If you have received an email or letter from Centrelink since 4 May 2020, enclosing a document entitled “Opt Out Notice – Federal Court of Australia – ‘Robodebt’(Social Security Debt Collection) Class Action (VID1252/2019)” (the “Group Member Notice”) then it is safe for you to assume that you are a Group Member. For ease of reference a copy of the Group Member Notice can be viewed here.
Centrelink debts arise for a variety of reasons, and not every debt is a Robodebt. For example, if you received a debt because Centrelink decided that you were not eligible for the payment you were receiving, this is not a Robodebt and you will not be a Group Member.
Eligibility to be a Group Member is determined by the 3-point definition below. In fact, anyone who meets this definition – even if they do not know about the class action – is a Group Member and is entitled to benefit from any successful outcome secured by the class action. Again, if you have recently received a MyGov message or letter from Centrelink enclosing the Group Member Notice, you can assume that you are a Group Member. If you haven’t received a MyGov message or letter from Centrelink since 4 May 2020 enclosing the Group Member Notice you may still be a Group Member if you fit the definition below.
You are a group member if:
At this stage it is our advice that it will generally be in your best interests to remain a Group Member and not to Opt Out of the Class Action because:
If you agree with that advice there is nothing you need to do right now. As a Group Member you will be bound by any decision of the Court in the Class Action proceeding which applies to group members. If you don’t agree with that advice and wish to Opt Out you should do so by following the instructions set out in the Group Member Notice.
Yes. We believe that it is in your interests to register with us so that we are able to provide you with legal advice about your individual circumstances. You do not need to register with us in order to remain a Group Member or participate in the class action. If you register with Gordon Legal your information will remain confidential and will not be used for any purpose other than in order to pursue your claim against Centrelink, without your written consent.
By registering with Gordon Legal you will not incur any legal costs unless the Court orders that you contribute to legal costs, which it may do whether or not you register with Gordon Legal, if you benefit from the class action. It is important that you understand that if you are a Group Member you will be bound by any decision of the Court which relates to the claims of Group Members.
Robodebts are a type of Centrelink debt that the Representative Applicants in the class action are arguing are unlawful. Centrelink has been raising Robodebts since approximately April 2015 and information released by the Commonwealth indicates that at least 600,000 Robodebts have been raised since the system was put in place.
A Robodebt is raised after Centrelink conducts a reassessment of a recipient’s entitlements to social security payments (this could be for a period as far back as seven years) and decides that the recipient was overpaid. Ordinarily, in conducting this reassessment Centrelink sends letters or other correspondence asking that the recipient “check”, “confirm” or “update” their past income information.
The key element of a Robodebt is the evidence used by Centrelink to calculate the overpayment and establish that a debt is owed. Robodebts are calculated by Centrelink applying averaged ATO PAYG income data across either part or all of the fortnights in which the recipient received payments and treating those averaged amounts as the recipient’s actual earnings in the relevant debt period. Therefore, the Robodebt system ignores what the person actually earned at the relevant time.
Robodebts are unlawful because the amount of social security payments a person is entitled to is based on how much the person actually earned when receiving payments – not the averaged ATO amounts. Because of this flaw, our clients argue that Centrelink has no lawful basis for raising a Robodebt.
The following examples provide a rough guide to what is and what is not a Robodebt.
If you don’t know if your debt is a Robodebt, scroll further down for the answer to: I don’t know if I meet the definition of a Group Member, how do I find out?
We were instructed to launch the Robodebt Class Action because of concerns that the Commonwealth of Australia raised unlawful debts against hundreds of thousands of Centrelink recipients through the Robodebt system.
The Robodebt Class Action is a vehicle to help those people who have received Robodebts by pursuing compensation for their losses, including the money that they paid towards Robodebts (or had taken from them) and the distress and inconvenience that they experienced along the way.
From a legal perspective, the Robodebt Class Action argues that the Commonwealth has been unjustly enriched because of Centrelink’s operation of the Robodebt system. It also argues that the Commonwealth was negligent in breaching its duty of care to Centrelink recipients who had unlawful debts raised against them.
Before the Robodebt Class Action began, the Federal Court of Australia made orders which said that Centrelink had raised an unlawful Robodebt against one Centrelink recipient, Ms Deanna Amato. While this decision was important, it applied only to Ms Amato and, as of yet, Centrelink have not acknowledged that hundreds of thousands of other debts they have raised through the Robodebt system are also unlawful. The Robodebt Class Action is designed to assist the whole class of people who have been affected.
