Updates for September: Cosmetics and COVID-19

This month has been a busy month for my semi-scholarly work. At the start of the month, I wrote a piece for the Conversation about the so-called crackdown on the cosmetics procedures sector announced by AHPRA around 7 September 2023.

Following the publication of that piece, I was lucky to be asked to appear on a long interview for Mamamia’s The Quicky. It was a great talk and I thank host Claire Murphy for the great interview.

Over the last few days, when it was announced that a COVID-19 inquiry would be run by the Commonwealth government, its terms of reference came under scrutiny. Having co-authored and published an article earlier in the year on COVID-19 mandates — an article that I was very proud to have written, especially when it was given plaudits from now Justice of the High Court of Australia Hon Robert Beech-Jones — I was keen to provide my view on the terms of reference.

Several commentators around the country have argued that the terms of reference are unduly restrictive and a cause for complaint. That, in some ways, is understandable. After all, it is essential that critical minds and governments examine how the public health legislation was deployed during the pandemic, especially where profound human rights issues arise from coercive interventions.

However, as I argued ion ABC News Radio on Friday 22 September, the Inquiry expressly will cover questions of governance, including

the role of the Commonwealth Government, responsibilities of state and territory governments, national governance mechanisms (such as National Cabinet, the National Coordination Mechanism and the Australian Health Protection Principal Committee) and advisory bodies supporting responses to COVID-19.

See Inquiry TORs

Given that our Constitution does not confer on the Commonwealth a competency to make laws with respect to public health, however, the terms of reference strike me as sensible and practical.

After all, it is the states, including New South Wales, that hold the power to regulate public health within their polities. Sections of the states’ public health Acts confer different conditional powers on their relevant health ministers; and, in New South Wales, it is section 7 that gives the Minister massive powers to do whatever they consider to be necessary when, on reasonable grounds, they consider that a situation has arisen that is likely to be a risk to public health, and they seek to deal with the risk and its possible consequences. My phrasing, above, is a little garbled, because it seeks to paraphrase the wording of the provision, which is as follows:

7 Power to deal with public health risks generally
(cf 1991 Act, s 5)

(1) This section applies if the Minister considers on reasonable grounds that a situation has arisen that is, or is likely to be, a risk to public health.

(2) In those circumstances, the Minister–

(a) may take such action, and
(b) may by order give such directions,

as the Minister considers necessary to deal with the risk and its possible consequences.

All of the NSW public health orders were made pursuant to section 7, above.

The Victorian Act, by contrast, requires that a ‘pandemic declaration’ be made before the minister’s powers are enlivened. Following the making of any such declaration, the Minister of Health may exercise their powers to make orders under s 165AI of the Public Health and Wellbeing Act 2008 (Vic), which states as follows:

PUBLIC HEALTH AND WELLBEING ACT 2008 – SECT 165AI

Minister may make a pandemic order

(1) The Minister may, at any time on or after the making of a pandemic declaration, make any order (a pandemic order) that the Minister believes is reasonably necessary to protect public health.

As is obvious, these powers are held by state ministers. They are not controlled or controllable by the Commonwealth government, or any Commonwealth minister. Arguably, any influence exerted by a Commonwealth minister over a state minister to exercise their powers in a particular way may give rise to a misuse of the power, inasmuch as the requisite ‘consideration’ (New South Wales) or ‘belief’ (Victoria) of the health minister has to be held by that relevant state minister. Sure, a health minister’s belief or consideration may be reconfigured by additional information from other actors, including their equivalent ministers in other Australian governments. But the legal fact is that the Commonwealth cannot really repeal, remake or otherwise alter or even influence this power; and this is a point that I have found has been missing from the public debate about the scope of the COVID-19 inquiry.

