Class action could deliver justice for Centrelink victims

Gordon Legal launches groundbreaking class action against robo-debt.

Justice for Centrelink victims?

The announcement by Gordon Legal of a class action to compensate victims of the government’s so-called robo-debt scheme is welcome, perhaps even groundbreaking.

Standing alongside class action litigator Peter Gordon at a press conference in parliament house on Tuesday, former opposition leader and shadow government services minister Bill Shorten said the legal veteran was the man who “took on big tobacco in America, took on asbestos cases, took on thalidomide compensation”.

Gordon said he only began looking at robo-debt when Shorten took over the portfolio in May and invited him to examine the government’s curious behaviour of wiping the debts at the centre of legal challenges rather than pursuing them and establishing its right to the money in court.

What is robo-debt?

Robodebt letter. Supplied

Robo-debt is a part-automated process in which recipients of government benefits are sent letters asserting that they owe the government money because they have been overpaid. Many of the debts are false or highly inflated because they are calculated using an inaccurate formula that averages employment earnings over a series of fortnights rather than identifying what actually earned in the relevant fortnight.

Robo-debts have been routinely overturned as lacking a legal foundation when appealed to the first level of the Administrative Appeals Tribunal. Although the rulings have always been accepted by Centrelink in the individual cases taken before the Tribunal, Centrelink has not applied them to cases not taken to the tribunal.

Nor has Centrelink ever challenged those individual rulings at the second level of the tribunal, where the hearing and the reasons for decision are made public.

A Federal Court challenge by two Australians who are arguing the illegality of robo-debts remains underway, but Centrelink wiped both debts after the case was launched. Argument remains about whether this means there is still a live legal issue to be heard. The case is not expected to return to court until December.

What is “unjust enrichment”?

 

Gordon Legal

What is incontrovertible is that very large sums of money are being raised by a scheme that verges on extortion. “Unjust enrichment” is the term Gordon Legal plans to use in the action, a term that applies when one entity is enriched at the expense of another in circumstances the law sees as unjust.

It is also investigating whether the so-called collection fees levied by Centrelink should be refunded and whether those who have wrongly paid all or part of the amounts claimed should be paid interest on the amounts collected and whether they are entitled to compensation.

Between July 2016 and March 2019 the government issued 500,281 robo-debt notices, asserting debts of A$1.25 billion, with the average being $2,184, but not uncommonly as much as $10,000.

Much less has as yet been collected, but tax return garnishees, debt collection agencies and staff “quotas” are driving it up.

What’s different about the class action?

The class action differs from Administrative Appeals Tribunal reviews or Federal court actions by seeking remedies for a whole class of people, not only those with the knowledge or personal stamina to lodge an appeal.

It is form of legal process that cannot be stopped or slowed by wiping the debts of a few individuals. Being a judicial process, it is aired in public (first-tier tribunal decisions remain private).

What’s being claimed?

The simple argument that will be put is that the government has obtained monies to which it was not lawfully entitled. Not having a lawful basis for the collections (their being, in a sense, an unwarranted “tax” on the supposed debtors), it will be argued that it should return (“restitute”) the monies and pay damages as compensation for unjust enrichment.

There are a number of special features and technical requirements to be satisfied before a class action can successfully be lodged for consideration, including obtaining a sufficient number of plaintiffs.

Where to now?

It is still very early days. There are many procedural and legal hurdles yet to be crossed.

However, unlike the paths trodden to date, the class action holds the potential of being able to deliver justice to the many rather than to the few who win private victories without ever testing the government’s powers in open court.


Read more: Danger! Election 2016 delivered us Robodebt. Promises can have consequences The Conversation


Terry Carney, Emeritus Professor of Law, University of Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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    COMMENTS

    To make a comment, please register or login
    Ducky
    19th Sep 2019
    11:09am
    It's not only robodebt, Centrelink will go to any length to prevent older people receiving
    their entitlements. They will feed you information which you are expected to follow and then when you do it turns out it was just to prevent and delay a pension. They are no better than criminals or drug dealers. How anyone who is employed by Centrelink can tell anyone where they work I don't know, must be very embarrassing to admit that.
    Fredklaus
    19th Sep 2019
    11:24am
    LIKE
    McDaddy
    20th Sep 2019
    7:07am
    Sounds like someone has got an axe to grind, conspiracy theory?
    libsareliars
    20th Sep 2019
    12:27pm
    Well said Ducky. It's disgusting how they operate.
    Rae
    23rd Sep 2019
    10:43am
    Nothing matters but the surplus. It's the most important thing even if it destroys the economy and people's lives. There is no changing ideologists mindsets.

