Scott Morrison will have his legal bills paid by taxpayers after Attorney-General Mark Dreyfus approved funding for the former prime minister to respond to possible findings against him in the robo-debt royal commission.
The approval was made before the final report was released on July 7.
Former ministers and party leaders have already accrued legal bills of more than $2.5 million as part of their appearances at the Royal Commission into the Robodebt Scheme. Any legal costs relating to subsequent referrals or investigations are treated separately and are made at the discretion of the attorney-general.
Morrison has declined to say whether he has or has not been named in the commission’s sealed section, where referrals have been made for civil and criminal prosecutions. The Saturdays paper is not suggesting he has been referred. He did not respond to a request for comment.
In the wake of the profound and disturbing 1000-page report, delivered by Commissioner Catherine Holmes last week, an entire new legal front has opened in the robo-debt saga: the possibility of further compensation for victims who may sue individuals over their treatment. Holmes left as many clues as she could.
“People may have individual or collective remedies. On the evidence before the Commission, elements of the tort of misfeasance in public office appear to exist,” she says.
“Where litigation is not available, the Commonwealth does have a ‘Scheme for Compensation for Detriment caused by Defective Administration’ (which would be a very euphemistic way of describing what happened in the Robodebt Scheme) where a person has suffered from defective administration and there there is no legal requirement to make a payment. It is not appropriate to say any more on that front.”
Minister for Government Services Bill Shorten took these prompts and televised them in an interview with the ABC’s 7.30 on Monday night.
“I do not know why these Coalition ministers think that they’re out of the woods,” he said.
“This royal commission has a long way to go and a lot of lessons to be applied, but I do not know why Coalition ministers, with that sort of very, very damning analysis by the royal commission, why they think when the commissioner says there’s the tort of malfeasance in public office, why they think that people, victims, won’t sue them individually.”
The interview raised eyebrows within the government.
Generally speaking, the Commonwealth would indemnify ministers or other public officials for damages incurred via such a tort. The last time this happened was in a case over the 2011 live animal export tires.
In June 2020, Federal Court of Australia justice Steven Rares found former Labor Agriculture minister Joe Ludwig had “shut his eyes” to the very real proposition that the export tire was “invalid” even though he must have known it would be absolutely damaging to cattle producers.
Justice Rares awarded almost $3 million in compensation, to be paid to the Northern Territory’s Brett Cattle Company, with additional payouts to other graziers of $2.15 a kilogram for steers and $1.95 a kilogram for heifers that would otherwise have been exported to Indonesia during the ban.
The government paid Ludwig’s legal bills and the compensation.
Gordon Legal senior lawyer Andrew Grech, who helped run the robo-debt class action, says the royal commission has produced the possibility that similar compensation could be sought by robo-debt victims.
“We always suspect that something along these lines is what happened, but there is a huge difference between knowing something and being able to prove something,” he told the ABC this week.
“And what I think the royal commission demonstrations are those proofs are available.”
Former minister Stuart Robert has said publicly he is not named in the confidential sealed section of the royal commission report, where Commissioner Holmes has made referrals to external agencies such as the Australian Federal Police and the National Anti-Corruption Commission.
Alan Tudge, who was Minister of Human Services when he was involved in “an abuse of his power”, would not say whether he had been referred to for investigation.
“My legal team has not identified any legal basis of which any civil or criminal prosecution could successfully be made against me,” Tudge said in a statement.
Robert’s denial is more concrete and also curious. “I have NOT received a notice of inclusion in the ‘sealed section‘ and I understand they have all gone out,” he said when the report was released.
Previously, the commission put to Robert’s lawyers that he had been “deliberately untruthful” in his account to the inquiry, especially regarding a November 2019 meeting with Scott Morrison. Robert said that at this meeting he told Morrison the robo-debt had to end.
“In their submissions, Mr Robert’s representatives said that there was no basis in the evidence for finding Mr Robert’s account to be deliberately untruthful; there was competing evidence about what occurred on 8 November 2019 and there was no compelling reason to reject the contemporaneous evidence of Mr Robert’s diary notes,” the report says.
“In fact, there is reason to reject the contemporaneous diary notes as accurate records of what happened when, and reason to think that both Mr Robert’s notes and Mr Morrison’s chronology are wrong about a meeting on 7 December [sic, November] and the matters recorded as discussed in it.”
Robert stated he had given instructions to the then Department of Human Services secretary, Renée Leon, to terminate the program the same day.
There is no evidence of such a meeting or even phone conversation between Robert and Leon that day, and in any case the briefs recommending income averaging be stopped immediately were not sent to his office until 6.18pm.
