A recent landmark court decision could have significant ramifications for several million social security recipients.

The ruling means the federal government will need to recalculate more than A$4 billion in debts owed to the Department of Social Services, which administers Centrelink.

Some of the debts – which occurred due to overpayment of benefits – stretch back decades.

Reminiscent of Robodebt, the problem occurred because an unlawful method – income apportionment – was used to calculate the money Centrelink claimed it was owed.

The judgement

From the early 1990s until 2020, more than 5.3 million welfare debts were calculated using income apportionment.

In the test case Chaplin v Secretary, Department of Social Services, the full Federal Court approved a method proposed by the government to recalculate the debts.

The court was not asked whether the debts were unlawful – a point the department had already conceded – but whether its remedy was legally sound. In a two-judge majority, the court ruled it generally was.

Following the judgement, the department swiftly resumed debt recovery, which had been paused in 2023, pending the legal decision. It said in a statement:

now there is certainty to the legal position, assessments will recommence in line with the court’s decision.

The scale of the problem

The unlawful debts are worth $4.31 billion in total, and affect almost three million Australians. About 91% of these debts – $3.93 billion – has already been repaid to Centrelink.

Another 170,000 debts – totalling $347 million – remain outstanding.

All the debts – either repaid or still owing – must be recalculated using the revised method approved by the court.

According to the government, the median debt is $330 and has been owed for 19 years, on average.

But the judgement does not compel the government to actually recover the money. Some media reports suggest a waiver is being considered.

For its part, the government says it will “evaluate” the court decision and develop a “suitable response”.

What is income apportionment?

An internal anti-fraud policy meant Centrelink was obliged to calculate a person’s income when it was “earned” rather than “received”.

This led to the use of income apportionment – essentially an educated guess about a person’s fortnightly earnings when their pay cycle didn’t align with their income reporting period.

This process, which typically produced overpayments to recipients, spread income outside an instalment period, which was contrary to the applicable law. It also attributed earnings to a person for days and fortnights they hadn’t worked.

Income apportionment was discontinued in 2020. Three years later, the Commonwealth ombudsman found the method was unlawful.

Is this different to Robodebt?

While Social Services has sought to distinguish income apportionment from Robodebt, the two methods of calculating debt are comparable.

Both attributed a person’s daily income beyond the timeframe permitted by law.

But there are differences in source and scale.

Where apportionment was personalised by using individual customer payslips, Robodebt used Australian Tax Office records to raise debts en masse.

Significantly, while the ombudsman said the department’s understanding of the law relating to apportionment was “incorrect”, it was also “genuinely held”.

On the other hand, the infamous Robodebt scheme was designed to ramp up debt clawbacks. Claims of misfeasance in public office continue to be litigated.

Other troubling overlaps remain.

Many individuals affected by apportionment debts raised after 2015 will be the same people served with Robodebt notices.

Evidentiary burden

A troubling aspect of the test case was the suggestion by the majority judges – citing High Court precedent – that the evidentiary burden could shift to the welfare recipient when overpayments are believed to occur through “wrongdoing”.

This could force an individual to disprove their alleged debt if a decision-maker concluded the recipient had accidentally under-reported – as occurred in the test case – and a lack of evidence made it difficult for the government to prove its allegation.

The finding arguably runs counter to the Robodebt Royal Commission’s observation that most welfare recipients lack the power to disprove a debt because their historical records are unavailable.

The dissenting judge in the case rejected the government’s proposed recalculation method, finding it “not proper” for recovery action to be taken without probative evidence.

He said the majority decision meant Centrelink could reassess debts in the future after evidence had been lost, and recipients would be powerless to disprove them.

Expensive fix

The administrative burden of reassessing these unlawful debts is immense.

Late last year, a team of 150 public servants, each costing $117,400 per annum, was assigned to rectify income apportionment.

Their internal sampling revealed 64% of people issued debt bills were overcharged, 29% were undercharged, while 4% are owed a total refund.

The remediation process has been chaotic.

