Apportionment, RoboDebt and Incapacity

The Commonwealth Ombudsman has released a 'statement' titled Lessons in lawfulness: Own motion investigation into Services Australia’s and the Department of Social Services’ response to the question of the lawfulness of income apportionment before 7 December 2020. 

Why did it take so very long, given the background to the RoboDebt Royal Commission report, and involve such a weak conclusion?

The Statement indicates 

 In February 2023, Services Australia and the Department of Social Services (DSS) told our Office there was an issue with how Services Australia had been apportioning income to calculate social security payment rates before 7 December 2020, when the law changed. 

‘Income apportionment’ is different to ‘income averaging’ that was at the heart of Robodebt. The Administrative Appeals Tribunal (AAT) sent some debts back to Services Australia to be recalculated. This raised concerns about whether income had been lawfully calculated. 

Services Australia advised it paused approximately 13,000 debt reviews while the agencies sought legal advice. Another 87,000 files which may become debts were also potentially affected by unlawful or incorrect income apportionment calculations. 

Given the scale, significance and potential impact, the Ombudsman decided to conduct two investigations into income apportionment: Investigation 1 – lawfulness of the agencies’ approach to income apportionment. Investigation 2 – examining the agencies’ administration of income apportionment decisions, communication with customers, and handling of complaints, internal reviews and AAT or Federal Court appeals. 

This statement relates to Investigation 1. Investigation 2 is ongoing. 

Since at least 2003, Services Australia (and its precursor the Department of Human Services), was unlawfully apportioning customers’ income across two or more Centrelink instalment periods. This in turn likely affected social security payment rates and may have lead to unfair debts against customers. 

Since becoming aware of the issue in October 2020, the agencies took steps to seek legal advice, but could have acted quicker to finalise advice. There is an unresolved and significant difference of opinion between some of the legal advices. The General Instructions that DSS developed to guide how decision-makers should recalculate the approximately 100,000 actual and potential debts need further development. 

The agencies could have acted quicker to inform us of this issue, particularly since Services Australia knew our Office had investigated some of the affected complaints.

The same might be said for the Ombudsman's office. 

 The Statement continues 

 The agencies are still determining how much the known and potential debts are affected – that is, how much payment rates went up or down because of unlawful or inaccurate income apportionment calculations. It is unknown how many other customers may have been impacted by unlawful or inaccurate debts or underpayments. 

We made four recommendations (one with two options) and one suggestion for the agencies to establish clear and lawful positions on income apportionment, and to foster cooperation with other Commonwealth agencies to resolve other outstanding issues. 

DSS and Services Australia undertook to implement all four recommendations (partially accepting one and accepting the other three) and the suggestion. We will monitor their progress. 

The Solicitor-General advised, in the first instance, the agencies should see if a clear legal position can be reached by the legal professionals who provided advice. The agencies agreed to pursue this.

Note that

Income apportionment is different to the Robodebt scheme or ‘income averaging.’ 

In the Robodebt scheme, Services Australia used an automated process to raise debts using yearly income data (income averaging). If Centrelink suspected a customer owed a debt, it sought information from that customer to disprove the existence of the debt. If the customer was unable to provide this, debts were calculated by taking a Centrelink customer’s reported income for a year, dividing it by the number of fortnights in the year, and assuming the customer earned the same amount in each fortnight. No part of social security legislation permitted Centrelink to do this. In many cases, Centrelink raised and recovered debts for which there was no probative evidence. 

The Robodebt calculation methodology frequently switched the burden of proof away from Centrelink to prove a debt existed, and onto the customer to prove a debt did not exist. 

Additionally, a central criticism of the Robodebt scheme was that many debts were calculated and issued with little or no human intervention. 

By comparison, ‘income apportionment’ relates to a method Centrelink used to calculate some payment rates, which Services Australia and DSS have accepted is unlawful because of an incorrect application by decision-makers of section 1073B of the Social Security Act 1991 prior to 7 December 2020. 

Income apportionment miscalculations may result in over- or under- payments depending on individual circumstances. The income apportionment issue we investigated does not involve averaging of yearly income and relates to the method Services Australia used to apportion employment income over a payslip period – typically a week to a month. 

