Judd and Secretary, Department of Social Services (Social services second review)
[2022] AATA 727
•11 April 2022
Judd and Secretary, Department of Social Services (Social services second review) [2022] AATA 727 (11 April 2022)
Division:GENERAL DIVISION
File Numbers:2021/0676, 0677 & 0678
Re:Machelle Judd
APPLICANT
Secretary, Department of Social ServicesAnd
RESPONDENT
DECISION
Tribunal:Senior Member B. Pola
Date:11 April 2022
Place:Brisbane
Pursuant to section 43(1)(c)(i) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decisions of the Social Services and Child Support Division of the Administrative Appeals Tribunal, dated 18 June 2021 (2020/B155588, 2020/B154468, and 2020/B153400) and substitutes it with a decision that:
(a)The Applicant has the following legally recoverable debts to the Commonwealth arising from the overpayment of her Parenting Payment Single pursuant to section 1223(1) of the Social Security Act 1991 (Cth), for the following debt periods:
(i)$1,159.51 for the period of 26 August 2003 to 8 March 2004;
(ii)$1,554.95 for the period of 18 May 2004 to 9 August 2004;
(iii)$2,074.91 for the period of 10 August 2004 to 24 January 2005; and
(iv)the Tribunal directs the Respondent to recalculate the Applicant’s debt for the period of 13 September 2005 to 15 March 2006 in accordance with this decision.
(b)To the extent that any of the above debts identified by the Tribunal have been over-recovered, the amount over-recovered is to be refunded to the Applicant.
(c)With respect to the Applicant’s debt for the period of 13 September 2005 to 15 March 2006, a 10% penalty is to be applied to the value of the debt the Respondent has been directed to recalculate, with this penalty to be added to the value of this debt.
(d)The debts identified by the Tribunal must be recovered; write-off on the basis of severe financial hardship, waiver on the basis of administrative error, or waiver on the basis of special circumstances is not warranted.
............[SGD]............................
Senior Member B. Pola
CATCHWORDS
SOCIAL SECURITY – Parenting Payment – failure to report earnings – debt to Commonwealth pursuant to section 1223 of the Social Security Act 1991 (Cth) – re-calculation of debt – whether additional 10% penalty for understatement under 1228B applies – decision under review set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Criminal Code Act 1995 (Cth)
Family and Community Services Legislation Amendment (Australians Working Together and other 2001 Budget Measures) Act 2003(Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)CASES
Davy v Secretary, Department of Employment and Workplace Relations (2007) 94 ALD 693
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
Harris v Director-General of Social Security (1985) 7 ALD 278
Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Secretary, Department of Social Security v Hales (1998) 82 FCR 154
Secretary to the Department of Family and Community Services v Rolley (2000) 175 ALR 4
Sekhon v Secretary, Department of Family and Community Services (2003) 132 FCR 126SECONDARY MATERIALS
Social Security Guide, Department of Social Services, version 1.292.REASONS FOR DECISION
Senior Member B. Pola
11 April 2022BACKGROUND
The Applicant, Ms Machelle Judd, had been in receipt of a Parenting Payment Single (herein referred to as “PPS”) from 20 March 1998 to 16 March 2006[1].
[1] Exhibit R3, T24, page 1122.
On 15 July 2004, the Department of Human Services (as it was then), now Services Australia (formerly Centrelink) (herein referred to as the “Agency”), raised a PPS debt against the Applicant of $999.59 for the period of 15 July 2003 to 8 March 2004 (which the Tribunal will refer to as “Debt 1”)[2]. The Agency raised this debt following the receipt of information from the Applicant’s employers’ records regarding income earned during this period in documents received on 15 March 2004 and 22 March 2004[3].
[2] Exhibit R3, T22, page 966.
[3] Exhibit R1, T5, pages 166 to 171; and T6, pages 172 to 174.
On 11 August 2004, the Agency raised a further PPS debt against the Applicant of $1,887.63 for the period of 18 May 2004 to 9 August 2004 (which the Tribunal will refer to as “Debt 2”)[4]. Again, the Agency raised this debt following information received from the Applicant’s employer, as detailed in the decision of the Social Services and Child Support Division (herein referred to as the “SSCSD”) of the Tribunal on 18 January 2021[5].
[4] Exhibit R3, T22, page 969.
[5] Exhibit R1, T2, page 25, paragraphs 42 to 46.
On 2 December 2005, the Agency raised a further PPS debt against the Applicant of $2,074.87 for the period of 10 August 2004 to 24 January 2005 (which the Tribunal will refer to as “Debt 3”), following the receipt of information from the Applicant’s employer regarding income earned during this period, in documents received on 9 June 2005[6].
[6] Exhibit R3, T22, page 1009; Exhibit R1, T7, pages 175 to 180.
