{"id":17608,"date":"2020-11-26T14:54:24","date_gmt":"2020-11-26T03:54:24","guid":{"rendered":"http:\/\/www.socialpolicyconnections.com.au\/?p=17608"},"modified":"2020-12-01T13:31:03","modified_gmt":"2020-12-01T02:31:03","slug":"peter-whiteford-robodebt-was-a-policy-fiasco-with-a-human-cost-we-have-yet-to-appreciate-fully","status":"publish","type":"post","link":"https:\/\/www.socialpolicyconnections.com.au\/?p=17608","title":{"rendered":"Peter Whiteford. Robodebt was a policy fiasco with a human cost we have yet fully to appreciate."},"content":{"rendered":"\n<h4 class=\"wp-block-heading\"><a rel=\"noreferrer noopener\" href=\"https:\/\/theconversation.com\/profiles\/peter-whiteford-2016\" target=\"_blank\">Peter Whiteford<\/a> <a rel=\"noreferrer noopener\" href=\"https:\/\/theconversation.com\/institutions\/crawford-school-of-public-policy-australian-national-university-3292\" target=\"_blank\">Crawford School of Public Policy Australian National University<\/a><\/h4>\n\n\n\n<p>1 December 2020.<\/p>\n\n\n\n<p>The Robodebt class action bought by Gordon Legal has been settled at a cost to the government of around $1.2 billion. According to federal Labor frontbencher Bill Shorten, this is the <a rel=\"noreferrer noopener\" href=\"https:\/\/www.sbs.com.au\/news\/federal-government-settles-class-action-over-its-unlawful-robodebt-scheme-for-1-2-billion\" target=\"_blank\">biggest class action<\/a> in Australian legal history.<\/p>\n\n\n\n<p>This <a href=\"https:\/\/www.smh.com.au\/politics\/federal\/robodebt-class-action-settles-on-cusp-of-trial-20201116-p56f0u.html\" target=\"_blank\" rel=\"noreferrer noopener\">comprised<\/a> refunds of $721 million to 373,000 people, $112 million in compensation and $398 million in cancelled debts.<\/p>\n\n\n\n<p>As is well-known, \u201cRobodebt\u201d is the label commonly applied to the initiative starting in 2016 designed to increase recoveries by government of \u201coverpayments\u201d made to social security recipients, retrospectively dating back to 2010.<\/p>\n\n\n\n<p>This table sets out a chronology of the major developments in Robodebt from 2016 up to this week.<\/p>\n\n\n\n<figure class=\"wp-block-embed-wordpress wp-block-embed is-type-wp-embed is-provider-datawrapper\"><div class=\"wp-block-embed__wrapper\">\n<iframe class=\"wp-embedded-content\" sandbox=\"allow-scripts\" security=\"restricted\" title=\"Timeline of the Robodebt scandal\" src=\"https:\/\/datawrapper.dwcdn.net\/475NH\/1\/#?secret=UlGX6HSv9P\" data-secret=\"UlGX6HSv9P\" scrolling=\"no\" frameborder=\"0\" height=\"1955\"><\/iframe>\n<\/div><\/figure>\n\n\n\n<h4 class=\"wp-block-heading\">How Robodebt began<\/h4>\n\n\n\n<p>The &#8216;Robodebt&#8217; story started with an announcement as part of the <a href=\"https:\/\/formerministers.dss.gov.au\/15850\/welfare-integrity-fairness-and-sustainability-for-all-australians\/\" target=\"_blank\" rel=\"noreferrer noopener\">2015-16 budget<\/a> that the government would save $1.7 billion over five years by enhancing the Department of Human Services (DHS) fraud prevention and debt recovery capability.<\/p>\n\n\n\n<p>Data-matching with the Australian Tax Office had been started in 1991 by the then-Labor government, with the automation of the system being increased in 2011.<\/p>\n\n\n\n<hr class=\"wp-block-separator is-style-wide\"\/>\n\n\n\n<h5 class=\"wp-block-heading\"><strong><a href=\"https:\/\/theconversation.com\/the-problem-is-not-fixed-why-we-need-a-royal-commission-into-robodebt-141273\">The &#8216;problem&#8217; is not &#8216;fixed&#8217;. Why we need a royal commission into robodebt<\/a><\/strong>.