Thanks to a friend for bringing this to my attention. '[I]ncome apportionment ... is a practice that related to debts incurred from *the early 1990s* ... The unlawful practice involved apportioning employment income across more than one Centrelink instalment period.' ... Before now, statements have said that s 1073B debts go back only to 'at least 2003'; it appears someone has looked carefully and found there's another 10 years of unlawful administration. That's about 27+ rather than 17 years of liability.

Following the Ombudsman's report that identified that DSS/@ServicesGovAU had unlawfully miscalculated debts from 2003-2020 by misapplying s 1073B of the Soc Sec Act 1991 (Cth), a report of @ServicesGovAU's sampling activity between Nov 23 and Feb 24 has been obtained via FOI. As this report discloses, the initial sampling activity of @ServicesGovAU did not meet the Ombudsman's requirements, and so this reports records the second attempt to fulfil those commitments. Of 2150 source cases, 1117 involved income updates (debts) and of those, 714 (64%) ...

The Qld Supreme Court has held the Qld Police Commissioner's decisions to to issue a direction (below) was unlawful under s 58(1)(b) of the Human Rights Act 2019 (Qld), which requires public entities to "give proper consideration to a human right relevant to the decision.” In making the direction, the Commissioner relied on advice received from the Deputy Commissioner, which assured the Commissioner that a mandatory direction by her would be compatible with human rights under the Human Rights Act 2019 (Qld) -- see below.

Thanks @Paul_Karp for including me in this report. I am quoted stating that a special ‘on the papers’ judicial review process should be created to enable those who may have unsound or wrongful convictions for income apportionment debts to access justice.

theguardian.com/australia-news… The CDPP has confirmed that at this point in time, 32 accuseds are charged with welfare offences whose debts are or may be affected by income apportionment. This is one slice in time. Are these accuseds those who have been identified after the @CwealthOmb released its report?

There is almost nothing on Twitter about the Ombo’s report published on Wednesday. #robodebtrc owns the unlawful welfare debt space. But there is, regrettably, much more than robodebt to criticise. A desktop review found 100k non-robodebts are unlawful debts going back to 2003.

https://twitter.com/austaxpolicy/status/1687281449928392704

The desktop review is the tip of the iceberg. Unlawfulness happens when a person reports their income out of sync with their entitlements fortnight or when the income covers more than 14 days. This was utterly commonplace and there are likely 500k unlawful debts from 2003-20.

Been speaking to journalists about the #robodebtrc; one question arising rgds options for victims. The Commission refers to at least two avenues: (1) the tort of misfeasance in public office, which the Cmsn says appears to be partially made out on the evidence. But the Cmsn ... ... does not identify against whom the action could be brought and in respect of which evidence it might be partially made out. But it would involve an individual or a class of persons suing a minister. The tort, however, is pretty complicated. (fr Aronson, 2011)

At first blush, this is very well-rounded: 57 recommendations ranging from appointment of chief counsel process changes through to creating a statutory duty to assist in respect of the Cth Ombudsman. #robodebtrc An obvious rec made is that all NPPs (new policy proposals) should be accompanied by legal advice. This was one of the most glaring problems with the NPP process here, where Ministers Payne and Morrison were able to say no legal advice had been received opposing the program.

@verticalc 1. Not an assumption; the tax rate is in the Centrelink calculator above and it calculated from the Centrelink ATO matched data as I have shown in the post. 2. Not correct; the employer doesn’t use a tax ‘rate’; they use the ATO-issued tax tables which are not uniform. @verticalc I’m on my phone; otherwise I’d post the images again to be more specific but they are in my post. The tax tables provide a discrete amount of tax withholding for every two-dollar increment of income earned. This is not an even rate; it is slightly exponential.

@verticalc The babk statements are net income (after tax). They need to calculate the debt on gross income (before tax). To do that, they use the averaged ATO data. So averaging takes place in that calculation. @verticalc The 'tax rate' that they use to work out gross income relies on ATO annual data. So when they calculate that tax rate, it carries over the taint of averaging. To illustrate, it would assume that you paid tax on $100 income when you actually did not. and so it would say your ...

I have only just now seen among the #robodebtrc docs what's IMO a smoking gun linking the Poniatowska/Keating decisions to the origin of #robodebt. In March 2015, Withnell arranged for a letter to be signed by Campbell addressed to Bromwich J, then the Dir of the CDPP, ... ... spelling out their concerns. A concern was that CDPP policy had changes so that the CDPP now refused to prosecute on the basis of 'short-form briefs' from DHS, whereas they used to accept such briefs. (The CDPP refusal was based on the fact those briefs were insufficient ...

