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Australia royal commission: head government lawyer knew Robodebt scheme was illegal – JURIST

A former Australian government lawyer Tuesday informed a royal commission that he withheld legal advice that the Robodebt scheme, an automated debt assessment and recovery method utilized by Services Australia from 2015 through 2019, was illegal. Former chief counsel for the Department of Social Services (DSS) Paul Menzies-McVey told the inquiry that he was aware of three pieces of legal advice from as early as 2014 stating that the program was unlawful under the Social Security Act. Menzies-McVey did not inform the DSS of this information because he believed it was “no longer of significance” when he was appointed chief counsel in 2019.During Tuesday’s hearing, the royal commission heard that an internal inquiry in 2014, an August 2018 advice from law firm Clayton Utz and a March 2019 advice from the Australian government solicitor all warned that the Robodebt scheme was unlawful. Menzies-McVey failed to disclose this information or make any inquiries into the advice, claiming that the commonwealth was awaiting the Australian solicitor general’s advice on the legality of the program.Menzies-McVey said that the information held “undesirable uncertainty about the legal underpinnings of the scheme,” however “steps were already underway to resolve” them. He later conceded that if the advices issued were accurate then the scheme would have had no legal basis.Senior counsel to the inquiry Justin Greggery KC asked if Menzies-McVey understood that the continuation of the scheme while pending further advice had “significant consequences for further recipients of debt letters.” To which, Menzies-McVey responded, “I’m not sure I turned my mind to that.” Menzies-McVey disagreed that the advice from Clayton Utz had found the program to be unlawful. He argued that the firm had not considered all parts of the scheme, including that customers could challenge the debt notices by providing further information. Commissioner Catherine Holmes responded that the basis of the scheme was that the customer was not required to engage, and it was “magical thinking” to infer that averaging would be effective.The royal commission is in the final stage of investigation in the Australian government’s Robodebt scheme. The scheme was an automated system used to assess whether overpayments of welfare to eligible Australians had been made. The scheme was based on averaging income information provided to the Australian Taxation Office. The system would then issue a debt to customers that it considered had fraudulently received excess welfare payments in an effort to create a budget surplus. Between July and November 2019, more than 52,000 unlawful debt notices were raised against Centrelink recipients.The royal commission was originally established in August 2022. Since then, the commission has held 31 days of hearings, with appearances from over 70 witnesses. The commission was originally set to end and issue its final report on April 18, however that date was recently extended to June 30.