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

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.