.

  • Written by Helen Hodgson, Professor, Curtin Law School and Curtin Business School, Curtin University

The robo-debt recovery programme has been criticised as badly designed and unfair ever since it began in mid 2016.

A year later the Senate Committee on Community Affairs recommended it be put on hold until its design flaws could be addressed, yet there has been a procession of stories since of people who have had their payments cut off or money demanded because of the application of bad data matching.

The minister for government services has confirmed in parliament that as many as one in five of the debt recovery notices issued might be incorrect, and apologised to a woman who received a debt notice on behalf of her dead son.

How it worked

Robo-debt’s modus opeandi was to estimate income that might disqualify someone from receiving benefits using an inaccurate formula, and then to require that person to prove the estimate was wrong.

The class action announced by Labor government services spokesman Bill Shorten and lawyer Peter Gordon on Tuesday, seeks to answer, once and for all, whether those foundations are legally sound.

It will be based on the legal concept of “unjust enrichment”. Unjust enrichment is a common law term that arises when a person has retained something of value to which they are not legally entitled.

Was it “unjust enrichment”?

Access to social security is governed by specific legislation, so an important part of the case will be whether the common law principle of unjust enrichment can be applied to actions that have been taken under that legislation.

In legal terms, if the government passes legislation that allows it to act in a specific way, then that leglislation will generally prevail over common law as long as it is not ultra vires (beyond the government’s powers to make) and the people making the relevant decisions have complied with it.

The class action will need to take into account existing appeal mechanisms under the Social Security Act. But those existing mechanisms are often limited to whether the person making the decision has acted in accordance with procedural requirements.

Administrative law is usually limited to procedural fairness rather than fairness of outcomes. For example, when deciding to send a matter to a debt collection service, the question will be whether the criteria were applied and whether they were applied correctly.

It would be an interesting question to apply to an algorithm.

It’s getting more sophisticated…

Despite, or perhaps because of, the problems that emerged with the first iteration of robo-debt, the government has stepped up its reliance on data matching.

Employees may have noticed that their payroll data is now sent to the Australian Taxation Office at the time they are paid rather than quarterly or annually as had been the case. There are benefits to this, particularly when you are tracking your superannuation contributions.


Read more: Robo-debt class action could deliver justice for tens of thousands of Australians instead of mere hundreds


And it means the Tax Office data can be matched to Centrelink data in real time rather than estimated later, overcoming one of the major shortcomings of the system, in line with the recommendations of the Senate Committee.

…and augmented, with drug tests and welfare cards

Data matching is getting more sophisticated in other ways. Centrelink data is being matched with Medicare data in order to identify “persons of interest who have a high likelihood of fraudulent behaviour”.

While all Australians want to be sure that Centrelink benefits are paid properly, the expansion of data matching has the potential to further victimise social security recipients.

In tandem with proposed drug testing programs and the proposed expansion of the cashless welfare card, there is a creeping stigmatisation of social security recipients.


Read more: Why Centrelink should adopt a light touch when data matching


The safety net that ought to be there to support us when we need it is being unravelled.

Helen Hodgson receives funding from the ARC. Helen is a the Chair of the Social Policy Committee and a Director of the National Foundation for Australian Women (NFAW), and is on the Tax and Superannuation Advisory Panel of ACOSS. Helen was a Member of the WA Legislative Council in WA from 1997 to 2001, elected as an Australian Democrat. She is not a current member of any political party. She is a Registered Tax Agent and a member of the SMSF Association.

Authors: Helen Hodgson, Professor, Curtin Law School and Curtin Business School, Curtin University

Read more http://theconversation.com/robo-debt-is-only-one-way-government-stigmatises-claimants-theres-only-so-much-a-class-action-can-do-123686

Is your horse normal? Now there’s an app for that

Vet: are you happy? Horse: neigh. evilgurl/Flickr, CC BY-NC-SASince ancient times, horse behaviour, and the bond between horses and humans, has been a source of intrigue and fascination. The horse-l...

