“Dial 1800 – Reverse Onus”: Coming to Grips with Robodebt

Last night’s ABC 7.30 report has generated a wave of interest in the three year campaign against the Department’s of Human Services robodebt programme. The reaction underlines that if Australians give two minutes to these stories, they meet the mums, nurses, working people who are the inspirational heart of this country. Calling for the Online Compliance Initiative to end is about standing up for the things that have always united us no matter what our background: measured judgments on the best possible evidence, certainty, being open about government decisions. It is simply insufficient for some of the most vulnerable in our society or grieving families, to be met with the generic line “call the Department”. All while there is a fairer and more accurate way of doing this.

Where-ever you’re going to – I wouldn’t start from here

Right from the start, the line to “call the department” slides off being accountable for the Department’s own actions in issuing letters claiming the putative right to use averaged data. Very often the media use labels like “discrepancy”, “ATO data”, “computer programme” or “algorithm”. These are apt to mislead at times. Robodebt’s premise is not unexplainably complex, there is no tech wizardry or advanced analytic expertise involved in the system.

Step 1: They suck down your annual PAYG summary by matching often noisy identity and employer information (no, they don’t use your Tax File Number). They divide it up by 26 to obtain an average fortnightly figure. This crude assumption will never reflect reality for people with multiple employers, students varying hours of employment, casual employees. It is simply not designed to reflect variations that go into determining someone’s earned, fortnightly income. The conduct here is the administrative equivalent of the scientists in Jurassic Park – the averaged data plays the role of the frog DNA. Any time there is a gap or a silence, they claim the right to apply the averaged data. That claim is fundamental to all interactions with the department and the desperation many people feel. Noting the existence of a call booth does not change the fundamental legal contest and administrative torpor characterising the Department’s actions. It is even unable to report on how many debts end up being populated by the crude averaging assumption.

Step 2: Reverse onus. They send you the letter – this is not yet a debt. This “informally invites” you to provide documents showing your deductions, hours, gross pay going back years. Without this they assert the ability to force the ATO data onto you. Having recklessly created a dinosaur, the Department now expects people to shoot it for them. This is a profound change from the previous system where they would go get relevant fortnightly evidence from employers. As we saw last night, people don’t know where they stand, they don’t know the serious legal contests playing out. They don’t know that these letters are generally not formal statutory notices or that DHS itself has a separate range of compulsory information gathering powers. They are facing a profound imbalance of power and resources. Even this year the Ombudsman, an entity which did not interrogate the lawfulness of the system, criticised the fact that explanation I’ve just given was not on the first 1 million letters issued under this system.

“A sensible conversation”

It was interesting to hear the Minister attempt to describe what actually goes on when people call. His chosen phrase – “a sensible conversation” – needs to be called out as unacceptably contentless. The interaction between distressed people and the one thousand on-boarded contractors who staff the phonelines are set by a key operational restraint. The programme is designed to behaviourally push people to provide the Department with evidence, where previously employer records were simply obtained. This “cost push” has been very clearly outlined by the department:

“…It is an important aspect of red tape. If we don’t ask for that information from the person, we have to ask for it from their employer, so there is a burden on the employer if we go to them and say, ‘Can your payroll section please provide all the information on this customer over a period of time…So I think it’s important that any cost shift is between employer and employee and between business and the employee; it isn’t between us and the employee.”

While the Department keeps its treadmill running, employers around the country are being asked over and over for range of records and clarifications. Going back to at least 2012. Each day that passes without a recipient knowing about their debt is also a day when key records can be destroyed or the business shut down. All of this in a context where people were at the time advised there was no obligation to retain their copies of payslips beyond six months. The department’s approach admits the possibility that vulnerable people will accept averaged data, or that we act without confirming whether records exist. It just skates over the complexities these files involve: inferences from reporting history, webs of entitlements, reconciliation. This is not a dispute about uploading jpegs or fair dinkum chats. The heart of it is the imbalance of power generated by the department declaring the right to fill every silence or gap, or hit every exhausted person who gives up, with averaged data. At the community level, Canberra is making a desert and calling it efficiency.

Two and a half years ago I criticised the failure of the Department to put in place any kind of policy where they would go directly to employers. After an inexplicable delay of 18 months, they finally published a policy in November, but it does not feature clearly in their front of house communications or letters. After shouting for this tiny, marginal protection for a couple of years, we see that it is poorly drafted and reactive only. The department starts from the premise getting information on behalf of people is exceptional only with vulnerabilities listed as “a factor” for consideration. Buried in a footnote to the second Ombudsman report, we learn that out of 400,000 or so debts, the power has only been used 570 times. That indifference was in mind as I watched vulnerable people, people with disability, grieving families living with their debts last night. People’s vulnerability did not change, reporting did not change, what changed was the onus that was put on people, the people who represent us walked away from going direct to source – employer records. Ironically, this department will do an about face with the arrival of single touch payroll reporting, restoring employer data to its central place. Those who needed help between 2012-2019 get adjudicated by robodebt – a demonstrably shonky bridge programme.

The continual references to bank statements last night also abstracts from the nature of the decision-making here. A bank statement will show lodgements of income received. That won’t address the task of reconciling entitlements back to gross earnings, of spotting the required pattern of earned (not received) income, accounting for working credits and other variables. Complex statutory decision-making cannot be positioned as a form of online store checkout where the terms and conditions only issue upon (now repeated and escalating) requests by lawyers.

