Hansell and Secretary, Department of Employment and Workplace Relations

[2006] AATA 824

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 824

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2006/102

GENERAL ADMINISTRATIVE DIVISION		)
Re		SIDNEY HANSELL

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date28 September 2006

PlaceBrisbane

Decision The decision under review is affirmed.

...............[Sgd]...............................

SENIOR MEMBER

CATCHWORDS

SOCIAL SECURITY – overpayment – waiver of debt – false representations to Commonwealth – jail term imposed – Commonwealth not prevented from recovering overpayment

Social Security Act 1991 s 1237AA

Colmer and Secretary, Department of Social Security (1988) 15 ALD 728

Letts and Secretary, Department of Social Security (1984) 7 ALD 1

REASONS FOR DECISION

28 September 2006 Senior Member B J McCabe

introduction

1.      Mr Sidney Hansell is appealing a decision by the respondent to raise and recover debts arising from the overpayment of social security payments. The debts arose because the applicant deliberately failed to inform Centrelink of his wife’s income. On 16 August 2002 Mr Hansell was convicted for making a false representation and sentenced to two months imprisonment.

2.      Mr Hansell claims the respondent is not entitled to recover debts arising from the overpayment because the sentencing magistrate said the gaol time “clean[ed] the slate”. The Secretary contends the gaol sentence does not affect the Commonwealth’s right to recover the money.

3.      I am satisfied the decision under review should be affirmed. I explain my reasons below.

the material before the tribunal

4. The Tribunal was provided with the material required by s 37 of the Administrative Appeals Tribunal Act 1975. The applicant represented himself at the hearing in Lismore and gave evidence. The respondent was represented by Mr Belcher.

the legislative framework

5. Mr Hansell relies on s 1237AA of the Social Security Act 1991 (the Act) to prevent the Secretary from recovering debts raised against him. This section provides:

If:

(a)  a debtor has been convicted of an offence that gave rise to a proportion of a debt; and

(b)  the court indicated in sentencing the debtor that it imposed a longer custodial sentence on the debtor because he or she was unable or unwilling to pay the debt;

the Secretary must waive the right to recover the proportion of the debt that arose in connection with the offence.

6.      It is necessary to examine the sentencing remarks of the magistrate to determine whether the Secretary is prevented from recovering against Mr Hansell.

7.      I note the applicant did not advance arguments relating to any other waiver provisions in Chapter 5 of the Act. I am satisfied none of them apply in this case.

the sentencing remarks

8. The applicant primarily relies on one portion of the sentencing transcript to establish he the benefit of protection under s 1237AA. The magistrate was asked to make a reparation order and in the reply, the Magistrate said:

No I’m not going to make one… my view is that if he’s going to do two months then he cleans the slate.

9.      The applicant says this establishes the magistrate intended that his imprisonment should be the end of the matter and no further recovery proceedings would be allowed.

10.     The respondent emphasises different sections of the transcript. In particular, he relies on remarks made by the magistrate that suggest a normal gaol term for this offence would be six months but it was appropriate to reduce the term of imprisonment because of medical reports provided to the court. The magistrate goes on to say:

I am prepared to allow for your medical condition and reduce the normal penalty.

11.     The respondent argues this indicates the magistrate did not impose a longer custodial sentence on the applicant. The respondent says the court imposed a shorter custodial sentence than expected.

12. The respondent also points out a longer custodial sentence must be imposed because of the applicant’s inability or unwillingness to pay the debt before s 1237AA applies. The applicant’s solicitor, in the course of making a plea of mitigation, stated Mr Hansell had made attempts to pay back the debt. There was even a mention of mortgaging a house to assist this process.

13.     The magistrate in the formal order of the court noted the compensation contribution of the applicant. The Secretary submitted the magistrate did not assume the applicant was unwilling or unable to pay the debt, and that – even if the magistrate did form such a view – there is no reason to believe the magistrate imposed a longer sentence as a result. I agree.

14.     The applicant pointed out the magistrate declined to make a reparation order but that is irrelevant. The Commonwealth retains the power to recover the debt under the provisions of the social security legislation; see, for example, Letts and Secretary, Department of Social Security (1984) 7 ALD 1 and Colmer and Secretary, Department of Social Security (1988) 15 ALD 728.

conclusion

15.     The legislation requires that the Tribunal evaluate the words actually used in the course of the sentencing remarks. On that approach, the Commonwealth is entitled to recover the debt arising out of the overpayment. The decision under review is affirmed.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

Signed:         .....................................................................................
  Associate      Adam Ryan

Date of Hearing  11 July 2006
Date of Decision  28 September 2006
The applicant represented himself at the hearing.
The respondent was represented by Mr Belcher, a departmental advocate.