On 12 December 2007, the Agency raised a further PPS debt against the Applicant of $5,746.63 for the period of 11 September 2005 to 15 March 2006 (which the Tribunal will refer to as “Debt 4”) and imposed a recovery fee of $574.65 against the Applicant based on documents received by the Applicant’s employer on 11 December 2007[7].
[7] Exhibit R3, T22, page 1034; Exhibit R1, T8, pages 181 to 188.
On 21 January 2008, the Applicant requested the Agency review the decision regarding Debt 4, and on 4 July 2008, the Applicant was convicted under section 135.2 of the Criminal Code Act 1995 (Cth), for one count of obtain financial advantage knowing or believing not eligible to receive (Failed to accurately declare income from employment whilst in receipt of social security benefits, namely Parenting Payment Single[8]. The prosecution report notes the Applicant pleaded guilty to the offence at the earliest opportunity and was convicted and released upon entering into a recognisance in the sum of $750, a reparation sum of $5,746.63, and she received a good behaviour bond for a period of two years, in addition to being ordered to pay costs of the Court of $68.60[9].
[8] Exhibit R4, Annexure B and C.
[9] Exhibit R4, Annexure C.
On 12 June 2009, an Authorised Review Officer (here in referred to as an “ARO”) reviewed and affirmed the decision to raise and recover Debt 4 and impose a recovery fee[10].
[10] Exhibit R1, T9, page 189.
With respect to the original debts raised against the Applicant, the Tribunal observes the Applicant paid the following respective balances off in full, on the following dates:
(a)Debt 1 with a balance of $999.59 on 27 July 2005[11];
(b)Debt 2 with a balance of $1,887.63, on 17 June 2009[12];
(c)Debt 3 with a balance of $2,074.87, on 23 July 2014[13]; and
(d)Debt 4 with a balance of $5,746.63, on 24 January 2018[14].
[11] Exhibit R1, T13, pages 326 and 327.
[12] Exhibit R1, T12, pages 271 and 272.
[13] Exhibit R1, T12, pages 278 to 280.
[14] Exhibit R1, T11, pages 210 to 212.
On or around 26 August 2020, the Applicant requested an internal review of Debts 1, 2, and 3[15]. On 27 August 2020, the Applicant applied for an ARO to review Debts 1, 2 and 3[16].
[15] Exhibit R3, T22, page 1089.
[16] Exhibit R2, T14, page 333 and 334.
On 16 October 2020, an ARO affirmed the following with respect to raising and recovering the following PPS debts of the Applicant[17]:
(a)$999.59 for the period of 15 July 2003 to 8 March 2004 (Debt 1);
(b)$1,513.74 for the period of 18 May 2004 to 9 August 2004 (Debt 2); and
(c)$2,074.87 for the period of 10 August 2004 to 24 January 2005 (Debt 3).
[17] Exhibit R2, T16, pages 345 to 359.
On 29 October 2020, the Applicant applied to the SSCSD of the Tribunal for a first-tier review of the ARO’s decision with respect to Debt 1, Debt 2, Debt 3, and Debt 4[18].
[18] Exhibit R2, T17, pages 360 and 361.
On 18 January 2021, the SSCSD of the Tribunal found the following with respect to the decisions under review[19]:
[19] Exhibit R1, T2, pages 7 to 90.
(a)Debt 1 for the period of 12 August 2003 to 8 March 2004 was varied, and the Agency was asked to recalculate the recoverable debt with the following adjustments[20]:
[20] SSCSD reference 2020/B155588; Exhibit R1, T2, pages 38 to 60.
(i)apportioned earnings of $222.18 in the period 12 August 2003 to 25 August 2003;
(ii) apportioned earnings of $285.66 in the period 9 August 2003 to 8 September 2003;
(iii)apportioned earnings were $438.34 and not $443.34 in the period 23 September 2003 to 6 October 2003; and
(iv)apportioned earnings were $241.29 and not $246.30 in the period 7 October 2003 to 20 October 2003.
(b)Debt 2 for the period of 17 May 2004 to 9 August 2004 was varied, and the Agency was asked to recalculate this debt based on an accrued working credit of 236.57 on 17 May 2004, rather than an accrued working credit of 192, with the amount recalculated as being overpaid in this period deemed a recoverable debt[21].
(c)Debt 3 of $2.074.87 for the period of 10 August 2004 to 24 January 2005 was affirmed[22].
