Here's the stream. Angus Scott KC explaining a former Ombudsman, McMillan, has produced a statement for them this week:
#RobodebtRC
robodebt.royalcommission.gov.au
#RobodebtRC
robodebt.royalcommission.gov.au
Ombudsman time.
Richard Glenn is first. He is affirmed.
The acting Ombo who Louise McLeod says she couldn't convince to do anything about Robodebt.
He has a law degree. Let's see if he knows how to use it.
#RobodebtRC
Richard Glenn is first. He is affirmed.
The acting Ombo who Louise McLeod says she couldn't convince to do anything about Robodebt.
He has a law degree. Let's see if he knows how to use it.
#RobodebtRC
SCOTT: You've been a public servant for 25 yrs. Have you ever practiced law? Including law relating to judicial review?
GLENN: Practiced as solicitor, not particularly.
#RobodebtRC
GLENN: Practiced as solicitor, not particularly.
#RobodebtRC
SCOTT: Are you familiar with the principle that administrative decisions must be based in evidence?
GLENN: Quite familiar.
S: This here is the 5 Jan 2017 minute to then-Omb. Neave, through you, proposing the own-motion investigation of Robodebt?
G: That's right.
#RobodebtRC
GLENN: Quite familiar.
S: This here is the 5 Jan 2017 minute to then-Omb. Neave, through you, proposing the own-motion investigation of Robodebt?
G: That's right.
#RobodebtRC
SCOTT: Adherence to legislative requirements and accuracy of debts proposed to be investigated?
GLENN: Yes.
S: And you understood throughout, that these were relevant issues to that investigation?
G: Yes.
#RobodebtRC
GLENN: Yes.
S: And you understood throughout, that these were relevant issues to that investigation?
G: Yes.
#RobodebtRC
SCOTT: The reasons that are given are the paradigm examples of why the Ombudsman would conduct an own-motion investigation?
GLENN: Yes. They're among those reasons.
S: These are all conveyed to DSS Secretary Pratt, in the letter to him?
G: The same reasons, yes.
#RobodebtRC
GLENN: Yes. They're among those reasons.
S: These are all conveyed to DSS Secretary Pratt, in the letter to him?
G: The same reasons, yes.
#RobodebtRC
SCOTT: DHS email describing an 'Own Motion Investigation Entry Briefing' on 2pm 19 January. You weren't yet acting Ombudsman?
GLENN: After the 16 January I was acting Ombudsman.
S: 'Malisa/Jonathan, attached talking points for meeting amended to reflect feedback'.
#RobodebtRC
GLENN: After the 16 January I was acting Ombudsman.
S: 'Malisa/Jonathan, attached talking points for meeting amended to reflect feedback'.
#RobodebtRC
SCOTT: Recall anyone from DHS speaking words to the effect of what's in these talking points?
GLENN: Yes, I do.
S: 'DHS investing considerable resources in correcting the record at every opportunity, PM very firm, DHS believes they're delivering it as required.'
#RobodebtRC
GLENN: Yes, I do.
S: 'DHS investing considerable resources in correcting the record at every opportunity, PM very firm, DHS believes they're delivering it as required.'
#RobodebtRC
GLENN: I recall the theme of investment in correcting the record. I don't recall references to Porter or PM. I recall Golightly talking about enhancements'.
SCOTT: Do you recall who said 'correcting the record'?
G: No.
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SCOTT: Do you recall who said 'correcting the record'?
G: No.
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SCOTT: You got a sense DHS were invested in defending the program?
GLENN: They advocated strongly.
S: Recall the Minister being invested?
G: I don't remember.
S: Did you feel pressured by DHS at all?
G: No. In past dealings, they were strong in their advocacy.
#RobodebtRC
GLENN: They advocated strongly.
S: Recall the Minister being invested?
G: I don't remember.
S: Did you feel pressured by DHS at all?
G: No. In past dealings, they were strong in their advocacy.
#RobodebtRC
SCOTT: There was a high degree of media scrutiny at the time of the meeting?
GLENN: Yes.
S: DHS reps and Ministers were pushing back against any criticism of the program?
G: Yes, certainly DHS had a public position they were advancing.
#RobodebtRC
GLENN: Yes.
S: DHS reps and Ministers were pushing back against any criticism of the program?
G: Yes, certainly DHS had a public position they were advancing.
#RobodebtRC
SCOTT: What appears is the approach taken in the investigation, before the text had been developed, was to develop an outline of the report. This is the draft outline provided to DHS for comment?
GLENN: We did, this looks like what we would have provided.
#RobodebtRC
GLENN: We did, this looks like what we would have provided.
#RobodebtRC
SCOTT: You provided it to them in Word form, they were given an opportunity to propose alterations by way of tracked changes. Ombo then formed a view about whether to accept them?
GLENN: That's right.
S: Some of that text actually made it into the report?
G: Yes.
#RobodebtRC
GLENN: That's right.
S: Some of that text actually made it into the report?
G: Yes.
#RobodebtRC
SCOTT: Given the Department's strong media narrative and context of their behaviour, how this approach was adopted had the effect of compromising the independence of the office?
GLENN: No. Usual practice, I was alive to the fact they would advance their narrative.
#RobodebtRC
GLENN: No. Usual practice, I was alive to the fact they would advance their narrative.
#RobodebtRC
GLENN: It would elicit information from them. It wasn't strictly necessary but it had a purpose.
SCOTT: How did it do that?
G: It was an iterative process over a compressed timeframe...
S: Couldn't you have just done it with the letter?
G: Yes.
#RobodebtRC
SCOTT: How did it do that?
G: It was an iterative process over a compressed timeframe...
S: Couldn't you have just done it with the letter?
G: Yes.
#RobodebtRC
SCOTT: Why was iterative process necessary?
GLENN: Assist in fact-checking, building understanding in the report and where it's going, collective understanding...
S: Couldn't you just give them a draft report, without opportunity to make changes in track?
