A former top departmental lawyer claims Stuart Robert told him an “opinion is just an opinion” when the minister was told about the legal “challenges” with the robodebt scheme, a royal commission has heard.
Timothy Ffrench, who was chief counsel at the Department of Human Services, now called Services Australia, also claimed its former boss Kathryn Campbell was partly to blame for a culture that meant the robodebt scheme’s legality was not checked earlier.
The inquiry heard on Wednesday Ffrench verbally briefed the then government services minister in July 2019 about the legal “difficulties” with the robodebt scheme.
The meeting followed the re-election of the Morrison government and came as the scheme faced a federal court challenge.
The commission has heard that by this stage the government’s central legal service, Australian Government Solicitor (AGS), had provided “prospects advice” in late March, saying the scheme was likely to be unlawful. AGS recommended the department seek the opinion of the solicitor general, who found the scheme was unlawful in September 2019.
Ffrench told the commission he “spoke to the minister plainly about the difficulties” that were outlined in the AGS advice in the July 2019 meeting.
“When I went to see the minister, I took a copy of the prospects advice in Masterton and spoke to it and I raised with the minister the concerns that the advice raised about the lawfulness of the robodebt scheme and the need for the solicitor general’s opinion,” Ffrench said.
Asked by counsel assisting the commission, Angus Scott KC, how Robert had responded, Ffrench initially said he could not recall.
He said: “I honestly can’t recall. I think he accepted …”
He then added: “I have referred to statements the minister made about an ‘opinion just being an opinion’. I’m not sure if it came out of this discussion or later discussion.
“I think it might have been this discussion because, prior to later discussions with the minister about the legal challenges, I had drafted a minute to him where I tried to counter that perception that I saw, that ‘it’s just an opinion until we get a judicial declaration from a court … I believe it might have been this meeting where he said something like that.”
The inquiry was shown a minute Ffrench drafted to Robert that warned the minister of the legal risks of continuing the scheme, given the solicitor general’s advice. Robert signed and noted the brief on 6 November 2019, documents show.
The inquiry was told Ffrench claims he overheard the then attorney general, Christian Porter, telling Robert on 12 November outside an expenditure review committee meeting: “It’s right, mate.” The comment was a reference to the solicitor general’s opinion being correct.
“Once that [Porter’s] endorsement had been given, it was clear within government that the position … needed to change and the solicitor general’s opinion was right,” Ffrench said.
Robert is expected to give evidence in the final block of hearings. Porter has already given evidence and was not asked about the comment.
The commissioner, Catherine Holmes SC, asked Ffrench if he recalled Robert telling him in the July meeting about his view of the potential problems with income averaging, the method used in the robodebt scheme that was found to be unlawful.
“I don’t recall him making those kinds of statements in response,” he said.
Ffrench said he did “not recall Robert disagreeing with what I put to him”.
“I don’t recall the precise comments that he made aside from that noteworthy and memorable comment about an opinion just being an opinion,” he said.
Ffrench said he also advised the then DHS secretary, Renée Leon, on 17 November 2019 of her exposure to a claim of misfeasance in public office if the scheme continued in spite of the solicitor general’s advice. Ffrench said he advised Leon of the need to prevent harm.
The inquiry heard that by the time that brief was sent to Leon, the department had the solicitor general’s opinion in its possession for about two months.
Ffrench said Leon suspended the scheme the day after he sent her that advice, on 18 November 2019. Robert announced the suspension of the scheme that day, saying only a “small cohort” of people were affected.
The inquiry heard Ffrench was among several departmental lawyers who attended a law conference in July 2017 where esteemed silk Peter Hanks KC had argued the robodebt program was unlawful.
Ffrench, who was not involved in the robodebt scheme at the time, said Hanks’s comments should have prompted the department to get external legal advice.
At this point, the government held conflicting internal advice, including a 2014 opinion that suggested the then proposed scheme would be unlawful.
Ffrench was asked by Holmes if that might have “inhibited” staff from seeking authoritative legal advice.
“There was a different secretary, I think in 2017, that may have inhibited or dissuaded persons from providing advice that they might otherwise provide,” Ffrench said. “But I’m speculating, I wasn’t privy to the dynamics of that.”
Campbell, who was DHS secretary at the time of Hanks’s speech, was involved in the initial design of the robodebt proposal in 2015. She became secretary of Social Services in September 2017.
Ffrench said the “culture and leadership” in the department was “not conducive to a proper examination of issues relating to this particular program”.
He said he thought “many people were determined to achieve a particular outcome for government”.
Ffrench claimed a culture of “fear” and a “command and control” approach meant people were prevented from “asking the questions that they should have asked” and those who questioned the scheme “may have been presented as being blockers”.
Ffrench named Malisa Golightly, the then deputy secretary of DHS, as a contributor to that culture and claimed Campbell had “enabled and fostered” Golightly’s behaviour. Golightly has passed away.
Campbell, who is expected to appear again at the commission, has said she regretted not seeking legal advice on robodebt but said it was the Department of Social Services’ (DSS) responsibility. It managed social security legislation, while Human Services implemented those policies. DSS held advice in 2017 that gave some legal backing to the scheme.
Campbell has not yet responded to specific criticism of her leadership that has been levelled by some witnesses.
The commission continues.