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Asher Wolf @Asher_Wolf
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#Robodebt illegality: The seven veils of failed guarantees of the rule of law? New article by Terry Carney in ⁦…
"This article asks how rule of law institutions failed to ‘bell the cat’ on the illegality of Centrelink's #robodebt programme and its unethical character"
"It is unlawful because Centrelink, not the
supposed debtor, bears the legal onus of ‘proving’ the
existence and size of any debt not accepted by the sup-
posed debtor." #Robodebt
"And it is unethical because the alleged debts are either very greatly inflated or even non-
existent (as found by the Ombudsman), and because
the might of government is used to frighten people
into paying up..." #Robodebt
" - a practice rightly characterised as a form of extortion." #Robodebt
How did this happen? "1. In a lack of standards to prevent rushed government design
and introduction of machine learning (‘smart’) systems of
decision-making;" #Robodebt
"2. In a lack of diligence by accountability agencies such as the Ombudsman or Audit Office;" #Robodebt
"3. In a lack of ethical standards of administration or compli-
ance by Centrelink with model litigant protocols;" #Robodebt
"4. In a lack of transparency of the first of two possible tiers of
Administrative Appeals Tribunal review (AAT1), resulting in
a lack of protections against gaming of review by way of
agency non-acquiescence or strategic non-contestation;" #Robodebt
"5. In a lack of guarantees of independence and funding security to enable first line Legal Aid or community legal centre/
welfare rights bodies (CLC/WRC) to test or call out illegal-
ity in the face of thwarting of challenges by Centrelink
settling of potential test cases;"
"6. In a lack of sufficient pro-bono professional or civil society capacity to mount ‘second line’ test case litigation or other systemic advocacy; and..."

"7. In tolerance, especially in some media quarters, of a ‘cul-
ture’ of political and public devaluing of the significance of
breaches of the rule of law and rights of vulnerable welfare
clients." #Robodebt
To all Australians who were issued with robodebts: I am so very sorry. I know saying that doesn't make it better. And so we'll have to work harder. Our country failed to protect you, at every level.
"If Centrelink cannot
prove up a debt from its own enquiries or information
supplied to it, the status quo (no debt/lawful receipt of
payments) applies. This has been the law since 1984
when the full Federal Court decided McDonald." #Robodebt
"Robo-debt treats fluctuating earnings as if that income
was earned evenly at the same rate in each and every
fortnight. Mathematically this is wrong because an average for a fluctuating variable never speaks to its constituent parts." #Robodebt
"And it is the actual income for constituent fortnights that as a matter of law is crucial for calculating the rate of a working age payment such as NSA or YA." #Robodebt
"The averaging material relied on by Centrelink is
simply not relevant to the legal question at hand; it therefore is no evidence at all." #Robodebt
I can't wait to see Terry Carney called before the High Court as an expert witness to give evident in the first case against DHS over #Robodebt
"And, in any event, the moral
and practical gravity of alleging a debt imposes a ‘heightened’ degree of satisfaction under the application of the
Briginshaw principle." #Robodebt
"In that High Court case Sir Owen Dixon memorably wrote that '[i]n such matters ‘‘reason-
able satisfaction’’ should not be produced in inexact
proofs, indefinite testimony, or indirect inferences ...'"

"Yet it is precisely such inexactitude of debt, indefinite
character of proof, and indirect inference on which the
government relies under robo-debts."

"How has this been permitted to come to pass? The short answer to how robo-debt illegality has escaped correction, I suggest, is that a plethora of much-vaunted democratic and accountability protections simply failed to work or were "gamed'"

"By continuing consistently to raise debts based solely on
robo-debt averaging methodology in the knowledge at senior levels of Centrelink of adverse AAT1 rulings inva-
lidating its legal foundation, Centrelink acts unconscion-
ably." #Robodebt
"It breaches principles of ethical administration
regarding avoidance of oppression of vulnerable and
uninformed citizens. To continue to do so constitutes
moral bankruptcy and surely warrants the label of
acting in an ‘extortionate’ fashion." #Robodebt
"Continuing to defend raising of those debts on that
basis at internal (ARO) and external AAT1 review is a
clear breach of the Commonwealth’s ‘model litigant’
policy." #Robodebt
"This codification of an ancient common law prin-
ciple requires government to avoid conducting litigation
in ways oppressive of citizens, or contrary to principles
of ‘fair play’." #Robodebt
"lack of attention to the normative (systemic pre-
ventive) role of the AAT in social security is highly regret-
table. It is easily rectified by immediate selective
publication of AAT1 decisions." #Robodebt
"Cost pressures which
drive potentially attractive ADR and other initiatives,
but likewise risk deterioration in the quality of deci-
sion-making or distortion of access to justice"

"Shrinking levels of real funding for legal aid and advo-
cacy, lack of long-term funding security, and imposition of
conditions or policies to discourage ‘political’ advocacy,
all serve to undermine their capacity to fully pursue more
strategic systemic change objectives..."
"...such as running test
cases or vigorously advocating for reform."

