STATE OF PLAY NSW 2018-2022: Trapped In Harm's Way

 

Global Climate Change is not something that will happen on some vague future date, it is occurring right now and is being experienced by regions and populations around the world.

Globally the Earth has warmed by at least an average 1.1° Celsius (1.9° Fahrenheit) since 1880 according to U.S. NASA analysis (2022) - with the majority of the warming occurring since 1975, at a rate of roughly 0.15 to 0.20°C per decade. Australia has warmed on average by 1.44 ± 0.24 °C since national records began in 1910 according to the Australian Bureau of Meteorology (2020) – with the majority of this warming occurring since the 1960s. In NSW, the average temperature is about 1.4°C higher than in 1910, with 2018 and 2019 being the warmest years on record according to NSW EPA (2022).

The complex interactions such warming is causing affects atmospheric and ocean circulation patterns, seasons of the year and regional/local weather patterns. Which means that ongoing change can no longer be reliably separated out into incidents caused by “climate change” and incidents caused by ordinary “weather”.

One of the ways changing climate is being experienced is by an increase in frequency and/or intensity of what are often described as either “adverse weather” events or “natural disasters”.

This post looks at natural disaster declarations in New South Wales over the last five years as an indication of the level at which our communities are becoming trapped in harm’s way by our geography.

Disaster declarations are a during or after event acknowledgement of significant damage to natural and built environments, industry and businesses within one or more of the state’s 128 local government areas.

Natural disaster declarations

A Disaster Declaration is a frequently updated list of Local Government Areas (LGA) that have been impacted by a natural disaster. With a disaster declaration for their area, affected communities and individuals can access a range of special assistance measures.

Disaster declarations are issued by the NSW Government and incorporate an Australian Government reference number (AGRN).

NSW DISASTER DECLARATIONS 1 JULY 2018 to 14 SEPTEMBER 2022

1 July 2018 to 30 June 2019

• Shoalhaven bushfires: 11 August 2018 onwards

• Richmond Valley, Lismore and Kyogle bushfires: 12 August 2018 onwards

• Clarence Valley and Glen Innes Severn bushfires: 14 August 2018 onwards

• Cessnock and Port Stephens bushfires: 15 August 2018 onwards

• Bega Valley and Eurobodalla bushfires: 15 August 2018 onwards

• Tamworth (Rockview) Bushfire: 30 October 2018 onwards

• Port Stephens and Cessnock Bushfires: 22 November 2018 onwards

• Armidale (Melrose) Bushfire: 1 December 2018 onwards

• NSW Storms and Floods: 13 December 2018 onwards – including Clarence Valley LGA

• NSW Storms and Floods: 20 December 2018 [extending the declaration] – including Ballina & Clarence Valley LGAs

• Glen Innes Severn (Highland Creek) Bushfire: 25 December 2018 onwards

• Tamworth (Halls Creek Road) Bushfire: 3 January 2019 onwards

• Newcastle (Kooragang Island) Bushfires: 5 January 2019 onwards

• Parkes and Cabonne (Curembenya) Bushfire: 5 January 2019 onwards

• Inland New South Wales Storms and Floods: 11 January 2019 onwards

• Snowy Valleys Bushfires: 17 January 2019 onwards

• Parkes and Greater Hume Storms: 22 and 23 January 2019 onwards

• Hilltops and Cootamundra-Gundagai Storms and Floods: 5 February 2019 onwards

• Eastern NSW Storms: 8 February 2019 onwards

• Singleton and Muswellbrook Bushfires: 11 February 2019 onwards

• Tamworth Regional and Upper Hunter Bushfires: 11 February 2019 onwards

• Northern NSW Bushfires: 11 February 2019 onwards – including Kyogle LGA

• Tenterfield Bushfires: 9 March 2019 onwards

• Central West and Orana Storms and Floods: 29 March 2019 onwards

• NSW – Carrathool Floods: 22 April 2019 onwards

• Berrigan Shire Storms – 29 June 2019 onwards

1 July 2019 to 30 June 2020

• NSW North Coast Bushfires: Commencing 18 July 2019 onwards – including Clarence Valley, Kyogle & Richmond Valley