G: Yes.
#RobodebtRC
GLENN: Assist in fact-checking, building understanding in the report and where it's going, collective understanding...
S: Couldn't you just give them a draft report, without opportunity to make changes in track?
G: Yes.
#RobodebtRC
SCOTT: The risk you run is, even if you agree with the proposed wording, you're effectively handing over to the Department and opportunity to insert words into the report that support its public narrative?
GLENN: Yes.
S: Compromises independence?
G: Don't accept.
#RobodebtRC
GLENN: Yes.
S: Compromises independence?
G: Don't accept.
#RobodebtRC
SCOTT: DHS email about 'opportunity to effectively co-write the report', which you've now seen?
GLENN: It characterises our consultation as an opportunity to co-write, which isn't what it was. They were asked for constructive comment. It's not a co-production.
[🤪]
#RobodebtRC
GLENN: It characterises our consultation as an opportunity to co-write, which isn't what it was. They were asked for constructive comment. It's not a co-production.
[🤪]
#RobodebtRC
SCOTT: Do you recall this email from Louise McLeod, where she's discussing possible referral to AAT?
GLENN: No, but I recall context.
S: That your office had significant doubts about averaging?
G: Yes, we had concerns, was seeking to inform myself better.
#RobodebtRC
GLENN: No, but I recall context.
S: That your office had significant doubts about averaging?
G: Yes, we had concerns, was seeking to inform myself better.
#RobodebtRC
SCOTT: Could it be the context that it was contemplated raising AAT referral to achieve better engagement with DHS through Mr. Hutson?
GLENN: I don't recall it that way.
S: Any recollection at all about that phone call?
G: No. Conversations around timeliness, etc.
#RobodebtRC
GLENN: I don't recall it that way.
S: Any recollection at all about that phone call?
G: No. Conversations around timeliness, etc.
#RobodebtRC
SCOTT: Such a referral has never been made in the history of the Ombudsman Act. Is that right?
GLENN: I don't know. We weren't able to identify an instance where it had. There's another provision that allows the Ombudsman to recommend the agency make a referral.
#RobodebtRC
GLENN: I don't know. We weren't able to identify an instance where it had. There's another provision that allows the Ombudsman to recommend the agency make a referral.
#RobodebtRC
SCOTT: There's another provision that enables a referral to the Federal Court?
GLENN: In context of dispute with the agency, not an investigation.
HOLMES: You say you would have provided faster responses, do you have a sense DHS were running the clock down?
G: No.
#RobodebtRC
GLENN: In context of dispute with the agency, not an investigation.
HOLMES: You say you would have provided faster responses, do you have a sense DHS were running the clock down?
G: No.
#RobodebtRC
HOLMES: Well, they clearly were from that email.
SCOTT: Would have been apparent by this stage that DHS had gone from 20,000 interventions per year, to 20,000 per week?
GLENN: Correct.
S: Potential unlawfulness on a massive scale?
G: Correct.
#RobodebtRC
SCOTT: Would have been apparent by this stage that DHS had gone from 20,000 interventions per year, to 20,000 per week?
GLENN: Correct.
S: Potential unlawfulness on a massive scale?
G: Correct.
#RobodebtRC
SCOTT: Consistency with legislation, accuracy of debts are specifically in the notice of investigation. Can you explain why a referral wasn't made?
GLENN: Advice was sought from the AAT. They told us it would need to be fully argued, concerned about cost and time.
#RobodebtRC
GLENN: Advice was sought from the AAT. They told us it would need to be fully argued, concerned about cost and time.
#RobodebtRC
GLENN: At that stage I considered the report would be most impactful dealing with manners of administration, and that we could still refer to AAT after report.
SCOTT: The making of the referral wouldn't stop you releasing the report?
G: No.
#RobodebtRC
SCOTT: The making of the referral wouldn't stop you releasing the report?
G: No.
#RobodebtRC
SCOTT: It was considered seperately...so time constraints aren't a reason you relied on not to make the referral?
GLENN: The resourcing question was a live one...
S: When would you ever make a referral, then? Whatever resources were available should have been used?
#RobodebtRC
GLENN: The resourcing question was a live one...
S: When would you ever make a referral, then? Whatever resources were available should have been used?
#RobodebtRC
GLENN: We need to balance the entirety of the office's functions.
SCOTT: Surely the balance in this case fell in favour of deploying those resources for a referral?
G: I made a different determination. Now, I might have made a different one.
S: On what knowledge?
#RobodebtRC
SCOTT: Surely the balance in this case fell in favour of deploying those resources for a referral?
G: I made a different determination. Now, I might have made a different one.
S: On what knowledge?
#RobodebtRC
GLENN: I have a greater understanding of the legal challenges of OCI.
SCOTT: What in particular?
G: The Solicitor-General's advice.
S: That wasn't until 2019. Your office was provided advices that they didn't think supported the use of averaging?
G: Doubts, yes.
#RobodebtRC
SCOTT: What in particular?
G: The Solicitor-General's advice.
S: That wasn't until 2019. Your office was provided advices that they didn't think supported the use of averaging?
G: Doubts, yes.
#RobodebtRC
SCOTT: Internal advices from DSS from 2014 that said averaging unlawful, and 2017 which on the face of it only applied under 'last resort', which you knew wasn't being done, correct?
GLENN [pause, very very quietly]: Yes.
#RobodebtRC
GLENN [pause, very very quietly]: Yes.
#RobodebtRC
SCOTT: So wasn't there a strong prima facie inference that there was no legal advice supporting the use of averaging at the time?
GLENN: That's not the inference I drew. We couldn't land a crisp, contrary view.
[AHHHHHHHHH YOU DIDN'T NEED ONE AND YOU DIDN'T LOOK.]
#RobodebtRC
GLENN: That's not the inference I drew. We couldn't land a crisp, contrary view.
