When is an unlawful debt calculation method akin to playing soccer with boots on your hands?
When is an unlawful debt calculation method akin to playing soccer with boots on your hands?
Sometimes, making sense of unlawful governmental action can give rise to imperfect and whimsical analogies.
This video provides my brief comments on one small part of the Commonwealth Ombudsman’s appearance at the 15 August 2023 hearing of the Senate Standing Committee on Community Affairs inquiry into ‘The extent and nature of poverty in Australia.’
The Ombudsman was called to answer questions related to the recent Lessons in lawfulness ‘public statement.’ Notably, as the Ombudsman clarified: (a) this published document was not in fact his ‘report’; and (b) notably, the unpublished report contained much more detailed analysis of the agencies’ legal advices and positions.
Why is this relevant to welfare law?
Because the statement and the unpublished report include the revelation that at least 100,000 welfare debts have been calculated unlawfully between 2003 and 2020, specifically through the misapplication (and apparent misconstruction by the governmental agencies over two decades) of the income attribution rule under s 1073B of the Social Security Act 1989 (Cth).
While operative for those 17-odd years, that provision provided as follows:
I hope to provide more written or filmic analysis soon. An important aspect of this story is the way in which the Earnings Apportionment Tool within the ADEX Debt Schedule effectively automated, or at the very least enabled, this unlawful calculation process to occur.
When is an unlawful debt calculation method akin to playing soccer with boots on your hands?
The old s1073B seems clear to me. It's saying once the earned, derived or received period has been determined (separate issue) then the income will be assessed over the relevant instalment periods in such a way that the daily income will be the same for a particular instalment period. Say somone earned $10 a day for 17 consecutive days, 1 day in intalment period 1, 14 days in instalment period 2, and 2 days in instalment period 3. s1073B says that the income will be assessed over the 42 days of the 3 instalment periods. For instalment period 1, the assessed amount will be $10/14 per day for each of the 14 days. In instalment period 2, the assessed amount would be $10/day for each of the 14 days. For instalment period 3, the assessed amount would be $20/14 days per day for each of the 14 days. The ombudsman's report says that this would be correct. What Centrelink was doing wrong was assessing $10 per day over 17 days and this was incorrect because the 17 days were not contained in one instalment period.
Asking for a friend - does this strengthen arguments that all Robodebts based on bank statements should be reviewed and cancelled?