“It is trite
maths that statistical averages (whether means or medians) tell nothing about
the variability or otherwise of the underlying numbers from which averages are
calculated. Only if those underlying numbers do not vary at all is it possible
to extrapolate from the average a figure for any one of the component periods
to which the average relates. Otherwise the true underlying pattern may be as
diverse as the experience of Australia’s highly variable drought/flood pattern
in the face of knowledge of ‘average’ yearly rainfall figures. Yet precisely
such a mathematical fault lies at the heart of the introduction from July 2016
of the OCI machine-learning method for raising and recovering social security
overpayment debts. This extrapolates Australian Taxation Office (‘ATO’) data
matching information about the total amount and period over which employment
income was earned, and applies that average to each and every separate
fortnightly rate calculation period for working-age payments.” [Terry
Carney AO, UNSW Law Journal, Vol 42 No 2, THE NEW
DIGITAL FUTURE FOR WELFARE: DEBTS WITHOUT LEGAL PROOFS OR MORAL AUTHORITY?,
p2]
The
Canberra Times,
5 April 2018:
The Coalition
government's "robo-debt" program has been unlawfully raising debts
with welfare recipients, wreaking "legal and moral injustice", a
former administrative appeals tribunal member has said.
Emeritus professor of
law at the University of Sydney Terry Carney, who was on the Administrative
Appeals Tribunal for 40 years and was its longest serving member until
finishing in September, has weighed into the debate over the controversial debt
collection method saying the Department of Human Services has no legal basis to
raise debts when a client fails to ‘disprove’ they owe money.
While Professor Carney
urged it be made to comply with the law, the DHS rejected his comments, saying
its Online Compliance Intervention program was consistent with legislation.
"Robo-debt" -
the subject of a Commonwealth Ombudsman report and a Senate inquiry recommending sweeping reforms to the
program - was at the centre of a maelstrom of controversy last year and remains
loathed by critics calling for change….
Writing in the UNSW Law
Journal last
month, he said that despite the DHS' stance it remained responsible for
calculating debts based on actual earnings, not assumed averages.
“Centrelink’s
OCI radically changed the way overpayment debts are raised by purporting to absolve Centrelink from its
legal obligation to obtain sufficient information to found a debt in the event
that its ‘first instance’ contact with
the recipient is unable to unearth information about actual fortnightly earnings.
As noted by the Ombudsman, the major change was that Centrelink would ‘no
longer’ exercise its statutory powers to obtain wage records and that the
‘responsibility’ to obtain such information now lies with applicants seeking to
challenge a debt. Writing a little later, the Senate Community Affairs
References Committee challenged this, contending that
6.13 It is a basic legal principle that in order to
claim a debt, a debt must be proven to be owed. The onus of proving a debt must
remain with the department. This would include verifying income data in order
to calculate a debt. Where appropriate, verification can be done with the
assistance of income support payment recipients, but the final responsibility
must lie with the department. This would also preclude the practice of
averaging income data to manufacture a fortnightly income for the purposes of
retrospectively calculating a debt. …” [Terry Carney AO, UNSW Law Journal, Vol
42 No 2, THE NEW
DIGITAL FUTURE FOR WELFARE: DEBTS WITHOUT LEGAL PROOFS OR MORAL AUTHORITY?,
pp3-4]
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