Because this proceeding is a class action, it is brought by a group of Representative Applicants on behalf of all of the other people affected. This means that Group Members do not need to take an active role in the proceedings unless and until the proceedings are determined by the Court or a settlement is achieved which is approved by the Court. However, if a successful outcome is reached and the class action secures a compensation amount, all of the Group Members may be entitled to share in the benefit.
On 6 March 2020 the Honourable Mr Justice Murphy of the Federal Court ordered that the parties hold a mediation prior to 19 June 2020. This is an opportunity for the matter to be resolved with the consent of both parties.
Justice Murphy also ordered that, if the matter does not settle at mediation, a trial will begin in the Federal Court on 20 July 2020 (or if that date is not available, on 21 September 2020).
The Robodebt Class Action is continuing and, at present, we do not have any reason to think that the progress of the matter will be delayed by the current situation brought about by the Covid-19 pandemic. We will be in touch with the people who have registered with Gordon Legal if the timeline changes.
Yes. There is no reason why participating in the Robodebt Class Action as a Group Member would impact your eligibility to receive Centrelink payments. Centrelink is not entitled to take any action against you, such as blocking your access to payments, because you are a group member or decide to register with Gordon Legal.
Centrelink has announced that it has paused its debt recovery action for 6 months during the Covid-19 pandemic. This means two things:
If you have a Robodebt that you are paying off via a payment plan or deductions from your Centrelink payments and you would like that paused, we recommend that you call Centrelink’s repayment division on 1800 076 072 and ask them to apply the pause.
The best way to find out whether you are a Group Member is to make a Freedom of Information (FOI) request for your Centrelink file. The documents included in your file should show what information Centrelink used to calculate your debt, or in other words, whether your debt is a Robodebt.
Follow these instructions to make an FOI request to Centrelink
Before you begin, you need the following two forms:
Ordinarily, Centrelink have 30 days to fulfil an FOI request. However, due to the increased stress on Centrelink’s services due to the Covid-19 pandemic, it is possible that they will take up to 60 days to fulfil your request. If Centrelink asks for more time to comply with your request, we recommend that you agree.
When you get your response from Centrelink, please forward the documents you receive to Gordon Legal at [email protected]
As over 13,000 people have registered with Gordon Legal (as 30 April 2020) we are unable to provide advice quickly to every registrant who has provided us with their FOI documents. We ask that you are patient – you will receive confirmation that you are a Group Member at some stage.
Please note that if you receive a Group Member Notice, this confirms that you are a Group Member. You do not need to worry about Gordon Legal assessing your eligibility if that is the case.
Registrations are still open for the Robodebt Class Action however, at some point the Court may make orders to close the class so that the matter can be finalised. After that, no new registrations can be accepted.
As it stands, the Representative Applicants are seeking:
We will provide further details about this as the case progresses.
If you have another issue with Centrelink that is not about a Robodebt, we recommend that you consult the social security rights legal service operating in your state. Social security legal services provide free assistance over the phone to people who have issues with Centrelink payments, debts and other problems. To find your relevant service, refer to the Economic Justice Australia webpage: http://ejaustralia.org.au/legal-help-centrelink/. Select your state here ACT NSW NT QLD SA TAS VIC WA
Details for the Victorian, Queensland and NSW services are listed here:
As we understand it, there is no time limit on having Centrelink review their decision to raise a debt against you. We also understand that Centrelink has begun independently initiating reviews of some Robodebts. This means that, if you have a Robodebt, the possibility remains open for your debt to be reviewed internally – whether by your initiation or Centrelink’s.
You should be aware that if you decide to proceed with an internal review, it is likely that Centrelink will ask you to provide payslips or bank statements so that they can use this information to recalculate your debt. They may also say that they are willing to go directly to your former employers or bank to access those records themselves.
Social security law says that if you have not received social security payment for more than 14 weeks, you are not legally obliged to provide Centrelink with ongoing or additional information, such as the payslips or bank statements necessary to conduct a review of your entitlements. The reason that this is important is because, if you are in this position, you are not under an obligation to provide this additional information.
If a review is conducted, and Centrelink have access to your records, it is likely that your debt will be recalculated on the basis of these records. This will mean that ATO data is no-longer involved in the calculation and, consequently, you may no-longer qualify as a Group Member in the class action. It is important you are aware of this before you make a decision about whether or not an internal review should be conducted. While the internal review may lead to your debt being cancelled or decreased, it could also increase.
Gordon Legal believes that it is likely more beneficial for you to pursue your rights through the class action than through an internal Centrelink review. The reason for this is because Centrelink will not account for interest and damages for distress and inconvenience when conducting an internal review. Also, given that there is no time limit on seeking a review, you can always seek a review of your debt if you ultimately decide to Opt Out of the Robodebt class action.
