'Robo-debt illegality:
The seven veils of failed
guarantees of the rule
of law?' by
Terry Carney in (2018)
Alternative Law Journal comments
This article asks how rule of law institutions failed to ‘bell the cat’ on the illegality of Centrelink’s robo-debt programme
and its unethical character. It identifies serious structural deficiencies in the design of accountability and remedial avenues
at seven different levels. It argues for adherence to Administrative Review Council guidelines on machine learning,
Parliamentary accounting of Ombudsman and Audit agencies on rule of law foundations and model litigant protocols,
attention to ethical administration, redacted publication of selected first tier Administrative Appeals Tribunal rulings,
contractual guarantees of independence in legal aid/advocacy funding, building of pro bono advocacy partnerships, and
cultural change designed to counter stigmatisation of the vulnerable.
Carney argues
The government’s on-line-compliance (robo-debt) initiative
unlawfully and unethically seeks to place an onus on
supposed debtors to ‘disprove’ a data-match debt or face
the prospects of the amount being placed in the hands of
debt collectors. It is unlawful because Centrelink, not the
supposed debtor, bears the legal onus of ‘proving’ the
existence and size of any debt not accepted by the supposed
debtor. And it is unethical because the alleged
debts are either very greatly inflated or even nonexistent
(as found by the Ombudsman), and because
the might of government is used to frighten people
into paying up – a practice rightly characterised as a
form of extortion. How could government, accountability
avenues, and civil society have enabled such a state of
illegality to go publicly unidentified for almost 18 months
and still be unremedied at the date of writing?
This article suggests the answer to that question lies
in serious structural deficiencies and oversights in the
design and operation of accountability and remedial avenues
at seven different levels:
1. In a lack of standards to prevent rushed government design
and introduction of machine learning (‘smart’) systems of
decision-making;
2. In a lack of diligence by accountability agencies such as the
Ombudsman or Audit Office;
3. In a lack of ethical standards of administration or compliance
by Centrelink with model litigant protocols;
4. In a lack of transparency of the first of two possible tiers of
Administrative Appeals Tribunal review (AAT1), resulting in
a lack of protections against gaming of review by way of
agency non-acquiescence or strategic non-contestation;
5. In a lack of guarantees of independence and funding security
to enable first line Legal Aid or community legal centre/
welfare rights bodies (CLC/WRC) to test or call out illegality
in the face of thwarting of challenges by Centrelink
settling of potential test cases;
6. In a lack of sufficient pro-bono professional or civil society
capacity to mount ‘second line’ test case litigation or other
systemic advocacy; and
7. In tolerance, especially in some media quarters, of a ‘culture’
of political and public devaluing of the significance of
breaches of the rule of law and rights of vulnerable welfare
clients.
It is argued that a multifaceted set of initiatives are
required if such breaches of legal and ethical standards
are to be avoided in the future.
Carney goes on to ask 'Why is it clear that robo-debt is unlawful?'
The pivot for this article is not so much that Centrelink
lacks legal authority for raising virtually all debts based on
a robo-debt ‘reverse onus’ methodology rather than use
its own information gathering powers – for this remains
essentially uncontested. Rather it is extraordinary that
this went unpublicised and uncorrected for over two
years. So first a few words about the illegality as it affects
working age payments such as Newstart (NSA) and
Youth allowance (YA).
Robo-debt is unlawful because Centrelink is always
responsible for ‘establishing’ the existence and size of
supposed social security debts. This is because the legislation
provides that a debt arises only if another section
creates a debt, such as one based on the difference
between the amount paid and the amount to which a
person is entitled. And because Centrelink bears a
‘practical onus’ to establish this. If Centrelink cannot
prove up a debt from its own enquiries or information
supplied to it, the status quo (no debt/lawful receipt of
payments) applies. This has been the law since 1984
when the full Federal Court decided McDonald. Unless the alleged debtor is one of the rare employees
who had only a single job paid at a constant fortnightly
pay rate, Centrelink fails to discharge this onus when its
robo-debt software generates a debt by apportioning total
earnings reported to the Australian Taxation Office
(ATO) from particular jobs to calculate average earnings.
Robo-debt treats fluctuating earnings as if that income
was earned evenly at the same rate in each and every
fortnight. Mathematically this is wrong because an average
for a fluctuating variable never speaks to its constituent
parts. And it is the actual income for constituent
fortnights that as a matter of law is crucial for calculating
the rate of a working age payment such as NSA or YA.
The averaging material relied on by Centrelink is
simply not relevant to the legal question at hand; it therefore
is no evidence at all. And, in any event, the moral
and practical gravity of alleging a debt imposes a ‘heightened’
degree of satisfaction under the application of the
Briginshaw principle. In that High Court case Sir Owen
Dixon memorably wrote that ‘[i]n such matters ‘‘reasonable
satisfaction’’ should not be produced in inexact
proofs, indefinite testimony, or indirect inferences ...’. Yet it is precisely such inexactitude of debt, indefinite
character of proof, and indirect inference on which the
government relies under robo-debt.