In the year following the ombudsman’s report, recipients lodged 531 appeals and made 530 complaints, highlighting the human impact of income apportionment.

But in a five-month period, a mere 83 cases have been finalised.

Controversially, Social Services offered to process debts on request, contrary to a provisional finding of the Administrative Appeals Tribunal, which dismissed the method being used by the department.

Political choice

While the Federal Court has seemingly given the government a legal victory, the ultimate outcome will be costly – especially if the debts are waived.

The court ruling requires recipients be afforded “procedural fairness”, meaning resource-intensive investigations will need to be undertaken into the millions of cases yet to be reviewed.

The final price tag is yet unknown. In the 2025–26 budget, income apportionment was recorded as a “contingent liability – unquantifiable”.

Almost all of the outstanding debts would have already been resolved if the government had implemented the Robodebt Royal Commission recommendation that welfare overpayments should not be pursued if they are more than six years old.

The court’s decision also fails to address the 159 Australians believed to have been criminally prosecuted over unlawful debts since 2018. These people – and likely many more before that year – may have been convicted on defective evidence.

The response to these issues will be a test for the government.

Has it learned the lessons of previous egregious mistakes, or will it allow the ghost of Robodebt to continue to haunt our welfare system?

Christopher Rudge, Law lecturer, University of Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.

I first read John Hirst (1942-2016) as an undergraduate in the late 1990s as part of a subject on 19th-century Australian history. We discussed convict history and explored contrasting views about its role and function in the early colonies. What was life as a convict like? Was transportation a cruel punishment or a ticket to a better future? Could we compare the convict system to slavery?

Hirst’s Convict Society and Its Enemies was one of our required readings and I studied it with interest.

Review: John Hirst: Selected Writings – edited by Chris Feik (Black Inc.)

I had devoured Robert Hughes’s The Fatal Shore the previous summer and had been powerfully swayed by his descriptions of visceral cruelty in the penal colony. There were convicts who rubbed lime in their own eyes because blindness was preferable to working in the kilns. Others were whipped until flesh hung in strips from their backs and collapsed on treadmills from exhaustion.

Hirst demurred. Yes, there was violence, he agreed, but England was a violent place in the late 18th and early 19th centuries. Rather than judge, historians must understand the broader context of that world. Comparing convicts to slaves overlooked historical evidence that pointed to the relative freedom convicts enjoyed in colonial society.

Due to the dire shortage of labour, for example, convicts were able to control aspects of their own lives, working on their daily tasks for the state in the morning and then having their “own time” after the day’s work was done. This not only facilitated considerable freedom for convicts, but also their power in the fledgling society.

Following their sentences, convicts were free to own property and, from 1842, even to vote and stand for the New South Wales Legislative Council. Critically, the children of convicts were all born free, not into servitude.

Impact and legacy

The central arguments of Convict Society and Its Enemies are reproduced in an essay included in this posthumous collection of Hirst’s writings, edited by Chris Feik. The book catalogues some of Hirst’s major contributions to Australian historiography, spanning 50 years of scholarship from the mid 1970s.

How Did a Penal Colony Change Peacefully into a Democracy? is classic Hirst. The prose is crisp and succinct, avoiding jargon and calmly outlining the logic of its contention, drawn from a deep reading of the sources. Hirst critiques what he sees as convict research motivated by ideology rather than the evidence of this period in Australia’s past. In doing so, he sets himself apart from historians who viewed the convicts as victims of a brutal, dehumanising system.

Selected Writings also includes short personal reflections from a fellow historian, a former student, and a colleague, which help frame the impact and legacy of Hirst’s work. His intellectual independence is noted by each of the three contributors.

“Hirst prided himself on his resistance to the current of fashionable opinion,” notes Frank Bongiorno, “and he was above all else a fiercely independent individual.” This wasn’t about being contrary, adds Alex McDermott, but a process of applying the same critical analysis to the field as he did to his primary sources. Hirst “viewed his project as more than mere provocation”. He was both a passionate believer in Australia, as well as a fiercely independent voice, writes Robert Manne.

