Robodebt royal commission live: Scott Morrison insists income averaging was ‘established practice’

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And with that, we will leave you to your evening.

Thank you for joining us for Scott Morrison’s testimony to the royal commission. It will form part of the commission’s conclusions – and there is still the proof Scott Morrison has been asked for, for his assertions that income averaging has always been used, as requested by the commissioner Catherine Holmes, to come.

Luke Henriques-Gomes will continue his stellar coverage of the royal commission as it continues.

And as always, if you or a loved one were impacted by robodebt, we hope you will get the answers you deserve.

Take care of you.

If you haven’t had a chance to read it, here is Luke Henriques-Gomes piece on the first half of Scott Morrison’s evidence. He is working on updating it with the second half of the testimony right now.

And to his main evidence – robodebt in his opinion wasn’t an issue, as income averaging had been done since the early 1990s, as far as he was concerned. He is not sure where he learned that, but someone gave him verbal advice that income averaging had been used since about 1994 and he never questioned whether or not it was an issue.

Updated at 02.11 EST

So in his answer to his own counsel there, Scott Morrison repeated his “regret” at what had happened with robodebt (which he had previously expressed to the parliament) and made the points he wanted to make throughout his entire evidence: he acted with the information at the time, and if he had seen the legal advice saying it was unlawful, then the government of the day probably wouldn’t have gone ahead with the program.

Why didn’t anyone make sure he did see that legal advice? Who can say, says Scott Morrison.

Updated at 02.05 EST

Morrison concludes appearance before royal commission

And so, with that, Scott Morrison is excused from the royal commission into robodebt.

Updated at 01.58 EST

Morrison recommends public servant training emphasise ability to give free and frank advice

Scott Morrison continues:

And as a result, I think there are important lessons to be learned and I have no doubt commissioner, that is what you’re directing your attention to. And I appreciate the work of you and the commission and the senior counsel and what you’re attempting to do here.

But in looking at all of that, if I look back at the one critical point where the system didn’t do what it needed to do – to assist good decision making is where someone was aware of something that significant – it must be brought to the attention of the minister in order for them to make that decision.

I understand the point about ‘why didn’t you ask’. I understand that. We’re not dealing with a situation here where there wasn’t advice and the minister then asked for advice and then they would have then gone and got it.

We’re talking about a situation where there was advice, and a very clear set of advice, I stress, once I’ve had the opportunity to see it, and how that did not get elevated and raised with ministers will remain a mystery.

And I hope that one that is solved to ensure it doesn’t happen again.

Is that something Morrison would recommend the Australian public service commissioner might take up in training public servants in the future, his counsel asks?

Oh, absolutely. I mean, the provision of free and frank advice is an important part of the public service and it’s something that I’ve always relied on and I must say in my experience as a minister I’ve got plenty of it. Plenty of it. And I welcomed it, and those who provided free and frank advice, I know appreciated the ability to give it, but the other thing that I always appreciated was secretaries and others I work with that haven’t given that advice and a minister making a decision.

Or a prime minister, for that matter, making [a] decisions. Those public servants got on with their responsibility to implement the government’s decision, which takes me to the speech, which counsel assisting referred to earlier (the expect and respect one).

Updated at 01.59 EST

Morrison gives a closing monologue

So there are Scott Morrison’s answers to those seven points.

He is then given the opportunity to make a closing monologue of sorts, from his own counsel. A royal commission dixer, if you will.

Scott Morrison:

I’d simply say this as ministers, the process is the guardrail. The process is something that ministers rely on to be fulfilled, and they rely on those who are professional in ensuring submissions are comprehensive, to give cabinet ministers confidence in the information that’s in front of them. And that process is very exhaustive.

And I know, understandably, the points that are raised by the counsel assisting, if you’ve not been directly involved in the pulling together of these submissions within government, then it is understandable that you might form an outsider’s view that that period of time is not a long period of time, but I can tell you in government, you’d be surprised how quickly it moves.

As I said, I saw that with the public service at its best when Australia was under such great threat during the pandemic, with measures that were in the tens of billions in terms of expenditures, as well as very important health measures. So I would simply say that the process in Australia is a very sound one.

