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.'
While 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 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.