A public servant briefly involved in advising on a proposal for what became the robodebt scheme has denied “manipulating the truth” to hide departmental knowledge about its unlawfulness from a federal watchdog.
In the most explosive questioning of a royal commission into the failed scheme so far, former Department of Social Services official Catherine Halbert was repeatedly grilled about her involvement in a 2017 ombudsman’s investigation into the scheme.
Halbert, who had briefly acted as a deputy secretary in the Department of Social Services, was involved in providing feedback on initial briefing documents for the robodebt proposal in early 2015. That feedback warned the central method of the program – known as income averaging – was unlawful and required legal change.
The royal commission heard when the Commonwealth Ombudsman in 2017 requested to see the department’s legal advice from 2015, Halbert was involved in sending a letter explaining DSS’s position to the watchdog. The inquiry heard the letter was drafted by another DSS official but then sent by Halbert to another senior official, Serena Wilson.
The letter told the ombudsman that as the robodebt plan was being developed in early 2015, DSS had “gained a better understanding” from the Department of Human Services (DHS) “of how the revised process would satisfy the legislative requirements”.
But previous evidence has suggested DHS “misrepresented” the plan in cabinet documents, by suggesting it involved no change to the way welfare debts were raised. Two years later, DSS officials were said to be surprised by the way the robodebt program was operating.
The inquiry heard the way Halbert had represented this was “simply not true”.
Senior counsel assisting, Justin Greggery, KC, said it was “abundantly clear” from the evidence that she had sought to “manipulate the truth” to the ombudsman.
“I was not trying to mislead the ombudsman’s office and if I had written it incorrectly, that’s my responsibility,” Halbert replied.
“I didn’t feel any obligation to justify the legality of the scheme. What I was explaining to the ombudsman was that the proposal in our minds … sufficiently changed that it was no longer was in breach of the legislative requirements.”
The commissioner, Catherine Holmes AC SC, interjected several times during Halbert’s evidence to bring her back to questions.
On one occasion Halbert was told by Holmes: “You are on affirmation, you are required to tell the truth.”
Halbert replied: “I am attempting to tell the truth, commissioner.”
Halbert insisted repeatedly the department was “not trying to hide this from anyone”. She said the information she provided to the ombudsman was based on advice provided to her by others. She said she was not directed to portray the situation in the way she did.
Halbert is the second DSS witness who has faced scrutiny because she was involved in the design of the initial robodebt plans and the ombudsman’s investigation in 2017.
Halbert’s comments echoed evidence from her colleague, Wilson. Halbert said DSS officials were “angry” and “surprised” when they learned DHS had been using “income averaging” to raise debts.
That is because the DSS position in 2015 when robodebt was being formulated was that this approach was unlawful.
When the scheme erupted in controversy in 2017, Holmes said DSS had two choices.
“One, they can be open with the ombudsman and say, ‘This is a surprise to us. We don’t regard it as within the legislation. We told them that at the beginning,’” Holmes said. “And the other option is to try and come in behind DHS and … find some legal advice, which would provide some possible excuse for this.”
Halbert responded: “We were not looking for an excuse for DHS.”
She added: “We were not trying to hide this from the ombudsman.”
Halbert had earlier understood that she drafted the letter, but later evidence confirmed it had been written by another DSS official. But she said this did not change her answers to the royal commission about it.
The inquiry has heard DSS subsequently sought a second piece of internal legal advice and it gave the green light to the robodebt scheme.
The department “joined” the new advice to the 2014 advice that questioned robodebt’s legality and provided both to the ombudsman, saying its legal advice was that “income averaging” could be used as a last resort to raise debts.
In possession of both pieces of legal advice, the ombudsman went on to say the scheme fit within the legislation – and the Coalition government used its report to deflect criticism from that point forward.
The inquiry heard on Thursday claims Halbert had “directed” a colleague to “tone down” initial legal concerns about robodebt in 2015. She said she had no recollection of the conversation.
The royal commission continues.
