Australia’s ‘rule of law system’ leaves millions unprotected: Part 1

Jan 18, 2021

The rule of law ‘system’ is not an amorphous single entity – government – but involves law-makers (such as prime ministers and other ministers), law-implementers, law-interpreters, and law enforcers. Their work has left unprotected several million vulnerable people. How? This part covers law-makers and law-implementers.

The huge scale of non-protection is evidenced by the numerous inquiries and/or royal commissions since 2000 that have examined or are examining the plight of vulnerable groups. Other groups whose plight has not been examined include the Biloela Tamil family held on Christmas Island; and those left to fend for themselves without income, including international students, and visa holders forced out of their accommodation by Immigration.

Law-makers: protectors or non-protectors?

Law-makers can protect us by crafting laws that make harmful activities a criminal offence and contain ways to prevent harm.

The Work Health and Safety Act 2011 (Cth) (WHS Act) is a model law. It covers all Commonwealth workplaces, from city offices to immigration detention facilities.

Commonwealth departments (Immigration, Foreign Affairs and Trade) with workplaces overseas are still covered by the WHS Act. Thus the WHS Act applied at the Regional Processing Centre on PNG’s Manus Island until it closed on 31/10/17, and it applies to the RPC on Nauru (although it hasn’t held detainees since 31/3/19).

The WHS Act imposes on workplace operators a “primary duty of care” – to pro-actively ensure the health (including psychological health) and safety of “workers” and “other persons” at their workplace. “Other persons” include customers, clients, visitors and – at accommodation workplaces such as detention facilities and aged care homes – residents.

To comply with that duty, workplace operators must: (1) identify all possible hazards (potential risks to health and safety); (2) risk assess each one (how likely to occur, how harmful if it does) to tease out the serious risks; then (3) eliminate all those risks or, if impracticable, control them. In short, operators must prevent risks of workplace-related harm before they arise. A major failure to comply is a criminal offence carrying heavy penalties. Operators can be fined up to $3 million.

But after-the-event prosecutions are not the main enforcement tool of workplace inspectors. They mainly issue “improvement notices” beforehand. Health & safety representatives can also issue provisional notices. Both tell operators how they are contravening a duty and set an achievable compliance deadline. Non-compliance is a criminal offence. Notices can prevent harm: prosecutions can’t.

Furthermore, a workplace operator’s officers (top decision-makers) are required to “exercise due diligence to ensure that the [operator] complies” with all its duties under the Act. If there’s an obvious breach of duty, an officer has, self-evidently, not been exercising due diligence. Any officers convicted of the offence of ‘reckless non-compliance with duty’ can face up to five years’ jail.

Given that WHS Acts impose – on workplace operators (including institutions) and their officers – powerfully preventative duties of care for ‘other persons’, it is surprising that the Royal Commission into Institutional Responses to Child Sexual Abuse, and other inquiries into accommodation workplaces (such as aged care facilities) where preventing harm is vital, haven’t recommended invoking WHS laws.

In the health area, a second model law is a State one – the Safe Patient Care Act 2015 (Vic), enhanced by the Safe Patient Care (Nurse to Patient and Midwife to Patient Ratios) Amendment Bill 2018 and the similarly titled augmenting bill 2020. The number of registered nurses employed in state-run health care facilities (mainly hospitals and aged care homes) progressively increased as each version’s enhanced ratios were implemented.

This legislation explains why no one in the 178 State-run aged care facilities had died from Covid-19 by late 2020, whereas 655 residents in the 622 private aged care facilities – overseen by the Commonwealth’s ‘no ratios’ regime – had died.

The fatal deregulation of Commonwealth aged care began with former prime minister John Howard’s Aged Care Act 1997 (Cth) – a non-model law. Judi Moylan, minister for family services, revealed Howard’s ludicrous non sequitur rationale: “Less unnecessary red tape for nursing home providers so they can get on with the job of providing quality care” (my italics). (House Hansard, 26/3/97, page 3193.)

Law-implementers – servants of the public or of party politics?