    The providers are getting their hundreds of thousands for incompetence and inefficiency. How good is that!
    Fisherman
    19th Sep 2019
    11:53am
    It was ScuMo who introduced Robodebt in the lead-up to the 2016 election. He was going to match Taxation data with CentreLink records to cut "red tape" and ensure mistakes were minimized. To say Government oversight was weak is a gross understatement! The delivery of this ScuMo brain fart proved to be unable to design a scheme that completely met the tests of being lawful (it reversed the onus of proof on the existence of debts), accurate (the bulk of its assessments were either totally false or grossly inflated ), meeting the integrity standards expected of government (hiding from public scrutiny details about appeals that overturned its decisions), or meeting the pub test of morality. (Thank you Emeritus Professor of Law, University of Sydney Terry Carney)
    Without a doubt, ScuMo has single handed been able to reduce the trust in politicians to an unacceptable level. The only way this trust can be recovered is to have him and his ilk, removed from the political scene!
    TREBOR
    19th Sep 2019
    12:46pm
    Centrelink and GuvCo have always been like that - they are always right and the reversal of burden of proof has always been in play.

    No such right exists in our form of legal system - but that never prevented Guvco from bullying and bluffing its way over those without the wherewithal to fight back...

    Cowards and thieves... thieves above the law... like far too many aspects of 'government' in this former convict colony. A full overhaul is required of all such things - especially the magistracy and judiciary, who routinely sneer at legal rights in the 'courts', with the willing assistance of morons like Bob Carr who changed appeal rights etc...

    As elsewhere - ever wonder why, upon a revolution being successful, the first to the wall are the politicians and the judges? If what they are doing is right - why would that be?
    Alexii
    19th Sep 2019
    10:29pm
    Hey now, isn't that Scomo fella supposed to be a christian? And a christian just wouldn't do this, would he now as it wouldn't be very christianly. Or is it just a lack of intelligence?
    The Care Bear.
    20th Sep 2019
    2:58pm
    It is totally consistent with being a Christian, Hypocrisy is it's very foundation.
    Hoohoo
    23rd Sep 2019
    4:09pm
    While Jesus wouldn't have a bar of it, so-called Christians are told what to do by their Church. That is, go to Church on Sunday, then you're free to be a cheating bastard for the rest of the week.

    At the end of the week go to Confession & unload your sins & three Hail Mary's later you're "absolved of your sins in the name of the Father, the..."

    Do as I say, not do as I do. Hypocrites!
    GeorgeM
    19th Sep 2019
    1:03pm
    Excellent and overdue Class Action. Gordon Legal must be congratulated and supported. Emeritus Professor Carney also made a terrific analysis of the issues. It must also be remembered that Bill Shorten designed this tool when he was Minister, maybe he now has pangs of guilt - maybe not, but he does know how wrong it was and a good one to attack this Govt for actually implementing it.

    It is very much up to all people who were targeted by Centrelink through this defective tool to register with Gordon Legal (DO NOT be lazy, as most were in the 2016 election) and support their action - Govts must never be allowed to bully and wrongly attack the people.
    TREBOR
    19th Sep 2019
    1:30pm
    A politician have pangs of guilt? Not one of them wakes up at 3 am in a cold sweat despairing of what they've done to this nation to secure their own income for life... it's all about business...nothing to do with service to nation and people.
    libsareliars
    20th Sep 2019
    12:29pm
    I agree entirely with you George M. Good on Gordon Legal and I wish them every success.
    VeryCaringBigBear
    19th Sep 2019
    1:34pm
    Let's hope the High Court throws it out as it only affects those on welfare who are defrauding the welfare system. If people didn't think it was OK to defraud our welfare system there would be no need for such measures as the robodebt.
    TREBOR
    19th Sep 2019
    2:09pm
    Rubbish in many ways....
    Triss
    19th Sep 2019
    3:03pm
    If you do a bit of research, VCBear, you’ll find that there are people who have taken CentrLink to the tribunal and, in every case, the so called debt has been wiped. Now would those debts have been wiped if they were genuine? You really need to dig that chip off your shoulder.
    Arvo
    19th Sep 2019
    4:30pm
    No, VCB, you are dead wrong! It affected over 20,000 welfare recipients who were innocent and did not owe any debt to the government. There was no government tangible evidence that they owed any over-payment but a false presumption. Those debt allegations were misleading, false and complicit in one person's suicide that we know about and possibly more that we don't know about. It had created undue mental stress to those 20,000 welfare recipients who were accused of being guilty where they could not provide historical document evidence and forced innocent recipients to pay the government alleged debts based from allegations that should never have existed in the first place.
    I hope this class action succeeds.
    Karl Marx
    19th Sep 2019
    5:28pm
    VeryUncaringBigBear. With a comment like that let's hope you are next on RoboDebt list.
    Your unsympathetic & uncaring attitude & post proves you are just an LNP troll & most likely a paid one at that, either that or you are a member or employee of the LNP.
    No one accepts that it is right to defraud the government & the post isn't about cheats etc but how the government (you voted for them) uses a system that doesn't work & refuses to accept that it is not working & repair it.
    There was already measures in place to investigate etc suspect cheats but they have been thrown out the window.
    Lookfar
    19th Sep 2019
    6:01pm
    vcbb, you have to grow up, those politicians you think are father figures to you are just greedy mercenaries, they do not deserve your support, they are sewer rats, nothing more.

