Australian government was aware ‘robodebt’ programme unlawful, emails reveal

By on 12/02/2020
The emails exchanged between tax officials in November reveal that the government received legal advice that robodebts were “not lawful”. (Image by John Schnobrich via Unsplash).

Civil servants administering a controversial welfare debt recovery system run by Australia’s Department of Social Services (DSS) received advice that their operations were unlawful, a string of newly released emails has revealed.

The confidential email exchange, released to a Senate inquiry into the matter on Thursday, occurred between top officials working for the Australian Taxation Office (ATO).

On 19 November – the same day the government announced it was scaling back the ‘robodebt’ programme – the ATO’s general counsel, Jonathan Todd, told ATO commissioner Chris Jordan that reclaiming debts calculated using the income averaging method was “not lawful,” The Guardian reported.

The email, marked “Sensitive: Legal”, stated: “In further discussion with DSS, it appears that what you need to raise is: they have advised you that they have received legal advice that debts based solely upon DSS own income averaging of ATO annual tax data are not lawful debts (‘robodebts’)”. 

“In view of that legal advice… it appears that ‘robodebts’ are not debts due to the Commonwealth.” The email went on to say that the raising and recovery of robodebts was being suspended “as of today.”

What is still not clear, however, is when the government received this legal advice.

Miscalculations

Centrelink, the agency tasked with delivering social security payments, used the robodebt calculation system to work out people’s income and whether they had been overpaid welfare payments. However, because the system measured earnings over a short period and assumed that they remained steady over the year, many people were incorrectly identified as having been overpaid. Claimants were then chased for non-existent debts, and told they had to prove the calculation was incorrect. In some cases, the ATO clawed back the alleged debts via tax returns.

In a landmark court case in November, the government conceded that failings in the programme led it to unlawfully demand that people repay non-existent debts. 

Defending the government’s handling of the issue in Parliament last week, government services minister Stuart Robert said changes made in November were intended to strengthen and improve the programme “by requiring additional evidence when using income information to identify potential overpayments,” The Sydney Morning Herald reported. “This means we’ll no longer raise a debt where the only information we’re relying on is the averaging of ATO,” he said.

Growing pressure

However, Robert made no comment on what the government knew about the legality of robodebts. On the previous day, he had attended the Senate inquiry but refused to provide any information on legal advice sought in relation to the ill-fated scheme, citing public interest immunity, the Guardian reported.

Pressure is mounting from opposition parties for clarity on when the government became aware robodebts were illegal. Opposition government services spokesman Bill Shorten told The Sydney Morning Herald that the emails revealed the government knew or “strongly suspected” the scheme was illegal.

“Given the stress, anxiety, financial hardship and even suicides that resulted from this cruel abuse of government power, the public are entitled to an explanation as to robodebt’s origins,” he said.

Greens senator Rachel Siewert also told the paper the government must reveal how long it knew the scheme was illegal.

About Natalie Leal

Natalie is a freelance journalist whose work has been published by The Sun Online, The Guardian, Novara Media, Positive News, and Welfare Weekly, among others. She also writes reports and case studies on global business trends for behavioural insights agency, Canvas8. Prior to working as a journalist Natalie worked for the public sector in social services for several years. She switched careers in 2013 after winning a fully funded NCTJ in a national writing competition. She holds a Masters degree in social anthropology from Sussex University where she specialised in processes of social change and international conflict and reconciliation processes.

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