Morrison’s robodebt inquiry bid to release secret Cabinet documents
Scott Morrison is calling for a stack of secret cabinet documents to be made public before he gives evidence at the robodebt royal commission.
Lawyers for the former prime minister argue his reputation could be damaged if the confidential papers are kept under wraps.
Morrison was social services minister when the scheme was established in 2015 and prime minister when it was wound back in 2019 after its income-averaging debt calculation method was ruled to be unlawful.
Morrison’s lawyer, James Renwick, argued there would be “considerable difficulties” in the former PM giving evidence without being able to refer to documents redacted under public interest immunity claims.
“If he says I did ‘X’ because of ‘document Y’ and you do not have document Y … you will never be able to come to a finding based on all of the evidence … you have failed to inquire in a manner where a document is readily available to you,” he said.
Commissioner Catherine Holmes said she was “puzzled” by the application.
She accepted three specific examples where redacted documents may need to be amended, but fell short of extrapolating that across the wider range of cabinet documents.
“The argument on these three items looks pretty good but I don’t see that it follows across the board,” she said.
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“I just don’t understand why these documents … get anybody any further.”
Renwick responded: “Because, commissioner, his reputation is on the line”.
Holmes clarified the general presumption was a shared responsibility for cabinet decision-making rather than an individual minister.
A private commission hearing on Thursday will address the issue further. Morrison is scheduled to give evidence the following Wednesday.
It came on another bombshell day of evidence where it was found the scheme continued for months after the Human Services department received legal advice it was probably unlawful.
Former DHS general manager Craig Storen said he believed the advice was only relevant to the case involving Madeleine Masterton who was challenging the robodebt program in the Federal Court.
The royal commission heard it avoided a Federal Court hearing that would have ruled on its legality, dropping a $4000 debt in 2019 after Masterton challenged in court.
Legal advice from an Australian government solicitor the department received in March said they had a “very good” chance of losing the case.
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The scheme wasn’t wound back until November 2019, eight months after the legal advice was received.
Emails shown to the commission saw the department opt to recalculate the debt based on Masterton’s actual income, rather than have the test case proceed in court.
After he suggested a “lack of desire” for the Federal Court to rule on the scheme’s legality, counsel assisting the commission Angus Scott asked Storen why the department didn’t want a ruling.
“The department’s position at the time was the use of income averaging was still a valid approach to determining customers’ income over a period of time,” Storen said.
That prompted commissioner Catherine Holmes to ask: “If you were so confident about that, why not proceed on that basis in the Federal Court?”
But after robodebt continued despite the legal advice that income averaging was unlawful, Storen said he believed the advice was only specifically relevant to the case involving Masterton, not the entire scheme.
An incredulous Scott said that was clearly not the case.
“That advice implicitly stated the use of … income averaging was not a lawful basis to calculate a debt,” he said.
“It was commenting on the provisions of the social security legislation that didn’t just apply in the Masterton case, it applied to social security recipients more generally.”
Holmes agreed, asking: “You thought there was no statutory basis regarding Ms Masterton, but for everyone else it was fine?”
