Robodebt: changes to Criminal Code pave way for action against lawyers who vigorously defend clients

by | Aug 12, 2020 | Government

The Commonwealth has been extremely cruel to Centrelink recipients but there’s no suggestion that those who designed and implemented Robodebt will face any punishment. Yet lawyers who unwittingly cause distress to public officials when defending clients could face criminal charges. Ian Cunliffe investigates.

Officially called Online Compliance Intervention, Robodebt has caused widespread misery and stress to Centrelink recipients. Hundreds of thousands of people were sent letters demanding immediate repayment of debts ranging from small amounts to well over $100,000. In some cases, before the recipients had been notified by Centrelink, the debts were sent to debt collectors.

Gordon Legal, which is running a class action into Robodebt, says at least 600,000 Robodebts have been raised. The Department for Social Services (DSS) said last year it sent more than 900,000 debt letters in the period from July 1, 2016 to October 31, 2018.

According to Guardian Australia, Kath Madgwick and Jennifer Miller, have separately alleged that their sons, Jarrad Madgwick, 22, and Rhys Cauzzo, 28, died by suicide after receiving debt notices through the Robodebt program.

Greens senator Rachel Siewert has also said she has been told of “five families … who believe their family members’ suicides are connected to receiving a Robodebt letter”.

The DSS told the Senate Committee on Community Affairs, which was inquiring into the scheme, that more than 2,000 people died after receiving Robodebt letters. It is not clear how many were suicides, but the department revealed that roughly a fifth were under 35, and nearly a third of those had been classified as “vulnerable”.

While the head of the department Kathryn Campbell said on July 31 that she did not accept that any people had died over Robodebt, she added that: “We know mental health issues are very difficult. We have apologised for the hurt and harm; none of us can imagine what goes on in individuals’ lives.”

What is Robodebt?

In 2016, Centrelink introduced a new automated system to try to detect overpayments by using income information held by government agencies, usually the Australian Tax Office (ATO), and compared it to the income a person reported to Centrelink.

If the system thought there was a discrepancy, Centrelink sent a letter advising of a potential debt and asked the person to provide further information such as payslips about their income. If they didn’t respond – perhaps because they didn’t get the letter – Centrelink used the ATO information to infer the person’s income per fortnight and per year to determine a debt.

For example, the ATO might have information from an employer that the person received $2,000 in a particular fortnight.  Centrelink would then infer that the person earned $2,000 each and every fortnight.

Centrelink required people to repay the debt it calculated if the person did not provide information disproving that $2,000 in one fortnight meant $2,000 every fortnight. Previously, if you could not provide the information requested, Centrelink would write to your employer or bank to get this information before deciding if you had been overpaid and if so, by how much.

Other assumptions were also made by the robot. For example, a random deposit into a bank account was assumed to be income while gross receipts were taken as net receipts, and so on.

Traps for lawyers defending clients 

I defend people who have been accused of having Robodebts.  But until I started researching the Commonwealth Criminal Code recently in relation to so-called national security offences, I had no idea of the existence, or scope, of traps awaiting lawyers like me who vigorously defend their clients.

Those traps exist because of substantial amendments made two years ago to the Code, making it much more authoritarian. That Code now makes it a very serious offence, with up to 13 years’ imprisonment, for causing harm to a Commonwealth public official.

So while the Commonwealth has been extremely cruel and reckless at best to members of the public with its Robodebt scheme, there has been no suggestion that those who designed and implemented Robodebt will be criminally or even civilly punished.

‘Harm’ is defined to include harm to a person’s mental health (whether temporary or permanent).

It is also an offence to threaten to cause serious harm to a Commonwealth public official if the accused person is reckless as to the threat causing serious harm. Even if no harm actually results, the offence would be proven. The maximum penalty is nine years.

Punishment for causing mental distress

The accused is regarded as having the intention to cause harm to an official’s mental health if the person is aware that it will occur in the ordinary course of events.

Recently, I was defending a refugee who was clearly seriously mentally affected by a Robodebt letter saying that she owed more than $135,000 – to be repaid from the earnings of her taxi-driver husband while they support seven young children. She received the news of the debt while in bed having just delivered her last born – twins.