Finally, based on our investigation, we were satisfied that – unlike the Robodebt scheme, which was initiated and continued without legislative changes the agencies knew were required – the incorrect and unlawful use of income apportionment arose due to the agencies genuinely holding an incorrect understanding of relevant legislative provisions.

So that's ok? 

Fraud

The NSW Sentencing Council report on Fraud features a useful overview of fraud and identity offences.

Fraud offences 

The general fraud offences: s 192E of the Crimes Act 

The general fraud offences are found in s 192E of the Crimes Act. This provides that a person is guilty of fraud if they, by deception, dishonestly: • obtain another’s property, or • obtain a financial advantage or cause a financial disadvantage. The maximum penalty is 10 years’ imprisonment. 

Section 192E and the remainder of part 4AA of the Crimes Act commenced in 2010.2 The provisions in part 4AA replaced over 30 existing offences, which targeted specific fraudulent conduct 

Other offences under part 4AA of the Crimes Act 

The other offences under part 4AA apply when: a person dishonestly destroys or conceals an accounting record with the intention of obtaining another’s property or obtaining a financial advantage or causing a financial disadvantage – maximum penalty: 5 years’ imprisonment4 a person dishonestly makes or publishes (or concurs in making or publishing) any statement (whether or not in writing) that is false or misleading, with the intention of obtaining another’s property or obtaining a financial advantage or causing a financial disadvantage – maximum penalty: 5 years’ imprisonment, and an officer of an organisation, with the intention of deceiving members or creditors about its affairs, dishonestly makes or publishes (or concurs in making or publishing) a statement (whether in writing or not) that to their knowledge may be false or misleading – maximum penalty: 7 years’ imprisonment. 

Other fraud and fraud-related offences in the Crimes Act 

In addition to the main fraud offences in part 4AA, there are several other fraud and fraud-related offences in the Crimes Act. 

Stealing and similar offences 

Part 4 of the Crimes Act covers stealing and similar offences, including larceny and embezzlement. There is some overlap between these offences and fraud. 

Larceny is a crime where a person takes and carries away another’s property, with the intention of permanently depriving them of it. A key element is “fraudulent intent”, which means the person did not believe they had a legal right to the property. However, larceny does not require deception. 

If a person is charged with fraud under s 192E of the Crimes Act, an alternative verdict is a conviction for larceny and vice versa. The offence of fraudulent appropriation is an alternative verdict to a charge of larceny. 

There are several specific fraud and fraud-related offences in part 4 of the Crimes Act. Many of these offences predate the 2010 reforms that introduced s 192E and cover specific fraudulent conduct. One example is embezzlement, which involves the fraudulent appropriation of property by a person to whom it has been entrusted. These offences include where: • a person in temporary possession of property fraudulently takes or converts that property, for their own, or others’ use11 • a “clerk or servant” (that is, an employee) steals or embezzles property, and • a “public servant” (that is, a person employed in the Public Service) steals or embezzles property. 

The maximum penalties for these offences vary, and include 10 years’ imprisonment, 5 years’ imprisonment, 3 years’ imprisonment,16 and 1 year’s imprisonment. 

Identity offences 

In addition to part 4AA, the Crimes Act includes offences that criminalise the misuse of a person’s identification information.  Identification information includes a name or address, driver licence, passport, credit card or digital signature. 

Making, supplying or using such identification information, with the intention of committing an indictable offence, carries a maximum penalty of 10 years’ imprisonment. Possessing identification information for this purpose carries a maximum penalty of 7 years’ imprisonment.  The relevant indictable offence could be any offence and does not necessarily have to be a fraud or fraud-related offence. 

There is also an offence of possessing equipment to make a document that contains identification information. The maximum penalty is 3 years’ imprisonment. 

Forgery offences 

Forgery involves making or using false documents. The Crimes Act contains some general forgery offences. 

The main forgery offence is making a false document to induce another person to accept it as genuine, and thereby obtain another’s property, obtain financial advantage or cause financial disadvantage, or influence the exercise of a public duty. The maximum penalty is 10 years’ imprisonment. 

There are also offences of using or possessing a false document, knowing it is false, which also carry maximum penalties of 10 years’ imprisonment. 