And one that I think has a great deal of strength and credibility in which ministers, I think, are quite reasonably able to rely upon, whether it was my government or the one I was part of, indeed, the government now … they would be equally well served, I’m sure by their officials, and they will be following similar processes. I have no doubt and that is what … ministers and I hope the public [have] confidence about how these matters [are] dealt with.

So is therefore when the system doesn’t work, and there is a failure in the system such as the one we have discussed today. And that is deeply concerning. And of course, I believe everybody, including whether they are the secretaries of the departments through to the frontline service, people within services Australia, as well as all ministers and their staff, deeply and deeply regret how this programme impacted on individuals and I certainly do and I expressed [as] such in the parliament as prime minister.

Updated at 01.56 EST

Morrison: critical failure in the system was that the issue was not raised with the ministers at any time

Scott Morrison:

And in relation to the finance brief in 2010. Well, I think that’s a practical reality … if that meant that the 2010 year was not available, and if it wasn’t legislated in that time, then simply … the estimates would have been adjusted.

And that wasn’t a reason either to go ahead or not go ahead, and that would be my reflection now, in terms of what you’ve suggested are the cumulative impacts of all of these things.

And now I don’t accept that proposition. I can’t conceive of any arrangement with any of these things that would say to a department who had that advice in the form that I have now seen it, and to hold that for ministers, not just in 2015, on multiple occasions in which these issues were brought back … time and again between then and 2019 and to read as we did in May 2020. In the very submission before cabinet, that this issue had never been raised with ministers at any time.

Those are not my words, but those of the department.

So that is the situation we found ourselves in and you’re right. The critical failure in the system.

And I’m making no judgments on any individuals, was that this advice, which had been sought prior to my turning up, was not brought to the attention of ministers. And I believe there was an obligation and duty to do so. And that … was a reasonable expectation of a minister of the department.

Updated at 01.49 EST

‘Savings was not the primary objective of the measure’: Morrison

Scott Morrison:

The primary issue here was the matter of integrity in the system. By pursuing integrity of the system, you ensure that there are not overpayments and taxpayers money that has been improperly paid is recovered.

And that has a positive savings outcome on the budget, not by withdrawing entitlements from anyone or putting taxes on anyone. So had the measure not been feasible, then it wouldn’t have been pursued. And as a result that that would not be a a savings measure that could have been included in the budget.

And … [had] we formed the view and had I formed the view that on the basis of legislation, that wouldn’t be achievable … it simply wouldn’t have been pursued. Which is why the non-coming forward with … advice is so disappointing. In this process, had that advice come forward, I sincerely believe we would not be sitting here today.

… there would either been legislation, dealt with it and was achieved or the measure would not have been pursued by the government and I would not have pursued it as minister. Remember, this was not a measure that the government initiated … this was a measure that was initiated within the public service and brought to us which we agreed to take forward based on those representations.

So on the savings, the savings would have been in the budget, but that was not the primary objective of the measure.

Updated at 01.47 EST

‘I don’t suggest that having a strong view on enforcement is extraordinary in any way’: Morrison

Scott Morrison:

But whether it required legislation that would have been considered and if we didn’t believe it was possible, and it wouldn’t have been pursued on the Senate crossbench, the success, well, it is as you say: we have many … legislated measures.

And I can only repeat what I’ve just said in relation to point five, which is the policy position on [the] ‘welfare cop’ aspect: I think you read too much into that. I was simply articulating, I think, a fairly … ordinary principle.

And I don’t resile from that: as minister I expected that only the payments that should have been made [would] be made. So we can ensure that the payments that needed to be made could be made to those who needed the most. And that was what I meant by welfare integrity.

You [the] ensure integrity of a programme to protect the programme, because you care about the people who most need that programme.

And so no, I don’t suggest that having a strong view about enforcement is extraordinary in any way. And I would have hoped that that would have been something that would be shared on the issue of savings.

Updated at 01.45 EST

Morrison: legislative change timeframe was not a major factor

Scott Morrison:

So the legislative change timetable. Well, no, that was not … a reason for it not to proceed. And it’s not a reason that it may or may not have been accomplished if we had the view, and there was a fair view that we already had as a government, a fairly long list of legislated measures, and … had this measure required legislation, then we may well not have pursued it.

