Legal counsel on Robodebt from government solicitors was “as lame as an advice could get”, the commissioner leading the probe into the failed scheme told the inquiry today.
Key points:
- Lawyers were asked to prepare “dot points” on Robodebt as news of the scheme hit the media
- But the advice did not refer to social security legislation
- The former general counsel for the DHS’s commercial law branch agreed the advice was “unconvincing”
Lisa Carmody, former general counsel at the Department of Human Services’ (DHS) commercial law branch, took the stand at the royal commission into Robodebt on Monday.
She was asked by Commissioner Catherine Holmes AC SC about her work in January 2017, where she and other lawyers prepared “draft legal advice” about the illegal scheme.
The royal commission is holding a final block of hearings in Brisbane into the Robodebt scheme, which used income averaging and tax and Centrelink data to calculate social security debts.
The inquiry heard lawyers had been asked to prepare some “dot points” on the issue of Robodebt as negative stories about the scheme were “hitting the media”.
Ms Holmes noted the legal advice given made no mention of social security legislation, despite identifying issues with the scheme’s legality.
“Look, to put it bluntly this is about as lame as an advice you could get … isn’t it? Do you agree with that as a legal advice it’s really unconvincing?” Ms Holmes asked.
Ms Carmody replied: “I agree it’s unconvincing. I think it was a note prepared as a wrap up of some thoughts at the time”.
She later conceded she did not remember the purpose of the document and later described it not as “draft legal advice” but a “summary” of conversations from the week in January that she acted in a more senior role at DHS.
Earlier, an email penned by another lawyer involved in the initial advice about Robodebt, Mark Gladman, was shown to the inquiry.
‘Weak’ argument for scheme’s legality
The email included the dot-point document and described the arguments being made to support the legality of the then-Coalitions large-scale budget saving measure as “weak”.
In his evidence, Mr Gladman said when he was working on the draft legal advice in 2017, he could not find a way to justify the use of income averaging – the central calculation used by the Robodebt scheme to raise debts.
He said he had received the initial draft of the legal advice from another lawyer, who the commission heard has since retired.
Mr Gladman told the inquiry he considered this legal advice before concluding there were some issues with it.
“We had limited detail on what Robodebt involved,” he said.
“… the more I looked at our arguments the more I started to question whether that was really an accurate description of what the department was trying to achieve in whatever processes it was doing.”
Mr Gladman told the royal commission he had suggested external legal advice be sought form the Australian Government Solicitor (AGS).
He said it was his view external legal advice would be more “objective” and allow people with better expertise to consider the legality of the program.
“I felt the arguments didn’t support there was a reasonable basis, based on the material before me … I didn’t feel I could reach the conclusion that there were reasonable arguments to support income averaging but I also felt there were several matters I need to explore,” Mr Gladman said earlier.
He also said he believed if a matter would be determined by a court “they would more likely than not find that the department could not income average”.
‘I can’t recall’
When his superior Ms Carmody took the stand, she told the inquiry she had contacted AGS about receiving further legal advice, but she did not explicitly discuss seeking that advice or her thoughts the arguments supporting averaging were “weak” when reporting the issue to former DHS general manager Sue Kruse.
“I believe I would have been keeping Ms Kruse broadly informed, but I can’t recall a specific discussion like that,” Ms Carmody said.
Counsel assisting the royal commission Angus Scott KC asked Ms Carmody: “Do you think you made it clear to Sue Kruse the extent of the risk to the DHS if external legal advice from AGS was not obtained?”
“I don’t recall anything as specific as that … it was reasonably early [in the Robodebt proposal] and it was a small period of time and we were working on the premise we were preparing the draft instructions and had contacted AGS so I think it would have been clear but whether I made it clear, I can’t recall,” Ms Carmody replied.
The royal commission continues.