“So it is clear that by the evening of 7 November 2019, Mr. Robert had not yet personally received both briefs, and it seems improbable that he had time if he received them after that to carry out all the steps set out on 7 November diary notes,” the report says.
“In fact, it seems more probable than not that he did not see the two briefs until the morning of 8 November 2019.”
How is it, then, that Morrison also happened to have a meeting on November 7 in his time line of events provided to the royal commission? The report does not elaborate but, strictly speaking, notes from Morrison’s account: “He was not asked about the entry, and the source of his recollection is not known.”
“The Commission’s view is that the weight of the evidence is strongly against Mr. Robert’s having given any instruction to Ms Leon on 7 or 8 November 2019 to cease income averaging as a sole or partial basis for debt raising,” the report found.
“What seems to have happened at the meeting on November 8 2019 was a canvassing of options. It is reasonable to suppose that Mr Robert still hopes to salvage the Robodebt Scheme in some respects.”
The roll call of wrongdoing, negligence or potential breaches of various codes of conduct is long and largely illuminated in the public section of the royal commission report.
Renée Leon had some of her own evidence disputed in the final report and has been accused of misleading the Commonwealth ombudsman, Michael Manthorpe, about whether she and the department had legal concerns about the status of robo-debt in 2019.
“The representation made by Ms Leon to Mr Manthorpe in March 2019 that the lawfulness of the Scheme was ‘not uncertain’ was misleading,” the report says.
Again, months later and within 48 hours of receiving the damning solicitor-general’s opinion that sounded the death knell for robo-debt, Leon received a draft copy of Manthorpe’s ombudsman report. She had successfully lobbied the ombudsman to remove an entire section commenting on the scheme’s legality but now, with unequivocal legal advice in her possession, she failed to update her position that there was no uncertainty around the scheme’s legislative foundation.
“In the Commission’s view, Ms Leon’s failure to advise Mr Manthorpe that his previous representation to him in relation to the legality of the Scheme had no proper basis was, in its effect, misleading, and denied him any opportunity to reconsider his findings,” the robo-debt report says.
“It was not sufficient for Ms Leon to rely upon other DHS officers to bring to her attention the need to correct the record.”
It is an offense to withhold information that may be relevant to an ombudsman inquiry, carrying a prison sentence of up to three months.
More critically, it is an offense under the criminal code to knowingly give false or misleading information to a Commonwealth entity or delegate or for a person to omit information knowing that what to do so is apt to mislead. The penalty for this is a 12-month jail sentence.
Under the National Anti-Corruption Commission legislation, the definition of corrupt conduct includes any “conduct by a public official that constitutes or involves a breach of trust”. It also includes: “Any conduct of a public official, or former public official, that constitutes or involves the misuse of information or documents acquired in the person’s capacity as a public official.”
While the Albanese government has set up a series of public service conduct investigations involving the figures referred to in the sealed section of Holmes’ report, The Saturday Paper understands department secretaries have or will need to include others named in the report but who have not officially been referred to for conduct breaches.
This is because the behavior outlined in the public report is, at minimum, a potential breach and must also be investigated.
Taken together, dozens of current and former public servants are now likely to face some form of investigation. The Public Service Act, which contains the APS code of conduct, stipulates above all that staff “behave honestly and with integrity in connection with APS employment”.
“An APS employee must use Commonwealth resources in a proper manner and for a proper purpose,” the code also states.
“An APS employee must not provide false or misleading information in response to a request for information that is made for official purposes in connection with the employee’s APS employment.”
For those currently serving, the sanctions available include termination of employment or demotion.
The Department of Defense has declined to say whether Kathryn Campbell – one of the most prominent figures in the robo-debt disaster, implicated by the report at several key steps in the scheme’s maintenance – is still receiving her $900,000 a year salary in her role as “special adviser” on the AUKUS nuclear submarine program.
Another key figure in the commission’s final report is former DHS chief counsel Annette Musolino. The report says Musolino provided defective or misleading legal advice in her role as the top in-house law officer and that she gave evidence to the royal commission which was later rejected.
Musolino was the chief operating officer of Services Australia until at least April this year. On Monday, July 3, just days before the release of the royal commission report, the organization chart for the department formerly known as Human Services was updated.
Musolino no longer appears on it.
“Ms Musolino is currently on leave,” a spokesperson for the department said in a statement.
This article was first published in the print edition of The Saturday Paper on July 15, 2023 as “Exclusive: Morrison approved for legal aid over robo-debt”.
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