[LINK] Ffx/CT: Ongoing DHS Perfidy re Robo-Debt

Roger Clarke Roger.Clarke at xamax.com.au
Sat Jul 27 14:03:51 AEST 2019

[The blatant breaches continue, of logic, of humanity, and of the purely 
nominal 'model litigant' obligation:

[It's an awful format, but I can't find in on AustLII.
Search <Appendix B>, e.g.
2   The obligation to act as a model litigant requires that the 
Commonwealth and Commonwealth agencies act honestly and fairly in 
handling claims and litigation brought by or against the Commonwealth or 
a Commonwealth agency by: ...
(f)  not taking advantage of a claimant who lacks the resources to 
litigate a legitimate claim
(g)  not relying on technical defences unless the Commonwealth’s or the 
agency’s interests would be prejudiced by the failure to comply with a 
particular requirement

[Further bad signs are that the judge:
(a)  is actively looking for ways to deny the claimants a hearing;  and
(b)  appears to be pleading that the court has no authority to consider
      "whether or not the calculation was wrong".

[Yet more massive dysfunctionalities in the country's legal system?]

Government lawyers admit 'robo-debt' error during Federal Court action
Erin Pearson, Cameron Houston
The Canberra Times
JULY 26 2019 - 9:20PM

Lawyers for the Department of Humans Services have admitted the 
government agency got it "wrong" when slapping a Melbourne nurse with a 
Centrelink "robo-debt", during Federal Court action this week.

Madeleine Masterton, who received youth allowance payments while 
studying, and a second woman Deanna Amato are challenging the validity 
of the scheme- with the help of Victoria Legal Aid - after being hit 
with unexpected debts earlier this year.

The $4000 debt was at the centre of a Federal Court challenge to 
Centrelink's 'robo-debt' recovery scheme. Picture: Dan Peled/AAP
  The $4000 debt was at the centre of a Federal Court challenge to 
Centrelink's 'robo-debt' recovery scheme. Picture: Dan Peled/AAP

On Friday, the DHS's legal team highlighted that Ms Masterton's $4000 
debt had since been wiped, but sought further clarification on the 
women's case before handing over more documents pertaining to how the 
debt decisions are made.

"The Commonwealth has accepted, after we got helpful information from 
the applicant, ... [they] were wrong," Nicholas Owens SC said.

Despite admitting the error, DHS continues to play hard-ball tactics, 
calling for the two cases to go to separate trials.

"There ought to be a separation of the two matters," Mr Owens said.

In February, Victoria Legal Aid launched their test case on behalf of Ms 
Masterton, who received youth allowance payments while studying, amid 
claims that thousands of former welfare recipients may have been coerced 
into paying debts that were incorrect, or not owed at all.

Months later, Ms Masterton had her $4000 erased without notice, fuelling 
claims by social service advocates and legal experts that DHS backed 
down because its automated program cannot withstand legal scrutiny.

Then, in June, Victoria Legal Aid submitted a case for a second woman, 
council officer Deanna Amato, who says she only found out about her 
alleged Austudy allowance debt of $2754 when DHS issued a garnishee 
order against her tax return in January.

The contentious program, introduced by the Coalition government, 
calculates a former welfare recipient's debt by taking a fortnightly 
average rather than discovering the exact amount that was claimed.

Correspondence from DHS does not provide people with any explanation of 
how their debt was calculated. The government agency had also attracted 
critisism for its heavy-handed approach against those who fail to repay 
debts, including threats of compounding interest, garnishee of wages and 
seizure of money from bank accounts.

On Friday, Justice Jennifer Davies adjourned the case until September so 
both parties can obtain further information, labelling the matter "an 
unusual case".

"It's important to clarify if the heart of the issue is whether the debt 
created was one that could be lawfully created as distinct from whether 
or not the calculation was wrong," she said.

In May The Age and The Sydney Morning Herald revealed Centrelink had 
threatened to charge daily compounding interest, garnishee wages or 
seize funds from the bank accounts of former welfare recipients who 
failed to settle debts within 28 days.

It came as DHS conceded to a Senate estimates inquiry that more than 
70,000 robo-debts had been reduced or erased completely. But the 
department denied the reduction or waiving of debts indicated there were 
flaws in the scheme.

The Federal Court will decide in September if Ms Masterton and Ms 
Amato's cases proceeds to trial.

Roger Clarke                            mailto:Roger.Clarke at xamax.com.au
T: +61 2 6288 6916   http://www.xamax.com.au  http://www.rogerclarke.com

Xamax Consultancy Pty Ltd      78 Sidaway St, Chapman ACT 2611 AUSTRALIA 

Visiting Professor in the Faculty of Law            University of N.S.W.
Visiting Professor in Computer Science    Australian National University

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