[AHHHHHHHHH YOU DIDN'T NEED ONE AND YOU DIDN'T LOOK.]
#RobodebtRC
SCOTT: Did you reflect on the significance that your officers assessed DHS/DSS didn't support averaging? 2014 DSS advice said it was unlawful and scheme commenced! No further advice until 2017, when the media occurred.
GLENN: I didn't focus on that sequence, no.
#RobodebtRC
GLENN: I didn't focus on that sequence, no.
#RobodebtRC
SCOTT: Isn't starting a scheme against advice that it's unlawful, maladministration?
GLENN: I think it's poor practice, want to reflect on maladministration.
HOLMES: Surely it's maladministration. In the absence of other advice, like it was so here?
GLENN: Yes.
#RobodebtRC
GLENN: I think it's poor practice, want to reflect on maladministration.
HOLMES: Surely it's maladministration. In the absence of other advice, like it was so here?
GLENN: Yes.
#RobodebtRC
GLENN: I didn't feel confident, I wanted to be stronger in my view.
SCOTT: Well, did you think about getting external advice?
G: I did think about options, more focused on AAT referral. Turned my focus to other issues. Problems with getting external advice.
#RobodebtRC
SCOTT: Well, did you think about getting external advice?
G: I did think about options, more focused on AAT referral. Turned my focus to other issues. Problems with getting external advice.
#RobodebtRC
SCOTT: What are those?
GLENN: Legal Services Directions. They don't preclude it but it requires consultation, was my understanding.
S: Really, by an independent office?
G: That was my understanding.
HOLMES: You have to ask them nicely?
G: It's a challenge...
#RobodebtRC
GLENN: Legal Services Directions. They don't preclude it but it requires consultation, was my understanding.
S: Really, by an independent office?
G: That was my understanding.
HOLMES: You have to ask them nicely?
G: It's a challenge...
#RobodebtRC
HOLMES: You knew all the facts of the scheme, and all the contrary or irrelevant advice, some of it demonstrably untrue. It mattered enormously whether people were being forced to pay these debts. Why not get advice?
GLENN: In retrospect, I accept I should have.
#RobodebtRC
GLENN: In retrospect, I accept I should have.
#RobodebtRC
SCOTT: Here's Ms. McLeod's draft section on legality for the 2017 report. Do you agree with me that comprises some relatively blunt words on accuracy of averaging? Similarly blunt words don't make it into the report?
GLENN: I think that's correct.
#RobodebtRC
GLENN: I think that's correct.
#RobodebtRC
SCOTT: Given the importance of accuracy to the investigation, and the scale of debts being raised, why wouldn't words to that effect be included in an Ombudsman report?
GLENN: I think that issue is dealt with in the report-
S: Let's look at the 2017 report, then.
#RobodebtRC
GLENN: I think that issue is dealt with in the report-
S: Let's look at the 2017 report, then.
#RobodebtRC
SCOTT: The words 'administrative decision are made on best available information at the time', do you recall DHS inserting those words?
GLENN: No. They were adopted...
S: What objective standard did you have regard to in adopting those?
G: A general principle...
#RobodebtRC
GLENN: No. They were adopted...
S: What objective standard did you have regard to in adopting those?
G: A general principle...
#RobodebtRC
SCOTT: On what basis?
GLENN: I can't recall.
S: 'We're satisfied the OCI can calculate the debts accuracy if the customer provides information', is that the extent to which the 'blunt' words made it in?
G: I'm not sure... [flicking through report] Recommendation 4
#RobodebtRC
GLENN: I can't recall.
S: 'We're satisfied the OCI can calculate the debts accuracy if the customer provides information', is that the extent to which the 'blunt' words made it in?
G: I'm not sure... [flicking through report] Recommendation 4
#RobodebtRC
SCOTT: These are the 'blunt' words?
GLENN: They're not blunt, but it goes to the extent to which DHS would use abilities to assist customers.
S: You were aware in adopting this report, that if customers didn't respond, they'd have debts averaged?
G: Yes.
#RobodebtRC
GLENN: They're not blunt, but it goes to the extent to which DHS would use abilities to assist customers.
S: You were aware in adopting this report, that if customers didn't respond, they'd have debts averaged?
G: Yes.
#RobodebtRC
SCOTT: Where do you acknowledge that in the report?
GLENN: I can't recall...[it's in front of you, you found the other bit]
S: Well, I suggest that you don't.
#RobodebtRC
GLENN: I can't recall...[it's in front of you, you found the other bit]
S: Well, I suggest that you don't.
#RobodebtRC
[Scott showing him various parts of the section of legality by McLeod]
SCOTT: Can you explain why none of this made it into the final report?
GLENN: I wasn't satisfied by them...I probably should have taken a different view on the knowledge I had then.
[Pathetic.]
#RobodebtRC
SCOTT: Can you explain why none of this made it into the final report?
GLENN: I wasn't satisfied by them...I probably should have taken a different view on the knowledge I had then.
[Pathetic.]
#RobodebtRC
HOLMES: There was another earlier version which actually explains how the rate calculators work, the limited circumstances which allow for averaging. It's even more detailed, it explains just why there are concerns.
#RobodebtRC
#RobodebtRC
SCOTT: Do you agree on reflection that this should all have been included in the report, Mr. Glenn?
HOLMES: It's frustrating, Mr. Glenn, because it's absolutely correct. DHS and DSS mostly don't even go to the Act, your staff actually did and they were right.
#RobodebtRC
HOLMES: It's frustrating, Mr. Glenn, because it's absolutely correct. DHS and DSS mostly don't even go to the Act, your staff actually did and they were right.
#RobodebtRC
SCOTT: Media inquiry from The Age, asking for legal basis of the scheme. 'DHS strongly refutes claims they act inconsistent with legislation', then 'Ombudsman found us compliant', do you see that?
GLENN: Yes.
#RobodebtRC
GLENN: Yes.
