The former government services minister Stuart Robert has told a royal commission into the robodebt scandal his department secretary withheld key legal advice from him, rejecting claims he didn’t take the solicitor general’s opinion seriously.
Fronting the inquiry on Thursday, the Coalition frontbencher also denied vowing to “double down” on the program after Renee Leon told him he should heed the solicitor general’s advice by ceasing the program and apologising to the public.
Robert also admitted making several comments on the scheme throughout 2019 that he personally believed were false, defending himself by saying he was bound by cabinet solidarity.
After telling the commission he had a “massive personal misgiving” about the use of “income averaging” by the middle of 2019, Robert was shown media appearances in which he confidently defended the practice.
Asked several times why he had made comments which he believed at the time were false, Robert told the commissioner, Catherine Holmes AC SC, he had been bound by cabinet solidarity.
“As a dutiful cabinet minister, ma’am, that’s what we do,” Robert said.
Holmes replied: “Misrepresent things to the Australian public?”
Robert said he wouldn’t “put it that way”, adding though he had doubts about income averaging at this time, the position hadn’t been confirmed by the solicitor general.
Robert’s appearance at the high-profile inquiry came after explosive claims about his role in a legal challenge to robodebt in 2019.
One witness, the DHS chief counsel, Timothy Ffrench, told the inquiry Robert had dismissed the solicitor general’s damning advice on robodebt as only an “opinion”, a recollection corroborated by the then DHS secretary Renee Leon with a handwritten note.
But Robert offered a version of events entirely at odds with the claims of his public servants on Thursday, telling the commission Leon and Ffrench had withheld several key legal advices from him, which had stymied his attempts to stop the program.
Robert said he had sought and “wanted” the solicitor general’s advice after developing misgivings about income averaging. He denied receiving a verbal briefing in July 2019 on an earlier legal opinion, contradicting Ffrench’s claim he had brought a hard copy of the Australian government solicitor’s advice and spoken to it.
Robert pointed to the fact that he’d received several briefs on the robodebt scheme during 2019, and none informed him of a March 2019 AGS opinion of the Australian government solicitor that the scheme was likely to be unlawful.
Robert said the fact it had not been given to him in writing was “simply unconscionable”.
“I don’t recall it being briefed orally,” he added. “But if the department had said here is the AGS opinion and it says that averaging is unlawful, I would have grabbed it and acted on it.”
Robert told the commission it was an offence for secretaries to withhold advice from their minister.
He accused Leon specifically and the department broadly of also “sitting on” the solicitor general’s opinion, which it received in September 2019, but was not provided to him until around seven weeks later.
Rejecting Leon’s version, Robert not only denied claims of verbal briefings but said the evidence showed when the solicitor general’s opinion was finally provided to him in November 2019, he acted.
“My department had it for seven or eight weeks,” Robert said. “I had it for two hours before I walked into the prime minister’s office, unannounced, put it down and said, ‘We need to stop these things.’”
Concerned about a possible leak, Leon told the inquiry the solicitor general’s opinion had been closely guarded but was first briefed to Robert orally in late October. She and Ffrench said officials then prepared a brief for Robert in early November to counter his alleged perception that “legal advice is just advice”.
Robert rejected that “completely in the strongest possible terms”.
He also said it was also “farcical” that he told Leon in November that the government would “double down” on the scheme.
Robert said by this stage he had already briefed the prime minister on the solicitor general’s opinion, and Scott Morrison had agreed to convene cabinet to stop the scheme.
“That I would then ignore [this] and say we’re going to double down on the same project, doesn’t make any sense at all,” Robert said.
Speaking broadly, Leon told the inquiry on Tuesday there was a culture where public servants who gave negative advice were “punished” and that there was reluctance to put such advice in writing.
Leon lost her job when her department was abolished in December 2019, a few weeks after she had stopped the robodebt scheme ahead of any government decision, she claimed.
Robert was asked to explain why he had repeatedly defended the program – describing the ultimately successful class action as a “political stunt” and citing statistics pointing to a tiny error rate in debts raised against individuals.
“I had a massive personal misgiving, yes, but I’m still a cabinet minister,” Robert said.
Holmes replied: “Yes, but it doesn’t compel you to say things that you don’t believe to be true, surely? It’s one thing to stick to the policy and say this is how we do it and we are confident in the program but to actually give statistics which you couldn’t have believed to be accurate is another thing, isn’t it?”
Robert said they were the “accepted figures by government to use”.
Later on Thursday, a public servant faced allegations she “invented a false memory” to the commission to defend her role in the scandal.
Emma Kate McGuirk held roles at the departments of human services (DHS) and later social services (DSS), including playing a role in the response to a Commonwealth ombudsman’s investigation in early 2017.
McGuirk’s knowledge of income averaging is crucial to the commission’s investigation because she requested legal advice on robodebt from a senior DSS lawyer, Anne Pulford, in early 2017.
Pulford, who had previously advised income averaging would be unlawful, gave fresh advice in 2017 giving a heavily caveated backing to the scheme. The inquiry has heard claims that McGuirk told Pulford there was a “business need” for such advice.
McGuirk was asked by Holmes if she had “invented” a memory when she told the commission last year she had been “new” to the robodebt issue in early 2017.
This followed emails shown to the commission that McGuirk, while at DHS, had given “program advice” approval for the use of income averaging in the robodebt program in May 2015. McGuirk was also shown evidence she was present at a 2016 presentation that outlined the use of income averaging in the robodebt scheme.
McGuirk said she had given evidence to the best of her ability, but added: “Having seen these [documents] I accept there had been times where I had interacted [with robodebt] before.”
McGuirk denied that she had sought the new advice from Pulford with a “predetermined outcome” to back her own 2015 approval of the robodebt plan.
McGuirk remains a public servant at DSS.
The royal commission continues.