<\/h5>\n\n\n\n<hr class=\"wp-block-separator is-style-wide\"\/>\n\n\n\n<p>The 2015 measures reduced human oversight once discrepancies between income reported to the ATO and income reported to the DHS were identified. Previously, officers had scrutinised each discrepancy on a case by case basis before raising an over-payment.<\/p>\n\n\n\n<p>In addition, where previously the DHS collected verifying information from employers, the new system shifted responsibility for providing information to the individuals concerned, reversing the \u201conus of proof\u201d.<\/p>\n\n\n\n<p>As the <a href=\"https:\/\/www.aph.gov.au\/Parliamentary_Business\/Committees\/Senate\/Community_Affairs\/SocialWelfareSystem\/Report\" target=\"_blank\" rel=\"noreferrer noopener\">2017 Senate committee report<\/a> points out,<\/p>\n\n\n\n<blockquote class=\"wp-block-quote is-style-default\"><p>the responsibility for checking and clarifying income information has shifted from the department to current and former recipients of Centrelink payments. \u2026 the significant reduction in workload for the department by this outsourcing, has allowed for a huge increase in the number of income discrepancy investigations that the department initiates<\/p><\/blockquote>\n\n\n\n<p>As a result, the <a href=\"https:\/\/www.aph.gov.au\/Parliamentary_Business\/Committees\/Senate\/Community_Affairs\/SocialWelfareSystem\/Report\" target=\"_blank\" rel=\"noreferrer noopener\">Senate report<\/a> pointed out the number of \u201cdebt interventions\u201d increased from 20,000 in 2015-16 to nearly 800,000 in 2016-17.<\/p>\n\n\n\n<div class=\"wp-block-image\"><figure class=\"alignleft is-resized\"><img decoding=\"async\" loading=\"lazy\" src=\"https:\/\/images.theconversation.com\/files\/369523\/original\/file-20201116-15-11ltkjh.jpg?ixlib=rb-1.1.0&amp;q=45&amp;auto=format&amp;w=754&amp;fit=clip\" alt=\"\" width=\"377\" height=\"252\"\/><figcaption>Scott Morrison has apologised for any hurt suffered as a result of the Robodebt scheme. Mick Tsikas\/AAP.<\/figcaption><\/figure><\/div>\n\n\n\n<h4 class=\"wp-block-heading\">Concerns are raised<\/h4>\n\n\n\n<p>In late 2016, members of the public raised concerns about letters from the DHS advising they owed the government significant debts for past income support payments they had received.<\/p>\n\n\n\n<p>The controversy escalated, with the shadow human services minister requesting the auditor general to investigate, and an independent MP separately asking the Commonwealth ombudsman to look into the matter after receiving more than 100 complaints about the debts.<\/p>\n\n\n\n<hr class=\"wp-block-separator is-style-wide\"\/>\n\n\n\n<h5 class=\"wp-block-heading\"><a rel=\"noreferrer noopener\" href=\"https:\/\/theconversation.com\/government-to-repay-470-000-unlawful-robodebts-in-what-might-be-australias-biggest-ever-financial-backdown-139668\" target=\"_blank\">Government to repay 470,000 unlawful robodebts in what might be Australia&#8217;s biggest-ever financial backdown<\/a>.<\/h5>\n\n\n\n<hr class=\"wp-block-separator is-style-wide\"\/>\n\n\n\n<p>In January 2017, a <a href=\"https:\/\/www.notmydebt.com.au\/\" target=\"_blank\" rel=\"noreferrer noopener\">website<\/a> now sharing more than 1,200 personal accounts, a Facebook account and a Twitter account with the hashtag <a href=\"https:\/\/twitter.com\/not_my_debt\" target=\"_blank\" rel=\"noreferrer noopener\">#notmydebt<\/a> were all set up to record contested debts.