What would be the best outcome of an inquiry into the way the state health ministers exercised their powers? Would the Commonwealth recommend that the state ministers must have approval from the Commonwealth before exercising these powers? Would they be required to consult? This would seem to be completely contrary to the design of the Constitution, which, as Quick and Garran point out time and again, was premised on a fair compromise between the new central government and the colonies: the states would retain independent powers across a range of areas, including, as I think it must be inferred, health. I am not opposed to more centralisation; however, I think it;’s important to understand what we are proposing when we ask for a Commonwealth inquiry into the exercise of state power. And so I was pleased to feed that into the debate via national radio.

My request, alas, remains with ABC Archives for a copy of the recording! (It cannot be replayed like some other programs on ABC listen, etc).

In the meantime, I feel more compelled than ever to revise and rewrite the serious consideration that I developed in 2018 on the division of health power in Australia — an article that, for various reasons, did not make it through peer review at the top journals but which I have been told several times since would make a sorely needed contribution to the literature in this area. The best articles on the topic I have found are two oldies and a newie:

Updates on welfare law

I have been writing on welfare law over on my substack blog Welfare Law in Australia. One recent post and video deals with the question of ‘unlawfulness’ as it arises in respect of the former section 1073B of the Social Security Act 1989 (Cth). The way that that section was applied by the welfare departments between 2003 and 2020 was, as the Ombudsman has confirmed, unlawful. But what does unlawful mean here?

As I suggest, it essentially means that the departments acted in a way that was not expressly authorised by the legislation. But, perhaps more faultily than this, the departments misinterpreted or misconstrued their powers under the section; and, accordingly, they acted without power on an assumption that they did have power. As I note (perhaps somewhat agonisingly), this is a little like playing football with ‘boots on your hands’ — essentially doing something that is within the rules (‘kicking the ball’) but completely misunderstanding what the rules mean (ie, the rules require players to kick the ball with their feet; not simply ‘with boots on one’s limbs’). For mine, the lesson to arise from this (the Ombudsman’s statement, after all, is titled ‘Lessons in Lawfulness’) is that reading legislation carefully is absolutely indispensable. The more sophisticated version of that lesson is that:

  • internal calculators or automation tools in government departments need to be crafted in accordance with legislation to the letter;
  • the calculator in this case, the Earnings Apportionment Tool (within the Adex Debt Statement) should never have been permitted to create apportionments that went beyond the statutory limit of one ‘instalment period’; and
  • cross-disciplinary legal practitioners must be identified and employed, or alternatively trained — those who have skills in statutory interpretation as well as computer and software design — in order to avoid internal tools being run and applied that perform operations that are contrary to law.

The issue that arose in relation to the legal construction of the provision was simple enough — at least in hindsight. The provision provided as follows:

1073B Daily attribution of employment income

(1) If:

(a) a person is receiving a social security pension or a social security benefit; and

(b) the person’s rate of payment of the pension or benefit is worked out with regard to the income test module of a rate calculator in this Chapter; and

(d) the person earns, derives or receives, or is taken, either by virtue of the operation of section 1073A or any other provision of this Act, to earn, derive or receive, employment income during the whole or a part of a particular instalment period of the person;

the person is taken to earn, derive or receive, on each day in that instalment period, an amount of employment income worked out by dividing the total amount of the employment income referred to in paragraph (d) by the number of days in the period.

As I have noted in my analysis in this video, it was perfectly lawful for the agencies to apportion income, as the provision provides, by ‘dividing the total amount of the employment income… by the number of days in the [instalment] period.’ However, it was not lawful for the agencies to divide the ‘total amount of the employment income … by [a greater number] of days [than exist] in the [instalment] period,’ which is what they did. It’s all there in the last sentence of the provision.

The word ‘period’ as it is used in the last clause of the provision appears to have taken on an expanded meaning on the agencies’ construction so that it could apply to the entire payslip period; however, as is clear on a plain language reading of the provision, the term ‘period’ can only refer back to the word ‘instalment period’ that appears earlier in the provision. Otherwise it has no fixed meaning, which is clearly unbearable.

