fcrc professional development series understanding social security prosecutions
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FCRC Professional Development Series Understanding Social Security Prosecutions David Grove, Senior Lawyer Commonwealth Entitlements Program. Understand the basic prosecutions framework for social security overpayments Identify from client instructions potential prosecution situations - PowerPoint PPT PresentationTRANSCRIPT
FCRC Professional Development Series
Understanding Social Security Prosecutions
David Grove, Senior Lawyer
Commonwealth Entitlements Program
Outline of session
• Understand the basic prosecutions framework for social security overpayments
• Identify from client instructions potential prosecution situations
• Understand what services Victoria Legal Aid provides and when it is appropriate to refer for legal advice
Prosecutions – basic legal framework
• Department of Public Prosecutions (Cth)
• Established to prosecute alleged offences against Commonwealth law
• “Policy” threshold of $10,000 debt
• Investigation (Business Integrity) Unit
• Connection with civil debt – understanding the difference
Offences – Criminal Code Act 1995
• Usually s135.2 – obtaining financial advantage- engage in conduct - consequent financial advantage from Cth- knowledge or belief of non-entitlement
• s135.1 – general dishonesty- does anything with intention of
dishonestly obtaining a gain from the Cth
• S134.1 – obtain property by deception. Similar to s135.1 with deception added
Prosecution Issues
• Clients do not have to have intent to obtain something they weren’t entitled to. They can be prosecuted if they had knowledge or belief that they were not entitled to the full benefit they received.
• It is often very difficult to prove that clients didn’t have some idea that they weren’t fully entitled to what they received.
• Clients are legally obliged to notify Centrelink of a change in circumstances within 14 days.
Social security prosecutions (nationwide)Centrelink statistics
Year Prosecutions Acquitted Convicted
2007/08 2,658 34 2,404
2008/09 3,388 34 2,973
2009/10 3,461 25 3,073
What Centrelink investigates
• Centrelink has immense information gathering powers:- data matching- access to bank, employment, ebay records- tip offs; private investigators
• Centrelink may find that a person has failed to declare a relationship or under declared their income
• This will result in a debt being raised, and may also result in a prosecution
• Your clients need to take care to:- report correctly- advise Centrelink about changed circumstances within 14 days
Penalties
• The outcome depends on:what the client has been charged with
the nature of the debt
the client’s circumstances
• Range of penalty is from a a promise to be of good behaviour to imprisonment
• The higher the debt, the more likely imprisonment will be the outcome
Prosecution Issues
• DPP (Cth) v Poniatowska
• DPP (Cth) v Keating
• Since Keating we know 30% of convictions wrong at law
• Post-Keating
Common issues:Marriage-like relationships
• Single & partnered rates
• Income and assets test
• MLR factors:– the financial aspects of the relationship
– the nature of the household
– the social aspects of the relationship
– any sexual relationship between the people
– The nature of the commitment to each other
Common issues:Overpayments
• a person who obtains the benefit of a payment to which they were not entitled for any reason
• Undeclared or underdeclared employment income• Failure to declare a relationship
• Overpayment waiver
• Sole administrative error
• Special circumstances
Centrelink debts are legally recoverable from a person’s Centrelinkbenefit
Further information
• Victoria Legal Aid- David Grove (03) 9269 0222
• Other Resources• Welfare Rights Unit Factsheets:
www.welfarerights.org.au
• Social Security Rights Victoria