Coalition warned robodebt scheme was unenforceable three years before it acted

Luke Henriques-Gomes
Photograph: Tracey Nearmy/AAP

The government was repeatedly warned in tribunal decisions that it could not enforce alleged welfare overpayments under its robodebt scheme without proving the debt existed, nearly three years before the federal court reached the same conclusion.

Between April and September 2017, a long-serving Administrative Appeals Tribunal member, Terry Carney, rebuked the government five times about the program, arguing that it was clawing money from welfare recipients without sufficient evidence and in a way that failed “simple mathematics”.

Carney, now a public critic of the scheme, told Centrelink in all five cases that it could not enforce a debt where it relied solely on a person’s annual income to allege a person had been overpaid in a specific, shorter period.

Related: Disability pensioners were increasingly drawn into robodebt while scheme was under scrutiny

But those decisions have been published only now after a request to the tribunal through Senate estimates.

They come as the government refuses to provide legal advice about the scheme to a Senate inquiry and as Labor calls on the government to repay all debts recouped. The government has promised it would no longer enforce debts that relied solely on income averaging and would review past debts.

In his first decision, in March 2017, Carney found that a former youth allowance recipient should not have to pay a $7,500 debt issued by Centrelink dating back to 2010. The woman had worked four part-time jobs involving “variable shifts” while she was studying.

Centrelink told the tribunal it had “identified that she declared income of $10,428 to the department, however her employer advised the ATO she earned $20,175. Weighing up the balance of probabilities the customer has been overpaid.”

The agency argued that if the woman could not provide payslips it was “appropriate to extrapolate annual [tax office] earnings figures as average amounts of income in relevant [youth allowance] rate calculation payment periods” to enforce the debt.

But Carney dismissed that argument.

“As explained below, if on the present facts (as I have found) Centrelink is unable to advance sufficiently convincing proofs of a debt or debt amount, then no debt arises in law,” he said.

“The reason it does not establish either an overpayment or its quantum is due both to the lack of sufficient strength of evidence and to simple mathematics.”

Terry Carney’s first robodebt decision

Across the five decisions, the debts invalidated by Carney were worth more than $43,000 across youth allowance and newstart. In three, he ordered Centrelink to return money that had been paid.

His final decisions were in September 2017. That month his contract was not renewed by the government after nearly 40 years at the tribunal and its previous title, the social security appeals tribunal.

Data provided to Senate estimates showed that between 2016 and 2019, more than a third of all robodebt decisions were overturned by the tribunal. It is unclear how many ruled that debts enforced using “income averaging” were invalid.

But Carney told Guardian Australia he believed a “significant majority” of his colleagues had also raised issues with the program in their decisions.

He said he had put painstaking effort into his first decision to invalidate a robodebt. “I was seeking to ensure that, A, I got it right and, B, I didn’t leave any stone unturned,” he said.

However, he said the decision – that debts enforced by Centrelink using approximated income were invalid – was clear.

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“It was kind of kindergarten law it was so open and shut,” he said. “It wasn’t hard to come to that conclusion.”

In the past Centrelink had used data-matching to determine where there was a possible difference between the income a person declared to Centrelink and information held by the tax office. To prove a debt, the agency would seek evidence, often using its powers to demand payslips from the person’s past employers.

Related: Government was warned robodebt scheme was unlawful – but won't say when

But from 2016 when the government announced an enormous ramp-up of its debt collection, it placed this responsibility back on to welfare recipients.

In his first decision, Carney wrote: “[The applicant] no longer held payslips for July 2010 to July 2012 (frankly there would be few citizens who do, and Centrelink’s then website advice was only to keep such records for a short time). In such cases I have found that it is Centrelink’s obligation to obtain the information …”

Carney invited Centrelink to make a supplementary submission addressing his concerns and to make oral submissions at the hearing, but the invitation was declined.

He told Guardian Australia: “The submission that came to hand – as my decision indicated – was unable to provide me with any assistance that Centrelink has a basis for robodebt.

“That is not surprising because … later the federal court agreed that it didn’t have a leg to stand on.”

On Wednesday the Senate passed an interim inquiry report into the scheme demanding the government provide any legal advice it holds on the program.