I was very disappointed by the Deputy Secretary of DSS, as well as by the Ombudsman, when they appeared recently in the Senate inquiry on poverty in Australia, because both these senior governmental figures bemoaned the ‘complexity’ of the matter, and stressed how difficult it was to explain. I was disappointed because it really need not be described in this way. It can be explained quite tersely and clearly. And if senators who are not legally trained have questions, they can be answered pretty well. What needs to be explained is that the agencies made a very rudimentary reading error. They identified the word ‘period’ in the provision as a word that has no fixed meaning but could potentially expand to any quantum. When one thinks about it, that was a very amateurish mistake. And one imagines, as in the case of robodebt, the mistake was bordering on one that used to be described, in the old actions on the case, as faulty for ‘want of due care.’

I will be aiming to write a more complete analysis later on why this is not an error that is wholly or even at all distinguishable from robodebt, as seems to be the message from all and sundry now, from the Ombudsman himself, through the department heads, through to the relevant ministers (Hons Shorten and Rishworth). But it is an untextured and, ultimately, untrue message. As the appendix to the robodebt Royal Commission clearly illustrates, more than twenty of the earliest robodebts that came before the AAT1 were subject to recalculation orders by AAT members who found them to be ‘unlawful’ precisely because they were calculated impermissibly under s 1073B.

This project to distinguish miscalculated debts under s 1073B from robodebts is something of a legal nonsense. Yes: robodebts involve debt letters that alleged debts based on ATO data. And, yes, the s 1073B problem predates the OIC and other version of the robodebt programs. But, in terms of the legal problems presented by robodebts, these debts were unlawful, in the end, for two reasons: first, they were insufficiently evidenced in terms of their quantum, as the Federal Court observed in its settlement orders. The Court (Davies J) put it this way (at paragraph 9):

there was no material before the decision-maker capable of supporting the conclusion that a debt had arisen pursuant to s 1223(1)(b) of the SS Act.

But the second and very much related reason why robodebts were unlawful is because they were calculated contrary to s 1073B. The fact that this second reason was not explored in the Royal Commission nor articulated in the reasons of Davies J in Amato, and had not been aired publicly before this month, does not make it any less true that robodebts were unlawful because of this problem. To be sure, the smoking gun in this respect is the fact that the Amato submissions made the s 1073B impermissibility argument (emphasis mine):

56.4 Section 1073B provided for averaging of income earned by a person receiving social security payments over an “instalment period”. An “instalment period” could not exceed 14 days. The effect of s 1073B was to produce an average daily rate of income for each day in the instalment period. Section 1073C then provided that “(a) the rate of the person’s employment income on a fortnightly basis for that day may be worked out by multiplying that amount by 14; and (b) the rate of the person’s employment income on a yearly basis for that day may be worked out by multiplying that amount by 364”. Sections 1073B and 1073C do not authorise apportionment of the kind done under the EIC program. They simply provide a mechanism for working out “the rate of the person’s employment income on a yearly basis” where it is relevant, under the SS Act, to calculate the rate on a yearly basis. The relevant period for Austudy payments was a fortnight, not a year. As the relevant explanatory memorandum states, the main purpose of ss 1073B and 1073C was to facilitate the “working credit” rules in the SS Act, the function of which “is basically to allow a person’s ordinary income to be reduced before it is put through [the] income testing process”. The working credit rules provided for the calculation of “the participant‘s rate of employment income on a yearly basis” for the purpose of working out the effect on working credit balances of social security pensioners. The working credit rules did not apply to Austudy recipients.

But, as I say, more on that later.

Another recent post deals with another issue that arose this month regarding historical errors on the part of the welfare agencies. Services Australia’s IT system committed errors that affected almost 50,000 child support payment recipients in an unspecified period prior to and around 2018. While the IT issue is said to have been resolved in 2020 (some two years after the agency had been consulted on the issue by the Ombudsman), only around 35,000 people had by that time had their assessments and entitlements re-assessed and remediated, while another roughly 15,000 recipients’ entitlements were not reassessed or remediated. Instead, they were simply ‘written off’ as inconsequential and unnecessary to address by the welfare delivery department.

