The
Guardian, 6
February 2019:
Centrelink has
now wiped, reduced or written off 70,000 “robo-debts”, new figures show, as the
government’s automated welfare compliance system scheme faces a landmark court
challenge.
Victoria Legal Aid on
Wednesday announced a challenge to the way Centrelink evaluates whether a
person owes a welfare debt under the $3.7bn system. It will argue the “crude
calculations” created using tax office information are insufficient to assess a
person’s earnings and, therefore, are unlawful….
Victoria Legal Aid’s
court challenge was also welcomed by the Australian Council of Social Service
chief executive Cassandra Goldie, who said the scheme was a “devastating abuse
of government power…..
Alternative Law Journal. Emeritus Professor of Law (Syd Uni)
Terry Carney, Robo-debt
illegality: The seven veils of failed guarantees of the rule of law?, 17
December 2018:
The
government's on-line-compliance (robo-debt) initiative unlawfully and
unethically seeks to place an onus on supposed debtors to ‘disprove’ a
data-match debt or face the prospects of the amount being placed in the hands
of debt collectors. It is unlawful because Centrelink, not the supposed debtor,
bears the legal onus of ‘proving’ the existence and size of any debt not
accepted by the supposed debtor. And it
is unethical because the alleged debts are either very greatly inflated or even
non-existent (as found by the Ombudsman), and
because the might of government is used to frighten people
into paying up – a practice rightly characterised as a form of extortion. How
could government, accountability avenues, and civil society have enabled such a
state of illegality to go publicly unidentified for almost 18 months and still
be unremedied at the date of writing?
This
article suggests the answer to that question lies in serious structural
deficiencies and oversights in the design and operation of accountability and
remedial avenues at seven different levels:
1. In a lack of standards to prevent
rushed government design and introduction of machine learning (‘smart’) systems
of decision-making;
2. In a lack of diligence by
accountability agencies such as the Ombudsman or Audit Office;
3. In a lack of ethical standards of
administration or compliance by Centrelink with model litigant protocols;
4. In a lack of transparency of the
first of two possible tiers of Administrative Appeals Tribunal review (AAT1),
resulting in a lack of protections against gaming of review by way of agency
non-acquiescence or strategic non-contestation;
5. In a lack of guarantees of
independence and funding security to enable first line Legal Aid or community
legal centre/welfare rights bodies (CLC/WRC) to test or call out illegality in
the face of thwarting of challenges by Centrelink settling of potential test
cases;
6. In a lack of sufficient pro-bono
professional or civil society capacity to mount ‘second line’ test case
litigation or other systemic advocacy; and
7. In tolerance, especially in some
media quarters, of a ‘culture’ of political and public devaluing of the
significance of breaches of the rule of law and rights of vulnerable welfare
clients.
It
is argued that a multifaceted set of initiatives are required if such breaches
of legal and ethical standards are to be avoided in the future.
Why
is it clear that robo-debt is unlawful?
The
pivot for this article is not so much that Centrelink lacks legal authority for
raising virtually all debts based on a robo-debt ‘reverse onus’ methodology
rather than use its own information gathering powers – for this remains
essentially uncontested. Rather
it is extraordinary that this went unpublicised and uncorrected for over two
years. So first a few words about the illegality as it affects working age
payments such as Newstart (NSA) and Youth allowance (YA).
Robo-debt
is unlawful because Centrelink is always responsible for ‘establishing’ the
existence and size of supposed social security debts. This is because the
legislation provides that a debt arises only if another section creates
a debt, such
as one based on the difference between the amount paid and the amount to which
a person is entitled. And
because Centrelink bears a ‘practical onus’ to establish this. If Centrelink
cannot prove up a debt from its own enquiries or information supplied to it,
the status quo (no debt/lawful receipt of payments) applies. This
has been the law since 1984 when the full Federal Court decided McDonald. Unless
the alleged debtor is one of the rare employees who had only a single job paid
at a constant fortnightly pay rate, Centrelink fails to discharge this onus
when its robo-debt software generates a debt by apportioning total
earnings reported to the Australian Taxation Office (ATO) from particular jobs to
calculate average earnings. Robo-debt treats fluctuating earnings as if
that income was earned evenly at the same rate in each and every fortnight.
Mathematically this is wrong because an average for a fluctuating
variable never speaks to its constituent parts. And it is
the actual income for constituent fortnights that as a matter of law
is crucial for calculating the rate of a working age payment such as NSA or YA.
Read the full
article here.