"There is I
suggest an acutely chilling effect and ongoing legacy of
provisions such as the Commonwealth in 2014 removing
‘law reform’ and ‘legal policy’ from the core activities
funded for CLCs"

"pro bono and civil society
bodies failed to engage the illegality of the robo-debt saga.
Arguably this is because too little work has been done to
develop the required collaborations and partnerships." I agree strongly with this statement. #Robodebt
"The general awareness raising achieved by the #NotMyDebt movement, for example, illustrates the
potential leverage civil society might also have brought to
bear on issues of legality." We tried. But we're not legal experts. #Robodebt #NotMyDebt
"Tolerance of the slow erosion
of Newstart and YA rates to their current appallingly
deficient below poverty-line level despite recent
combined advocacy of representatives of labour and capital speaks volumes about the degradation of public
norms of compassion..."

"...fairness, and protection of the vulnerable." #Robodebt
"It is no surprise, then, that lack of respect for the rule
of law in the recovery of supposed debts from such
groups has largely failed to catch public attention, espe-
cially in News Corporation publications." #Robodebt
"Needless to say,
such a culture is not easy to change for the better, but all
informed citizens surely have a responsibility to contrib-
ute to a more balanced and tolerant attitude to the
vulnerable." #Robodebt
"Machine learning decision-making systems are surely the
way of the future. Properly designed and monitored,
they offer a trifecta of greater accessibility, greater accur-
acy and responsiveness, and greater efficiency of admin-

"Poorly designed they risk abuse of procedural fairness, the rule of law, and accountability raising questions about how best to promote best practice, how to define fairness, and how to avoid unwarranted discrimination in their administration." #Robodebt
"The robo-debt saga is ostensibly about the brave new
world of machine learning systems jeopardising adminis-
trative and legal values in insidious and dangerous ways
unknown to the human decision-making systems of
administration they largely replace." #Robodebt
"But machine learning
is simply the latest technological new kid on the block, no better or worse than previous technological develop-
ments." #Robodebt
"The real villain I suggest is an old one: an executive branch of government insufficiently held to account by the legislative or judicial branches." #Robodebt
"This is well-trodden ground in Australia, with its history of executive
excess amplified by a necessarily extensive reliance on government delivery of services and limited adherence
to the doctrine of separation of powers other than at
federal level." #Robodebt
"Robo-debt, the first large-scale machine learning initiative of the federal government, exemplifies all that can go wrong when it is poorly designed, essentially tarnishing the brand for the future." #Robodebt
"To avoid such injustice to
citizens and embarrassment to government in design of
future initiatives, several reforms are needed." #Robodebt
"Government should recommit to the Administrative
Review Council’s guidelines (or a revised version of
them)" #Robodebt
"Parliament should hold watchdog agencies to
account for policing rule of law foundations of programmes reviewed"

"and agencies should be held to
account in Parliamentary Estimates and other committee
hearings for compliance with model litigant protocols"

"AAT1 should publish selected cases dealing with key issues, advocacy agency funding guide-lines should make clear that law reform and public policy work is a core function,"

"and community legal centres and professional pro-bono programmes should partner and
join with philanthropic agencies to strengthen their cap-
acity and independence of action." #Robodebt
"Finally, we all need to
focus on cultivating a more tolerant and supportive cul-
ture of public opinion for the vulnerable." #Robodebt
"The morality tale that plays out in the theory of the
separation of powers is one where constant vigilance is
needed to ensure that the balance point is correctly pos-
itioned." #Robodebt
"A balance point nicely poised to redress excess,
whether by the legislature (unjust laws), by the judi-
ciary (rushed assembly line ‘justice’), or by the executive (unjust or unlawful policy)" #Robodebt
"In the case of robo-debt,
the balance point was exposed as too weak a check on
executive fault; chief of those weaknesses being the abil-
ity to ‘game’ the AAT – Australia’s principal bulwark against executive overreach.60 Reforms on all fronts surely are overdue and urgent"
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