A further offence involves making or possessing equipment for making false documents, which carries a maximum penalty of 10 or 3 years’ imprisonment, depending on whether the person intends to use the equipment to commit a forgery offence. 

Other offences 

The Crimes Act includes various other fraud and fraud-related offences, across different parts. Some of these include: • making false or misleading statements to obtain an authority such as a licence, permit or registration, or in an application to obtain a benefit, and • producing false or misleading documents to comply with a state law. 

There are also offences contained in the part of the Crimes Act that deals with crimes against property which may also be classified as fraud or fraud-related. The offence of dishonestly destroying or damaging property “with a view to making a gain” is subject to a maximum penalty of 7 years’ imprisonment. When that offence is committed and the destruction or damage is caused “by means of fire or explosives”, the maximum penalty is 14 years’ imprisonment. 

Fraud and fraud-related offences in other legislation 

There are numerous fraud and fraud-related offences in legislation other than the Crimes Act. These relate to the many provisions that require statements, documents or other information to be supplied in order to obtain certain benefits, including, for example, a payment, grant or licence. This carries with it a risk of fraudulent conduct. 

Some of these statutes also cover the conduct of employees, employers, contractors and public officers. These people often have access to information or control of money or decisions, that they could fraudulently use for their, or others’, benefit. 

These offences cover specific conduct and situations relevant to the subject matter of the statute. However, the conduct may also be captured by the broad fraud offence in s 192E, or one of the other fraud, stealing, identity or forgery offences in the Crimes Act (see above).

In discussing s 192E the Council states 

 Our survey of cases in the Local Court shows a broad range of offending charged under s 192E. For example, in addition to high level frauds involving accounting and low level offences involving credit cards (in particular tap and go offences), there is:

• failure to provide goods and services by car repairers 

• tradespeople performing work they were not licensed or qualified to do 

• renting houses for use as drug premises 

• failure to pay for accommodation, meals, or petrol 

• dishonestly cashing in TAB and casino tickets 

• selling non-existent goods (like concert tickets) on online trading platforms 

• making false insurance claims 

• falsely stating that proceeds from a barbecue would be given to a local sporting team 

• using false identity documents to obtain goods on credit 

• submitting false time sheets as an employee 

• seeking refunds for goods that had not been purchased 

• using another person’s prescription to obtain a restricted substance, and 

• acting as a rideshare driver without authority. 

Because their coverage is so broad, the s 192E offences account for both the most charges and the most finalised charges for fraud and fraud-related offences. 

In 2019, 19,125 charges (for state and federal offences) were finalised in NSW courts in relation to fraud, deception and related offences. The most frequently charged state offence was the offence of dishonestly obtaining property by deception under s 192E(1)(a) with 6824 charges. This was followed closely by the offence of dishonestly obtaining financial advantage or causing financial disadvantage by deception under s 192E(1)(b), with 6502 charges. These two offences represent 70% of all fraud and fraud-related charges in 2019. 

In 2021, of the 12,425 finalised charges in the Local Court for fraud and fraud-related offences in the Crimes Act, 10,263 (83%) were for offences under s 192E. There were only 2162 finalised charges for the other fraud and fraud-related offences.

Pseudolaw

'New Hosts for an Old Disease: History of the Organized Pseudolegal Commercial Argument Phenomenon in Canada - Part III' in (2023) 60(4) Alberta Law Review 971-1015 comments 

United States-sourced false law concepts, “pseudolaw,” were the schematic backbone for a number of Canadian anti-authority and criminal populations that operated in 2000–2015. These “first wave” pseudolaw groups and their descendants are now dead or inactive. A “second wave” of novel pseudolaw groups has since emerged, energized and catalyzed by economic stress and the COVID-19 pandemic. This article reviews Canadian second wave pseudolaw and its host populations, documents second-wave pseudolaw theories and activities, and examines their comparatively limited success. Finally, the potential of violence building off pseudolaw in Canada is investigated.

Netolitzky argues

The previous articles in this series, Netolitzky, “History #1” and Netolitzky, “History #2,” reviewed the post-2000 nature and characteristics of pseudolaw, and the overall patterns of pseudolaw activity in Canada. Netolitzky, “History #2” specifically investigated whether social scientists are correct that pseudolaw expands during periods of social stress and crisis, including the 2018–2019 economic downturn, and 2020-present COVID-19 pandemic. 