The alleged debt had two components.  I succeeded in getting the Commonwealth to waive about $95,000.  But then I was phoned by a Centrelink lawyer who seemed to be reneging on that hard-won agreement. I threatened to make a big fuss and accused the lawyer of acting inappropriately and callously. Perhaps I put her into a depressive funk. That was not my aim, but I did want to make a passionately stinging point that she would long remember.

However, it could also be argued I was reckless because my comments could have caused serious harm – even if they didn’t. The offence seems to be established even if no harm actually resulted – just that it could have. That is very unusual: you don’t get convicted for manslaughter just for being reckless – your recklessness has to actually cause death.

The law in Australia, as in comparable countries, has shied away from punishing people – even civilly – for saying things that inflict mental distress.

I regard myself as quite justified in taking a robust line with officials in such an extreme case. But would that save me if I were charged? Under the Criminal Code it is largely irrelevant whether the accused person was justified in what they did.

Public officials protected species

Should public officials really be a protected species in this regard?

My conduct might also have exposed me to two years imprisonment for ‘Obstruction of Commonwealth public officials’.  That would apply if I ‘obstructed, hindered or intimidated’ Centrelink’s in-house lawyer. Those expressions are not defined but the interpretation will be what they mean in ordinary parlance.

They are very broad terms and could well be interpreted to cover my attempt to shame the lawyer into what I saw as a more compassionate, fairer approach of not putting on my client’s record that a large whack of the money had been written off.

These are bad provisions. Like much of the Criminal Code they go much too far.

ABOUT THE AUTHOR

Ian Cunliffe

Ian Cunliffe

Lawyer, formerly senior federal public servant (CEO Constitutional Commission, CEO Law Reform Commission, Department of PM&C, Protective Security Review and first Royal Commission on Intelligence and Security; High Court Associate (1971) ; partner of major law firms. Awarded Premier's Award (2018) and Law Institute of Victoria's President's Award for pro bono work (2005).

19 Comments

  1. Avatar

    Shocking, we need more accountability.

  2. Avatar

    That would ice the cake. Put someone in jail, for hurting the Major-General’s feelings.

  3. Avatar

    The Liberal Party really doesn’t give a rat’s arse about harm to public servants.

    This and a variety of recent legislation is intended to deter the people from taking action against the government, or publicly dissenting against Liberal Party policy.

    Protestors, lawyers, whistle blowers are all in their sights. Want to oppose a coal mine for example? Go to gaol. Report on government misbehavior? Get an AFP raid.

  4. Avatar

    Ian, thank you for your work, and your passion. We must do everything possible not to go down Hitler’s path.

    • Avatar

      The irony is that the National Socialist German Workers Party sought to eradicate the Italian Mafia, yet the victorious allies of freedom loving democracy co-opted said organised crime, which may explain the possibility for the widely reported connections between the Victorian branch of the Liberal Party and the Ndrangeta.

  5. Avatar

    This law seems inconsistent with the Lange immunity in the Constitution and may be open to challenge and invalid on that basis.

  6. Avatar

    Were there a god, I would urge her to help us. Australia is like a frog in a pot of slowly warming water. The Parliament—both major persuasions—opposed only by independents and greens and other minor parties, us gradually removing our freedoms. We are increasingly being rendered vulnerable to persecution by the State, in secret if it suits the. Even more frightening, more of these powers are being vested in officials and not the courts where they belong. There is not much accountability for their exercise.

    There. I’ve said it now. See you all in the gulag—assuming you get to hear I’ve been arrested and charged.

  7. Avatar

    Life has become more threatening to Australia’s citizens since the Liberal/National party coaltion had gained the leadership role of government in Australia. One can offer that the Australian citizens having voted for this particular political party, by their doing so that vote had ultimately become an act of endangerment for simply having voted for this Liberal/National coalition party… with its unannounced people’s rights suppressing agenda.
    blockquote>A lesson must be learned by every Australian voter that the voting system in Australia has accordingly become a real-time threat to the Doctrines and Principles of the Democratic system, as well as the people themselves, by the abovestated political party leadership government.

