Thursday, November 03, 2022

'Not accepting written legal advise is like a child putting their hands over their eyes pretending it doesn't exist'

Commissioner Holmes: "But if you've gotten advice even if it's in draft form, it's legal advice, it's come from lawyers, it's paid for, it exists. It's like a child putting its hands over its eyes."

Keeling: "I agree with you."

Tacky Man like Behaviour: Bureaucrat's behaviour likened to children at Robodebt Royal Commission | YouTube ABC News

Why legal warnings didn't stop Robodebt

Robodebt royal commission hears Scott Morrison asked depts to bring forward proposal | ABC News youtube

Commissioner Holmes: "I'm a bit confused, sorry. The 2014 advice said averaging probably didn't comply with the Act." McGuirk: "Broadly. We understood they had taken that advice on board." Commissioner: "What did you think they were doing?" McGuirk: "I was new to this."

'Not accepting written legal advise is like a child putting their hands over their eyes pretending it doesn't exist'

I’ve acted for a dozen #robodebt folks through Agency review, SSAT, AAT and class action….to see the quality of management and decision making behind this illegal process saddens me…they are cowered,incompetent and have acted contrary to all APS standards and ethics

Basically, you can't recall when we need you to recall but when you need to recall something you get to recall it. How interesting.

New email from Lumley at DHS to Michael Brown at ATO. Brown requested more detail, had asked why DHS proposed to change arrangements.

Michael Brown ATO emails Ben Lumley at DHS. The media attention has tax office spooked and Brown notes to Lumley "our SES are questioning whether the ATO has any exposure." Essentially, what's going on, are WE on the hook for whatever this is?

ATO lawyers, emailing in house: "What are the next steps where DHS is saying one thing but our guys are saying another thing regarding the TFN issue. This is a good win for us, if it's valid, but not sure how to deal with the difference of opinion here."

Proposed tweak. Michael Brown (ATO) is the data-matching gatekeeper suggests: "If the activity is taken outside the Act then the normal [secrecy] provisions prevail." Brown says a different set of data can be used to generate an Identity Match.

The DHS said the act was becoming "more restrictive than enabling" over time and bypassing it would assist with "cost and effort efficiencies", Senior Counsel Assisting Justin Greggery said.

A department overseeing the failed robodebt program paid external consultants for advice which flagged legal issues with the scheme, but did not take it on board, a royal commission has heard.

'I'm appalled': Robodebt inquiry commissioner's shock at department's admission

2019 Mr Hirschhorn : We rely on the competence of DHS and that, when they say a debt is due, a debt is due.

‘Unethical’: robodebt inquiry hears advisers were ‘almost immediately’ concerned by the initial plan

The Royal Commission into the Robodebt Scheme will conduct hearings to collect evidence relevant to its inquiry.

This is wild. ATO notes in this email that "DHS appear to be attaching the income details to their client record without further validation and undertaking discrepancy matching." Then when people rang the DHS to complain they were told that they needed to take it up with ATO!

Mr Brown said he had concerns about the robodebt collection program "almost immediately" after he became aware of the proposal.

"A lot of the individuals who would end up receiving these notices would have to prove what they earned over the period of time, stretching back potentially years," he said.

"It would be a level of proof which they simply would not be able to substantiate," he said, particularly for the populations the DHS's program targeted.

"Unemployed people, almost by definition have very vulnerable cohorts within them, and there would be people who would enter into agreements to repay debts which they had not incurred in the first place.

"And I felt that the practice, as a result, was unethical."

This would allow it to access greater volumes of taxpayer income information by sidestepping the Data Management Program Act the tax office was legally tethered to.

Legal advice on robodebt not passed on

Public servants were unsure about the legality of the Robodebt scheme – an ultimately unlawful process to automatically send debt notices to Australian welfare recipients – well before it was implemented, the Royal Commission into the Robodebt Scheme has heard.

In late 2014, the legal team at the Department of Social Services was asked to provide legal advice about a proposed scheme to use income averaging, or ‘smoothing’, to raise debts against people on social benefits.

The ATO also advised the Department of Social Services the scheme was “unlawful”.

Evidence is being heard now by the royal commission regarding the scheme’s lawfulness. This isn’t new, as law professor Terry Carney wrote in 2018

there can only be a debt if another provision [of the Social Security Act] creates it. There is no relevant provision ‘automatically’ creating a debt just because data-matching shows a discrepancy…

The Robodebt scheme failed tests of lawfulness, impartiality, integrity and trust

The proposed method involved taking a person’s income data from the Australian Tax Office (ATO), averaging it out over a year, and comparing it with income data the person self-reported to Centrelink.

Public servants knew Robodebt was dodgy

 A controversial debt-collection company that won significant government business under the illegal robodebt program despite being prosecuted and fined for unconscionable conduct over tactics in other markets scored two more lucrative contract renewals from Services Australia before the federal election.

ARL Collect, a wholly-owned subsidiary of privately-held debt-recovery firm Panthera Finance Group, was awarded new deals from Services Australia totalling $3.96 million in August 2021, according to official contract notifications, more than double its previous contract of $1.65 million for the 12 months to 30 June 2021.

Services Australia handed $5.6m more work to robodebt collector Panthera following ACCC prosecution

In other Orwellian Kafkaesque news 

A man who won £34k in a Set for Life lottery scheme has now had his pension slashed by the equivalent of £140 per week because he is now considered a "professional gambler"