• NSW Bushfires: 31 August 2019 onwards – including Ballina, Byron, Clarence Valley, Kyogle, Lismore, Richmond Valley & Tweed LGAs

• Sydney and Southern Highlands Storms: 5 September 2019 onwards

• NSW Storms: 26 November 2019 onwards

• NSW Storms and Floods: 15 January 2020 onwards – including Ballina, Byron, Clarence Valley, Kyogle, Lismore, Richmond Valley & Tweed LGAs

• Western NSW Floods: 26 February 2020 onwards

• Cabonne Shire Storms and Floods: 25 March 2020 onwards

• Western NSW Storms and Floods: 3 to 4 April 2020

• Western NSW Storms and Floods: 10 to 12 April 2020

1 July 2020 to 30 June 2021

• NSW Storms and Floods: 25 July 2020 onwards

• NSW Storms and Floods: 5 August 2020 onwards

• Central NSW Storms: 18 August 2020

• NSW storms and floods: 20 October 2020 onwards

• NSW Storms: 28 November 2020 onwards

• NSW Storms: 2 December 2020 onwards

• NSW Storms and Floods: 10 December 2020 onwards

• NSW Storms and Floods: 2 January 2021 onwards

• NSW Storms and Floods: 19 February 2021 onwards

• Eurobodalla Storms from 26 December 2020 onwards

• NSW Storms and Floods 10 March 2021 onwards – including Ballina, Byron, Clarence Valley, Kyogle, Lismore, Richmond Valley & Tweed LGAs

• Snowy Valleys Storms from 3 February 2021 onwards

• Southern NSW Storms and Floods from 5 May 2021 onwards

• NSW Storms from 10 June 2021 onwards

1 July 2021 to 30 June 2022

• NSW storms and floods from 16 July 2021 onwards

• Armidale storm from October 14 2021 onwards

• North East NSW severe weather from 20 October onwards

• NSW storms and floods from 22 August onwards

• Severe weather event across NSW from 23 October onwards

• NSW severe weather and flooding 9 November 2021 onwards – including Kyogle, Lismore & Richmond Valley

• Narrabri storm and tornado of 30 September 2021

• NSW storms and floods from 30 July 2021 onwards

• Northern Beaches severe storm as of 19 December 2021

• Lithgow severe storm and flash flooding as of 11 January

• Southern NSW storms and floods from 5 January 2022 onwards

• NSW Severe Weather and Flooding from 22 February 2022 onwards – including Ballina, Byron, Clarence Valley, Kyogle, Lismore, Richmond Valley & Tweed LGAs

• Broken Hill Severe Thunderstorm 15 March 2022

• Wingecarribee Severe Storm - 19 April 2022

1 July 2022 to 4 August 2022 (financial year 2022-23)

• NSW Severe Weather and Flooding from 27 June 2022 onwards

• NSW Severe Weather and Flooding from 4 August 2022 onwards

• NSW Severe Weather and Flooding from 14 September 2022 onwards

Note: 

The Clarence Valley Local Government Area (LGA) has been part of a NSW Natural Disaster Declaration 8 times in 4 consecutive financial years - declarations occurring between August 2018 to February-March 2022.

Kyogle Shire LGA has also been part of a NSW Natural Disaster Declaration 8 times, Richmond Valley 7 times, Lismore City LGA 6 times, Ballina Shire 5 times, Byron Shire LGA 4 times and Tweed Shire 4 times, between August 2018 to February-March 2022.

NSW Environment Protection Agency (EPA) releases its draft Climate Policy and Action Plan

Environmental Defenders Office, 30 September 2022:

First ever NSW plan for climate action released after landmark win by bushfire survivors

One year after the landmark win by Bushfire Survivors for Climate Action in the NSW Land and Environment Court, NSW’s environmental regulator has released a draft of their first climate policy and action plan.

The Court found last August that the NSW Environment Protection Agency (EPA) has a legal duty to take serious action on greenhouse gas emissions and climate change – the first time that an Australian court has ordered a government to take meaningful action on climate change.

