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."
Why legal warnings didn't stop Robodebt
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
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."
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
‘Unethical’: robodebt inquiry hears advisers were ‘almost immediately’ concerned by the initial plan
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!
The decisiveness of the DSS's internal legal advice, and government checks and balances, should have ended the robodebt proposal there and then, he said.
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.
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"
