On 29 May 2020 the Commonwealth announced that it now accepts that many debts raised under the Robodebt System were unlawful and, consequently, that it will refund 470,000 debts to 373,000 people. Refunds will therefore be made to most, but not all Group Members.
The Commonwealth will pay refunds to people whose debts were calculated either wholly or partially on the basis of averaged ATO income data. This means that if your debt was calculated wholly on the basis of other information – such as payslips or bank statements – your debt will not be refunded.
If you are not due for a refund, this may be because the Commonwealth has not accepted that your debt or debts were calculated either wholly or partially on the basis of averaged ATO income data.
If the Commonwealth has told you that you're not due for a refund, you may still be covered by the Robodebt Class Action if you are a Group Member.
We understand that the Commonwealth will begin paying refunds from 1 July 2020, initially to those people who Centrelink currently holds bank account details for.
As a general rule, we are not in a position to confirm who will and who will not receive refunds. It is important to understand that not every Group Member will receive a refund.
The reason that we cannot confirm who will receive a refund is because we do not have access to the relevant information about how your debt was calculated and, therefore, if you are eligible for a refund– only Centrelink have that information.
While we cannot give you definitive advice about this, we can provide some rough guidance about who will receive refunds:
If you have received FOI documents from Centrelink and have provided these to Gordon Legal, we may be able to use these documents to give you some guidance about if you will be refunded.
The Government has announced that they will commence paying back a small number of refunds from early-July 2020. The government will then refund the remaining debts from late-July onwards. Most debts can expect to be refunded by the end of November 2020.
The refund will include the repayment of any money paid towards a Robodebt as well as interest charged on the debt.
The Government has confirmed that if your refund is a large amount, this will be paid back to you in instalments.
You can check if you are eligible for a refund by:
The Government have announced that they are pausing most debt recovery activity until at least October 2020 due to the Coronavirus pandemic This includes garnisheeing tax refunds.
In addition to this, the Government have confirmed that they will no-longer be taking any recovery action on a large number of debts that they have now acknowledged are not recoverable. This includes the 470,000 debts which will be refunded, plus any debts raised by income averaging that are yet to be recovered. This means that if your debt was one of these debts raised by income averaging, Centrelink will not be taking any more recovery action on it – including the garnisheeing of tax returns.
While we think it is important you are aware of those two points, ultimately, we cannot give you advice about whether or not you should file your tax return. For further information, we recommend that you get in touch with a tax advisor.
Centrelink has paused most debt recovery activity until at least October 2020. If your debt has been paused, this is not a cause for concern. We have also been told by many Group Members that they have noticed that their MyGov records lists their debt as on hold until November 2025. This date seems to indicate that a debt was calculated by averaging, and accordingly, that that Group Member is eligible for a refund.
However, while we are aware that this may be a useful hint as to whether a refund is payable, we are unable to confirm that this is true in every case. The guidance from the Commonwealth in regards to refunds remains that they will make contact with the people they identify as eligible.
If Centrelink has confirmed that your debt has been paused but money is being taken out of your account for recovery, you should contact Centrelink directly. We do not have your personal details that would allow us to confirm if and/ or why your debt is still being recovered. If your debt is being recovered, you should call Centrelink’s Income Compliance team on 1800 171 846.
The government has confirmed that the refund you receive will not be taxed and no further action is required from you in relation to your tax return.
Centrelink has commenced refunding Robodebts to eligible group members. They may send you a letter through your MyGov account requesting that you confirm your bank account and contact details with them. If you receive a letter requesting you provide your details, you should do so. This will ensure that your refund is paid into the right bank account.
To update your details with Centrelink, you will need to:
Your refund will be paid to you within 5 business days of completing the ‘Refund pending’ task. Once your refund has been paid, Centrelink will send you a follow-up letter to confirm the refund amount and the details of the debt/s that were refunded.
The refund announcement represents a significant achievement in the fight against the Robodebt System; it confirms that the Government now accepts that it had no right to recover and hold money which it collected through the unlawful operation of the Robodebt System, where it calculated debts wholly or partly by the averaging of ATO PAYG data.
While the announcement signals an important step in the right direction, the following issues still need to be resolved:
If you have received a refund, you will still be a part of the class action.
The class action will continue until these issues are answered, or the Government seeks to resolve the proceeding in a way that acceptably deals with these outstanding issues.
A trial date has been set for 21 September 2020 and is estimated to be heard over three weeks.
A judgement may be delivered by the end of this year, or early next year however, this is up to the judge hearing the case. If you have registered with us, we will keep you updated on any new information on the case as it arises.
We understand that you may have been told by Centrelink to contact Gordon Legal. While we can provide you with information about the Robodebt Class Action, if you want information that is specifically about your debt or other Centrelink issues, we cannot help with this. This is because we do not have any information about your Centrelink affairs. We understand that this is frustrating, but you will need to speak to Centrelink about your matter.
While Centrelink cannot advise you to opt in or opt out of the class action, they have an obligation to provide information about your individual circumstances. This includes whether you are a group member as well as information about your specific debt. It is important that Centrelink gives you the assistance and information you require, even if you are involved with the class action
If you have called Centrelink to discuss your debt and they instruct you to contact Gordon Legal, you may advise that you are not calling about the class action but about your debt. If Centrelink refuses to discuss your matter, you should obtain the Centrelink staff member’s name and serial number (or receipt number) and forward this information to [email protected]
We recommend that you contact Centrelink’s compliance refund line on 1800 171 846 if you require assistance.
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 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:
It is important to understand that not every debt issued by Centrelink is a Robodebt. If you have received an email or letter from Centrelink since 4 May 2020, enclosing the Group Member Notice then it is safe for you to assume that you are a Group Member.
If you were issued a debt that was initially either partly or wholly raised using income averaging but was later recalculated based on information you provided and you have paid part or all of that debt back, you meet the definition of a group member.
If you believe your circumstances meet the Group Member definition and you have not received Group Member Notice, you should call Centrelink on 1800 171 846.
No. The final day for opting out of the Robodebt Class Action was 29 June 2020. In any case, our advice is that it is in your best interests to remain a Group Member in the Robodebt Class Action because:
As a Group Member you will be bound by any decision of the Court in the Class Action proceeding which applies to Group Members.
Yes. We believe that it is in your interest 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.
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 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.
A mediation between parties took place in early-June 2020. However, this mediation did not result in a settlement and the case is still set to proceed to court.
At a Case Management Hearing on 16 June 2020, the Federal Court ordered that the trial in the Robodebt Class Action would commence on 21 September 2020, on an estimated duration of three weeks. We will keep you updated as we continue to prepare for the trial.
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.
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.
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 a 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.
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