If your Centrelink debt relates to one of these payments, unfortunately this means you do not fall within the scope of the Robodebt Class Action. This is because the Robodebt system was not applied to these payments.
Unfortunately we have limited resources and are currently doing our best to recover money which has been paid to the government unlawfully under the Robodebt System.
For further assistance, you can contact Social Security Rights Victoria (SSRV), or the equivalent organisation in your state or territory.
SSRV is an independent state-wide community legal centre that specialises in social security and related law and policy. SSRV’s contact details are as follows:
If you are based outside Victoria, please refer to the Economic Justice Australia webpage to locate your nearest social security rights legal centre: http://ejaustralia.org.au/legal-help-centrelink/. Select your state here ACT NSW NT QLD SA TAS VIC WA
To be a Group Member, you must have been issued with a debt notice by Centrelink after 1 April 2015. This is because the averaging system used to calculate debts, which we allege to be unlawful, was only used by Centrelink after this date.
If Centrelink have issued you with multiple debt notices, with one or more raised before April 2015, and one or more raised after April 2015, only the debt notices that were issued after April 2015 will fall within the scope of the Robodebt Class Action.
If you have a Robodebt and you have not paid any money or had any money taken from you, you may still be a Group Member so long as you have not been told by Centrelink that it will not be taking any recovery action against you. In other words, if you have not made any payments but Centrelink still say the debt is owing, you will meet the definition of a Group Member.
If you fall into this category it is less likely that you will be entitled to monetary compensation arising from the Robodebt Class Action. You may be entitled to other types of relief to address the way Centrelink treated you. If you fall into this category, we recommend you register with Gordon Legal.
This is a decision that needs to be made based on your personal circumstances. There are number of factors that could determine the best approach for you.
If you have not made any payment or do not have any payment arrangement in place, there are a number of steps Centrelink may take, including:
Making a payment, or entering into a payment plan, may mean that Centrelink will not take any of these steps.
Being a group member or registering your interest in the Robodebt Class Action with Gordon Legal does not mean that Centrelink will not pursue you for repayments of your debt. If you tell Centrelink that you are a part of the Robodebt Class Action, they will not necessarily pause your debt.
We understand that Centrelink has decided to review many of the debts it raised under the Robodebt system and has paused recovery of some debts while they are under review. It may therefore be worthwhile for you to call Centrelink’s compliance division on 1800 086 400 to check the status of your debt and ask that it be put on hold.
If the AAT heard an appeal of your debt, there is no reason why you cannot be a part of the Robodebt Class Action so long as you meet the definition of a Group Member.
However, we have seen several cases where Robodebts that are appealed to the AAT are returned to Centrelink for recalculation on the basis of actual earnings evidence. If this is what happened to you when you appealed to the AAT, this recalculation may mean you are not eligible to be a Group Member. We recommend that you register your interest with Gordon Legal in any case.
If you fit within the definition of a Group Member, you are automatically a part of the Robodebt Class Action unless you Opt Out of the proceedings at some later date (see: Can I withdraw from the Robodebt Class Action?).
It does not cost you anything to register with Gordon Legal and until a successful outcome is achieved all costs will be covered by Gordon Legal.
If there is a successful outcome, the Court may make an order that Group Members make a contribution to the legal costs incurred by the Representative Applicants which are not recovered from the Commonwealth. If the Court makes such an order, it will only do so if it is satisfied that any costs you are asked to pay are fair, reasonable and proportionate. The Court will not order that a Group Member contribute to legal costs unless they receive the benefit of any settlement or judgement in the Robodebt Class Action.
What this means is that the only circumstance in which you will pay any legal fees is if you receive a compensation sum from which the legal fees can be deducted and the court orders that those legal costs are fair, reasonable and proportionate.
If the Robodebt Class Action is not successful, it won’t cost you anything.
Yes, the choice is yours. If you let us know that you don’t want to be part of the Robodebt Class Action we will remove you from our mailing list so that you no longer receive any correspondence from us about the class action. However, please be aware that class actions in Australia operate on an “opt-out” basis, which means that every person who meets the definition of a Group Member is included in the class – even if they don’t know about the proceedings.
If you qualify as a Group Member, the only way to remove yourself from the action and not be bound by the proceedings is by filling out an Opt Out notice and returning it to the Federal Court. An Opt Out notice will be sent to every Group Member shortly. Telling Gordon Legal that you don’t want to participate does not count as an “opt-out”. If you would like to Opt Out you must complete the Opt Out Notice, which you can download here.