    That by its design and construction had once upon a time exemplified the legislated Australian Commonwealth Constitution Act 1900 that necessarily ruled over all in Australia.

    • Avatar

      It is to be recalled that the head of department in question was appointed initially by the now opposition.
      By the way, the so-called principles of democracy do not stipulate who may stand for election. The current polity in Australia demonstrates that so called democracy is not and should not be a political ideal, especially when it permits both state and private media corporations to perpetuate the situation.

  8. Avatar

    Ian,
    Your advocacy was essential to your client’s future mental and financial health. It also points to a potential mis-application of government policy in clearing away unfounded automatically- raised Robodebts.

    For those who are unaware, the difference between a Robo-Centrelink-debt being “waived” and its being “written off” is night and day and should be remembered by anyone engaging with the Department over one of these debts.

    A Centrelink debt that has been waived by the Department can never be recovered, see the many layers within s.1237 of the Social Security Admin Act 1991.

    However, a debt which has been classified as written off, while not being recovered, remains on the client’s file. This means the Department to access any spare cash, such as a tax refund, or garnishee wages should the client ever have the capacity due to landing a full-time job. Short of declaring bankruptcy, an average worker may never get back on their feet financially.

    The terminology is confusing but the difference at law is this; by waiving a debt the Department is treating it as though it should never have been raised in the first place, but by placing a debt into the written off basket, the Department considers it a properly raised debt which for now will not be recovered.

    Where we are talking about whether to waive or merely write off a $95,000.00 debt, any decision to leave it hanging over your finances, (written off), is significant and one would think is a decision (which is) amenable to administrative review.

    If this decision to attempt to write off an incorrectly-raised $95,000 debt represents current Centrelink policy, then it is arguable the Department is not implementing the government’s decisions around 600,000 Robo-debts as reported in the media. If it IS government policy in action, then they misapprehend the scope of the Robo-debt problem and further class actions may well await.

  9. Avatar

    It is common knowledge that Australia has a high rate of suicide and that financial debt is a situation that calls a person to suicide.

    It can be reasonably argued the relevant Minister (Christian Porter) and head of Department (kathryn Campbell) during the period in question demonstrated negligence in their policy of debt recovery which targeted peoples that are vulnerable to suicide. Especially for the head of department who is a senior member of the defence forces within which depression and suicide is common knowledge.

  10. Avatar

    Thanks Ian so much – You just reflected my story with Centerlink debt..Now I have no any career role just watching tittles like this one you published here after 10 years of Humaniterian Case worker job because what is stated on my police check nowadays that Centerlink caused when sent me to the court. I was outcomed as non convicted, however they made me paying more than what I can or able to pay back in one day without a good reason no by Centetlink neither by the court. Thank you indeed .. Ban

  11. Avatar

    All in all, this story is a beat-up. Working from the inside out, we see how something is getting made out of nothing.

    There are two parts to the piece. In the first part the writer complains about the harm done to people who have had a robodebt claim made against them. In the second part, the writer tells us of Australian law which makes it illegal to recklessly harm a public servant, and that includes mental harm. There is no connection between the two parts except that harm to mental health is contemplated in both. The law is obscure enough because the writer, who is a lawyer, only became aware of it when researching an unrelated matter. (If he had not told us that, I would have inferred he found it when looking for a law to use against the Commonwealth on behalf of robodebt clients.)

    It is surely a fair principle that no-one should recklessly harm anyone else, whether a public servant or not. The writer goes on to postulate that this law might be abused. It might be abused by lawyer who is a public servant against another lawyer. The public servant might be upset at the prospect of losing the case, and the opposing lawyer might thereby be intimidated from continuing with the case, because of the risk of punishment should he win the case for causing upset to the public servant. If the threat of prosecution was made in such circumstances, that, we can agree, would be an abuse.

