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The rule of law applies to government too

16 Comments
Kate Galloway |  19 March 2017

 

News and social media were filled in recent days with chatter about comments by Sally McManus, the newly elected secretary of the ACTU. During an interview on ABC 7.30, McManus said, 'I believe in the rule of law where the law is fair and right but when it's unjust, I don't think there's a problem with breaking it.'

Centrelink officeWhile many have pointed out that there is a long and distinguished discourse and philosophy around civil disobedience that would validate McManus' comments, many others — including government minister Christopher Pyne — have expressed dismay at the remarks. Pyne told Radio National, 'Every citizen has to abide by the law. That's how our western democracy works.'

While the rule of law arguably does assume citizens will obey the law, it also assumes government will behave lawfully. Further, it might be argued that the rule of law encompasses the principled application of government power. In this respect, the Australian government is itself falling well below adhering to the rule of law. I offer Centrelink #notmydebt as a case study.

The government's action on 'robo-debts' is well traversed. The Department of Human Services is attempting to recover what it says are overpayments made to Centrelink customers. To ascertain who has been 'overpaid', it uses a computer algorithm to compare a person's Centrelink payments with their tax return for the relevant period.

Where there is a discrepancy, it sends a notice asking the customer to confirm the information, or provide evidence that it is wrong. The problem is, the tax information is calculated on an annual basis, but the Centrelink payment is fortnightly. Because the department averages the annual taxable income per fortnight, it receives a false representation of the actual amount earned over the period.

Further, the Centrelink customer is asked to provide pay slips or other verifying information sometimes from some years ago. For many, this is not possible. The result is that a debt issues, and the customer (or former customer) must repay the balance.

The hurt in the community is palpable. Stories abound, including those collected on the #notmydebt website, of people who have suffered. Those who speak out in public are finding that the government is in turn publicly releasing that person's own personal information to 'set the record straight'.

The growth in the capacity of computing power now makes it possible for government to scan vast quantities of citizens' data in just this way. We are told the Centrelink process is doing the job it was designed to do — yet it does so without regard for what might be called due process in the exercise of government power.

 

"The way in which government does this job is likewise subject to constraints that effectively require it to act conscientiously in citizens' interests. Process matters as much as the outcome."

 

Due process, including the concern for the impact of government activities on the public, might reasonably be regarded as a component of the rule of law. That is to say, government is not unconstrained in the way in which it carries out its business.

The Minister, Alan Tudge, has said it is the government's job to ensure people are not overpaid. It is in the public interest that the government take care with its finances, but what his statement ignores is that the way in which government does this job is likewise subject to constraints that effectively require it to act conscientiously in citizens' interests. Process matters as much as the outcome.

It is naïve at best to suggest that the robo-debt process is an efficient or effective financial management tool. Lengthy waiting periods for calls, and hours and hours of time spent by customers and their former employers locating old records to prove something that had long ago been dispensed with, are but two examples of lost productivity. Departmental staff report being under stress, there has already been a tragic loss of life of former Centrelink customers, and community legal centres are struggling to service the many who are seeking support.

But the biggest cost may well be the loss of faith in government service delivery, and especially, in government use of citizens' data. All this has stemmed not from the fact of citizens owing money to the government, but rather from the way in which the government is obtaining that money. Government must wield its power with care, lest it disturb the compact with its citizens. This is part of the rule of law, and in the words of Christopher Pyne, 'That's how our western democracy works.'

 


Kate GallowayKate Galloway is a legal academic with an interest in social justice.

The Senate Community Affairs References Committee is presently taking submissions about the Centrelink robo-debt process, and will report to the Senate. You can make a submission before 22 March 2017.

 



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Submitted comments

I would love to see the robo-debt process applied to parliamentarians' expenses. Not just recent ones, but also ones from way back.

Ginger Meggs 20 March 2017

Well said, Kate. Among other horrors , Christopher Pyne's apparent ignorance of the long history of civil disobedience is spine chilling. These people are in charge - yet they don't know the limits of their own authority! Where are we going?

Joan Seymour 20 March 2017

And wasn't it a bit rich for a journalist to be asking anyone if she believes in the rule of law? Journos fiercely defend their right to use information no matter how illicitly obtained vowing to spend time behind bars rather than reveal their illegal sources. The height of hypocrisy and another example of the ABC's anti left wing bias.

Paul 20 March 2017

Excellent piece, thanks Kate. A timely reminder that respect for the rule of law is just as necessary from those who make the laws.

Jennifer Wilson 21 March 2017

Thanks Kate for this; it needed again to be drawn to my attention. Like a lot of news, & poor behaviour by our representatives, it passes as almost 'normal' in this day and age. How immune to bad behaviour i perhaps we have become.

helen m donnellan 21 March 2017

Who controls the future society controlled by robots has been raised by this action. The narrow inhumane uncaring ideology of Christopher Pines or the humane caring ideology of the inclusive sharing majority ?.

