The unexamined precursor to Robodebt
How a long-forgotten episode involving the wrongful conviction of 15,000 Australians for unproven welfare offences prompted the creation of the Robodebt scheme
Today, I have published a new peer-reviewed research article in the University of New South Wales Law Journal. It is the first article to offer a detailed analysis of a systemic and forgotten failure in Australia’s justice and social welfare systems.
Using documents revealed in the Robodebt Royal Commission, it is also the first research article to illustrate the connections between this injustice and the conception of the Robodebt scheme.
The University of New South Wales Law Journal is one of Australia’s leading academic legal publications, publishing rigorous, peer-reviewed scholarship on a wide range of legal issues.
My article reveals that an estimated 15,000 social security recipients were wrongfully convicted of criminal offences between 1991 and 2011 in a scandal I have called ‘the omissions affair’.
The article, titled ‘Convict and Forget? The Failure to Remediate 15,000 Wrongful Criminal Convictions in Social Security,’ argues that these miscarriages of justice have been swept under the rug, leaving thousands of Australians — predominantly vulnerable women — to carry the lifelong stigma of a wrongful criminal record.
For two decades, people were prosecuted and convicted for failing to report changes in their circumstances.
However, over that same period, prosecutors systematically failed to prove any legal duty to report changes in circumstances existed. The prosecution was required to prove this duty as a matter of law.
As the High Court ultimately found, no such duty could be established over this period.
Accordingly, these aren’t just technical errors. They are wrongful convictions for ‘offences unknown to law’.
My analysis shows that, even after the High Court of Australia confirmed the legal error in the landmark case of Poniatowska (2011), the government was unable to accept it. Instead, the government sought to enact retrospective legislation to ‘firm up’ these thousands of unsound convictions.
However, in the subsequent High Court decision of Keating (2013), a unanimous High Court struck down the government’s attempt to retrospectively fix the problem as a ‘statutory fiction.’ And yet, no substantial action has ever been taken to review the 15,000 convictions, identify those affected, or clear their names.
Crucially, my research establishes a direct link between the collapse of the welfare prosecution system and the subsequent creation of the Robodebt scheme.
When the ‘omissions affair’ made criminal prosecutions for welfare overpayments unviable and too complex in early 2014, the government needed a new tool.
My findings suggest that Robodebt was developed as an alternative ‘civil’ system of intervention to pursue or punish the exact same cohort of recipients as those who had become unprosecutable.
When the Robodebt program was first conceptualised, it was necessary for its creators to find a way to bypass the very legal safeguards of the criminal justice system that had only just been reaffirmed by the High Court.
Key findings from the research
A mass miscarriage of justice. An estimated 15,000 people, or 40% of all social security fraud convictions over a decade, were recorded on a legally unsound basis.
Devastating human impact. The cohort affected is largely composed of vulnerable individuals, particularly women on parenting payments. These wrongful convictions have likely had severe consequences for those impacted, including potential imprisonment (estimated to be more than 750 people), barriers to employment and housing, and profound mental distress.
Systemic inaction. In stark contrast to the UK’s proactive legislative response to its Post Office scandal, this research shows how Australian authorities have adopted a passive stance, placing the onus on individuals to challenge their own convictions — a near-impossible task for those who don’t even know their conviction is unsound.
Based on these findings, I am calling on politicians and welfare organisations to take ownership of the error and commit to appropriate action, which must include:
a Government-led review to identify and contact every person affected
a simplified and accessible process to set aside eligible convictions and clear individuals' records, similar to what has been implemented in the United Kingdom in response to the British Post Office Horizon Scandal
serious and transparent consideration of a compensation scheme for the harm caused to those wrongly convicted
The establishment of an Australian equivalent of the United Kingdom’s Criminal Cases Review Commission
The Robodebt Royal Commission showed us the devastating cost of flawed government administration.
My research shows the dysfunction in our welfare system is deeper and older than we knew.
With other historic welfare scandals currently the subject of federal review — such as the income apportionment saga — urgent steps should now be taken to ensure another 15,000 lives are not defined by injustice in the welfare system.
The open-access article was published on 23 July 2025 and may be read here.
Media and other inquiries
Christopher Rudge
Sydney Law School
christopher.rudge@sydney.edu.au
+61 2 9036 4910