Robo-debt legal advice had evolved by the time it went to cabinet, Morrison says

Former prime minister Scott Morrison has told the robo-debt royal commission that the Department of Social Services advised the welfare recovery scheme didn’t require legislative change by the time the proposal went to cabinet for approval.

On Tuesday the commission heard Morrison told departmental staff in February 2015 to pursue the $1 billion-plus welfare crackdown, after officials told him it would need a legal overhaul. However, a new policy proposal containing the scheme went to the Coalition government’s expenditure review committee the following month without that specific legal advice.

The scheme used Tax Office annual income data and averaged it over 26 fortnights, presuming income was the same across each, and put the onus on welfare recipients to prove they didn’t owe the government money. A federal court judge found in 2019 that income averaging was unlawful.

A briefing, signed and annotated by then-social services minister Morrison on February 20, 2015, agreed the Department of Human Services (DHS) would continue to work with the Department of Social Services (DSS) to explore policy and legislative changes to green-light the debt recovery scheme.

However, a new policy proposal containing the scheme went to the Coalition government’s expenditure review committee the following month without that specific advice.

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Liberal senator Marise Payne, who had the human services portfolio at the time, fronted Tuesday’s commission hearings and confirmed that she signed and annotated an executive minute in early 2015 that said the proposal would need “legislative and/or policy changes” but said she didn’t know why the advice had later fallen “off the radar”.

Under questioning from counsel assisting the commission, Justin Greggery, Morrison explained on Wednesday that “by the time of the submission going to cabinet, the view at DSS had changed … and advice was given that legislation was not required by the department”.

“I note the same interactions you had [seen] and they are as fresh to me as they were to you, but I also note the other commentary in my office, which has appeared here, that describe an evolving understanding of the proposal and implications of that and what was ultimately affected.”