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Righting the wrongs of robodebt

  • 27 November 2019


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?

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