#RobodebtRC
SCOTT: Do you recall press releases by DHS and Ministers?
GLENN: I recall a Ministerial press release that was a very positive reflection on the report. Some officers made assertions about meeting legislative requirements at the Senate inquiry.
#RobodebtRC
GLENN: I recall a Ministerial press release that was a very positive reflection on the report. Some officers made assertions about meeting legislative requirements at the Senate inquiry.
#RobodebtRC
SCOTT: Do you accept that by not squarely dealing with inaccuracy of averaging & the question of lawfulness of averaging in your report, you provided those with an interest in defending the program and opportunity to make public statements to this effect?
#RobodebtRC
#RobodebtRC
GLENN: I regret not dealing with it squarely, I should've said very clearly I wasn't dealing with legality.
SCOTT: By releasing the report in this form, and by failing to refer to the AAT, you failed to demonstrate independence of your office?
G: No, I don't accept.
#Robodebt
SCOTT: By releasing the report in this form, and by failing to refer to the AAT, you failed to demonstrate independence of your office?
G: No, I don't accept.
#Robodebt
[Richard Glenn, the Ombudsman you have when you're not having an Ombudsman, is excused. The Royal Commission takes the morning recess, returning in around 10mins. That was all pretty fucked up.]
#RobodebtRC
#RobodebtRC
It's possible I have just denied Dominique Hogan-Doran SC the last danish from the cafe downstairs.
Regrettable, but I offer no apologies. It's a pretty good danish.
#RobodebtRC
Regrettable, but I offer no apologies. It's a pretty good danish.
#RobodebtRC
The Royal Commission has returned.
HOGAN-DORAN (Cth): Louise McLeod has said she will offer a supplementary statement about DHS communications on the data about averaging, as she referred to yesterday.
Iain Anderson, the current Commonwealth Ombudsman, is affirmed.
#RobodebtRC
HOGAN-DORAN (Cth): Louise McLeod has said she will offer a supplementary statement about DHS communications on the data about averaging, as she referred to yesterday.
Iain Anderson, the current Commonwealth Ombudsman, is affirmed.
#RobodebtRC
SCOTT: You practiced as a solicitor at the Australian Government Solicitor for over four years?
ANDERSON: For over four years. And a year as an executive adviser to the AGS.
S: You've provided a statement directed to learnings for the office.
#RobodebtRC
ANDERSON: For over four years. And a year as an executive adviser to the AGS.
S: You've provided a statement directed to learnings for the office.
#RobodebtRC
ANDERSON: I've been following some of the evidence, broadly speaking I haven't been watching but been following the transcript. It's extremely disappointing. My expectation is that agencies should take integrity processes of engagement with Ombudsman seriously.
#RobodebtRC
#RobodebtRC
ANDERSON: They didn't respect obligations to the Ombudsman, Public Service Act, codes of conduct, things like that. Failures to disclose legal advice and provide documents, providing statements in lieu of actual documents.
#RobodebtRC
#RobodebtRC
ANDERSON: We always need to make decisions about how we deploy ourselves. We've got a number of powers, it's important we have full recourse to those powers. The Auditor-General has similar powers, and will trawl through agency IT systems, I'm thinking about those.
#RobodebtRC
#RobodebtRC
SCOTT: That would mean an agency couldn't advance a narrow reading of the scope of an investigation?
ANDERSON: Yes. It wouldn't be deployed for every matter, but it would be a useful thing to have up my sleeve, if an agency wasn't engaging in good faith.
#RobodebtRC
ANDERSON: Yes. It wouldn't be deployed for every matter, but it would be a useful thing to have up my sleeve, if an agency wasn't engaging in good faith.
#RobodebtRC
[THESE GUYS ARE MOVING FAST.]
SCOTT: You talk about work already underway within the office. You say 'ensuring clarity of purpose and key issues in an investigation will assist in making tactical decisions', what did you mean by that?
#RobodebtRC
SCOTT: You talk about work already underway within the office. You say 'ensuring clarity of purpose and key issues in an investigation will assist in making tactical decisions', what did you mean by that?
#RobodebtRC
ANDERSON: What I want is actually a live, thinking, decision-making exercise. What's the outcome we're hoping to get to, being clear on what the options are and potential obstacles.
#RobodebtRC
#RobodebtRC
SCOTT: You're suggesting the idea that what the investigation is about is always front of mind, so it's squarely addressed in the resulting report?
ANDERSON: Indeed. If something turns out not to have been important, we should at least address why in the report.
#RobodebtRC
ANDERSON: Indeed. If something turns out not to have been important, we should at least address why in the report.
#RobodebtRC
SCOTT: And that would increase public confidence in the office, and transparency?
ANDERSON: It's in the public interest to disclose that information, absolutely.
#RobodebtRC
ANDERSON: It's in the public interest to disclose that information, absolutely.
#RobodebtRC
SCOTT: Section 9 of the Ombudsman Act 1976 provides a power to require relevant persons to be formally interviewed, is that ever done?
ANDERSON: In a range of situations, but not very often.
S: You're aware of the 'bridging' advice?
A: Broadly, yes.
#RobodebtRC
ANDERSON: In a range of situations, but not very often.
S: You're aware of the 'bridging' advice?
A: Broadly, yes.
#RobodebtRC
SCOTT: On one view of that evidence, it wasn't entirely honest about how legal advice wasn't obtained. Do you have experience with an agency not being honest?
ANDERSON: Not aware of being dishonest per se, but in terms of not providing what's been sought.
#RobodebtRC
ANDERSON: Not aware of being dishonest per se, but in terms of not providing what's been sought.
#RobodebtRC
SCOTT: Can you comment on whether there's appropriate training to enable formal interviews?
ANDERSON: Thinking about training, specialist expertise available from other agencies.
S: You have the resourcing for it?
A: I have a budget, but it's there to be used.
#RobodebtRC
ANDERSON: Thinking about training, specialist expertise available from other agencies.
