Robodebt: The End of the Beginning?

Last Tuesday’s robodebt backdown by the Federal Government rightly captured national headlines. In a stunning development, Services Australia has made some sort of admission, albeit of uncertain meaning and unknown implications. Victoria Legal Aid’s strategic litigation has run straight and true, and the unanswered questions have at last struck home at the highest levels of government. Tuesday, at last, signals some kind of confrontation with the flawed legal assumptions the government sought to cloud with rhetorical attacks and tribunal settlements. But hanging a “do not disturb – undefined change in progress” sign on robodebt can’t mask the devastating misjudgements that have been made. What exactly has happened? What do the Department’s carefully spun words mean?

“Seeking further proof points”

This first phrase is the most straightforward. The Australian government admitted that it sent one million letters to its citizens asserting a right which simply did not exist. In a currently unknown number of instances, it populated a crude assumption into life changing debt decisions. The Department finally accepted that averaging an annual ATO PAYG figure might not speak adequately to the reality of many people’s earning patterns or to the statutory requirements. But is this the moment the Department finally accepted its legal responsibility to recognise and resolve the uncertainties a robodebt file can throw up prior to debt raising? On to the next tortured phrase.

“Working with them to identify further proof points”

Having made one, startling reference to unprecedented systemic failure, the Department immediately pivoted back into its usual strategy.  Repudiation by redirection. Whenever we have placed it under pressure, out come the wildly overgeneralised references to “assisting” or “working with recipients”. Rather than outlining what it views as the standard of certainty or required documentation for issuing a debt, it immediately starts discussing how it proposes to nudge people to do its job for it.

Secondly, what on earth constitutes “proof point”? In my own senate submission (p 9), I threw out a fast list of unacceptable conduct that the Department must disavow as beyond its powers. Averaging was of course number one. Trapped in an oppositional, audit mindset, the Department still refuses to speak publicly about how it forms judgments and makes actual decisions. I was unsurprised to hear the Attorney General effectively admit that the original legal advice the government sought was about the “process”, not the individual decisions the system would produce.

We have built a dense, highly conditional welfare system, which concentrates enormous power to parse, apply and determine important matters in the Department. Robodebt is what happens when we build structures based on numbers and throughput. Instead of finessing its sad monument to widget thinking, when will this Department return to the central deliverable of government: the well-reasoned, well evidenced decision?

“There is no change to the construct of the burden of proof”

I have no idea what this means. Just a fortnight ago in Senate estimates, the Secretary of the Department was rejecting the very idea of any burden of proof. Those of us arguing against this programme have been detailed and precise. We are fully aware of the complicated but clear caselaw from Re Martin v Commonwealth to Power v Comcare. The person looking to change status quo, to secure a result, bears the practical onus of adducing adequate supporting materials for their position. Frankly, it has been incredible to watch senior figures of a Commonwealth Department struggle with a technical but established administrative law concept. It’s just really strong evidence we all need to stop take a breath and review this entire programme from scratch.

“A Small Cohort of Australians”

The vagueness here points us to the story. What is a small cohort of 25 million? Why not say a small cohort of debts? The Department is unable to identify the precise number of files where averaging has occurred. It will have to check at least 686,000 files to fix the cohort covered by its indeterminate press release. 

  • The Department seems to indicate in its senate submission that around 60% of the 600,000 haven’t completed the initial ‘review’ by supplying documentation. But are all these covered?
  • Averaged files will correlate reasonably strongly with those who had 10% penalties applied to them for “not engaging” – which occurred in 245,066 cases.
  • There will also be mixed files where the person tracked down some employers/bank statements but not all. The averaging got bunged in like the frog DNA in Jurassic Park. It will be more labourious to find those.
  • They’ll also have to check interim manual files from 2015-2016. I’m taking nerdy vindication in the fact that while the maligned online platform was fully rolled out in 2016, legally “robodebt” began in 2015.

I’d say right from the off – a quarter of million debts can be dubbed as “averagey”. We don’t know how far it will go because they didn’t have risk management in place for this scenario – something I warned about at the senate inquiry. But the Department should be able to pull most of the files that are pure averaging quite quickly. Why? Because they deliberately held them back – as was revealed in a footnote in an Ombudsman report.  We know the potential pool of affected people is quite large – as a lot of averaged debts passed through the system only from May 2018. In that period the number of debts raised leaped to 8000 a week and stayed at a high level for six months. Throughout this year we have watched this pool slowly detonate in the media. This phasing was a critical factor in why it took so long to get this into court.

Don’t Call Us, We’ll Call You!

So much for Tuesday. After issuing its phrases, a Department infamous for its policing of public commentary, has gone utterly silent. Letters continue to go out, community legal centres field calls, those affected are clamouring for answers.

