There was "definite pressure" from senior Department of Social Services (DSS) leadership on the legal team providing advice on the unlawful Robodebt scheme, a former in-house lawyer says.
Anna Fredericks — a former in-house legal officer at DSS — has given evidence at the commission sitting in Brisbane.
Commissioner Catherine Holmes asked Ms Fredericks about the culture in DSS' legal unit.
Commissioner Holmes: "Everything I’ve seen suggests a certain passivity [within the legal team], is the kindest word I can use."
Ms Fredericks: "It was very siloed type of culture … you were responsible for what you were responsible for, you stayed within those bounds. There appeared to me to be a view of, with some of the lawyers, that … it wasn't our role to turn our mind to the broader risks [of Robodebt]. I found it quite problematic."
Ms Fredericks said there was "definite pressure" from senior leadership on what the legal team did and "what we commented on" at the time it was providing advice on the Coalition-era debt-recovery scheme.
She told the commission that former Department of Human Services (DHS) secretary Kathryn Campbell — who later became the DSS secretary — could be "quite controlling" and was not "keen or interested" in hearing views different to hers.
"Over time, it was not a positive change in culture," Ms Fredericks said.
"Colloquially, there was a view that no-one wanted to give her [Ms Campbell] bad news."
Ms Fredericks then added that the legal department was "often viewed as a bit of a pain" and was avoided.
Ms Campbell led the implementation of the Robodebt program and has previously told the commission she considers the scheme a “significant failure of public administration".
'It would have likely caused reputational damage'
The commission also heard Ms Fredericks attended a lecture given by high-profile Victorian law figure Peter Hanks KC at a national law conference in 2017, in which he criticised the lawfulness of Robodebt and its method of raising and recovering "debts".
Ms Fredericks said she was concerned by those comments and agreed with Counsel assisting Angus Scott KC that it would have been "an appropriate course of action" to then seek independent legal advice.
She said she didn’t seek that advice because of "tension" between DSS and DHS.
Mr Scott asked Ms Fredericks if she thought independent legal advice would have confirmed the scheme was unlawful.
"If independent legal advice had been sought at the time and had full scope and awareness of the program, I have no doubt they would have come to that view," she told the commission.
Mr Scott: "If such advice came back indicating that, that would have had catastrophic consequences on the program, correct?"
Ms Fredericks: "Yes, it would have undoubtedly led to a redesign or cessation ... [and] it would have likely caused reputational damage to those two departments but also to the government."
Mr Scott: "And to the secretaries of those departments?"
Ms Fredericks: "Likely, yes."
Initial request to seek external legal advice blocked
Kristin Lumley, former assistant director of payment integrity at the DSS, also gave evidence on Friday afternoon.
Ms Lumley — who is currently an assistant director with Services Australia — told the commission she became very concerned about Robodebt's lawfulness in 2018 and sought permission to seek external legal advice, but her attempt was blocked by a superior.
She said she did not remember by whom.
The commission heard that, a year later, Ms Lumley saw draft legal advice from law firm Clayton Utz that found the use of income-averaging to raise welfare debts was unlawful, but it was not acted upon.
She agreed with Mr Scott that there was an "urgent need" to forward the advice to department secretaries, ministers and federal Cabinet due to it having "whole-of-government implications".
Mr Scott asked: "Is there any reason why briefing the people I just mentioned wouldn't happen as a matter of urgency?"
Ms Lumley replied: "It wouldn’t be good news to share. It would damage the department’s reputation, the minister’s reputation."
The commission was shown an email that Ms Lumley sent to a colleague in 2018 in which she said she was "extremely concerned" the department was "sitting on the legal advice" and the matter would "definitely end up in the Federal Court".
Mr Scott asked: "Did you feel that there was inaction from those above you to act on the legal advice from Clayton Utz?"
Ms Lumley replied: "Yes, I did."