S: You have the resourcing for it?
A: I have a budget, but it's there to be used.
#RobodebtRC
SCPTT: You need a skillset to identify potential dishonesty, do you feel that's currently available?
ANDERSON: I've seen situations where my officers have been able to identify agencies in immigration detention who were behaving unlawfully towards detainees.
#RobodebtRC
ANDERSON: I've seen situations where my officers have been able to identify agencies in immigration detention who were behaving unlawfully towards detainees.
#RobodebtRC
SCOTT: Think critically and forensically about what's being told to you, the capacity to draw inferences about the honesty?
ANDERSON: An investigative mindset, yes.
#RobodebtRC
ANDERSON: An investigative mindset, yes.
#RobodebtRC
SCOTT: If there was doubt by investigators on a question of law, could you get external legal advice?
ANDERSON: That's one option, certainly.
S: Have you been involved in that?
A: Not in context of an investigation, but frequently, yes.
#RobodebtRC
ANDERSON: That's one option, certainly.
S: Have you been involved in that?
A: Not in context of an investigation, but frequently, yes.
#RobodebtRC
SCOTT: Do you have a view on whether it should be sought from AGS, and whether it can be independent as part of the executive branch?
ANDERSON: It would depend what expertise I was seeking. On Commonwealth legislation, yes, investigative matters, maybe not.
#RobodebtRC
ANDERSON: It would depend what expertise I was seeking. On Commonwealth legislation, yes, investigative matters, maybe not.
#RobodebtRC
SCOTT: Why wouldn't it impeach independence?
ANDERSON: They have statutory act for a conflict of interest. If AGS wasn't involved in the issue at all that would be fine. My independence is about what I would do with the advice.
#RobodebtRC
ANDERSON: They have statutory act for a conflict of interest. If AGS wasn't involved in the issue at all that would be fine. My independence is about what I would do with the advice.
#RobodebtRC
SCOTT: Do the Legal Services Directions require you to get an agencies consent to get external device?
ANDERSON: No, simply to consult, I don't have to listen to them. It can be a short consultation.
#RobodebtRC
ANDERSON: No, simply to consult, I don't have to listen to them. It can be a short consultation.
#RobodebtRC
SCOTT: Power to refer to the AAT, it's never been exercised in the history of the office as yet?
ANDERSON: No, but it's a useful power, and I'd be prepared to.
S: Difficulties in exercising that power by lack of resources?
A: Not necessarily. We can incur a loss.
#RobodebtRC
ANDERSON: No, but it's a useful power, and I'd be prepared to.
S: Difficulties in exercising that power by lack of resources?
A: Not necessarily. We can incur a loss.
#RobodebtRC
SCOTT: And you'd give the public interest a decisive weight in making that decision to expend those resources?
ANDERSON: Yes.
S: You'd expect the AAT would want both sides of the argument to be tested? That's a conventional way a legal process works?
A: Yes.
#RobodebtRC
ANDERSON: Yes.
S: You'd expect the AAT would want both sides of the argument to be tested? That's a conventional way a legal process works?
A: Yes.
#RobodebtRC
SCOTT: Would you see the AAT wanting a full argument from both sides as an obstacle?
ANDERSON: I'd be prepared to find the resources if necessary. I don't think I'm damaging my impartiality by advancing a particular interpretation, I've been given that power.
#RobodebtRC
ANDERSON: I'd be prepared to find the resources if necessary. I don't think I'm damaging my impartiality by advancing a particular interpretation, I've been given that power.
#RobodebtRC
SCOTT: Would that be different in the context of an own-motion investigation?
ANDERSON: In an own-motion investigation, I've already formed an opinion that there's something that needs to be investigated. I'm not concerned about my impartiality by engaging AAT.
#RobodebtRC
ANDERSON: In an own-motion investigation, I've already formed an opinion that there's something that needs to be investigated. I'm not concerned about my impartiality by engaging AAT.
#RobodebtRC
[I'VE BEEN SCREAMING THIS FOR TWO DAYS, YOU'VE ALREADY DECIDED THERE'S A PROBLEM, THAT'S WHY YOU'RE INVESTIGATING IT]
#RobodebtRC
#RobodebtRC
ANDERSON: If we have a doubt about what the agency is doing by the time of our report, we should say that in the report. We should be transparent with the community.
[That's Mr. Anderson's evidence. My God, those boys talked fast. Lightning round.]
#RobodebtRC
[That's Mr. Anderson's evidence. My God, those boys talked fast. Lightning round.]
#RobodebtRC
Paul McBride from DSS is affirmed to answer to Greggery.
He acted as Deputy Secretary in Serena Wilson's absence on a number of occasions during the period from 2015-17.
#RobodebtRC
He acted as Deputy Secretary in Serena Wilson's absence on a number of occasions during the period from 2015-17.
#RobodebtRC
GREGGERY: You say in your statement that the concept of averaging income would be a 'considerable concern', why is that so?
MCBRIDE: We raised concerns about averaging both as policy idea & on legality. By 2016 we thought DHS didn't have authority to use averaging.
#RobodebtRC
MCBRIDE: We raised concerns about averaging both as policy idea & on legality. By 2016 we thought DHS didn't have authority to use averaging.
#RobodebtRC
MCBRIDE: The NPP didn't give them authority, and our understanding was they would operate this compliance activity in accordance with Cabinet directions, because nothing in there mentioned averaging.
GREGGERY: It's no substitute for legislative process?
M: Correct.
#RobodebtRC
GREGGERY: It's no substitute for legislative process?
M: Correct.
#RobodebtRC
MCBRIDE: It didn't ask for authority to do averaging, and if it had, that would have required legislative change. It did neither of those things.
GREGGERY: What's your understanding of the correct process in circumstances where DHS intended to proceed?
#RobodebtRC
GREGGERY: What's your understanding of the correct process in circumstances where DHS intended to proceed?
