The affirmation of legality Morrison relied on was a due diligence checklist in the cabinet submission that said no legal changes were required.
Greggery put to him his belief in the scheme’s lawfulness “was proved wrong by history.”
Morrison replied:“Unfortunately,yes. As I said,the suggestion to me that internal department legal advice was not conveyed to ministers was unthinkable.”
Greggery responded:“And yet it happened,” to which Morrison said:“Yes.”
Greggery put a number of factors to Morrison - including his desire for a “welfare cop” to crack down on fraud,the $1 billion-plus budget savings identified,a hostile Senate and a tight timeframe - that he said combined to create an environment in which departmental staff lacked the courage to warn him of the legal issues.
“Members of your department may have felt constrained in whether they could freely and frankly raise with you the fact that this measure,if introduced,would not be lawful,” Greggery said.
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. It was used from 2016 until 2020,and wrongly recovered more than $750 million from 381,000 welfare recipients.
When Morrison was asked on Wednesday whether he was concerned about the need for legislation regarding income averaging,he replied,“no one was suggesting that”. Asked if he had taken advice on the legality of income average at any stage,he replied,“no I did not.”
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Morrison insisted the practice of income averaging wasn’t new and had been used by the government to recoup welfare debts since 1994. Commissioner Holmes said she believed Morrison’s assertion was “dubious”.
Former DHS secretary Kathryn Campbell,who worked beneath Morrison at the time the proposal was being formulated,told the commission last week “the brief that went forward[in February 2015] said DSS indicated there would be a need for policy and legislative change”.
“At some point in time,a decision was taken that it didn’t require policy or legislative change,” she said.
Felicity de Somerville,34,was a plaintiff in the robo-debt class action after she had about $11,500 taken out of her account to service a Youth Allowance debt.
De Somerville said she was not surprised by Morrison’s evidence but added that was disheartened the former primer minister “hasn’t learned from any of his mistakes”.
“Morrison will never apologise and I don’t expect an apology from him,” she said. “The only way that we grow and develop as humans is by learning from our mistakes,which is something that he’ll never do.”
NDIS and Government Services Minister Bill Shorten accused Morrison of failing to take responsibility for the fraught scheme. “It shows no self-insight. It is a defensive lecture about why everyone else is wrong and he’s right,” he said of Morrison’s evidence.
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