<\/p>\n\n\n\n<p>A number of <a href=\"https:\/\/twitter.com\/Asher_Wolf\" target=\"_blank\" rel=\"noreferrer noopener\">other<\/a> <a href=\"https:\/\/twitter.com\/jpwarren\" target=\"_blank\" rel=\"noreferrer noopener\">individuals<\/a>, <a href=\"https:\/\/twitter.com\/lukehgomes\" target=\"_blank\" rel=\"noreferrer noopener\">journalists<\/a> and <a href=\"https:\/\/law.blogs.latrobe.edu.au\/2019\/07\/30\/dial-1800-reverse-onus-coming-to-grips-with-robodebt\/\" target=\"_blank\" rel=\"noreferrer noopener\">legal academics<\/a> consistently highlighted the issue on social and mainstream media.<\/p>\n\n\n\n<p>There have since been <a href=\"https:\/\/www.ombudsman.gov.au\/__data\/assets\/pdf_file\/0022\/43528\/Report-Centrelinks-automated-debt-raising-and-recovery-system-April-2017.pdf\">two<\/a><a href=\"https:\/\/www.ombudsman.gov.au\/__data\/assets\/pdf_file\/0025\/107836\/Inquiry-into-Centrelinks-compliance-program.pdf\"> <\/a><a rel=\"noreferrer noopener\" href=\"https:\/\/www.ombudsman.gov.au\/__data\/assets\/pdf_file\/0025\/107836\/Inquiry-into-Centrelinks-compliance-program.pdf\" target=\"_blank\">reports<\/a> by the Commonwealth ombudsman, and two parliamentary committee inquiries (<a rel=\"noreferrer noopener\" href=\"https:\/\/www.aph.gov.au\/Parliamentary_Business\/Committees\/Senate\/Community_Affairs\/Centrelinkcompliance\" target=\"_blank\">one ongoing<\/a>).<\/p>\n\n\n\n<h4 class=\"wp-block-heading\">The unravelling of the scheme<\/h4>\n\n\n\n<p><a href=\"https:\/\/www.legalaid.vic.gov.au\/about-us\/news\/centrelink-waives-another-robo-debt-legal-challenge-continues\" target=\"_blank\" rel=\"noreferrer noopener\">Victoria Legal Aid<\/a> experienced a large spike in calls for legal help with Robodebt issues going back to 2016. In 2018, Centrelink raised a debt of over $3,700 against a former student, <a href=\"https:\/\/www.theguardian.com\/australia-news\/2019\/may\/05\/centrelink-drops-womans-robodebt-after-she-mounts-court-challenge\" target=\"_blank\" rel=\"noreferrer noopener\">Madeleine Masterton<\/a>, and in February 2019, VLA filed an application for judicial review. Within a week, the debt was reduced to around $600.<\/p>\n\n\n\n<p>At the first case management hearing, Centrelink accepted Masterton\u2019s original declared income, with the result that there was no debt, and no legal ruling on the issue.<\/p>\n\n\n\n<p>The second case also involved a former student, <a href=\"https:\/\/www.theguardian.com\/australia-news\/2019\/sep\/06\/centrelink-wipes-robodebt-in-second-case-set-to-challenge-legality-of-scheme\" target=\"_blank\" rel=\"noreferrer noopener\">Deanna Amato<\/a>, who only became aware that a debt of just over $3,200 had been raised against her \u2014 plus a penalty of 10% for \u201cnot engaging\u201d \u2014 when her income tax refund of around $1,700 was taken as repayment.<\/p>\n\n\n\n<p>After the litigation began, Centrelink gathered information from her employers to determine the debt should be reduced to $1.48. A subsequent Freedom of Information request revealed she had actually been underpaid by $480.<\/p>\n\n\n\n<p>In September 2019, the DHS completely dropped the Amato debt but refused to pay interest. Then in November, the Federal Court ruled that income averaging was unlawful \u2013 a conclusion the <a href=\"https:\/\/www.theguardian.com\/australia-news\/2019\/nov\/27\/government-admits-robodebt-was-unlawful-as-it-settles-legal-challenge\" target=\"_blank\" rel=\"noreferrer noopener\">government conceded<\/a> a week before the case came to trial.<\/p>\n\n\n\n<p>It was this ruling that required the government to have more than 500,000 individual debts manually recalculated &#8211; at an unknown cost.