#RobodebtRC
MCBRIDE: Approach Minister for authority to proceed, they did that, told needed legislative change. Therefore, needed to explicitly seek it in the body of the NPP. We'd also expect it to be explained to us, and the Minister.
#RobodebtRC
#RobodebtRC
GREGGERY: In the final NPP as seen here, is it your evidence that if DHS wished to introduce a measure which involved averaging, the concept had to be explained in the document?
MCBRIDE: Yes. And identification that DSS had advised legislative change required.
#RobodebtRC
MCBRIDE: Yes. And identification that DSS had advised legislative change required.
#RobodebtRC
GREGGERY: The 'legislation' checklist - what did you understand of the reference to the AGS assessing constitutional and legislative risk?
MCBRIDE: That was a box you would normally tick if legislative change was subsequently required.
#RobodebtRC
MCBRIDE: That was a box you would normally tick if legislative change was subsequently required.
#RobodebtRC
GREGGERY: You were involved in emails which included early drafts, exposure drafts of the NPP, did it occur to you that what was being described in the NPP was effectively the same as what was in the Executive Minute to Morrison seeking his authority?
#RobodebtRC
#RobodebtRC
MCBRIDE: My understanding was always that DHS had this clunky process for isolating people at risk of over-claiming, averaging was one part, but largely a digitisation of existing process. Seemed consistent with that.
#RobodebtRC
#RobodebtRC
GREGGERY: Did it occur to you the automation of the process described to Morrison relied on automatic calculation of debts in a large majority of cases, where people didn't respond?
MCBRIDE: Not necessarily, my understanding was in a more tech-savvy, digital way.
#RobodebtRC
MCBRIDE: Not necessarily, my understanding was in a more tech-savvy, digital way.
#RobodebtRC
Holmes has dragged him to a stop to check the transcript. McBride says that what he was trying to say, was that averaging was in the Minute and the NPP.
This is very confusing. It's gone fractal. I feel like I'm inhaling a significant quantity of nitrous oxide.
#RobodebtRC
This is very confusing. It's gone fractal. I feel like I'm inhaling a significant quantity of nitrous oxide.
#RobodebtRC
[The transcript was still being updated which made it even more confusing. The transcribers are likely still feeling the sheer speed of the last evidence, as I am.]
GREGGERY: The Executive Minute doesn't expressly refer to averaging...
HOLMES: You might infer it.
#RobodebtRC
GREGGERY: The Executive Minute doesn't expressly refer to averaging...
HOLMES: You might infer it.
#RobodebtRC
MCBRIDE: Depends on how you apply the ATO data to the customer record. Some PAYG certificates would show employment period. Didn't necessarily have to average.
HOLMES: Applying it to raise a debt, though? It would be an extraordinary circumstance for that to arise.
#RobodebtRC
HOLMES: Applying it to raise a debt, though? It would be an extraordinary circumstance for that to arise.
#RobodebtRC
MCBRIDE: If the ATO data matched, you would be 'derisked'.
HOLMES: You'd be what?
M: You wouldn't be a risk. Employers are meant to provide dates.
H: No. They're not required to, they just declare the financial year.
M: I didn't know that...
#RobodebtRC
HOLMES: You'd be what?
M: You wouldn't be a risk. Employers are meant to provide dates.
H: No. They're not required to, they just declare the financial year.
M: I didn't know that...
#RobodebtRC
HOLMES: What's described here in the Minute can only be done by averaging. And back at that stage, you knew they were proposing that. I just had a simple question for you. That's the only way it could make sense.
MCBRIDE: I didn't appreciate that at the time.
#RobodebtRC
MCBRIDE: I didn't appreciate that at the time.
#RobodebtRC
MCBRIDE: It wasn't clear. They were certainly interested in it.
GREGGERY: There'd be no need for legislative change if they weren't changing their method as described here. You understood there was a significant increase to the number of reviews?
M: Correct...
#RobodebtRC
GREGGERY: There'd be no need for legislative change if they weren't changing their method as described here. You understood there was a significant increase to the number of reviews?
M: Correct...
#RobodebtRC
GREGGERY: Then it talks about the presentation of PAYG data to the customer, and the assessment of their income. That could only occur by way of a comparison to fortnightly eligibility?
MCBRIDE: Yes.
G: What would change was ATO data would be the 'trusted source'.
#RobodebtRC
MCBRIDE: Yes.
G: What would change was ATO data would be the 'trusted source'.
#RobodebtRC
GREGGERY: And then that it would be 'primary evidence' to undertake a much greater number of reviews. It didn't expressly say 'averaging', but you understood it referred to distributing PAYG data across fortnights.
MCBRIDE: I certainly understood...
[Did you?]
#RobodebtRC
MCBRIDE: I certainly understood...
[Did you?]
#RobodebtRC
MCBRIDE: [drivel about different financial years and when averaging would be used] I'm not sure that answers your question...
GREGGERY: I suggest that couldn't be the case, Mr. McBride. You understood PAYG data would be applied fortnightly?
M: Yes.
G: Okay.
[OK.]
#RobodebtRC
GREGGERY: I suggest that couldn't be the case, Mr. McBride. You understood PAYG data would be applied fortnightly?
M: Yes.
G: Okay.
[OK.]
#RobodebtRC
HOLMES: How could you think they were going to apply ATO data to a customer record in any other way?
MCBRIDE: I think they'd been doing that for years. Comparing ATO data to your pay. It was a normal way of running their compliance operations.
#RobodebtRC
MCBRIDE: I think they'd been doing that for years. Comparing ATO data to your pay. It was a normal way of running their compliance operations.
#RobodebtRC
HOLMES: It's another step to actually use that in calculations in respect to the customer. It can't really mean anything else, could it? What did you think they meant by 'apply it to customer record'?
MCBRIDE: Where does it say that?
H: I think we've been there.
#RobodebtRC
MCBRIDE: Where does it say that?
H: I think we've been there.