Netolitzky, “History #2,” concluded the two dominant 2000–2010 Canadian pseudolaw movements, the “Detaxers” and “Freemen-on-the-Land,” continued their decline post-2015. The Detaxers are now dead. The Freemen-adherent population retains its political and criminal orientation, but has not re-engaged pseudolaw toward those objectives. Neither pseudolaw movement exhibited the predicted crisis-based amplification and expansion. A second wave of Canadian pseudolaw gurus and movements, which have little to no “parent to child” connection to earlier Canadian pseudolaw antecedents, has emerged post-2015. These second wave Canadian pseudolaw movements continue to apply the six core components of pseudolaw inherited from the United States Sovereign Citizen movement. As such, second wave Canadian pseudolaw continues the pattern that pseudolaw’s various forms, worldwide, are new branches off an established trunk, or side tunnels off the same conspiratorial rabbit hole. 

What separates these new pseudolaw instances are characteristics distinct from earlier Canadian pseudolaw:

1. different pseudolaw theories and strategies in addition to the core six-part Sovereign Citizen pseudolaw components; 

2. host populations with different and more diverse characteristics than pre-2010 Canadian pseudolaw adherents; 

3. influence by non-Canadian sources; and 

4. pseudolaw directed to different social stressors.

Another novel characteristic of some new Canadian pseudolaw gurus and groups is that, although certain of these instances of Canadian pseudolaw developed a substantial following, that has not translated into court proceedings and judgments. As will become apparent, that pattern is not because these new expressions of pseudolaw do not reject conventional Canadian law. They do. However, the forum for that competition of laws is not litigation oriented. For many of these pseudolaw movements, Canadian courts are simply irrelevant. These groups do not litigate to conduct their dispute of laws. They expect to achieve their objectives in other ways. This distinguishing characteristic means, different from Detaxers and Freemen-on-the-Land, much less case law documents post-2015 second wave pseudolaw systems. 

Pseudolaw is always a risk factor, since, at its foundation, pseudolaw promises to transfer authority away from state actors and to its users. Unsurprisingly, the now (falsely) empowered dissident and marginal populations that use pseudolaw predictably become increasingly aggressive, engaging in abusive and harassing document-based schemes and litigation, commonly called “paper terrorism.” However, paper terrorism is not the full extent of the aggressive actions taken by some pseudolaw actors. Violence, too, is well-documented, particularly directed to law enforcement and court agents.  

Canadian second wave pseudolaw has introduced an unusual, novel, and disturbing form of violence and aggression. Multiple new pseudolaw movements are engaged in vigilante activity, purporting to be valid authorities who discipline “outlaws,” with imaginary court summons and proceedings, and false and spurious “peace officers,” and “citizens’ arrests.” This alarming escalation in illegal activity reappears repeatedly as a threat factor within modern Canadian pseudolaw communities.

Epigenetic Citizenship

Epigenetic citizenship and political claims-making: the ethics of molecularizing structural racism' by Jessica P Cerdeña in (2023) 18 BioSocieties 632–655 comments 

Epigenetics has generated excitement over its potential to inform health disparities research by capturing the molecular signatures of social experiences. This paper highlights the concerns implied by these expectations of epigenetics research and discusses the possible ramifications of ‘molecularizing’ the forms of social suffering currently examined in epigenetics studies. Researchers working with oppressed populations—particularly racially marginalized groups—should further anticipate how their results might be interpreted to avoid fueling prejudiced claims of biological essentialism. Introducing the concept of ‘epigenetic citizenship,’ this paper considers the ways environmentally responsive methylation cues may be used in direct-to-consumer testing, healthcare, and biopolitical interactions. The conclusion addresses the future of social epigenetics research and the utility of an epigenetic citizenship framework. 

The website for Chronomics a company that provides direct-to-consumer (DTC) testing for viral antigens and antibodies as well as epigenetic markers features the slogan “Making the unseen actionable.” The company implicitly promises consumers increased understanding of their biologies to spur change. Though the brief banner does not specify an aim toward individual, behavioral improvements or political claims-making, the message is one of empowerment: know your epigenetics and respond accordingly. 

