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Righting the wrongs of robodebt



Last week's robodebt backdown by the federal government rightly captured national headlines. Victoria Legal Aid's landmark litigation challenging the program has run straight and true. The unanswered questions about these debts have at last struck home at the highest levels of government. But hanging a 'do not disturb — change in progress' sign on robodebt can't mask the devastating misjudgements that have been made. What exactly happened? How do we help people caught in this unprecedented mess?

People visit a Centrelink office in Melbourne. (Photo by Scott Barbour/Getty Images)The good news first. The Federal Court action has forced the govenrment into finally accepting that averaging an annual ATO PAYG figure does not speak to the reality of many people's fortnightly earning patterns. For three long years, I and others have argued this averaging is neither lawful nor accurate for individuals with multiple employers, those with variable patterns of earning. We want the department to stop making this crude assumption. It needs to recognise and proactively resolve the uncertainties robodebt files feature. It should use its information gathering powers to secure objective documentary evidence as it did up until 2015.

The implications of this case and the government's admissions are startling and devastating. The federal government has sent more than one million letters to Australians asserting a bald right to average their earnings. A right it now disavows. In a currently unknown number of instances, it populated this crude assumption into life changing debt decisions.

But the uncertainties are not ended by last week's announcement. The statement only vaguely signals that the department will 'work' with recipients to identify 'further proof points'. What constitutes a 'proof point'? The government needs to disavow its past conduct in a much deeper, detailed and clear way. Instead, it has gone silent.

When addressing the question of how many people were affected, the Minister referred to a 'small cohort of Australians'. Why not say a small cohort of debts? The department is unable to identify the precise number of files where averaging has occurred. It will have to check at least 686,000 files to fix the cohort covered by its indeterminate press release.

The Minister then commented that there will be 'no change to the construct of the burden of proof' placed on welfare recipients. As a legal academic, I'm struggling to understand these words. Those of us arguing against this program have been consistent and detailed on this. The government is the one changing legal status quo. It is the one trying to secure a result. The department bears the practical onus of adducing adequate supporting materials to justify its position.

The government needs to stop, listen and justify itself. We need a full audit of a sample of its files and an independent expert review of its compliance system. Everyone affected should be supported to obtain remediation by qualified authorised review officers. The business case for any future debt recovery needs to be entirely revised to inbuild front up information gathering and 'proof pointing'.


"Over the past three years, I have seen how our welfare compliance rules, the rate of Newstart and robodebt are scripting lives of disempowered suffering."


There is a broader truth here. One not captured by the technical constructs of administrative law. In claiming the right to average data, the department placed a moving treadmill, an imbalance of power at the centre of all interactions with it. Hundreds of thousands of Australians were denied the quiet dignity which should always accompany even tough government decisions.

This has been incredibly damaging for people's trust and relationship with a department so central to work, families and care in this country. Working with people over the past three years, I have seen how our welfare compliance rules, the rate of Newstart and robodebt are scripting lives of disempowered suffering. We have fallen into a 'one louder' welfare policy driven by shortcut cultural images, not substance.

I know that the robodebt story is complicated for people outside my narrow technical community. But change is not secured by a few broad phrases issued on a Tuesday morning. We need to stop centring the wrong voices and grading political dance contests. Aligning our social security system to fit a PR press release culture is precisely how we got into this unprecedented mess.

But it is the questions asked by two courageous women, supported by Victoria Legal Aid, that are writing a different system. The answers they have fought for and won, the truths they are speaking, hold the real power here.

Some of us have had the privilege of speaking to what we think the rule of law requires of the government. But we all need to stand up for the people who have only ever been talked over and talked about. 250,000 of these debts were carried by people through their working day, wondering just how they'd call in working hours. 125,000 were given to young people aged 16-25, trying to start up and out in a world shaped by precarious, casual underemployment. Parents put their kids to bed at night with these debts weighing on their chests.

These people endured, they still endure. What are we saying to them? Just what, precisely, are we going to do for them? The answers they have fought for and won, the truths they are speaking, hold the real power here.



Darren O'DonovanDr Darren O'Donovan is Senior Lecturer in Administrative Law at La Trobe Law School. He has been a prominent critic of robodebt since its inception and appeared at a recent senate inquiry into the system.

Main image: People visit a Centrelink office in Melbourne. (Photo by Scott Barbour/Getty Images)

Topic tags: Darren O'Donovan, robodebt, Centrelink



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Existing comments

Good economic management requires an understanding of Accounting 101. This understanding has been absent or not demonstrated.

Richard Ure | 27 November 2019  

Great article, Darren - and great work! keep going!!

Anne | 28 November 2019  

This is not a matter of poor accounting, it's about acting illegally. When the banks were shown to be acting illegally, heads rolled. Whose heads are going to roll this time?

Ginger Meggs | 28 November 2019  

Darren, Thanks for your remarks. One of my daughters is caught up in the Robo Debt saga. She has joined the class action now. For the life of me I can not understand where they calculated her so called debt. What really upsets me is that the first demand came years after the alleged event-in her case about 8 years! Who keeps Taxation/Income records for that long?Certainly not young people who have to now regularly change jobs, try and do further studies, running up yet another debt ! The legal requirement is 5 years, although I still have my wife and my Tax records in my filing cabinet, going back to 1983. This immoral and unjust impost means she will spend years paying back the supposed debt. That impacts her plans to save, purchase a house etc. It also impacts her credit rating. If this Government has any social conscience it should dump the whole scheme!

Gavin | 28 November 2019  

I understand that the robodebt cases arise through averaging a period of the year on the new-start allowance with a period of the year when a person is earning a substantial income. Hence , it is mainly young people starting out in life who are mostly affected. I have had had two occasions to ring Centrelink lately about my own age pension . Payments were cut off , fixed and then reduced mainly due to my incompetence in using the on-line Mygov system. However, after losing sleep on two separate nights, worrying about my situation I was able to recover my former pension, with the efficient and caring help of two different Centrelink Clerks. I suggest in making contact with Centrelink , you ring soon after 8 am in the morning and have your documents and figures at hand. The staff will go out of their way to help you. In one call , I was asked to hold the phone for 20 minutes, but it was worth it , when I was told all had been resolved over the phone. Well done guys.

Age Pensioner | 28 November 2019  

Great article, but I am disappointed that with all this expert scrutiny on Robodebt it seems to overlook the government's disregard of the Plaintiffs' various Declarations. Every "victim" will have made written claims which include warnings that they are making a claim which must be true and correct; similarly, their Tax documents also are Declarations of their financial circumstances, signed off as is required. In the cases where the debt is disproved, inaccurate or unwarranted there should be a case for damages on the basis that the person has complied with all legally available mechanisms but Centrelink have deliberately chosen to disregard their Declarations, effectively accusing the plaintiff of making false statements. This is damaging to their reputation and causes stress to individuals who may be least able to defend themselves. It's not always about the money...

Ray | 28 November 2019  

The Robodebt issue is exacerbated through some recipients having to repay income that they were assessed taxation on in the year it was received but are unable to reduce the assessed tax on the now reduced income after repayment of the debt. The deadline for amendments had passed before the issue of the letters and one could suspect that this was contrived.

Gareth Davis | 28 November 2019  

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