EDO’s case on behalf of our client, Bushfire Survivors for Climate Action (BSCA), argued that the EPA has a duty to develop policies, objectives and guidelines to regulate greenhouse gas emissions and protect communities from the impacts of climate change. BSCA spokesperson Fiona Lee, who lost her home in the Black Summer fires almost three years ago, said that this draft plan is an important step in answering that call.

“After the worst bushfire season on record in 2019/20, BSCA decided to use the law to ensure the authority tasked with protecting people and the environment does so effectively,” Ms Lee said.

“Bushfire survivors like me have already endured the devastating effect of climate change on our lives, homes, jobs and security and we know that extreme weather events like these will only increase in intensity and frequency as global temperatures increase. We need drastic emissions reductions this decade to keep our communities safe from further climate dangers.

“We’re pleased that the EPA has released this draft climate change policy and public consultation period. We look forward to getting across the details and preparing our submission in response.

“We also look forward to continuing to work closely with NSW Minister for Environment and Heritage, James Griffin, and the new EPA chief executive, Tony Chappel, to ensure this process delivers real impact in reducing emissions.”

Elaine Johnson, EDO’s Legal Strategy Director said: “This is a significant day for the Bushfire Survivors for Climate Action after their historic win last year, when the court found the NSW EPA was required to act on climate.

“We see the release of this draft policy as an important first step – but the devil will be in the details.

“We have analysed the draft policy and action plan and we are working with our clients, partners and the community to ensure we end up with an effective climate plan which delivers real results, and fast. Ahead of our webinar, we will be publishing our analysis and submission guide on key issues to support and strengthen the policy and action plan.

“This is our last chance to get it right. Climate change has already begun. How much worse it gets depends on how quickly we can drive emissions towards zero.

“The Court has made it clear that it’s the EPA’s job to protect Australians from greenhouse gases and climate change – there is no more time to lose.”

Have your say

The draft plan will be open for public submissions until 3 November 2022, and is an opportunity to ensure the EPA implements robust measures, safeguarding Australians and the environment we live in.