In fact, it would have been unlikely that we would, because there were many other issues that we were pursuing.

I note in the the portfolio budget submission that this item was not even referred to in any detail in the introduction to the submission referred to … the many other government priorities that were set out in my charter letter and, and and as we articulated particularly in the speeches that you referred to, which did not include the SI WP item. So the legislative timetable issue, I would respectfully suggest was not factoring heavily.

Updated at 01.43 EST

Scott Morrison:

(The waver to the voice is gone by this next sentence)

The legislative change timetable and the suggestion that this wasn’t practical. Well, this wasn’t something that became material.

So … as you probably picked up, counsel, from my answers to earlier questions, whether it needed to be in place by the first of July 2015 or 2016.

I can’t tell you because we still don’t know what the legislative change would have been. It may have allowed the pilot [programme] to proceed on the first of July to 2015, but knowing that it would need to be legislated by the time of the broader-scale implementation 2016, I don’t know. So it wasn’t a material issue of consideration.

At that time in terms of any stop date, my honest understanding of the issue at the time, there were … other measures in the 51-item portfolio budget submission that did have those requirements. And I was aware of those … We did get them legislated in that timeframe, despite the situation on the crossbench that you refer to which [was] real.

Updated at 01.42 EST

Scott Morrison:

Secondly, I mean, we’ve talked about the issue of asking for advice and not asking for advice. I relied on the department, I had great faith in the department. I understand, under the cabinet handbook, what my responsibilities are and I put trust in that relationship and being able to assert about the correct status of the sufficient terms of the timeframe as I noted, that is not an unusual timeframe. And I’ve seen departments work that at timeframes a 10th, if not, even more quickly than that on difficult measures.

(There is a little waver to his voice here)

I saw the public service in this country at its best during the pandemic, what they are capable of, only ministers and prime ministers I think can really appreciate and that’s why I have great respect for them. They’re not infallible, they’re not invulnerable. They will make mistakes from time to time as will others. But I have the greatest respect for all of those I work with on these matters.

Updated at 01.40 EST

It was ‘inconceivable’ that advice would not come to me from the department: Morrison

Here are Scott Morrison’s answers to those contentions.

Well in relation to point one, as I indicated before, it is inconceivable to me in all my experience as a minister and a prime minister that your own department who had had legal advice – certainly that had predated even my coming into the portfolio – that I wouldn’t have been elevated within the department and that would not have been raised directly with me.

There was not the idea that I would have assumed that they had advice and weren’t giving it to me … [that’s] inconceivable. In my knowledge of those individuals … had that information come forward in the way that I’ve now seen it, which I did not see at the time and certainly before late 2019 in terms of the solicitor general’s advice, but the actual advice that was circulating, even prior to my arrival in the portfolio, then I doubt we’d be sitting here today.

Updated at 01.39 EST

Seven points as to why robodebt proceeded

Justin Greggery then goes through seven points he may make to the commissioner, Catherine Holmes, and asks Scott Morrison to note them, so he may respond to them.

Greggery (after saying that there might be later evidence which gives some light to this):

…in the evidence so far, there are a number of features which give rise to a possible finding about why legal advice was not drawn to your attention.

The first is that it was not asked for by you when you had the opportunity to ask for it from your department.

The second is the short timeframe between your signing of the executive minute and the development of the proposal within perhaps as short as two weeks and as long as five weeks.

The third is that the identification of the need for legislative change in the executive minute was not practically possible, or the introduction of the measure, in practice, by [the first of] July 2015.

The fourth is the time constraint issue … the constitution of the Senate, with the Coalition having 33 seats, the Labor party having 25 and there being 18 crossbench positions, was not a positive indicator for the success of legislative change proposals.

Five is that you had communicated a policy position prior to receiving the executive minute on the radio which use[d] strong language about welfare reform and cracking down [in] dealing with fraud.

Six is that the matter had real attraction to you because of its significance as a savings measure towards a balanced budget.

And seven, the feature identified in the finance comments about the statute of limitations and the urgency from that perspective.

Updated at 01.47 EST

Morrison: the system did present some real challenges to people who were asked to meet a high standard

Pressed on who may have given him that advice, Scott Morrison says it was seven years ago.

