I have some (more) notes on #robodebt to put the scheme in context of the 2000s. But before that, it's worth looking at Terry Carney's simple and logical description on the demise of #robodebt here: theconversation.com/government-to-…. (1)
It's also worth reading one of Carney's AAT decisions about a debt raised in 2010 in the SCRIBD pdf embedded in this article from February: theguardian.com/australia-news… (2)
Okay. So, after the Poniatowska (2011) and Keating (2013) decisions of the HCA, avenues for enforcing debts were far more limited for the Cth. Before 2011, the Cth had utilised the Cth DPP to do the heavy lifting on collecting overpayment debts and 10% recovery fees. (3)
@ScarletWilcock has done a bunch of great work on showing how the CDPP prosecution rates plummeted after 2011. As Scarlett notes, one reason for this change was the 'changed culture' of the Centerlink investigations teams. KPIs were less the focus, etc. All very true. (4)
But back to those HCA decisions. So, in the pre-2011 context, the alleged debtor would receive a court attendance notice – not a debt collection agency letter as under #robodebt. However, just as with the debt collector letter, however, people buckled under the pressure. (5)
Criminal charges are scary, and the offence, under s 135.2(1) of the Criminal Code (Cth) was sometimes erroneously thought to be a ‘strict liability’ offence. This was largely based on the nature of the wording of the offence, which you can look up in the Code today. (6)
That offence, like all Code offences, requires various elements: a fault element (intention, etc) and a physical element (conduct, etc). For this offence, the phsycial element required the person only to ‘engage in conduct’ that led to an overpayment. (7)
The fault element was that the debtor had to 'know' or 'believe' that they were not entitled to receiving that benefit. Now, the nature of the impugned conduct under s 135.2 -- 'engage in conduct' -- was so broad as to render almost anything possible. (8)
If you underreported or lied about your income, then, sure, this would be conduct that was easily described for the purpose of charging someone under the section. But what if you omitted to report income when Centrelink had said you didn't need to report it? (9)
That's what the Poniatwoska case was about. A big issue in that case, however, was that the charges were not sufficiently well particularised. Gummow J said that the CDPP needed to lift its game when drafting particulars in such cases in the special leave application. (10)
This factor, while not wholly determinative of the case's outcome, was a determinative factor. The fact that the Cth could not say specifically say what the alleged debtor had done -- or failed to do -- to raise the debt, was the defect that lost the case for the Cth. (11)
What we're dealing with in 2011, then, are defective charges - charges too broad, too insufficiently particularised, to succeed. Since CDPP could not explain when and how the defendant's omission to report breached a legal duty (none was relied on in the charge) - they lost. (12)
Keating (2013) reinforces Poniatwoska. In anticipation of Poniatowska, the Labor govt passed curative legislation to criminalise omissions in late 2011. But the unanimous ruling in Keating was that this legislation couldn't insert a legal duty retroactively. (13)
A result was that those who had simply omitted to report income between 2001-2011 were very likely exculpated. Of course, many people previously convicted did nothing to have their convictions set aside. My research suggests only a handful have done so. (14)
So, how does this link to the current #robodebt context? Well, with robodebt, the same flawed enforcement logic obtained. The key ideas here are (1) broad and unparticularised allegations and (2) making defendants answerable to these difficult-to-answer allegations. (15)
Rather than using the might of the CDPP to prosecute low-level debts, however, the Cth shifted tack and ‘privatised’ enforcement through debt collection agencies. The ‘automation’ element is sort of a red herring. Yes, it meant that many, many more allegations could be made. (16)
The underlooked problem, I am arguing, is that the Cth used the same logic of making broad and defective allegations based on the same averaging and again placed the onus on the alleged debtor to answer claims that were impossibly broad and defective. (17)
Many commentators justifiably say: 'Well, at least before 2016 a human reviewed the allegation, and could pick up obvious error.' However, my review of charge sheets from the time suggests this was not really the case. (18)
However, the error question never even arose in Poniatwoska and Keating, because the charges were thought to be capable of being validly laid in the extremely broad terms that they were. No one was focused on the erroneous debt calculation. But it happened then too. (19)
I guess my overarching point is that #robodebt continues the faulty logic employed previously in the prosecution of omission cases under s 135.2. That logic consists of making broad and likely defective (at law and at fact) allegations against those who are likely to accede. (20)
@threadreaderapp unroll
Relevantly: '... the number of offences for “obtaining financial advantage” under s 135.2(1) of the Criminal Code fell dramatically from 1,150 or 1.1% of the cases in 2010 (just outside the top 20) (unpublished) to 169 or 0.2% of the cases in
2015.' judcom.nsw.gov.au/wp-content/upl…
2015.' judcom.nsw.gov.au/wp-content/upl…