Join our community briefing webinar on Thursday 6 October, 6pm-7:30pm to hear independent expert legal analysis of the EPA’s draft Climate Policy and Action Plan. This webinar will be useful for anyone intending to make a submission. Register here.

`````````````````````````````````

NSW EPA Draft Climate Change Policy document is at

https://hdp-au-prod-app-nswepa-yoursay-files.s3.ap-southeast-2.amazonaws.com/5316/6253/3253/EPA_Climate_Change_Policy.pdf

NSW EPA Draft Climate Change Action Plan 2022-2025 document is at

https://hdp-au-prod-app-nswepa-yoursay-files.s3.ap-southeast-2.amazonaws.com/8816/6253/3292/Climate_Change_Action_Plan_2022-25.pdf

Taking a walk with Twitter through Lismore City's still devastated streets

Mali brave young person from my flood ravaged community Lismore charged with NSW Govt draconian protest laws. Court heard what climate anxiety is - dismissed charges. Imagine if Coalition did as much to stop climate change as it does to criminalise people who are worried about it pic.twitter.com/GtFDXvDPUb

— Sue Higginson (@SueHigginson_) September 27, 2022

Lismore today, a full seven months after the February floods this year. pic.twitter.com/FgxEtfLPwO

— Spiritonajourney (@LawsofLORE) September 30, 2022

This is a main street in Lismore today, 7 months after the flood. This is NOT GOOD ENOUGH. We are stuck in limbo, traumatised & losing hope. Pls sign this petition calling on ⁦@Dom_Perrottet⁩ to front up to Lismore & give us some answers. #nswpol https://t.co/O9aXvD1b96 pic.twitter.com/4EJkEb4zyi

— Eddie Lloyd (@worldzonfire) September 29, 2022

Saturday morning in Lismore CBD Molesworth st. People writing on their boarded up shops, crying out for help. Please sign our petition calling on the Premier to come to Lismore & give us some answers about our future #LismoreInLimbo ⁦@Dom_Perrottet⁩ https://t.co/r5yhnNZr6c pic.twitter.com/1MBnZZ9ecv

— Eddie Lloyd (@worldzonfire) September 30, 2022

Saturday morning in Lismore CBD Molesworth st. People writing on their boarded up shops, crying out for help. Please sign our petition calling on the Premier to come to Lismore & give us some answers about our future #LismoreInLimbo @Dom_Perrottet https://t.co/3pPktW4gIL pic.twitter.com/rHrmnKjSrB

— Eddie Lloyd (@worldzonfire) September 30, 2022

@worldzonfire, 1 October 2022

There are currently around 77 Apprehended Violence Orders listed before Lismore Local Court from 4 to 24 October 2022.

Possibly one of the signs that since March 2022 post-flood stress has been taking a heavy toll on the community.

BACKGROUND

The Northern Star, 26 September 2022:

There are approximately 4000 businesses in Lismore, and 3000 were flood affected, according to Lismore Chamber of Commerce president Ellen Kronen.

Many businesses relocated to surrounding towns like Ballina or Alstonville temporarily, but it’s unlikely some will return.

Very few Lismore businesses have publicly announced they are leaving permanently.

About 100 have left so far, but Ms Kronen suspects as many as 10 per cent won’t come back.

“I think some of those have an intention of coming back but they probably won’t,” Ms Kronen said……

The bigger corporates like Officeworks and Spotlight are coming back just fine. But the problem is the local small, and micro businesses are struggling to get back operational.

Ms Kronen said 80 per cent of flood damaged Lismore businesses are still operating on one power point six months on from the devastating February floods – with commercial landlords struggling to finance repairs.

Grants for flood affected businesses may be the difference between shop owners who’ve been struggling to generate an income for six-months staying or leaving, Ms Kronen said.

“When you look at the number of buildings that are empty, often it’s a lack of money that the landlords just don’t have, or they’re just so stretched that you know, they can’t finance anymore.” she said.

“I know people love bagging landlords, but my experience with landlords ... they want businesses back in their building, because that’s their income.”

Lismore business owners have been left in the dark while electricity retailers and government play hot potato on the responsibility of reconnecting flood damaged premises, Ms Kronen said.

Stores are reporting service fees and power bills for electricity for derelict and uninhabitable buildings, followed by threatening debt collection notices.

“It’s just another layer of stress on top of everything else,” Ms Kronen said.

Electricity retailers are working to resolve the issues with individual businesses, but Ms Kronen, owner of Made In Lismore, said it’s too little too late.

“They seem to be a little bit tone deaf when they’re fielding complaints or trying to explain the situation,” she said.

“I had someone from overseas answer my call who didn’t even know about the Lismore floods.”

Ms Kronen said Essential Energy did a great job getting power back online in Lismore, but the town has been left with the bare minimum and shop owners are surviving on emergency infrastructure.

Murray Watts, Senator for Energy Management, was going to visit a delegation of flood affected Lismore businesses - only to cancel at the last minute, Ms Kronen said.

“If all levels of government know what’s going on then we might actually see something happen,” she said.

“The government could have a conversation with the power companies to have a better response next time.

“I hate saying ‘next time’, but there will be a next time.”

The Australian (Online), 26 September 2022:

Medical peak bodies are calling on the federal government to provide an immediate $15m injection of funds to help health services recover, endorsing a proposal put forward by the NSW Rural Doctors Network.

They also want all regional and rural health services classified as essential services for the purposes of support and recovery in the event of a disaster, which would open up access to immediate financial support and resources to rebuild damaged or destroyed health facilities and replace equipment.

The calls to prop up struggling medics in Lismore comes as the nation faces a looming doctor shortage crisis, particularly in the regions and the bush. The Royal Australian College of GPs has called a General Practice Crisis Summit in Canberra on October 5 to “tackle the most pressing issues affecting patient care”……

In Lismore, local medics estimate that about half the private medical workforce is no longer practising in the area. The town lost three major GP clinics and Lismore Base Hospital’s emergency department is overloaded.

With most given only $50,000 emergency relief grant funding, doctors and pharmacists have been struggling to repair destroyed premises and replace expensive medical equipment lost in the floods. Many were not insured for flood, given the risks in the area, and have had to take out hundreds of thousands of dollars in commercial loans to rebuild.

Pharmacist Kyle Wood, owner of Southside Pharmacy which has two premises in Lismore destroyed in the floods, estimates he has had to spend between $1m and $1.5m to rebuild and restock the chemists.

“Everyone is just running on empty, stressed and fatigued,” Dr Wood said.

The business lost a lot of specialist equipment it used to supply to patients and the hospital, such as commercial breast pumps, electric patient lifters and rehabilitation equipment.

Dr Wood has received an extra $150,000 in relief from the NSW government but it is only a fraction of his costs. “The government was willing to give Norco $35m to keep them alive, I think they had 170 jobs there. We’re asking for half that. There’s far more people employed in health services in Lismore. We have more than 30 people employed in our two stores.”

Australian Medical Association president Steve Robson said he was not prepared for the devastation and the conditions health workers were dealing with when he toured the region last week.

“The personal toll still being borne by the community is shocking,” he said.

“No community health service provider should have to experience the funding uncertainty that healthcare businesses in the Lismore region have faced over the last 6½ months.

“Lismore is the blueprint for ensuring all health services are treated as essential services. It’s time to act now before parts of this great country become dystopian landscapes of desperate climate refugees with no access to health, housing and other basic human rights.”

ABC North Coast, 27 September 2022:

…...Former Lismore City councillor Eddie Lloyd launched the petition, saying the uncertainty was compounding people's trauma & anxiety.

"It's been seven months now & we're still in limbo in terms of our future, waiting for bureaucrats to tell us what's going on & who will be eligible for a buyback & land swap," she said.

Premier Dominic Perrottet & Deputy Premier & Minister for Regional NSW Paul Toole have been approached for a response.

The state member for Lismore, Labor MP Janelle Saffin, said the "radio silence" from the government was unacceptable.

"People need to be informed," she said.

"We can live with things slowing down a little bit if we know it's coming … [but] the communications from the state government on flood recovery [has been] appalling."

In August, the government's independent flood inquiry was released, recommending people in the highest-risk areas of the Northern Rivers be "urgently" relocated by way of land swaps & buybacks.

Many expected expressions of interest for such schemes to have been announced in late July or early August following an announcement by the head of the Northern Rivers Reconstruction Corporation.

They were disappointed when it was later announced that expressions of interest would be used to identify land that could be considered for future developments…..

Mr Witherdin [Northern Rivers Reconstruction Corporation chief executive] said an announcement about buybacks, land swaps, house raising or resilient rebuilding was contingent on funding from the state & federal governments.

"These are really significant investments from a government perspective — you're talking hundreds of millions, into billions, so it's a matter of getting the data there to support that," he said.

"Once we get that [decision] we can lock in on clear dates & give the community that road map of how we roll [it] out."

Ms Saffin said despite the delays there would be assistance for flood affected residents.

"There's a commitment there to do it, so please take heart in that," she said.

"But equally, the government should have done it sooner — & it was promised that it would be done sooner & we're still waiting for those expressions of interest."

As Northern Rivers residents brace for a third consecutive La Niña & the very real possibility of more flooding, Ms Lenane said having hope for the future in the form of some certainty around rebuilding or relocating would be like a light at the end of the very dark tunnel.

"I'd really love a piece of that hope right now," she said.

Australian Bureau of Meteorology, 27 September 2022:

La Niña conditions increase the chance of above average spring and summer rainfall in northern and eastern Australia. When a La Niña and a negative phase of the Indian Ocean Dipole coincide, the likelihood of above average rainfall over Australia, particularly over the eastern half of the continent, is further increased.

Bureau climatologists will continue to closely monitor conditions in the tropical Pacific as well as model outlooks for further developments.

Royal Commission into the Robot Debt Scheme, Public Hearing 1, excerpt of that section of the transcript giving an outline of what is understood concerning the establishment, design and implementation of the Robodebt Scheme

 

In which Senior Counsel Assisting the Commissioner outlines what is understood concerning the establishment, design and implementation of the Robodebt Scheme at this point in the Royal Commission…...

Royal Commission into the Robodebt Scheme, Public Hearing 1, Transcript of Proceedings, 27 September 2022, excerpt: 

MR GREGGERY: Commissioner, I appear today with Mr Angus Scott, Ms Renee Berry and Ms Salwa Marsh. The Attorney-General appointed each of us to assist this Royal Commission into the Robodebt Scheme as it is described in the Letters Patent.

Less than five weeks ago the Prime Minister announced the establishment of the Royal Commission, and an even shorter period of time has passed since the engagement of counsel assisting the Commission, our instructing solicitors and the appointment of Commission staff. The date by which the Commission is to report, as you have just identified, Commissioner, is 18 April 2023 and there is an obvious need for focus and efficiency to complete the task by the due date.

I will outline the broad context for the nature and scope of the inquiry before I address how the Commission will operate.

Turning firstly to the context for the inquiry, this Commission is not tasked with replicating the various inquiries and investigations into the Robodebt Scheme which have taken place, although much of the content of those inquiries is relevant to the scope of the Commission under the Letters Patent. The reports which have been produced from those inquiries and investigations are also relevant, at least to the history of the Robodebt Scheme and decisions to continue it.

The Letters Patent direct the Commissioner to inquire into the specific factual matters which are set out, with a focus on the “decisions and actions taken or not taken by those in positions of seniority”. The factual inquiry with its focus upon the role played by those in positions of seniority will be the basis upon which the Commission makes recommendations it considers appropriate. Those recommendations may include recommendations needed to prevent a recurrence of any failures of public administration which are identified in this inquiry.

The reference in the Letters Patent to the identification and prevention of the recurrence of any “failures of public administration” bears close similarity to a phrase which appears in the reasons of Justice Murphy of the Federal Court when his Honour approved the settlement of the class action brought in respect of the debts raised and collected by the Robodebt Scheme. His Honour's, reasons published on 11 June 2021, included the observation that those proceedings “… exposed a shameful chapter in the administration of 10 the Commonwealth's social security system and a massive failure of public administration”.

The reasons for judgment in the settlement of the class action are, as I indicated earlier, one of the many previous findings of others which are relevant to the Commission's task. The decision of Justice Murphy marked a significant occasion when the Australian Government 15 admitted that asserted debts based solely on income averaging from Australian Taxation Office data were not validly established.

In that context, the Commission is to enquire into a number of specific matters which were read out at the commencement of this initial hearing. In summary: the establishment, design and implementation of the Robodebt Scheme which raised and recovered debts for the Australian Government and which it later admitted it could not validly establish; who was responsible for the scheme and why they considered it necessary or desirable; the use of third party debt collectors in the scheme; the responses to concerns raised about the scheme, the systems implemented to address those concerns and what was known by persons in seniority as the basis for those responses; and the intended and actual outcomes of the scheme.

Can I turn now to what is known about the Robodebt Scheme. The Commission has already started its work and I will provide a brief overview of some of the relevant events which ultimately concluded with the admission made by the Australian Government to which I referred earlier.

The existence of Centrelink and its role is common knowledge amongst members of the public. It is the service delivery agency for a majority of Australia's social welfare payments.

In 1991 it gained the ability to crossmatch its data with data from the Australian Taxation Office. Crossmatching data enabled Centrelink to compare income declared to the ATO with income declared to Centrelink by persons who claim social welfare payments. The ATO continued to provide data to Centrelink since that time under various processes. For the purpose of this inquiry, the ATO disclosed income information to Centrelink which reflected the income information provided to the ATO by employers in the form of a PAYG summary. That summary often covered the whole of the financial year but in some cases the information related to a shorter period of time within the financial year. In contrast to the information provided to the ATO by an employer, Centrelink required information which usually related to a person's actual fortnightly income when it decided whether a person was entitled to social security payments.