Justin Greggery points out that recipients of a robodebt notice had been asked to find payslips from seven years ago.

Greggery:

Do you appreciate the irony of the position now that you are now in having to recall events from seven years ago? To the position that this measure placed welfare recipients or former welfare recipients in, in having to prove evidence of fortnightly income from as much as six years earlier? In order to avoid the raising of a debt?

Morrison:

The difference that I would only note is this – you’re asking me to recall an oral conversation of seven years ago.

Morrison then says that if he needed to get his bank statements from the past, when the debts were raised, he could. Greggery makes the point that bank statements were enough – people were first asked to get payslips from seven years ago.

You’re well educated and it might not be a big matter for you to get bank statements from years ago, but as you identify, that wasn’t permitted in the early stages of the scheme: people had to find payslips and that presented some real challenges, didn’t it, to people who you’re asking to meet this very high [standard]?

Morrison:

It did and that’s why I’m pleased that they altered the programme.

Greggery:

Putting to one side the question of legality, and putting to one side the question of whether you sought advice or didn’t seek advice [on] all of those issues … did you appreciate that this was a measure which asked a lot of a potentially vulnerable cohort of Australians?

Morrison (after taking a few beats to think):

The management of the social security system is a very difficult task for those who administer and I’m not talking about ministers. I’m talking about those who administer it each and every day [in] Centrelink services Australia offices around the country. And they deal with these difficulties whether it’s this programme or any number of others. Every single day.

So, in seeking to ensure the integrity of the system, then that does of course put obligations on individuals who have been the recipients of payments. That is unavoidable. And in seeking to ensure the integrity of system and any overpayments are dealt with, then that is a difficult part of the system to manage.

Pretending that overpayments aren’t made, I’m not sure there is a way that you can’t deal with that in fairness to the taxpayer as well.

Updated at 01.32 EST

So we have Scott Morrison agreeing that he believed income averaging was a long standard practice, and that someone had given him verbal advice to that effect, and he never questioned it, because he believed it was the way the department had operated since at least 1994.

He doesn’t know when he received that advice, or from whom, but he is convinced income averaging was the way things had always been done.

Morrison rebuked over comment

Scott Morrison then uses the same sort of cheap shot he would make towards journalists or opposition MPs who challenged him on answers he gave: “Well you may have a different view about that and it may not suit your position”.

It is the second time Morrison has said something to that effect. Justin Greggery then picks him up on it.

Mr Morrison, can I just take up with you something you suggested about my position in your answer where you said that I may have a different view about that and it may not suit, and I assure you my questions are directed towards the gathering of evidence, not my personal view.

That it’s the second time you’ve said it, and you should be clear about my position.

Updated at 01.21 EST

Income averaging was ‘an established practice’: Morrison

Scott Morrison on averaging:

It was established practice, it was it was not a matter of controversy. It was not a matter of intense scrutiny at the time and including by stakeholders. This was the purpose of me engaging with stakeholders … to understand what their priorities were and to see what sensitivities there were and things that I should be aware of in administering the portfolio.

This was not an issue that was receiving the focus and attention that it is today. And so the circumstances were very different. It was an established practice. That was my knowledge of it.

Catherine Holmes

Your understanding was [it] was an established practice for DHS to raise debts on the basis of average income data in the absence of a response from the recipient.

Morrison says yes.

Holmes:

All right, and that’s from some verbal advice you got somewhere along the line … I’m just trying to get to how you got that understanding.

Morrison:

You’re asking me to try and describe to you how I knew something in 2015 in January, and I’m seeking to give you as best as my recollection as I can. But in reasonableness, it’s given this was not an issue that was receiving significant attention at the time.

This was an established practice of the Department of Human Services, and was not under question. And it had not been raised with me by the stakeholders. I cannot honestly recall the specifics of a conversation that may have taken for less than an hour seven years ago.

Holmes

In 2019 when the solicitor general said that it clearly was not a lawful basis for raising debts, did you think back to how did I get the idea it was?

Morrison says he knew that some of that came from the submission he took to cabinet.

So we have just gone round in circles. Morrison knew what he knew when he knew it, until he knew differently.

Updated at 01.25 EST