#RobodebtRC
HOLMES: [sighing deeply and taking him word-by-word through where it says that]
MCBRIDE: Yep. I accept that. It probably implies they will do as they say.
[That was excruciating, but we got there. The Royal Commission adjourns for lunch, for one hour today.]
#RobodebtRC
MCBRIDE: Yep. I accept that. It probably implies they will do as they say.
[That was excruciating, but we got there. The Royal Commission adjourns for lunch, for one hour today.]
#RobodebtRC
The Royal Commission has returned, with Paul McBride to complete his evidence.
#RobodebtRC
robodebt.royalcommission.gov.au
#RobodebtRC
robodebt.royalcommission.gov.au
GREGGERY: Do you recall meeting Mark Withnell and Scott Britton of DHS on 26 February 2015?
MCBRIDE: Almost nothing. I remember Withnell. It was a busy time for us and it was a relatively minor measure.
G: In that hundreds of thousands of people might have debts?
#RobodebtRC
MCBRIDE: Almost nothing. I remember Withnell. It was a busy time for us and it was a relatively minor measure.
G: In that hundreds of thousands of people might have debts?
#RobodebtRC
MCBRIDE: In terms of things for which I had responsibility. We'd a secondary sort of responsibility for this, and the legal aspects were settled in our mind.
GREGGERY: No NPP was provided at the meeting?
M: I couldn't tell you.
G: No record of the meeting?
M: No.
#RobodebtRC
GREGGERY: No NPP was provided at the meeting?
M: I couldn't tell you.
G: No record of the meeting?
M: No.
#RobodebtRC
HOLMES: When are you saying you settled the legal and averaging aspects?
MCBRIDE: We'd conveyed it in 2014.
H: You'd settled it by saying they'd be required?
M: Correct.
H: Did you ever get any written confirmation that averaging wouldn't be involved?
M: No.
#RobodebtRC
MCBRIDE: We'd conveyed it in 2014.
H: You'd settled it by saying they'd be required?
M: Correct.
H: Did you ever get any written confirmation that averaging wouldn't be involved?
M: No.
#RobodebtRC
GREGGERY: You took the sentence that there was 'no change to the approach' to be a specific abandonment of averaging?
MCBRIDE: Yes.
G: And you didn't ask about how the numbers changed? There's an inconsistency there...
M: I accept that. I genuinely can't explain.
#RobodebtRC
MCBRIDE: Yes.
G: And you didn't ask about how the numbers changed? There's an inconsistency there...
M: I accept that. I genuinely can't explain.
#RobodebtRC
GREGGERY: Email from Murray Kimber on March 5 is suggesting there is still legislative change required?
MCBRIDE: At this stage of the proposal both things were probably in play. But the way the NPP is drafted, I'd still argue, doesn't provide for it.
#RobodebtRC
MCBRIDE: At this stage of the proposal both things were probably in play. But the way the NPP is drafted, I'd still argue, doesn't provide for it.
#RobodebtRC
GREGGERY: Surely his mind would reflect your mind, as you were in the same meeting as him?
MCBRIDE: It depends how the meeting landed. I don't think it had been settled at this stage.
G: Hence the need for the NPP to identify 'legislative change required'?
M: Yes.
#RobodebtRC
MCBRIDE: It depends how the meeting landed. I don't think it had been settled at this stage.
G: Hence the need for the NPP to identify 'legislative change required'?
M: Yes.
#RobodebtRC
GREGGERY: What steps did you take to make sure the prospect of legislative change was noted in the NPP, from that point?
MCBRIDE: The final NPP didn't ask for income averaging in my mind, said 'no change', I think conversations were still going on...
#RobodebtRC
MCBRIDE: The final NPP didn't ask for income averaging in my mind, said 'no change', I think conversations were still going on...
#RobodebtRC
GREGGERY: Kimber suggests to you it should be noted on NPP, and you agree with him that irrespective of those words, you weren't satisfied the proposal didn't involve averaging?
MCBRIDE: I accept there was uncertainty, but 'no change' would have given me comfort.
#RobodebtRC
MCBRIDE: I accept there was uncertainty, but 'no change' would have given me comfort.
#RobodebtRC
[Mr. McBride is trying to argue the meaning of the word 'may'. The nitrous oxide feeling has returned to my brain. Hurgegeghhghfhghghghh]
#RobodebtRC
#RobodebtRC
GREGGERY: It was DSS' responsibility that it should be abundantly clear whether there was legislative change required or not?
MCBRIDE: Yes...it's hard...
G: If DSS isn't pushing back on this, it's not difficult at all, is it?
#RobodebtRC
MCBRIDE: Yes...it's hard...
G: If DSS isn't pushing back on this, it's not difficult at all, is it?
#RobodebtRC
MCBRIDE: DHS have a responsibility to implement Government policy in accordance with the law.
GREGGERY: Yes, and it's DSS' responsibility to make sure they do that.
[Greggery is staring daggers at McBride, he keeps interrupting him with utter drivel, it's trash.]
#RobodebtRC
GREGGERY: Yes, and it's DSS' responsibility to make sure they do that.
[Greggery is staring daggers at McBride, he keeps interrupting him with utter drivel, it's trash.]
#RobodebtRC
I don't think Paul McBride has thought about any aspect of this since, except perhaps to quiet his own conscience. It's incredible. He can't string two sentences together consistently.
He's blabbing on about digitisation and 'clunky manual processes' again.
#RobodebtRC
He's blabbing on about digitisation and 'clunky manual processes' again.
#RobodebtRC
This is like a word cloud. Vaguely correlated assumptions about computers and processes and systems.
I've said it before, but this doesn't even rise to the level of tech fetishism - it's tech-fetishism-fetishism. He's just said 'moving to a digital world'.
#RobodebtRC
I've said it before, but this doesn't even rise to the level of tech fetishism - it's tech-fetishism-fetishism. He's just said 'moving to a digital world'.