Prior to the implementation of the Robodebt Scheme Centrelink's calculation of overpayments or debts by analysing the ATO data and the Centrelink records involved direct human oversight by compliance officers according to the processes established within Centrelink. That process included the requirement that “evidence was required to support the claim that a legally recoverable debt exists”.

Debts which were established according to Centrelink's processes were able to be recovered in a variety of ways, including withholding social security payments or a portion of those repayments, the garnishee of annual tax returns and orders made on successful criminal prosecution for debts which amounted to a fraud against the Commonwealth. Often the overpayment of social security resulting in a debt did not involve dishonesty, although the allegation of a debt can attract the stigma of fraud. The complexity of Australia's social welfare system was the subject of at least one report publicly released in February 2015. That report directly addressed the many types of social welfare payments, the related complexity of the claims and administration processes in respect of each payment.

On 1 July 2011 Centrelink was absorbed into the Department of Human Services. The Department of Human Services was responsible for the administration of the social welfare system through Centrelink. The Department was renamed Services Australia in May 2019, but its function of administering the social welfare system through Centrelink remained unchanged.

Going back to 2011, a Government initiative announced improvements to the debt recovery process which included the automation of crossmatched data between Centrelink and the ATO on a daily basis. That automation was expected to increase the ability of the Government to identify and then recover debts. The Commission understands that the identification of a debt continued to be subject to Centrelink's processes which involved compliance officers using Centrelink's statutory powers to obtain evidence from employers and other sources to sufficiently and therefore validly raise a debt. The decision to raise a debt turned on the assessment by a compliance officer after undertaking that investigation.

From 2011 the data matching program identified approximately 300,000 discrepancies annually between the ATO data and the Centrelink data, and of those approximately 20,000 were the subject of assessment and decisions by a compliance officer.

In 2013 the Department of Social Services was created. It replaced the majority of the functions of the Department of Families, Housing, Community Services and Indigenous Affairs.

The Department of Social Services worked closely with the Department of Human Services. Broadly speaking, the Department of Social Services was responsible for the development of social policy advice for the Australian Government, which was administered by the Department of Human Services through Centrelink.

On 12 February 2015, according to the report of the Commonwealth Ombudsman into the Robodebt Scheme dated April 2017, the Department of Human Services sent an executive minute to the Minister For Social Services which was copied to the Minister for Human Services. That Executive Minute proposed a new online approach to compliance with the social security system which would allow the Department of Human Services to review all discrepancies going back in time to the 2010-2011 financial year. The new online approach to compliance was soon described as the Online Compliance Intervention Scheme. It was the first form of the Robodebt Scheme. That Executive Minute must have been produced after some planning, but it has not yet been made public by the Australian Government. According to the Ombudsman's report, the intended main efficiencies of the Robodebt Scheme reflected in the executive minute by identifying discrepancies between the ATO data and the Centrelink data were as follows: The capacity to undertake hundreds of thousands of compliance interventions automatically generating letters to customers notifying them of the discrepancy in reported income; relieving Centrelink of its responsibility from obtaining information from employers and third parties pursuant to its statutory powers before raising a debt; transferring the responsibility of proving a debt from Centrelink to a customer who then had the responsibility of disproving a debt; and moving much of the debt management process to an online process in which customers had to enter information directly into the online system.

The scheme was foreshadowed in a press release in May 2015 by the then Minister for the Department of Social Services in conjunction with a budget release of the 2015-2016 Budget Measures by the then Treasurer. The scheme was projected to create savings of $1.7 billion over five years.

A small two-stage pilot program was carried out in 2015, and the scheme commenced on 1 July 2016. It was fully implemented two months later, on 1 September 2016.