In 2020, bioethicist Charles Dupras published a commentary in Nature Genetics asking whether we are ready for DTC epigenetic testing. He called into question the legitimacy of epigenetic ‘evidence’ of lifetime exposures to stress or tobacco, imagining their use in forensic investigations and asylum evaluations (Dupras et al. 2020). Elsewhere, Dupras argues that emphasis on molecular insult is more likely to generate biomedical interventions to reverse epigenetic variation rather than prompting necessary policy and public health reforms (Dupras and Ravitsky 2016a). He invokes the possibility of discrimination based on epigenetic signaling and questions the moral responsibilities surrounding epigenetics, and whether parents and nation-states should be held accountable for the epigenetic programming of their children and citizens (Dupras et al. 2019, 2018; Dupras and Ravitsky 2016b). 

This paper draws from insights gleaned through the design of a bioethnographic project on intergenerational trauma incorporating epigenetic measures of DNA methylation and neuroendocrine assays alongside anthropological methods of semi-structured interviews. I discuss the repercussions of seeking molecular ‘validation’ for the forms of social suffering currently examined in epigenetics research, including racism, trauma, poverty, and deprivation. I summarize science studies critiques of epigenetics research and its potential to mischaracterize the biological inscriptions of social experiences. Following Dupras, I further anticipate toxic interpretations of findings generated through social epigenetics research that might reproduce racialized claims of (epi)genetic determinism and buttress enduring support for biological essentialism. I advocate for cautious presentation of results and forethought over how these might be used by the public. Finally, building on the concepts of “biological citizenship” (Petryna 2013) and “genetic citizenship” (Heath et al. 2007), I develop the idea of ‘epigenetic citizenship,’ referring to how the molecularization of social suffering further constitutes the bodies of disenfranchised communities within the domain of biopolitical activism and intervention, and further propose scenarios by which epigenetic citizenship may manifest in the future. ...

I use the term ‘epigenetic citizenship’ to describe how individuals may increasingly consider their pliable, molecular selves in lifestyle and health decisions and to further consider how molecular data might be deployed to legitimate biopolitical claims or justify interventions. 

Deborah Heath, Rayna Rapp, and Karen-Sue Taussig proposed the concept of “genetic citizenship” in response to advances in genomics and intensifying interest in the genetic explanations for human health, disease, and ways of being. Heath, Rapp, and Taussig observe that the process of “geneticization” mobilizes researchers, health activists, and public funding sources “as people learn to ‘think genetically,’ to see themselves in terms of genetic attributes and limits—or as investment possibilities” (2007). This ‘auto-geneticization’ engenders novel forms of identity and claims-making, prompting people to contemplate how their genetic selves valence understandings of illness, ability, and advocacy. The authors propose the term “genetic citizenship” to link “discussions of rights, recognitions, and responsibilities to intimate, fundamental concerns about heritable identities, differential embodiment, and an ethics of care” (Heath et al. 2007). Rooted in the discourse of genetic citizenship, ‘epigenetic citizenship’ examines the sociopolitical significance attached not to the fixed, coding sequences inherited by chance, but rather the flexible, chemical modification acquired through violence. 

Epigenetic citizenship is performed at the interface between individuals and healthcare providers, insurance agencies, corporations, governments, and funding organizations; individuals may also enact epigenetic citizenship through self-regulation and behavior change. Epigenetic citizenship relies on Niewöhner’s notion of the “embedded body,” or a body permeated by its past and present social and material environments (Niewöhner 2011). Epigenetic citizenship advances this idea forward, proposing that increased recognition of the interdigitation between molecular body and environment makes way for new interactions between suffering individuals, researchers, and policymakers. As science historian Sarah S. Richardson explains, “Epigenetics does not so much ‘make plausible’ the embedded body; rather, it fixes the molecular gaze on the embedded body… and elevates it to the center of biomedical theory, intervention, and surveillance” (2015, p. 227). 

As epigenetic testing is not yet widespread, iterations of epigenetic citizenship are largely imagined. Here, I discuss these articulations of epigenetic citizenship at the level of the individual—as a healthcare consumer and community member—and the state through case-based scenarios of self-regulation, identity, claims-making, and state control.