Top official denies ‘manipulating reality’ to ombudsman on legality of robodebt plan

A public official who briefly consulted on a proposal for what became the Robodebt plan refused to “manipulate the truth” to hide departmental information from a federal watchdog that it was illegal.

In a royal commission’s most explosive questioning of the failed plan ever, Catherine Halbert, a former Department of Social Services official, was repeatedly questioned about her involvement in the 2017 ombudsman’s investigation into the programme.

Related: Robodebt royal commission says ‘misrepresentation may have entered cabinet’

Halbert, who briefly served as assistant secretary in the Department of Social Services, was involved in providing feedback on the initial briefing documents for the robodebt proposal in early 2015. This feedback alerted the program’s centralized method – known as revenue averaging. unlawful and necessary legal change.

The royal commission heard in 2017 that when the Commonwealth Ombudsman asked to see the department’s legal advice from 2015, Halbert was interested in sending a letter explaining DSS’s position to the watchdog. The investigation heard that the letter had been prepared by another DSS official, but was later sent by Halbert to another senior official, Serena Wilson.

The letter told the ombudsman that while the robodebt plan was being developed in early 2015, DSS “has a better understanding of how the revised process will meet regulatory requirements” from the Department of Human Services (DHS).

But previous evidence suggested that DHS had “misrepresented” the plan in cabinet documents, arguing that it did not include any change in the way social assistance debts were collected. Two years later, DSS officials were said to be surprised at the operation of the robodebt program.

The investigation heard that Halbert’s way of representing this was “absolutely untrue”.

Senior assistant advisor Justin Greggery, KC, told the ombudsman it was “very clear” from the evidence that he was trying to “manipulate reality”.

“I was not trying to mislead the Ombudsman’s office, and if I mistyped it, it is my responsibility,” Halbert replied.

“I did not feel any obligation to justify the legality of the program. What I explained to the ombudsman was that the proposal we had in mind … has changed enough that it no longer violates legal requirements.”

Commissioner Catherine Holmes AC SC intervened several times during Halbert’s deposition to bring him back to the questions.

Holmes once said to Halbert: “You’re in agreement, you need to tell the truth.”

Halbert replied: “I’m trying to tell the truth, Lieutenant.”

Halbert has repeatedly insisted that the department “didn’t try to hide this from anyone.” He said the information he gave to the Ombudsman was based on advice given to him by others. He said he wasn’t led to describe the situation as he did.

Halbert is the second DSS witness to be investigated in 2017 for being involved in the design of the first robodebt plans and the ombudsman’s investigation.

Halbert’s comments mirrored the evidence of his colleague Wilson. Halbert said DSS officials were “angry” and “surprised” when they learned that DHS was using the “revenue average” to increase debt.

This is because the DSS position in 2015, when robodebt was formulated, was that this approach was illegal.

When the plan sparked controversy in 2017, Holmes said DSS had two options.

“First, they can be open with the ombudsman and say, ‘This came as a surprise to us.’ We do not see this within the scope of the legislation. We told them that at the beginning’” said Holmes. “And the other option is to get behind DHS and … find some legal advice that would provide a possible excuse for that.”

Halbert responded: “We weren’t looking for an excuse for DHS.”

“We weren’t trying to hide it from the ombudsman,” he added.

Halbert had previously realized that he had prepared the letter, but later evidence confirmed that the letter was written by another DSS official. But he said that didn’t change his answers to the royal commission on the matter.

The investigation heard that DSS later sought a second internal legal advice and gave the green light to the robodebt plan.

The ministry “added” the new advice to the 2014 recommendation that questioned the legality of robodebt and provided both to the ombudsman, saying its legal advice was that “income average” could be used as a last resort to increase debt.

Related: Robodebt: a conspiracy or something?

The ombudsman, who had both legal advice, went on to say the plan was in line with legislation, and the Coalition government used his report to deflect criticism from that point forward.

Thursday’s investigation alleges that Halbert “directed” a colleague to “mitigate” his initial legal concerns about robodebt in 2015. Halbert said he didn’t remember the conversation.

The royal commission continues.

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