There were a number of flaws in the system which, if not actually known at the commencement, were publicly identified soon after the implementation of the scheme. The flaws, including the fundamental flaw which was admitted by the Australian Government in the Federal Court, were specifically drawn to the attention of the then Minister for Human Services by the Australian Council of Social Service, ACOSS, in their letter of 21 December 2016. That letter identified consistent reports of debt creation by averaging annual income over 26 fortnights contrary to the actual fortnightly entitlement test with the consequence of “a false notice of overpayment”. In a follow-up letter to the Minister on 19 January 2017, ACOSS called for an immediate end to the automated debt recovery system and reiterated its deeply held concerns that the scheme involved the following: The reversal of the onus of proof onto people receiving payments; a failure to properly investigate the accuracy of automated data matching; a lack of human involvement in the detection of and calculation of overpayments; the requirement for people to gather evidence from up to six years earlier; an automated debt recovery and deduction of amounts from people's income support without human intervention; and practical difficulties for recipients speaking with a Centrelink staff member.

The Robodebt Scheme continued from that point in time for almost three years until November 2019. On 28 February 2017, the financial assumptions underlying the objectives of the Robodebt Scheme were questioned in a report produced by the Auditor-General. Questions too were raised about the budget assumptions on which the financial objectives of the scheme were based.

Those questions are relevant to the scope of the topic of the intended and actual outcomes of the scheme in a financial sense, and also to the questions of the process in which the scheme was developed.

The Administrative Appeals Tribunal, the AAT, is the tribunal which decides appeals against Robodebt decisions amongst others. On 8 March 2017, a Member of the Tribunal decided an application to review an automatically generated debt under the Robodebt Scheme. The debt was set aside by the tribunal member on the basis that there was no evidence of a debt. The Decision was remitted to Centrelink to decide afresh according to further directions. Those directions were two-fold: No debt or debt component is able to be found on extrapolations from ATO records; and the earnings component of recalculated debts as may be raised must be based on and confined to any fortnightly salary records obtainable in the exercise of Centrelink's statutory powers.

In short, the legal framework for the AAT's decision on the merits of the debt was that the online compliance process involving income averaging did not provide evidence of a debt. That finding ought to have been of significance to the departments of social services and human services because of its pre-Robodebt policy which required evidence “to support the claim that a legally recoverable debt exists”.

More AAT decisions followed to the same effect. The Commission expects to receive evidence that more than twenty such decisions of the AAT were delivered up to 30 May 2017 in which it was found that income averaging based on ATO data did not validly establish a social security debt.

The Department of Human Services made changes to some aspects of the online compliance system to overcome other inadequacies in the transparency and usability of the online system, however, the fundamental flaw remained.

In the face of public questions about the process, Ministers and those in senior roles in the Australian Public Service asserted that the system worked well.

On 2 March 2018, the Robodebt Scheme alleged a debt against Deanna Amato who then applied for declarations in the Federal Court, including that the debt was not lawfully raised.

On 27 November 2019 orders were made with the consent of the Australian Government to the effect that the demand for payment of the alleged debt was not validly made to Ms Amato because the information relied upon was not capable of proving a debt. That is the declaration referred to in the Letters Patent. On 18 November 2019, that is less than two weeks before the Government consented to the order in Ms Amato's case, Services Australia - formally the Department of Human Services - announced that it would not raise debts in sole reliance of apportioned ATO data, that is averaged income.

On 20 November 2019, the class action was commenced in the Federal Court.

It was a further six months before Services Australia announced it would repay approximately $721 million in debts raised by the Robodebt Scheme against approximately 381,000 Australians and it was in July 2020 when it announced that it would withdraw all debts raised of approximately $398 million based on income averaging from Australian Taxation Office data.

The settlement of the class action involved the remaining claims for interest and costs which amounted to a further $112 million to be paid by the Australian Government. The reasons of the Court referred to evidence which showed that the Commonwealth Government asserted debts totalling at least $1.7 billion against 453,000 Australians during the life of the Robodebt Scheme.

That brief overview provides a sufficient factual context for the specific questions which are set out in the Letters Patent. That said, we are aware of the temptation to prejudge matters based on previous reports and inquiries and we will avoid doing so. Counsel assisting will consider the subjects of this inquiry with fresh eyes to assist the Commission to determine these matters according to your position of independence.

[my yellow highlighting]