    When one makes a postulate, it is a matter of supposing some circumstances might come to be, and then considering what consequences might flow. It is not required to produce evidence that the circumstances will occur at some point. The writer is free then to postulate an abuse by a public servant lawyer without any evidence for it happening, but then we would expect him to go on with some argument based on the postulate. In this case, he does nothing with it, we are just left with the thought in our imagination of something unacceptable and unfair happening. By postulate, only, the unfair goings-on are to be pictured in connection with a robodebt case. Such a metal image might have some power if we associate it with national security matters that are in the public consciousness. As to that, that is coming up too.

    The writer does not consider at all how such an abuse might fare in court and gives us no background information to help us consider that for ourselves. The most it can do is leave an impression. I do not know for sure what the author’s intention is, but the editor who wrote an introduction to the piece is promoting that impression. The editor wrote “lawyers who unwittingly cause distress to public officials when defending clients could face criminal charges”. No, there is no reason to believe this could happen. It was just a bare postulate. The writer only asked us to imagine it happening.

    The headline given to the piece now drops the conditional verb “could”, saying “Robodebt: changes to Criminal Code pave way for action against lawyers who vigorously defend clients”. Nothing in the article connects the bruited legislation to robodebt and the words “pave way” imply an intention or plan which the article does not allege, let alone give evidence for.

    The further from the actual article the more the story is blown up. Promoting this story in his Weekly Review newsletter, Michael West stretches it another notch or two: “How can it be that there are no Robodebt penalties for the scheme perpetrators, but lawyers defending victims are now exposed to criminal penalties. Surely there are shades of the Bernard Collaery persecution in this latest of strong-arm tactics from the government”. But it is all supposition.

  12. Avatar

    It seems to me only the guilty would have to put laws like these in place. To coin one of their favorites “If they have done nothing wrong why do they need to protect themselves with these laws, what are they afraid of?”

    When one verbally attacks a public servant they are, in fact, angry with the employer, in this case that employer is the government, although it actually is us, the public in which case we have every right to question decisions put in place by our employees. More so, we have every right to sack them if they are making laws that may well harm us.

    • Avatar

      I suppose my criticism of the article which I submitted one day ago will be published. Meanwhile Mr or Ms Daibhin is going off in a dangerous direction if he or she thinks it is ok to “verbally attack” a public servant because you are angry with the government.

      • Avatar

        Having been a public servant I have been verbally abused even when the anger directed at me was caused by another person’s errors. Just to help you along here, when my job included face-to-face meeting with the beneficiaries I was told never to take the things said to me in anger personally because the person was angry with the system not me personally. Sometimes they were rightly angry at a colleague who spent more time on personal calls or extra long lunches than on their job, however they tended to be unavailable when the compainant fronted up to ask for an explanation as to why their payments were not paid on the day they should have. Unfortunately, that was the type of colleague who was promoted out of the way.

      • Avatar

        Thanks for explaining the type of case you had in mind.

        Perhaps Mr Cunliffe might read this and also take a follow-up question? Could he tell us what was said about the intention of this law when it was recently passed in parliament, and have there been any prosecutions and if so what types of cases were prosecuted?

  13. Avatar

    Reading about what Australia has become makes me thankful that I left when I did , scary country.

  14. Avatar

    Thank you for the excellent work Ian. I got hit with the robodebt twice. I was fortunate enough to have the personal resources to follow up their absurd requests (ala “We believe you owe us money, now you must prove you don’t. Please dig up pay records from your old jobs dating back to 2013”). The first time I supplied the figures using my bank account and some maths, they said I owed $2000. I echoed Scomo’s go-to defense before it was uncool, “I don’t accept that.” They said my only other option was to lodge an appeal and upload hard copies of all my payslips, but if I wanted to view their records/calculations, I would have to first accept the debt as valid. I go with the first option instead and get a call, “You don’t actually owe anything.”
    I wouldn’t qualify as ‘vulnerable’ at this stage, but it was galling how obvious it was that many of those most vulnerable – who this system is meant to support – could be royally screwed by robodebt through sheer bad circumstances like missing paperwork, poor English speaking proficiency and/or poor mental health, to name a few.

    You need only to read some of the horror stories here to get a picture of what an absolutely (predictably) farcical and damaging initiative this was:
    https://www.notmydebt.com.au/

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