If one reads the article that Pilger posts in support of his claim that the Voice is a 'con' (by Paddy Gibson, linked below), the most striking thing is not the the Voice is powerless, which is unsubstantiated and misconceived, but that the conservatives are now against it.

https://twitter.com/johnpilger/status/1655357410020818944

The proposition that the Voice is powerless is unsupported: the wording of the amendment establishes a new body empowered to make representations. One might say that this is not powerful enough; but the fact that its powers are limited to making reps does not make it a 'con.'

#thevoice A recent former Chief Justice of the High Court (and technicality mastermind) co-authors an article with Emiritus Prof of constitutional law. As you'd hope and expect, they run through the amendment's language in a methodical manner. It also answers two important qs. Why put it in the Constitution when we already have a race power? There's a three part answer. I'd also add a fourth: namely, that the race power has discriinatory origins. It is unconscionable to use it, in my view. The second question they answer is about detail. The answer ...

#RobodebtRC Not getting very far with the current (adjourned) witness, to be frank. Incuriosity is incuriosity. If that's right, how can we reinfuse the public service with critical thinking and curiosity? Since most are graduates, I think it has to start at the university. The other way is to build it into the structures. Set up legal and other critical thinking teams within departments to test heterodox ideas against the standard practices. The public service would ironically probably love that. A little like 'behavioural insights.' Gah.

#RobodebtRC It is also important in this discussion to be aware that the mainstream criminal offence for welfare debts also does not conceive of the criminal wrong as fraud. There is no honesty or deception element in the offence. Section 135.2 Criminal Code. The 'dishonesty' ... ... version of this offence is at s 135.1 and leads to 10 years maximum imprisonment (as opposed to 12 months). This conversation about fraud/criminality versus mistake is super superficial. Because plenty of people are convicted for offences that simply require knowledge. ...

#RobodebtRC I simply cannot believe that Tudge read about the Amato settlement in the newspaper as he says. The government settled the case! And the minister read about it in the paper? That is just not an adequate explanation. Is he suggesting that the settlement orders, which were by consent of the government, did not come before his desk? Just so bizarrely removed from the detail. I cannot quite understand this kind of memory fog.

#RobodebtRC if the legality question did not arise in 2017, it was because the law hardly needed to declare that a mathematical impossibility was not authorised by statute. The government ultimately had to face the law because the idea that a debt was ‘not my debt’ due to a … … an incorrect invoice had no impact on them. Only the law, and the test case of Amati run by @VicLegalAid in the Fed Crt prompted the govt to understand that the debts did not exist. Usually you don’t need the law to prove mathematical errors — but *that happened.*

#RobodebtRC Miller's evidence is that the she, and possibly the Minister and others, did not understand the difference between debt calculation and data matching. All of the media advice of course flows from that crucial lacuna in knowledge. And, of course, that distinction ... ... is only the very start of understanding what robodebts are and why they are unlawful. More than ever before, I am compelled to conclude that the department, ministerial staff and ministers just did not understand robodebts. I'm not convinced Jason Ryman, the architect, ...

#robodebtrc Nonsense. Model litigant principles or even best practice would surely compel the appeal of an AAT1 decision in which an error of law was committed. Because if they implemented directions of an AAT1 decision that contained an error of law then they would be … … happily accepting that an error of law had been made and effectively be complicit in the erroneous decision of the AAT1. By implementing the directions on remitted, they are accepting the decision, and the basis on which the directions had been made, as lawful.

#RobodebtRC Okay. What just happened there is interesting. The legal advice was just not adequate, much less diligent. No lawyer was competent or curious enough to see the inadequacy of the advice. AM, the top law officer at DHS, says she assumed that, without better legal ... ... advice, it would not have been passed through Cabinet. And so, if we think back to what happened at Cabinet, it was actually knocked back by the finance committee. But the NPP, which said all was well with the legals, *was* passed through Cabinet. AM's assumption that ...

#RobodebtRC That was a flashpoint. The reasoning articulated by AM at end of that session is one of the first exemplars in the genre. In paraphrase: 'If it was lawful to do avaeraging after a 10-step process, then it would be lawful to do averaging after a two-step process.' ... Putting to one side the room-elephant that 'it was never lawful' -- and that's an intersting elephant with huge implications for debts raised by averaging prior to 2014 -- on what rational basis does this concept rely? It relies on the erasure of ...

#robodebtrc There are two sides to this evidence. One comes from a strict legalism that actually does read what is on the page ('not determinative or decisive'). The other comes from an embdedded APS practice that permits that page to mould to whatever's going on in DHS HQ. Strict legalism goes down in this fight. Ironic that reasoning from one of strictest legalists in Aus history, Sir Owen Dixon, was used as vehicle for Carney's decision that PAYG averaging was unprovable to civil standard. Turns out there may be a place for legalism after all.