    Whilst your loyalty is admirable, they are not worthy of it, and you are now old enough to shrug them off.
    VeryCaringBigBear
    20th Sep 2019
    12:29pm
    20,000 out of 800,000 is a very good result. Only 2.5% innocent then that's 97.5% defrauding welfare. That alone is reason that the class action should be thrown out of court.
    libsareliars
    20th Sep 2019
    12:30pm
    Rubbish VeryUncaringBear
    Karl Marx
    20th Sep 2019
    12:51pm
    ROFLMAO, VeryUncaringBigBear you commented in the wrong post, you should be posting in the Friday Funnies lol.
    VeryCaringBigBear
    20th Sep 2019
    4:52pm
    Unfortunately I don't see anything funny about people selling welfare at all. Good thing they have found a way to catch them.
    Hoohoo
    23rd Sep 2019
    4:23pm
    I think you must be on the payroll of the govt, Uncaring Bear. You are assuming that Robodebt is right (although already proven wrong in many thousands of instances) & that all the people accused (over half a million Australians) are guilty. Were you a Nazi in a former life?

    How about all the thousands of frightened little people who paid up (regardless of the fact they owed nothing) only because they were afraid to have a hassle with Centrelink, in case they lost their pension or other entitlement?

    What about all the people who are yet to go the Tribunal or take Class Action? I see you're totally ignoring them, Bear.

    Is our government a fascist regime? They're certainly acting just like one with this Robodebt punishment! Punishment for the poor and carers.
    disillusioned
    19th Sep 2019
    1:48pm
    I don't trust any of them, and I sure as heck didn't vote this mob back in!!
    TREBOR
    19th Sep 2019
    2:09pm
    I voted none of them in.. been that way for a long time...
    Heart of the Sunrise
    20th Sep 2019
    12:11pm
    Gordon Legal need to advertise this class action as widely as possible. A lot of the victims are people who don't read publications like this. Many of them don't even have a computer.
    libsareliars
    20th Sep 2019
    12:31pm
    Spot on Heart of the Sunrise.
    kram
    22nd Sep 2019
    2:22pm
    I'm with you, "VeryCaringBigBear".
    Too many people defrauding the system.
    Too many people who felt they shouldnt have had to create their own safety net but are content to receive a free handout, but they always want that little bit extra.
    If you have had that attitude, of course you won't like Robo-Debt.

    As usual, they won't expect to have to pay for the class action.
    Karl Marx
    22nd Sep 2019
    5:02pm
    Kram, No one accepts that it is right to defraud the government & the post isn't about cheats etc but how the government (you voted for them) uses a system that doesn't work & refuses to accept that it is not working & repair it.
    There was already measures in place to investigate etc suspect cheats etc but they have been thrown out the window for a system that is greatly floored.
    As you agree with VeryUncaringBigBear you are also unsympathetic & uncaring towards all those that are wrongly done by & that my friend is in the 100's of thousands.
    Hoohoo
    23rd Sep 2019
    4:26pm
    Open your eyes, Kram. You've been duped (or you're also on the payroll). Talk about people sucking off the government!
    Hoohoo
    23rd Sep 2019
    4:27pm
    ...sucking FROM the government, put more delicately.
    ex PS
    24th Sep 2019
    8:12pm
    But it is OK for the government tp defraud the tax payer. Sending out invoices for payment that you don't really know is due, is fraud plain and simple.
    I hope this costs the government millions, they need to be taught a lesson.


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