This decision was made by the agency despite the fact that it had committed to reassessing all the affected files in 2019 in representations it had made to the Ombudsman. All of this, of course, was occurring during the robodebt settlement and through the Royal Commission. Clearly concerned that this backsliding on a prior commitment could result in unfair outcomes, the Ombudsman this year sought to re-engage with the department to ‘make things right’ — and that, as it happens, is the name of the statement published by the Commonwealth Ombusdman in respect of this matter.

This short statement is not to be confused with a report of the same name published by the Ombudsman with respect to the Department of Education back in 2015. (I suppose, when one is the Ombudsman, titles like Making things Right or Lessons in Lawfulness will probably need to be recycled every few years.) As I argue in the post, it is just another example of the recalcitrance of the agency among several that have emerged since the Robodebt Royal Commission.

If you have not been following my activity on Welfare Law in Australia, please do subscribe. Relatedly, my media appearances in recent times on welfare law are as follows:

Lessons in Lawfulness: An extraordinary development in social security law

On 2 August 2023, the Commonwealth Ombudsman published a terse report outlining its findings after an investigation into the lawfulness of ‘income apportioning’ — a method of debt calculation used by Australian welfare agencies DHS and DSS since at least 2003 (ie, for more than 17 years).

As the Report states, this process, as it turns out — after all these years! — is unlawful. This is an astonishing finding, and all the more so in the wake of the Robodebt Royal Commission. While the Ombudsman, and relevant ministers of the current government, have been at pains to distinguish the so-called section 1073B error from the robodebt error, my provisional analysis has led me to conclude that the two are not just linked or overlap but are intrinsically interwoven.

Of course, the Ombudsman is no court; and the statement that so many debts are unlawful is — though informed by legal advice of the agencies and no doubt its own legal analysis — far from the final word on the matter. Indeed, that is really at the heart of the issue. The matter is far from resolved.

Whenever I have had any time over the last 10 days, I have been following up on this extraordinary development. I have made two long videos: one reviewing the report (1hr 40 mins) and one (around 90 minutes) that speculates on why the Ombudsman has so clearly said that so many debts calculated under s 1073B of the Social Security Act 1991 (Cth) are unlawful.

The two of them are here:

I have also now written a detailed blog post on my research so far on my Welfare Law in Australia substack site here. I extract the first few paragraphs below but encourage interested readers to explore the full text on the substack.

Recommendation 1
Firstly, in the context of the legal advices the agencies have received, and in view of the fact that the Ombudsman states the practice is unlawful, the Report recommends that Services Australia (SA) and the Department of Social Security (DSS) should obtain a declaration of the law. It makes this recommendation in two parts, as recommendation 1A and 1B.

Notably, this first recommendation refers not only to the way in which the agencies have historically calculated the debts, but also to the way they have calculated the debts since 2021, when the Ombudsman first brought the matter to the agencies’ attention. Since that time, the agencies have developed a position or form of guidance contained in the so-called General Instructions that directs decision-makers about how to putatively lawfully calculated social security entitlements prior to December 2020. However, because there has not been any legal declaration on this guidance, nor on the original, pre-Guidance calculation method, the first recommendation asks the agencies to get that clear advice on both methods.

— 1A: SA and DSS should seek the opinion of the Solicitor-General (SG) through a referral under Law Officers Act 1964 (Cth).

— 1B: SA and DSS should seek a Federal Court of Australia ‘opinion’ through referral by the Administrative Appeals Tribunal (AAT) under the Administrative Appeals Tribunal Act 1975 (Cth).

Before we move on, it is worth looking at the legal provisions underlying these recommendations.

Recommendation 1A

The referral to the SG is said to be authorised by the AG under the Law Officers Act 1964 (Cth) (‘LO Act’) but, as is common in brief Reports of this nature, the Report does not name the section authorising this action.

….

Read the full post here.