Reg Wilding 21 March 2017

Correct: Australian Governments must adhere to the rule of law, all citizens must adhere to the rule of law, Businesses/Organizations/Institutions must adhere to the rule of law. A 'long and distinguished discourse and philosophy around civil disobedience' must not lead to breaking the rule of law .... full stop.

Jack 21 March 2017

Well done Kate. Is it too much to hope that the Senate inquiry will become more than a box ticking exercise? Is there someone out there who can rewrite the algorithm? Surely the government has access to this technology, having instituted it in the first place. This is one reason I don't listen to politicians any more and I am not even personally involved.

Helen Enright 21 March 2017

A great article, Kate. I have to say that I find the attitude of right wing politicians like Christopher Pine on the rule of law issue entirely hypocritical. While they are telling others that they are not allowed to break unfair laws, they break international law all the time eg the support of US wars and actions to undermine democratic countries, the stealing of oil and gas resources from Timor-Leste's 1/2 of the Timor Sea, the support of repressive regimes like Indonesia and Israel that break international law frequently. And I remember when Nelson Mandela visited Australia not long after he was released from prison in South Africa. He was deservedly feted by many for his leadership role in the struggle against apartheid. of our very conservative politicians - a struggle where many unfair laws were broken. Interestingly, many conservative politicians, who did not raise a finger to assist the struggle and often opposed it, were there to applaud this wonderful human being. Australia is fortunate to have people like Sally McManus who are prepared to take a stand for social justice and human rights.

Andrew (Andy) Alcock 21 March 2017

I am afraid that the comment by "Jack"-- " A 'long and distinguished discourse and philosophy around civil disobedience' must not lead to breaking the rule of law .... full stop." -- is simplistic. On that basis we'd still have racial segregation in the USA, we'd still have Apartheid in South Africa and Nelson Mandela would have died in gaol. Likewise, those who protested against unjust conscription in Australia during the Viet-Nam war, of those in Germany who opposed the National Socialists' race laws, is the Corn Law protesters in England in the C19 were acting on conscience against appalling laws. In addition, "Jack" would have to tell his American friends that, had he been alive in North America at the end of the C18, he'd have righteously opposed the "Boston Tea-Party". The Law is not immutable nor is it always right: "numbers" alone do not determine moral questions" It is an attempt to achieve a Civil Society but it is always a "work in progress", so it should not be qiven qualities and force that it does not (and cannot) have.

Dr John Carmody 21 March 2017

Kate.You are so right. The Centrelink staff are unjustly abused by their employer, the federal government, and they have no rights at all in this dreadful process. Speak out against the debacle and, under the current disclosure laws, staff can be and are subjected to further abuse. As well the Minister is bullying those on welfare by abusing his position of power. Refusing to provide sufficient staff at Centrelink is an abuse of the rights of Australians to timely and comprehensive services. Why won't the current government ministers respect the rule of law?

Laurie 21 March 2017

No one seems to ask: why there is so much 'overpayment'. Is the department so poor in its oversight of government money?

Steele 21 March 2017

Jack, Laws are an attempt to secure and safeguard justice. Sometimes they work, and sometimes they don't. Sometimes they are, instead, attempts by authoritarian governments to coerce the populace. If I conscientiously believe that a law is unjust, I am under no obligation to obey it. Surely it is that simple.

Peter Downie 21 March 2017

Former Chief Justice of the High Court Murray Gleeson on ’The Rule of Law.' The High Court is given jurisdiction in matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. This jurisdiction cannot be altered or taken away by Parliament. It confers on the High Court the power, by making certain forms of order that historically followed judicial review of executive action, to compel officers of the Commonwealth to act according to law. The expression 'officer of the Commonwealth' includes the Prime Minister and Ministers, and all public servants. The effect of the provision is; no one is above the law. Thus government officials must exercise their powers according to law. If they do not, then, in the last resort, the High Court may order them to do so The Constitution, which is the basic law, itself declares that the government must obey the law, and gives the High Court the jurisdiction to compel such obedience. That jurisdiction cannot be removed or modified except by constitutional amendment. Parliament, if acting within the limits of the powers assigned to it by the Constitution, may change the law. The executive government must obey the law. That is what the rule of law[lx] means.”

john ward 23 March 2017

In response to Jack, it wasn't that long ago that two men in a gay relationship were "breaking the law". Protests and reality (and common sense) finally changed the law but in the meantime the law continued to be ignored by people who risked conviction for their relationship. Not quite the same thing you might argue, but was about repealing the bad law and in this discussion of principle all consequences should be considered.

Brett 24 March 2017

Two wrongs don't make a right

Name David B 26 March 2017

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