Once the department issues a debt, it gives people a statutory entitlement to request a review by an Authorised Review Officer. Even before Tuesday, once an independent or external reviewer touched a debt under this programme many of them were raptured and reduced. The Department’s own independent reviewers vary these debts 49% of the time. Once a debt exits to the Administrative Appeal Tribunal the variation goes to 57%. The only published outcomes at the second level of the tribunal showed a settlement rate of over 90%. This programme was, is, a hot house for error.

What would happen if tens of thousands of averaged debts exit into the formal review process? Worryingly, Paul Karp has reported that the call script provided to staff after Tuesday’s announcement is not proactively advising of the right to a formal review. Instead it is telling people that while they wait for a call they “could locate payslips or bank statements to prepare for the reassessment”. Good on the department staff for calling this push tactic out.

Is the Department actually telling people not to call it while it privately rush designs an ad hoc process of mass scale? Any “reassessment” process would be administered with less formality and by staff of lower expertise than the formal review process to which all those with issued debts are currently entitled upon request.

This Department needs to identify these files. It then needs to stop, listen and finally justify itself. It needs to submit to what it has always resisted: a full principled audit of a sample of its files, and a full independent expert review of its system.

The Broken Economics

All discussion of the budget numbers needs to start from the fact that the department has fundamentally miscalculated the meaningful human intervention required before raising debts. Too many of these debts have been shaped by the resources, the misunderstanding of ordinary people, rather than objective evidence. The budget numbers reflect ordinary Australians’ status, their fear, their vulnerability. The business case for any future debt recovery needs to be entirely revised to inbuild front up information gathering and “proof pointing”.

The initial target here was to raise 4 billion in debt across seven years. Here is what the Department is currently on the hook for:

– They still plan to do 1.5m “employment income reviews” in the next 3 years

– Run an undefined service recovery process on 600,000 robodebts that might be averagey

– In a budget measure Luke Henrique Gomes has already reported is underperforming by $600 million.

– With a staffing profile made up mainly of 1000 labour hire employees.

The pressure on the AAT team, review officers and subject matter experts in the Department must be unprecedented. All the staff, including the leaders, have dedicated their professional lives to doing their best for the Australian people. We are all wondering how we got here, and I direct my comments here at the institution not individuals. And what is going to be the opportunity cost for this vital institution? Reactive triage and rushed staffing ripples out, as was seen in this year’s Annual report:

Page 190: in 2018/2019 there was 14% drop in the number of centrelink claims processed within the standard timeframe.

Page 192, in 2018/2019 there was a 12% drop in the number of internal reviews carried out to time standard.

The Shattered Trust

I also think our political commentary is missing a broader truth not captured by the technical constructs of administrative law. The putative right to average was the cork in the bottle of a mass system of over 1 million income compliance reviews. It placed a moving treadmill, an imbalance of power underneath all the interactions. It asserted that any silence or inaction on the part of the individual would be resolved against the person. That claim was fundamental to all interactions with the department and the desperation many people suffered. Whether they engaged or not, this system stands indicted as an illegitimate behavioural shove on our most vulnerable people. Hundreds of thousands of Australians were denied the quiet dignity which should always accompany even tough government decisions.

Their experiences were captured by the truest and best piece of writing on robodebt – Robert Skinner’s “How I fought off my robodebt”. He powerfully depicts how he felt like a human being put through a car wash, seconded to work for the department, to author his own debt. For him, the process had all the elements of farce. It is incredibly damaging for people’s trust and relationship with a department that is so central to work, families and care in this country. And we all, whatever our political beliefs, need to engage passionately with this department’s work.

As a legal academic, I look at these dense compliance rules, the rate of newstart and robodebt. How does all this hold together as a system? I think there is a growing realisation across all sides of politics that our rules are increasingly scripting impossible lives. We are stringing press releases together, not promoting the truly important things like jobs and health. We have fallen into a “one louder” welfare policy driven by shortcut cultural images not substance. We can start by counting and valuing people’s time and lost productivity in every administrative policy. We can stop placing the onus on vulnerable people and calling it “efficiency”. There was never any “efficiency” here outside the narrow line item budget mindset of the modern APS.

How do we change for the better?

I know that the robodebt story is complicated for people outside my narrow technical community. But change is not secured by a few broad phrases issued on a Tuesday morning. We need to stop centering the wrong voices and grading political dance contests. Aligning our social security system to fit a PR press release culture is precisely how we got into this unprecedented mess. It is the questions asked by two courageous women that are writing a different system. The answers they are seeking hold the true power here.

Some of us have the easy privilege of speaking to what we think the rule of law requires of the government. But we all need to stand up for the people who have only ever been talked over and talked about. The 250,000 of our community who carried these debts into their working day, wondering how in hell they’d call in working hours. The 125,000 young people aged 16-25, trying to start up and out in the world shaped by casual underemployment. The parents who put their kids to bed at night with these debts weighing on their chests. These people endured, they still endure. What are we saying to them? Just what, precisely, are we going to do for them?

Darren O’Donovan