Paul McGreevy, Professor of Animal Behaviour and Animal Welfare Science, University of Sydney - avatar Paul McGreevy, Professor of Animal Behaviour and Animal Welfare Science, University of Sydney

Small histories: a road trip reveals local museums stuck in a rut

Berry, and other tourist towns, are out of step with modern museum curation which is trying to include Aboriginal communities and their stories. ShutterstockAboriginal and Torres Strait Islander read...

Jen Saunders, Phd candidate, University of Wollongong - avatar Jen Saunders, Phd candidate, University of Wollongong

Curious Kids: how are stars made?

Stars come into existence because of a powerful force of nature called gravity. ESA/Hubble & NASA, Acknowledgement: Judy SchmidtIf you have a question you’d like an expert to answer, send it...

Orsola De Marco, Astrophysicist , Macquarie University - avatar Orsola De Marco, Astrophysicist , Macquarie University

What is perimenopause and how does it affect women's health in midlife?

Perimenopause lasts months for some women, and years for others. from www.shutterstock.comAll women know to expect the time in life when their periods finish and they reach menopause. Many might even...

Gita Mishra, Professor of Life Course Epidemiology, Faculty of Medicine, The University of Queensland - avatar Gita Mishra, Professor of Life Course Epidemiology, Faculty of Medicine, The University of Queensland

Vital signs. Our compulsory super system is broken. We ought to axe it, or completely reform it

We're taking money from people, letting it fall through the cracks, and spending no less than we were on pensions. ShutterstockThe just-announced inquiry into Australia’s retirement income syste...

Richard Holden, Professor of Economics, UNSW - avatar Richard Holden, Professor of Economics, UNSW

Might consciousness and free will be the aces up our sleeves when it comes to competing with robots?

Our advantage lies in incommensurables, and it'll grow in importance. Franck V. on UnsplashThe rise of artificial intelligence has led to widespread concern about the role of humans in the workplaces ...

Allan McCay, Law Lecturer, University of Sydney - avatar Allan McCay, Law Lecturer, University of Sydney

Should I stay or should I go: how 'city girls' can learn to feel at home in the country

Shutterstock/The ConversationA move to the country is often presented in popular culture as an idyllic life, a place where you can escape the pressures of the city. It’s in television shows su...

Rachael Wallis, Lecturer and Honorary Research Fellow, University of Southern Queensland - avatar Rachael Wallis, Lecturer and Honorary Research Fellow, University of Southern Queensland

Grattan on Friday: Storm clouds avoid the bush, darken over the economy

National Farmers' Federation president Fiona Simson says she doesn't think the government has a drought policy. ShutterstockGovernment sources insist shock jock Alan Jones didn’t drive Thursday&...

Michelle Grattan, Professorial Fellow, University of Canberra - avatar Michelle Grattan, Professorial Fellow, University of Canberra

Julianne Schultz appointed chair of The Conversation

Professor Julianne Schultz AM FAMA has been appointed chair of The Conversation Media Group, following the retirement of Harrison Young. Since becoming chairman in April 2017, Harrison has improved ...

Misha Ketchell, Editor & Executive Director, The Conversation - avatar Misha Ketchell, Editor & Executive Director, The Conversation

Cats are not scared off by dingoes. We must find another way to protect native animals

New research suggests feral cats can probably outsmart dingoes. Wikimedia/AAPFeral cats are wreaking havoc on our native wildlife, eating more than a billion animals across Australia every year. But ...

Bronwyn Fancourt, Adjunct Research Fellow, University of New England - avatar Bronwyn Fancourt, Adjunct Research Fellow, University of New England

Curious Kids: does chewing gum stay inside you for years?

Swallowing a lot of gum can cause it to stick together or stick to food in your gut. www.shuttershock.com, CC BYIf you have a question you’d like an expert to answer, send it to curiouskids@th...

Jerry Zhou, Lecturer, School of Medicine, Western Sydney University - avatar Jerry Zhou, Lecturer, School of Medicine, Western Sydney University

Don't believe your ears: 'enhancing' forensic audio can mislead juries in criminal trials

Audio used as evidence in criminal trials can often be unreliable.  Many criminal trials feature forensic evidence in the form of audio recordings, typically from bugging houses or cars, or intercep...

