Terms of Reference for Robodebt Royal Commission suggested

06 June 2022 By Simon Levett

The Robodebt scheme was an example of government maladministration that led to vulnerable members of society owing hundreds of thousands in welfare debts.

Gordon Legal launched a successful class action on the basis of the Robodebt scheme. In response to the class action, the government agreed to repay at least 381,000 people $751 million and wipe all debts – worth $1.76 billion – that were raised by the government.

Australian Lawyers for Human Rights had told Lawyers Weekly that the Robodebt program was a major violation of International Law. In a submission to the Senate Standing Committee on Community Affairs, the ALHR said that robodebt “remains deeply problematic and raises significant human rights concerns.

President Kerry Weste said that “this is a manifestly unjust system that has a disproportionate impact on some of the most vulnerable members of our society, especially people living with a disability.”

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Ms Weste pointed out that the Robodebt provisions had potentially violated the International Covenant on Economic, Social and Cultural Rights (ICESCR) as well as the Convention on the Rights of People with Disabilities (CRPD).

She said “as a party to ICESCR, Australia is obliged to provide a social security system, within the government’s maximum resources, which supports access to social security without discrimination. In addition, governments must ensure that eligibility criteria for social security benefits are reasonable, proportionate and transparent.”

She continued, “the raising of alleged debts that are incorrectly calculated within a system that has little regard for the wellbeing of the most vulnerable in our community is in direct contrast with Australia’s obligations under the ICESCR”.

Ms Weste concluded, “it is imperative that the federal government take immediate steps to address issues and reform the system to ensure compliance with our obligations.”

Similarly, the Australian Lawyers Alliance (ALA) was critical of the Robodebt scheme in an interview with Lawyers Weekly. ALA spokesperson Mr Greg Barns said “the use of averaging reported incomes over the period of time someone has received income support payment is leading to incorrect calculations of alleged overpayments and the individual is responsible for proving the alleged debt is incorrect.”

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Mr Barns said, “the person affected is required to prove their innocence on the basis of very limited information and this is causing many people serious stress and anxiety.”

The ALA said that the government’s own debt recovery guidelines warn that on average the income will result in mistakes because, unless income earned was consistent in each fortnight throughout the year, averaging will produce an incorrect assessment.

“Government has insufficient evidence to claim that overpayments exist from carrying out a crude data-matching process,” said Mr Barns. “The government is abusing its power by claiming that thousands of debts exist on the basis of inaccurate debt calculations based on average income”.

Ms Leanne Ho, CEO of Economic Justice Australia, stated that “robodebt is widely condemned as an example of automation gone wrong and was described by Federal Court Justice Bernard Murphy as a “massive failure of public administration” as he approved a settlement worth $1.8 million for hundreds of thousands of people who were wrongly issued with Centrelink debts.”

Despite this massive failure, Ms Ho predicted that there would be similar outcomes in the future in government decision-making. She said that “despite this massive failure, EJA’s member community legal centers see through their casework a continuation of practices that replicate the conditions for another Robodebt to emerge.”

She continued, stating that the “lack of transparency continues through opaque communications containing little information about how and on what basis decisions are made. EJA member centres continue to see the harm that this kind of unfair decision-making causes through their work with vulnerable clients. EJA would welcome a Royal Commission with terms of reference which can provide greater transparency about the development of such schemes and accountability for the failures and harms”.

She concluded that “to avoid a repeat of Robodebt, we need government development of automated social security decision-making to be informed by knowledge of its impact on the vulnerable people who are intended to be the beneficiaries of the system to ensure that it results in fair, accurate and accountable decision-making”.

Ms Charmaine Crowe, Program Director at the Australian Council of Social Service, stated that setting the correct terms of reference will be important for any future inquiry. The Terms of Reference ought to include establishing who was responsible for establishing Robodebt scheme, and establishing what advice and what processes informed the design and implementation of the Robodebt scheme.

Ms Crowe also indicated that investigating the handling of complaints about the RoboDebt scheme – including in relation to the scheme’s legality – by Services Australia, the Department of Human Services and the relevant Commonwealth agencies and ministers, determining how much the implementation, suspension and wind-back of the Robodebt scheme cost taxpayers, investigating the harm caused to law-abiding Australians by the RoboDebt scheme and to investigate the use of third-party debt collectors under the RoboDebt Scheme would also be important for the Terms of Reference.

Crowe confirmed that “ACOSS does not expect that the Royal Commission’s scope will extend to investigating the welfare system as a whole. We would make recommendations to ensure that it was not repeated in any way.”

Terms of Reference for Robodebt Royal Commission suggested
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