#RobodebtRC
[Holmes is looking at him incredulously]
MCBRIDE: I know you're looking at me incredulously, but...
[Holmes continues to look at him incredulously]
#RobodebtRC
MCBRIDE: I know you're looking at me incredulously, but...
[Holmes continues to look at him incredulously]
#RobodebtRC
They're taking him through a series of opportunities for him to ask, 'how do you get this many interventions without averaging?', meetings on the Budget measures, briefing Porter.
I am praying they dispose of him quickly.
#RobodebtRC
I am praying they dispose of him quickly.
#RobodebtRC
GREGGERY: 9 March 2016, 30 minute presentation by Scott Britton on the OCI, you attended this as well. He walked through the platform. Do you recall the meeting?
MCBRIDE: No.
G: Here are the PowerPoint slides, 'auto assessment' of calculated debt...
#RobodebtRC
MCBRIDE: No.
G: Here are the PowerPoint slides, 'auto assessment' of calculated debt...
#RobodebtRC
MCBRIDE: I'm concerned how no-one else from DSS noticed it either...it's not determinative. Maybe one of the other witnesses would remember this differently, but I don't recall any of us seeing this and raising questions about averaging. It's a missed opportunity...
#RobodebtRC
#RobodebtRC
[Pffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffffft.]
#RobodebtRC
#RobodebtRC
[He also tried to say maybe some of the PowerPoint slides were skipped. There were 15 in 30 minutes...deeply embarrassing stuff from Mr. McBride, who has been grasping at straws all afternoon. He's wasted so much precious time.]
#RobodebtRC
#RobodebtRC
[Holmes continues to look incredulously at him. I'm not sure she's ever stopped doing so at any point in the past hour.]
HOLMES: I'm suggesting you that DHS were not making a secret of what they were doing.
MCBRIDE: Let me give you an example...
H: Oh dear, yes.
#RobodebtRC
HOLMES: I'm suggesting you that DHS were not making a secret of what they were doing.
MCBRIDE: Let me give you an example...
H: Oh dear, yes.
#RobodebtRC
[Some shit about working in the ski fields for four weeks.]
HOLMES: That's not applying it to the customer record...but I don't think we will engage in this any more.
GREGGERY: That's an example where the ATO data matches up with a consistent period, irrelevant.
#RobodebtRC
HOLMES: That's not applying it to the customer record...but I don't think we will engage in this any more.
GREGGERY: That's an example where the ATO data matches up with a consistent period, irrelevant.
#RobodebtRC
By the time the Ombudsman's investigation began, Mr. McBride says he had transferred to a different area of DSS, which Greggery helps him to clarify was about 50m from the previous area.
#RobodebtRC
#RobodebtRC
GREGGERY: In the context of the critical media attention, there must have been some discussion about what DSS would do given the measure had progressed?
MCBRIDE: That'd be normal.
G: So, what was agreed about the DSS response?
M: Don't recall, [I was 50m away.]
#RobodebtRC
MCBRIDE: That'd be normal.
G: So, what was agreed about the DSS response?
M: Don't recall, [I was 50m away.]
#RobodebtRC
MCBRIDE: Minister wanted a briefing, presumably we'd have to come up with some joint response as to how it was operating, how to take out some of the more egregious parts of the scheme. I only have the vaguest recollections.
#RobodebtRC
#RobodebtRC
GREGGERY: Have you been involved in a more contentious measure?
MCBRIDE: Certainly nothing that led to a Royal Commission...aged pension asset tests
G: Did that consume the media, as Robodebt did?
M: I was also involved in RAT procurement during COVID.
[REALLY.]
#RobodebtRC
MCBRIDE: Certainly nothing that led to a Royal Commission...aged pension asset tests
G: Did that consume the media, as Robodebt did?
M: I was also involved in RAT procurement during COVID.
[REALLY.]
#RobodebtRC
[That's an incredible detail. It's just too much. I'd say it's almost on the nose, except for the fact that it's literally quite some way up the nose.]
#RobodebtRC
#RobodebtRC
[Mr. McBride can't remember anything to do with his involvement in the Ombudsman's investigation. He suspects someone said DSS opposed it, at some point, which seems likely given that was the whole reason he was called to meet with the Ombudsman.]
#RobodebtRC
#RobodebtRC
GREGGERY: It wasn't your business, that DSS appeared to permit a scheme that was unlawful, according to your position as a very senior person in the Department?
MCBRIDE: It wasn't my active responsibility.
G: These conversations would surely be memorable!
#RobodebtRC
MCBRIDE: It wasn't my active responsibility.
G: These conversations would surely be memorable!
#RobodebtRC
GREGGERY: You were actively involved, to explain how an unlawful scheme was commenced to the Ombudsman. And your position was that you were misled by the NPP.
MCBRIDE: Yes.
G: You don't recall being outraged?
M: Probably we all thought that...
G: What about YOU??
#RobodebtRC
MCBRIDE: Yes.
G: You don't recall being outraged?
M: Probably we all thought that...
G: What about YOU??
#RobodebtRC
MCBRIDE: I had no authority to do anything, it wasn't my job.
GREGGERY: As an SES Band 2 in DSS, you're saying you had NO capacity to influence the outcome of what you considered to be an unlawful scheme?
M: Other than express concern, there wasn't much I could do.
#RobodebtRC
GREGGERY: As an SES Band 2 in DSS, you're saying you had NO capacity to influence the outcome of what you considered to be an unlawful scheme?
M: Other than express concern, there wasn't much I could do.
#RobodebtRC
GREGGERY: But you don't even have a recollection that you expressed concern?
MCBRIDE: [Shrugs. He actually fucking shrugged. You have to be kidding me.] I wish I remembered, but I don't.
#RobodebtRC
MCBRIDE: [Shrugs. He actually fucking shrugged. You have to be kidding me.] I wish I remembered, but I don't.
#RobodebtRC
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