Helen Fraser, Adjunct Associate Professor, University of New England - avatar Helen Fraser, Adjunct Associate Professor, University of New England

The case for 'inclusion riders' in creative industries: what Australian discrimination law says about quotas

In March last year, Frances McDormand won the Academy Award for Best Actress. In her acceptance speech, she drew attention to the female nominees in the room and left them with two final words: &ldq...

Liam Elphick, Adjunct Research Fellow, Law School, University of Western Australia - avatar Liam Elphick, Adjunct Research Fellow, Law School, University of Western Australia

The Portal review: can meditation change the world?

The Portal uses individual stories of meditative transformation to suggest a bigger change is possible. SuppliedThe Portal follows six individuals who undergo a personal transformation from trauma an...

Peggy Kern, Associate professor, University of Melbourne - avatar Peggy Kern, Associate professor, University of Melbourne

Why white married women are more likely to vote for conservative parties

Women’s perceptions of 'gender linked fate' were contingent on two dimensions: their race and their marital status. ShutterstockThe polls were wrong in the last US and Australian federal electi...

Leah Ruppanner, Associate Professor in Sociology and Co-Director of The Policy Lab, University of Melbourne - avatar Leah Ruppanner, Associate Professor in Sociology and Co-Director of The Policy Lab, University of Melbourne

Thoughts and prayers: miracles, Christianity and praying for rain

In a speech in Albury last month, Prime Minister Scott Morrison told his audience that he was praying for rain in drought-affected areas. “I pray for that rain everywhere else around the count...

Philip C. Almond, Emeritus Professor in the History of Religious Thought, The University of Queensland - avatar Philip C. Almond, Emeritus Professor in the History of Religious Thought, The University of Queensland

Prime Minister's science prizes awarded for algebra expertise, anti-cancer research and excellence in science teaching

Cheryl Praeger was awarded the 2019 Prime Minister’s Prizes for Science. She has spent more than four decades inspiring a love for maths in others, and has created a vast body of academic work i...

Michael Hopkin, Science + Technology Editor, The Conversation - avatar Michael Hopkin, Science + Technology Editor, The Conversation

Curious Kids: is it OK to listen to music while studying?

Does music usually put you in a better mood? That might help you try a little bit harder and stick with challenging tasks. Shutterstock I am in year 11 and I like to listen to music when I am studyin...

Timothy Byron, Lecturer in Psychology, University of Wollongong - avatar Timothy Byron, Lecturer in Psychology, University of Wollongong

A requiem for Reformasi as Joko Widodo unravels Indonesia's democratic legacy

It’s deeply ironic that Indonesia’s third president, BJ Habibie, died on September 11 – less than a week before the national legislature passed a law that gutted the highly-regarded ...

Tim Lindsey, Malcolm Smith Professor of Asian Law and Director of the Centre for Indonesian Law, Islam and Society, University of Melbourne - avatar Tim Lindsey, Malcolm Smith Professor of Asian Law and Director of the Centre for Indonesian Law, Islam and Society, University of Melbourne

Sick and Tired of Your Dead End Job? Try Teaching!

Tired of the same old grind at the office? Want an opportunity to impact lives both in your community and around the world? Do you love to travel and have new experiences? Teaching English is the perfect job for you! All you need is a willingness to ...

News Company - avatar News Company

The Impact of an Aging Population in Australia

There’s an issue on the horizon that Australia needs to prepare for. The portion of elderly citizens that make up the country’s overall population is increasing, and we might not have the infrastructure in place to support this. Australians h...

News Company - avatar News Company

LifeStyle

Questions to ask yourself before buying your watch

There are more and more watches on the market. And more and more brands are trying to seduce consu...

How to Thoroughly Prepare Children for a Professional Photoshoot at a Studio

Children are only young for a moment, which is why, for a lot of parents, it's essential to take a...

What to Expect at the University of Florida Tour

The University of Florida is a dream college for most aspiring students. Not only because of its p...

7 Professions that Will Be Huge in the Next Decade

In order to embark on a career path that requires a lot of training and experience, you might ne...