<\/p>\n\n\n\n<div class=\"wp-block-image\"><figure class=\"alignleft is-resized\"><img decoding=\"async\" loading=\"lazy\" src=\"https:\/\/images.theconversation.com\/files\/369520\/original\/file-20201116-21-r2p8dc.jpg?ixlib=rb-1.1.0&amp;q=45&amp;auto=format&amp;w=754&amp;fit=clip\" alt=\"\" width=\"377\" height=\"252\"\/><figcaption>Lawyer Peter Gordon (right) led the class action against the government. James Ross\/AAP.<\/figcaption><\/figure><\/div>\n\n\n\n<h4 class=\"wp-block-heading\">What is a policy fiasco?<\/h4>\n\n\n\n<p>There is an extensive literature on \u201c<a href=\"https:\/\/journals.sagepub.com\/doi\/10.1177\/0952076715593139\" target=\"_blank\" rel=\"noreferrer noopener\">policy<\/a> <a href=\"https:\/\/doi.org\/10.1177\/095207679501000205\">failure<\/a>\u201d. Well-known examples range from cost overruns in constructing the <a href=\"https:\/\/www.couriermail.com.au\/news\/why-sydneys-opera-house-was-the-worlds-biggest-planning-disaster\/news-story\/9a596cab579a3b96bba516f425b3f1a6\" target=\"_blank\" rel=\"noreferrer noopener\">Sydney Opera House<\/a> and the <a href=\"https:\/\/www.bart.gov\/about\/history\/history3\" target=\"_blank\" rel=\"noreferrer noopener\">Bay Area Rapid Transit<\/a> network in San Francisco, to the <a href=\"https:\/\/catalogue.nla.gov.au\/Record\/482750\" target=\"_blank\" rel=\"noreferrer noopener\">poll tax<\/a> in Britain in the 1980s.<\/p>\n\n\n\n<p>What separates a \u201cfiasco\u201d from other forms of policy failure is that it is commonly regarded as being reasonably foreseeable \u2013 that is, the failure should or could have been avoided with foresight.<\/p>\n\n\n\n<p>The current situation was clearly foreseeable. The income reported to the ATO is what people receive in the financial year from July 1 to June 30. Social Security payments are made fortnightly and the level of entitlement is based on the financial and personal circumstances that apply during that reporting period.<\/p>\n\n\n\n<p>In January 2017, <a href=\"https:\/\/theconversation.com\/note-to-centrelink-australian-workers-lives-have-changed-70946\" target=\"_blank\" rel=\"noreferrer noopener\">I pointed out on this website<\/a> that \u201cthis approach [averaging] will only work correctly if individuals receive exactly the same income each fortnight. For students, this is very unlikely.\u201d<\/p>\n\n\n\n<p>More significantly, in July 2017, Peter Hanks gave the <a href=\"http:\/\/www.austlii.edu.au\/au\/journals\/AIAdminLawF\/2017\/15.pdf\" target=\"_blank\" rel=\"noreferrer noopener\">National Lecture at the Australian Institute of Administrative Law National Conference<\/a> in which he criticised the Commonwealth for its new method of raising and recovering what \u201cCentrelink chose to describe as \u2018debts\u2019\u201d.<\/p>\n\n\n\n<p>Professor Terry Carney \u2013 who served for nearly 40 years as a member of the Social Services and Child Support Division of the Administrative Appeals Tribunal and its predecessor the Social Security Appeals Tribunal \u2013 also <a href=\"https:\/\/www.theguardian.com\/australia-news\/2020\/feb\/12\/coalition-warned-robodebt-scheme-was-unenforceable-three-years-before-it-acted\" target=\"_blank\" rel=\"noreferrer noopener\">made five judgements<\/a> in 2017 that there was no debt where Centrelink calculated overpayments by applying averaged annual income to shorter periods.