to include them in the letters?
MUSOLINO: The whole thing was redesigned.
#RobodebtRC
MUSOLINO: The customer was given an option to tick 'I have a reasonable excuse' or 'I don't have a reasonable excuse' on the online portal. By 30 January our policy position was to minimise the imposition of the fee. We changed it to provide warnings on unticking.
#RobodebtRC
#RobodebtRC
HOLMES: How can a statutory penalty depend on whether the Government feels like charging it or not? Politicians getting cold feet, wasn't it?
MUSOLINO: I agree, yes.
H: It depends on the perceived unpopularity of the measure?
M: We were struggling with it.
#RobodebtRC
MUSOLINO: I agree, yes.
H: It depends on the perceived unpopularity of the measure?
M: We were struggling with it.
#RobodebtRC
HOLMES: Can only be charged on the basis of finding someone has breached the Act, can't it?
MUSOLINO: It's based on the ongoing obligation to report income.
H: And the only conceivable basis for a penalty, going years back, is that they must have failed to report?
#RobodebtRC
MUSOLINO: It's based on the ongoing obligation to report income.
H: And the only conceivable basis for a penalty, going years back, is that they must have failed to report?
#RobodebtRC
MUSOLINO: It's a bit chicken and egg...we had to impose the penalty unless we had some basis not to.
HOLMES: I think it's a bit worse, because you're coming to the conclusion that someone has breached the Act deliberately...
#RobodebtRC
HOLMES: I think it's a bit worse, because you're coming to the conclusion that someone has breached the Act deliberately...
#RobodebtRC
That's the end of Annette Musolino's evidence.
She is excused.
Holmes observes we could have had a full lunch break today, implying Mr. Scott's sense of timing is more trustworthy than Greggery's.
The Royal Commission is adjourned until 1000AEST tomorrow.
#RobodebtRC
She is excused.
Holmes observes we could have had a full lunch break today, implying Mr. Scott's sense of timing is more trustworthy than Greggery's.
The Royal Commission is adjourned until 1000AEST tomorrow.
#RobodebtRC
• • •
Missing some Tweet in this thread? You can try to
force a refresh
