‘I don’t know’: Marise Payne unsure why advice for legal change to robodebt disappeared from policy plan

Former human services minister Marise Payne has told a royal commission she doesn’t know why advice that robodebt needed legal change disappeared from the plan for the doomed scheme before it was launched.

The 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.

It heard on Tuesday that Payne, who was human services minister in early 2015 when the program was designed, was closely involved in the preparation of a brief on welfare compliance measures – including robodebt – that was sent to Scott Morrison. Payne was the junior minister, while Morrison was social services minister and took the plan to cabinet.

Asked by Justin Greggery KC, senior counsel assisting, why the reference to legal change on that brief was not included in the final policy proposal taken to cabinet by Morrison, Payne said she did not know.

“I don’t know the answer to that question,” she said. “And I say that in all transparency.”

Payne said it was expected that “when agencies advise you” they are “working together to address these issues”, the officials “are doing that”.

The initial brief cleared by Payne noted the departments of social services (DSS) and human services (DHS) were working through legislative issues. The brief masked a big row between DSS, which opposed the plan and viewed it as unlawful, and DHS, which was backing the plan.

“If [the departments] are saying to their ministers that this may or will … require policy or legislative change, then yes, there is a responsibility borne in both departments,” Payne said.

“Does that mean that the responsibility is also borne by both ministers,” Greggery replied, referring to Payne and Morrison.

Payne said: “Essentially responsibility is always borne by ministers.”

The royal commission heard the discussions around the plan occurred while the Abbott government was facing a hostile Senate, which made it difficult to legislate.

Payne didn’t recall receiving “any formal advice on even the nature of the policy and legislative changes”, even when she was working on the initial brief.

The commissioner, Catherine Holmes AC SC, asked whether it would not have been a “burning question” to know what change was needed given the parliamentary numbers.

Payne said generally legislation would be worked up after the budget was passed, adding: “I’ve not … operated on the basis of what can I get through the Senate.”

Payne said she could find no evidence she had seen the final policy proposal. The royal commission heard she had been invited to appear at the expenditure review committee (ERC) and held meetings with Morrison and other officials to brief her beforehand.

Holmes repeatedly suggested it would have been “extraordinary” if she hadn’t seen the plan.

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“Wouldn’t that be extraordinary given it was a policy proposal, which concerns your department, both in terms of its preparation and its implementation, if you did not see it?” Holmes said.

Payne said there were about 30 policy proposals at the time and noted that the policy was in the “cabinet minister’s name”, a reference to Morrison, who will give evidence on Wednesday.

Documents shown to the commission on Tuesday also revealed that the Department of Finance had initially rejected the robodebt proposal, questioning the legitimacy of the costings.

The inquiry heard the disagreement was sorted out between ministers at a subsequent ERC meeting.

Payne was asked whether she had cast her mind back to the 2015 budget process once robodebt erupted in controversy.

She said she had not turned her mind to the legal questions, though she had thought about the “impact that was being described at the time on individuals or families who had been subjected to the operation of the scheme”.

“I think others have said before me that its implementation was less than perfect,” Payne said. “Certainly that impact was clear for me and others to see.”

A version of the robodebt briefing cleared by Payne was shown to the commission on Tuesday.

The version prepared by public servants noted: “The comprehensive nature of these reviews will send an important message to those all around the country that they could be next and there is very little chance they will avoid punishment.”

Payne’s annotation changed “they could be next” to “you’re next”.

The royal commission continues.