Robodebt missing duty of care
THE PUBLIC MIGHT HAVE EXPECTED THAT WE HAD A RESPONSIBILITY TO LOOK AFTER THEM, ESPECIALLY AS WE ACKNOWLEDGE MANY OF THEM WERE VULNERABLE
IT is hard not to wonder if anyone in the Morrison government, either ministers or the staff who advise them, actually read the defence they were planning to file in answer to Gordon Legal’s Federal Court “robodebt’’ class action.
To be fair, it’s a dry 31 pages which to be understood properly needs to be read in conjunction with the writ it is answering.
Perhaps whoever was given the job of running their eye over it had a bit on their plate that day and decided to just give it a quick skim.
Perhaps if they had been paying closer attention they might have had a conversation with the legal team, headed up by the star of the banking royal commission Michael Hodge QC, that might have begun by letting everyone know they were to be congratulated on doing a first-class job on the law side of things, but just speaking politically, there might be a tiny bit of a problem with paragraphs 71.2 and 71.3 on page 28.
Because while of course it might be technically correct that Gordon Legal is trying it on to claim the Commonwealth owed people subjected to the robodebt scheme a duty to take reasonable care to avoid causing them loss or damage, it might come across as a bit harsh to say “that neither the SSA nor the Administration Act (together, Social Security Law) impose, or otherwise mention, a requirement that due or reasonable care is to be exercised in the making of decisions under the Social Security Law”.
It’s not wrong of course. And there’s a pretty good chance no one will really notice. We’ve more or less got away with it until now.
Which is quite amazing really when you think about it, given we demanded hundreds of millions of dollars from people without any basis in law.
For that we can probably thank the Labor Party in Canberra, which until recently hasn’t shown much interest and, luckily too, apart from some bloke at The Guardian, neither has the media. The problem with putting in that no-duty-of-care bit is the people who were targeted by the scheme were for the most part poor and in many cases poorly educated.
The public might have expected that we had a responsibility to look after them, especially as we acknowledge many of them were vulnerable. People can be naive about these things.
Their expectation — incorrect expectation, as the advice makes clear — might be that when Centrelink demanded money from these mostly poor people for welfare payments they had received many years ago, that the government was mindful of the impact this might have on them.
Unfortunately many of them took the demands pretty badly, with reports of anxiety attacks, depression and, in at least one case, a suicide.
What made things worse is that it seems some of the people hired to get this money back were cowboys who did whatever it took to get people to pay.
Expensive cowboys, as we had to admit last week. Over this journey we ended up paying them $130 million.
Equally unfortunately, as we acknowledge elsewhere in this defence, the amounts we were asking for were wrong.
One hopes that such a conversation might have taken place if anyone in the government had actually thought for more than a nanosecond about how these words might appear to the nonlegal reader.
But from the way this debacle has unfolded over the past few years you can’t be certain.
At every point on this journey the strategy has been to obfuscate and then fold.
Incredibly, the whole thing wasn’t shut down until November last year when, effectively at the door of the Federal Court, the Department of Social Security’s lawyers advised the debts were not lawful.
As I have observed before, the scale of this fiasco is truly amazing. Over the course of the journey, Centrelink attempted to recover more than half a million debts and has raised roughly $785 million with another $725 million in the process of raised through repayment agreements.
Action was also taken to recover a further $500 million.
Given its admissions in the previous Federal Court case and in its defence in this matter, that the debts were incorrectly calculated, the only question now is how much it is going to be paid back and when.