<\/p>\n\n\n\n<p><a href=\"http:\/\/www.unswlawjournal.unsw.edu.au\/wp-content\/uploads\/2018\/03\/006-Carney.pdf\" target=\"_blank\" rel=\"noreferrer noopener\">In an article in 2018<\/a>, Carney noted the Commonwealth had to prove that debts existed rather than requiring individuals to prove they did not. This was also pointed out by <a href=\"http:\/\/www.austlii.edu.au\/au\/journals\/AIAdminLawF\/2017\/15.pdf\" target=\"_blank\" rel=\"noreferrer noopener\">Hanks<\/a> in 2017, and was the conclusion reached by the Federal Court in the Amato case.<\/p>\n\n\n\n<p>The department could have appealed these judgements to the next level of the AAT where rulings would have been published, but chose not to \u2013 suggesting it was not confident of its position.<\/p>\n\n\n\n<p>The <a rel=\"noreferrer noopener\" href=\"https:\/\/www.theguardian.com\/australia-news\/2020\/sep\/19\/robodebt-court-documents-show-government-was-warned-76-times-debts-were-not-legally-enforceable\" target=\"_blank\"><em>Guardian<\/em><\/a> also revealed there were 76 other AAT cases in which robodebts were set aside, because the calculations used by Centrelink \u201ccould not lawfully support the existence of a debt\u201d. In each case, the Commonwealth elected not to appeal.<\/p>\n\n\n\n<hr class=\"wp-block-separator is-style-wide\"\/>\n\n\n\n<h5 class=\"wp-block-heading\"><strong><a rel=\"noreferrer noopener\" href=\"https:\/\/theconversation.com\/from-robodebt-to-racism-what-can-go-wrong-when-governments-let-algorithms-make-the-decisions-132594\" target=\"_blank\">From robodebt to racism: what can go wrong when governments let algorithms make the decisions<\/a><\/strong>.<\/h5>\n\n\n\n<hr class=\"wp-block-separator is-style-wide\"\/>\n\n\n\n<p>What is most striking about Robodebt is how it differs from earlier examples that focus on problems of implementation, or where outcomes do not match intended objectives.<\/p>\n\n\n\n<p>Essentially, the Robodebt fiasco arises from the very formulation of the policy. From the beginning, a central feature of the program was unlawful.<\/p>\n\n\n\n<p>The unlawfulness does not relate to a legal technicality or a mistake in drafting. In brief, the \u201coverpayments\u201d the government recovered using income averaging were not overpayments. No one who understood the social security system and its governing legislation could have realistically thought they were.<\/p>\n\n\n\n<h4 class=\"wp-block-heading\">What does the future hold?<\/h4>\n\n\n\n<p>The Robodebt fiasco involves policy failures across numerous dimensions. The most obvious \u2013 and in many ways the least important failure \u2013 is it failed to achieve the budgetary savings that were its main objective.<\/p>\n\n\n\n<p>More seriously, hundreds of thousands of people were adversely affected. This human cost is difficult to assess and involves much more than financial losses.<\/p>\n\n\n\n<p>Just over 2,000 people who had received a Robodebt notice between July 2016 and October 2018 <a href=\"https:\/\/www.lexology.com\/library\/detail.aspx?g=b0cd6dc3-3373-45c7-b97a-a0692987e808\" target=\"_blank\" rel=\"noreferrer noopener\">died<\/a> during that period, although in the absence of an official coroner\u2019s report, no causes can be attributed.<\/p>\n\n\n\n<p>However, it <a href=\"https:\/\/www.lexology.com\/library\/detail.aspx?g=b0cd6dc3-3373-45c7-b97a-a0692987e808\" target=\"_blank\" rel=\"noreferrer noopener\">has been noted<\/a> that from January 2017, Centrelink began tweeting the contact number for Lifeline, the national charity providing 24-hour support and suicide prevention services.<\/p>\n\n\n\n<p>This story is not yet finalised. The Federal Court has yet to approve the terms of the settlement. The second inquiry by the Senate Community Affairs is due to present its report in February 2021.