Bongiorno, McDermott and Manne all emphasise Hirst’s personal generosity and commitment to teaching and the profession – he was clearly loved by generations of students. Upon the book’s release, I was struck by comments on social media and at conferences from colleagues and former students who remembered acts of kindness that accompanied Hirst’s rigorous commitment to debate.

This collection feels like a faithful reflection of that contribution to Australian history.

A historian’s conscience

Selected Writings covers several major themes Hirst pursued in his research. We see a persuasive defence of democracy and an ongoing interest in the emergence of Australian democracy, in particular. Hirst’s account of national sentiment as a driver towards federation is compelling, as it understands the important imaginative leap required to hold a nation together beyond the establishment of political institutions. And his belief in republicanism is a thread he returned to across his career.

Another substantial theme is Hirst’s belief in, and support for, the history discipline. At the heart of his approach and practice is a contention that evidence and source criticism fundamentally broaden our knowledge of the past. Ideas are tested, and debates between historians are equally intrinsic to evaluating hypotheses and arguments.

Reading this diverse collection, I find Hirst’s writing provocative in a good way. I often had to pause and ask myself, do I agree or disagree here? What is my argument? Where is the evidence for my opinion?

Hirst’s body of work represents an implicit but powerful defence of evidence-based history at a time when the truth is under attack from venal Trumpism and students are submitting dispiriting essays written by GenAI. He was a powerful advocate for the discipline, advancing what history educators would call a form of historical literacy or historical thinking.

In response to the Howard Government’s proposal to develop a national history curriculum in 2006, for example, Hirst agreed with the need for a more rigorous and coordinated approach to the subject. Yet he also insisted that history’s purpose must be to teach the skills of empirical research and criticism, rather than jingoism.

Given the spread of these essays and the genealogy of Hirst’s career, it was a curious decision to organise the collection thematically, rather than chronologically. I am aware this criticism is likely framed by my own interests, and a thematic approach allows for a different organisation of ideas, but I did wonder what context was perhaps missed by not seeing the evolution of Hirst’s writing over time.

For example, the essay Changing My Mind appears first, but reflects back on Hirst’s career in Australian history. I was also surprised that one of his most well-known (and controversial) essays was not included in the collection or cited in the select bibliography. It’s another piece I first read as an undergraduate – a pointed critique of Creating a Nation by Patricia Grimshaw, Marilyn Lake, Ann McGrath and Marian Quartly, published in Quadrant in 1995, in which Hirst questioned whether a gendered history of Australia could and should be written. “A history of gender relations,” he argued, “is something less than the history of the nation.”

Obviously, all edited collections require curatorial decisions based on all sorts of reasons, but the exclusion of this essay was notable, given its prominence.

Other pieces in Selected Writings include Hirst’s critiques of what he termed the “black school” of Australian history writing. He was referring to the movement of historical revision advanced by labour, feminist, migrant and First Nations histories, which have challenged Australia’s understanding of its historical “progress”.

Hirst resisted this movement for being ideologically driven. But that is not to say he wasn’t interested in the “historian’s conscience”. He was, deeply. The essay that opens the collection was published in a volume on that very topic.

Yet his commitment to the history discipline also ran up against a growing acknowledgement within the field that empirical history has been complicit in and essential to exploitative systems of imperialism and colonisation. Hirst wanted historians to understand the past in context. “History writing will always reflect our current preoccupations,” he argued, “but as a disciplined enquiry it is also committed to understanding past people in their own terms.”

It’s a view that has been challenged in recent decades, as historians have sought to understand the ways history itself has legitimised and storied the settler-colonial project by curating its own archives and rules of historical evidence. As well as uncovering the past, history also has its own “blind eyes”, as Catherine Hall famously acknowledged.

Given Hirst’s commitment to debate, and his belief in collegiality and the sharing of ideas, that is a spirited discussion I reckon he would have been up for.

Anna Clark, Professor in Public History, University of Technology Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.