Do governments have a duty to care about us?

There are a number of well-established duty of care relationships, including doctor and patient, teacher and student, employer and employee, to name a few - but the big one missing from the list is government and citizen. This became evident to the lay person during the "robodebt" case, where the Coalition government argued that it held no duty of care to the plaintiffs.

This case raised a question of "the existence of a novel duty to exercise reasonable care in the performance of the relevant Commonwealth-controlled functions under the [Social Security Act]."

However, extensive case law from over the past 22 years makes establishing this duty very difficult. The Social Security Administration Act states "... decisions made by Centrelink as to the grant, cancellation, suspension or rate of payment of a social security benefit are subject to the extensive review procedures in Pt 4 of [the Act]." That the statutory power is subject to review means that there is no necessity for an individualised common law duty of care, as the purpose of the legislation is to provide for the broader benefit of society, rather than for the individual (i.e. the jobseeker).

The role of social security in Australia being focused on the "greater good" is well established, with economic benefits touted as a significant factor in facilitating the payments in the first place. As nice as it would be to think that the government was acting in the best interests of our vulnerable community members, under the guise of no-one being left behind, the hard truth is that if it was more economically beneficial not to provide payments, the government probably wouldn't.

While I am not a lawyer, I understand that Workforce Australia (JobActive's replacement program) will be licensing employment services providers to deliver the services under the new model, which clearly defines them as an agent of the statutory authority. This means that the government could be held responsible for the actions of the employment services provider if they don't operate in good faith, which might change things somewhat, as the relationship between the employment provider and the client is arguably an individual one, with only a secondary focus on broader societal benefit.

With a one-on-one relationship, it is possibly less challenging to establish that the employment services provider could have foreseen the risk of harm to their jobseeker-client, and held a responsibility to avoid it, particularly given the vulnerability and dependence of jobseekers on their service provider to facilitate their receipt of payments.

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Of course, the conflicting duty arising from the employment services providers' responsibilities under the Social Securities Act limits its scope, in that they are required to monitor compliance of jobseekers with their mutual obligations and act accordingly regarding payment suspensions and the like. But wielding that authority beyond the limits of their power - for example, to threaten clients with suspension unlawfully - may be enough to overcome this conflict and facilitate action when their conduct has caused their client harm.

My question is this: when you have a private corporation wielding the power of the government in suspending and cancelling payments, administering mutual obligations and "coercing" jobseekers into work (to quote a consultant recently heard first-hand), at what point does the government lose its shield provided by statutory review and accept responsibility for the wellbeing of its citizens in its programs, to ensure that at the very least, these providers are appropriately qualified?

If you look at the employment consultant jobs for the WorkForce Australia program advertised on job boards, you will find no requirements for skills or qualifications in counselling, career development, community services or case management. Instead, the vast majority of roles are considering those with "retail, marketing and sales experience" as appropriate candidates for filling these positions, which reveals the real focus of employment providers being purely economic.

I live in hope that the system will improve as Employment Minister Tony Burke has promised, but I implore him to demand that the agents of the government acting on their behalf in this program, at the very least, are qualified and experienced to not cause further harm to those doing it tough.

It shouldn't be about what the government can get away with; it should be about what is right.