Alan Tudge denies he was responsible for department’s failure to check legality of robodebt, royal commission hears

Former human services minister Alan Tudge has denied he was responsible for his department’s failure to check the legality of the robodebt scheme, telling the royal commission the issue didn’t cross his mind “until I read about it in the newspaper” years later.

Tudge, who held the role at the initial height of the scandal in 2017, told the inquiry he never asked for or saw legal advice on the robodebt scheme and he had been focused on fixing its practical issues, rather than its budget savings.

He said he understood the “income averaging” method central to the scheme could cause inaccurate debts, but he didn’t consider its legality because it had been through a “rigorous” cabinet process involving lawyers in two government departments.

“I didn’t know the full context in relation to the legalities,” he said. “It just had not crossed my mind until I read about it in the newspaper, I think, following the federal court case.”

The royal commission is investigating why and how the unlawful Centrelink debt recovery scheme was established in 2015 and ran until November 2019, ending in a $1.8bn settlement with hundreds of thousands of victims.

Tudge oversaw the robodebt scheme’s implementation between February 2016 and December 2017, including its largest ramp-up in late 2016, which was part of a Coalition election commitment for billions in budget savings.

With the scheme generating controversy in January 2017, the then prime minister, Malcolm Turnbull, sent Tudge a Sydney Morning Herald article by Peter Martin, which raised the prospect that robodebt’s use of “income averaging” was unlawful.

Under questioning by senior counsel assisting Justin Greggery KC, Tudge said he had been on holidays in the UK with his family when the article was sent to him.

“When I came back [I] was very much focused on the implementation of the scheme,” he said. “There were a number of issues being raised in the media … That was my intense focus in January and February.”

Greggery said it would have been easy for Tudge to “refute” the suggestions of illegality by “simply saying, ‘Where’s the advice?.’”

“This was a program … which gone through a cabinet process,” Tudge said. “A cabinet process is a rigorous process … Social services’ lawyers would have had to form a view that it was lawful. Then on top of that the attorney general’s department has to form a view.”

Tudge, who acknowledged he had a law degree but never practised, was asked about a keynote speech given by the eminent silk Peter Hanks KC at an administrative law conference in June 2017. Hanks said the robodebt scheme was unlawful.

Greggery said the then secretary of the Department of Human Services, Kathryn Campbell, and the department’s then chief counsel, Annette Musolino, had been briefed on the comments.

Tudge told the royal commission he was unaware of Hanks and had not seen the speech but he would have expected Musolino to check the legality of the scheme with the Department of Social Services, which was responsible for social security law.

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Greggery said that if steps to check the legality of the scheme weren’t taken at this stage, that was ultimately Tudge’s responsibility as minister.

“I don’t accept the proposition that I was responsible for an individual not making a choice to not raise a matter with her counterpart in a different department,” Tudge said.

“They may well have said, ‘Listen, we’ve got legal advice on this, our legal advice is sound, we’re disagreeing with Mr Hanks.’”

The Department of Social Services held conflicting internal legal advice on the scheme, including a scathing opinion that it would be unlawful, from 2014. It did not seek an authoritative legal opinion until the middle of 2019 in response to a court action, which subsequently saw the program shut down.

Tudge said he was “greatly annoyed” about a December 2016 A Current Affair news story on the robodebt scheme that quoted him saying: “We’ll find you, we’ll track you down and you will have to repay those debts and you may end up in prison.”

Tudge said he believed the story was going to cover a separate welfare fraud program and he had been taken “completely taken out of context”.

He said he had been replying to the question, “What would you say to people who deliberately commit fraud on the commonwealth?”

Tudge’s evidence, before Catherine Holmes AC SC, continues.