<\/p>\n\n\n\n<p>The opposition has indicated it would set up a royal commission into Robodebt if elected to office.<\/p>\n\n\n\n<p>Nevertheless, there are some reasons to be cheerful. While the checks on power that are built into the appeals processes in the Australian social security system were initially brushed aside, the combination of community activism, journalistic investigation, political scrutiny and the legal aid system appear to have ultimately provided a remedy to the victims of this major policy fiasco.<\/p>\n\n\n\n<p>In future, there is clearly a need to strengthen these formal accountability and review structures.<\/p>\n\n\n\n<p style=\"font-size:12px\"><a rel=\"noreferrer noopener\" href=\"https:\/\/theconversation.com\/profiles\/peter-whiteford-2016\" target=\"_blank\">Peter Whiteford<\/a> Professor <a href=\"https:\/\/theconversation.com\/institutions\/crawford-school-of-public-policy-australian-national-university-3292\" target=\"_blank\" rel=\"noreferrer noopener\">Crawford School of Public Policy, Australian National University<\/a><\/p>\n\n\n\n<p style=\"font-size:12px\">This article is republished from <em><a rel=\"noreferrer noopener\" href=\"https:\/\/theconversation.com\" target=\"_blank\">The Conversation<\/a><\/em> under a Creative Commons license. Read the <a href=\"https:\/\/theconversation.com\/robodebt-was-a-policy-fiasco-with-a-human-cost-we-have-yet-to-fully-appreciate-150169\">original article<\/a>.<\/p>\n\n\n\n<p style=\"font-size:12px\">Photo DAVID MARIUZ\/AAP.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Peter Whiteford Crawford School of Public Policy Australian National University 1 December 2020. The Robodebt class action bought by Gordon Legal has been settled&#8230;<\/p>\n","protected":false},"author":2,"featured_media":17609,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"sfsi_plus_gutenberg_text_before_share":"","sfsi_plus_gutenberg_show_text_before_share":"","sfsi_plus_gutenberg_icon_type":"","sfsi_plus_gutenberg_icon_alignemt":"","sfsi_plus_gutenburg_max_per_row":""},"categories":[44,55],"tags":[856,857,855,858,859,854,292],"_links":{"self":[{"href":"https:\/\/www.socialpolicyconnections.com.au\/index.php?rest_route=\/wp\/v2\/posts\/17608"}],"collection":[{"href":"https:\/\/www.socialpolicyconnections.com.au\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.socialpolicyconnections.com.au\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.socialpolicyconnections.com.au\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.socialpolicyconnections.com.au\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=17608"}],"version-history":[{"count":6,"href":"https:\/\/www.socialpolicyconnections.com.au\/index.php?rest_route=\/wp\/v2\/posts\/17608\/revisions"}],"predecessor-version":[{"id":17709,"href":"https:\/\/www.socialpolicyconnections.com.au\/index.php?rest_route=\/wp\/v2\/posts\/17608\/revisions\/17709"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.socialpolicyconnections.com.au\/index.php?rest_route=\/wp\/v2\/media\/17609"}],"wp:attachment":[{"href":"https:\/\/www.socialpolicyconnections.com.au\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=17608"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.socialpolicyconnections.com.au\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=17608"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.socialpolicyconnections.com.au\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=17608"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}