Under the Constitution, the legislature (law-makers), the executive (law-implementers, e.g., public servants), and the judiciary (law-interpreters, i.e. judges) must not attempt to perform each other’s functions.

But public servants work in departments answerable to a law-maker – a government minister. Also, governments make policies that departments are told to implement.

And so it was that Centrelink, as a law-implementer, failed to protect vulnerable welfare recipients from the industrial-scale financial and psychological havoc of the “Online Compliance Initiative” policy, aka Robo-debt, designed and defended by the law-makers of the Abbott/Turnbull/Morrison Liberal-National government.

Terry Carney, Emeritus Professor at Sydney Law School, poses the quintessential question in the heading of his essay: “Robo-Debt Illegality: A Failure of Rule of Law Protections?”. He then proceeds to answer it, as follows.

Under Labor governments preceding Tony Abbott’s 2013 election win, public servants implementing the Social Security Act 1991 (Cth) checked to ensure that welfare recipients received no more than they were entitled to. They compared recipients’ fortnightly claims and payments, but also checked the annual income amount in recipients’ tax returns: they could then recover any overpayments.

But in July 2015, human involvement ended: a computer algorithm calculated debt by simplistically extrapolating annual data to fortnightly contexts. Also, Centrelink’s letters of demand asserted (falsely) a reverse onus of proof: “social security recipients [had] to prove they were not overpaid.” As a result, while “previously, just seven per cent of ATO data-match discrepancies resulted in raising of debts … the December 2016 half-yearly Budget update projected raising $2.1 billion over the forward estimates”.

Carney states the obvious: “rainfall in a given fortnight cannot be calculated by dividing the ‘annual’ figure by 26, nor can an ‘average’ from ATO records of earnings … speak to what was earned in particular fortnights”. Further, because the Social Security Act has no provision ‘automatically’ converting a data-matching discrepancy into a debt, Centrelink bore the onus of proving the existence of a debt.

Yet Centrelink subterfuge kept the scheme alive until May 2020. As Carney explains, although a few objectors succeeded at the Administrative Appeal’s Tribunal’s lowest level (AAT1), Centrelink would never appeal to AAT2. (Unlike AAT1, AAT2 holds open hearings and publishes decisions.) With no AAT2 decisions invalidating Robo-debt for the media to report, few victims knew that Robo-debt was unlawful.

But of course, Centrelink and its minister did know, and so, “by continuing to press … cases at AAT1 … [they were breaching] … ‘model litigant’ protocols”. All along, the ever shameless law-makers kept maintaining their ‘nothing to see here’ façade. On November 1, 2017, then social security minister Alan Tudge said: “The system is working well.”

In November 2019, Gordon Legal began a class action. In May 2020, Social Services Minister Stuart Robert announced the demise of Robo-debt. Some $721 million worth of debts would be repaid and 47,000 debts would be waived.

On 16 November, the class action was settled with an additional $112 million in compensation to be paid and a decision to drop a further $398 million in debts wrongly raised.

Peter Dutton and his Department of Home Affairs also broke model litigant rules. In late 2018/early 2019, Dutton’s lawyers opposed Federal Court applications (on behalf of very ill asylum seekers in PNG and Nauru) for ‘fly them here for medical care’ orders, but did not disclose Dutton’s 18/12/18 policy: “Requests for … medical transfers to Australia … will only be considered … [if patients] face a life-threatening medical emergency that would … result in their death or permanent, significant disability.” (Home Affairs FoI disclosure logs, 12/4/19, underlining in the original.)

The asylum seekers claimed that Home Affairs had negligently breached its duty of medical care. Disclosing the policy, as required by the model litigant rules, would have effectively conceded their claim. Similarly, Centrelink disclosure to AAT1 of Robo-debt’s unlawfulness would have conceded the objectors’ claims.

Accordingly, both sets of claims should never have been contested. But they were, and the resultant combined cost in human misery and taxpayer dollar terms was immense. What apparently happened was this: either the law-implementers, via their lawyers, failed to provide the frank and fearless advice traditionally expected of the public service; or they did so, but the law-makers the LNP government rejected it.

Part 2 investigates law-interpreters and law-enforcers.

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