The raw power of Centrelink English

In my classrooms at la Trobe I never have teach anyone the raw force of Centrelink English. This system will function very differently for me, a person of privilege, who can speak the magic words like “I want a review not a reassessment”. I’ll know to specifically demand a review and repayment hold so I get my FTB refund when my tax is lodged. When they demand grounds for an ARO review and try to funnel me into their “reassessment” system, I’ll chat about probative inferences and attach Peter Hanks QC’s arguments about the person who asserts needing to prove. But it’s not about us legal academics. This is about the working mum, on the phone, two kids at her feet. The vulnerable person who is never going to be able to practically reverse engineer working credits, deductions. Even on the department’s terms, this is a profound access to justice crisis.

Let’s take one example of a departmental process that intersects with robodebt. Last night we saw affected people desperate for information, for explanation. Many of them have been reduced to seeking information through freedom of information. A survey of recent Office of the Australian Information Commissioner decisions concerning the department makes for very concerning reading. The human stories here cannot be let sit on legal databases. There’s the person wrongfully refused documents because he used the word “information” not “document”. As part of his appeal the experts at the information commissioners help him redraft a request, it still gets rejected. Eventually, at the public’s expense, the Commissioner has to order release of the documents through formal decision. A dad, looking for his 10 year old son’s medicare information, whose request is wrongfully rejected because he asked for his complete medicare record. The department’s conduct here represents a sustained failure to comply with the obligation to assist those requesting information. In a context where it received direct, prior caution from their regulator about their processes in 2014. That is unacceptable in any walk of life. But the golden thread running through all this is the oppsitional use of technicality  against ordinary people in pursuit of organisational interests. This Department has been, and can be, better than this.

We have built a dense, highly conditional welfare system, which concentrates enormous power to parse, apply and determine important matters in the Department. There are many great people working at DHS. There are few institutions more worthy of our attention and our resources in Australian life. Robodebt is what happens when we build structures based on numbers and throughput. Let’s stop building these sad monuments to widget thinking and return to the central deliverable of any government: the well-reasoned, well evidenced decision.

Debts should not vary according to the person’s capacity and resources.

The word “integrity” and “right payment to the right person” often get thrown around as justifying this programme. Firstly the department has never published any analysis of whether debts are over or under calculated, despite an Ombudsman “suggestion” it do so. Regardless of your political belief, debts should not be determined by a person’s capacity to contest and the financial and time resources available to them. But that is what we now have. Look at the landscape of appeal outcomes:

  • 113,000 robodebts have been reduced or waived. While the department points to progress in the variation rate, this may reflect its freezing of the “due date processing” pool. That is the pool of debt where the person was unable to complete the “review” or has no documents. The Department only brought these debts fully on stream in May 2018, and many of the case studies which are now on our frontpages are from that pool. The reasons these debts were parked for a year should be shared – it’s mentioned in a footnote to the second Ombudsman report. It probably contributes to some of the dynamic where people are “discovering” debts following their tax return lodgement.
  • The latest Administrative Appeals Tribunal data we have underlines that 40% of tribunal matters are varied at the first level, around 90% get settled. This sits alongside the conduct in the Masterson case, where the debt was zeroed. Since the 2017 senate inquiry we have put AAT decisions contesting the department’s view to them.
  • How many of them are simply paid back? The best information we have is that over 150,000 debts have been paid back entirely without formal review, with even more likely under payment plans.
  • About 114,000 people had a recovery fee inflexibly applied in robodebt’s first wave. As part of the ombudsman’s recommendations, they were advised of their review rights by written letter. In the second ombudsman report we learn only 707 actually went through the reassessment upon receiving the letter. When we talk about onus we are talking about access to justice, research tells us who loses out and who won’t take action.
  • Finally we must underline the known time lag on reassessment, review and tribunal. Robodebt is really not best debated through appeal outcomes – they don’t interrogate the original debt in its original state. Only the federal court or, to a more limited extent, a specific type of tribunal matter can truly do that.

I don’t want the above list to imply we know anything like what we should about how this system functions. The entire operational blueprint was blocked by the Department following a freedom of information request. The department cannot report on how long a reassessment takes. We don’t know how many people did not submit documents prior to debt being issued (the true extent of the due date processing pool). We don’t know many people have just accepted the “ATO data” – there was a worrying high level of that in the pilot.

A Test of Empathy

I’m not sure the technical points I’ve made here are what matter. Victoria Legal Aid is standing for all of us with their carefully worked casework. But why are we still pushing this rock up the hill three years on? Robodebt is a story about just how easy it is to hang labels on people. Words like “compliance”, “integrity” blur and slide so easily into the outsized cultural prop: the dole bludger. The veneer of techno-speak seems to indicate some form of expertise is being applied. The two mums who spoke out last night, the two remarkable women trying to get statements of principle about debt raising from the Federal Court are the true agents of change. They are asking for something so basic: to know where they stand. 

This is a test of our solidarity and values. When they hear the word “robodebt” what do Australians see? They need to see the people who sat at their kitchen table fortnight after fortnight, conscientiously reporting, often for years. Only years later to be told that all of that can be blankly averaged and it’s on them. This is about the law applying to our kitchen tables. Any one of us, at any time, can have our lives change in an instant and we will be sitting there. All of us should stand up for time tested essentials. Let’s be careful, let’s be certain, and simply rewind the programme.

Dr Darren O’Donovan is Senior Lecturer in Administrative Law at La Trobe Law School

 

Darren O’Donovan