(d)Debt 4 for the period of 13 September 2005 to 15 March 2006 was set aside and the following was decided in substitution[23]:
(i)an additional working credit of 30.86 that accrued to the Applicant prior to 1 September 2005 was to be taken into account;
(ii)the Respondent was directed to recalculate the amount overpaid to the Applicant in the period 13 September 2005 to 15 March 2006, and that any amount of overpaid PPS was considered a debt;
(iii)a 10% penalty amount was to be applied to the debt; and
(iv)any overpayment of debt by the Applicant with respect to Debt 4 was to be refunded to the Applicant.
[21] SSCSD reference 2020/B154468; Exhibit R1, T2, pages 7 to 37.
[22] SSCSD reference 2020/B154468; Exhibit R1, T2, pages 7 to 37.
[23] SSCSD reference 2020/B153400; Exhibit R1, T2, pages 61 to 90.
On 2 February 2020, the Applicant applied to the General Division of the Tribunal for a second-tier review of the decisions published by the SSCSD of the Tribunal on 18 January 2021, with respect to Debt 1, Debt 2, Debt 3 and Debt 4[24].
[24] Exhibit R1, T1, pages 1 to 6.
JURISDICTION
Section 179(1) of the Social Security (Administration) Act 1999 (Cth) (herein referred to as the “Administration Act”) states:
179 Application for AAT second review
(1) Application may be made to the AAT for review (AAT second review) of a decision of the AAT on AAT first review made under subsection 43(1) of the AAT Act.
(2) For the purposes of subsection (1), the decision of the AAT on AAT first review is taken to be:
(a) if an AAT first review affirms a decision—that decision as affirmed; or
(b) if an AAT first review varies a decision—that decision as varied; or
(c) if an AAT first review sets a decision aside and substitutes a new decision—the new decision; or
(d) if an AAT first review sets a decision aside and sends the matter back to the Secretary for reconsideration in accordance with any directions or recommendations of the AAT—the directions or recommendations of the AAT…
[Bolding in original]
This is an application to review four decisions the SSCSD of the Tribunal made on 18 January 2021, regarding PPS debts of the Applicant, which were previously reviewed internally by the Agency, and subsequently reviewed by an ARO. In accordance with section 179(1) of the Administration Act, the Tribunal has jurisdiction to hear the application of 2 February 2020.
ISSUES
The issues for consideration by the Tribunal in this application are:
(a)whether the Applicant was overpaid PPS in excess of her entitlement for the periods:
(i)12 August 2003 to 8 March 2004 (Debt 1);
(ii)17 May 2004 to 9 August 2004 (Debt 2);
(iii)10 August 2004 to 24 January 2005 (Debt 3);
(iv)13 September 2005 to 15 March 2006 (Debt 4); and
(b)whether any overpayment of PPS identified constitutes a debt to the Commonwealth; and
(c)for any debt to the Commonwealth identified:
(i)whether any debt owed to the Commonwealth is recoverable in part or in full; and, if so
(ii)whether a penalty ought to be applied (and recovered)?
RELEVANT LEGISLATIVE FRAMEWORK
Parenting Payment
Section 503 of the Social Security Act 1991 (Cth) (herein referred to as the “Act”), sets out how to determine the rate of Parenting Payment for a person:
503 How to work out a person’s parenting payment rate
A person’s parenting payment rate is worked out using:
(a) if the person is not a member of a couple—the Pension PP (Single) Rate Calculator at the end of section 1068A (see Part 3.6A); …
Section 1068A of the Act sets out various Modules which step out components of the calculation which form a person’s Parenting Payment rate. Of note is Module E, which states that an individual’s ordinary income is worked out on a yearly basis in order to determine the effect of the person’s ordinary income on the person’s maximum rate of payment.
Of relevance to the present application, section 1072 of the Act provides:
1072 General meaning of ordinary income
A reference in this Act to a person’s ordinary income for a period is a reference to the person’s gross ordinary income from all sources for the period calculated without any reduction, other than a reduction under Division 1A.
Note 1: For ordinary income see subsection 8(1). …
Relevantly, subsection 8(1) of the Act provides the following definition of income:
… income, in relation to a person, means:
(a) an income amount earned, derived or received by the person for the person’s own use or benefit; or
(b) a periodical payment by way of gift or allowance; or
(c) a periodical benefit by way of gift or allowance;
but does not include an amount that is excluded under subsection (4), (5) or (8).
Note 1: See also sections 1074 and 1075 (business income), Division 1B of Part 3.10 (income from financial assets (including income streams (short term) and certain income streams (long term)), Division 1C of Part 3.10 (income from income streams not covered by Division 1B of Part 3.10), section 1099F (exempt bond amount does not count as income) and section 1099K (refunded amount does not count as income).
Note 2: Where a person or a person’s partner has disposed of income, the person’s income may be taken to include the amount which has been disposed of—see sections 1106-1112.
Note 3: Income is equivalent to ordinary income plus maintenance income.
[Bolding in original]
Subsection 8(2) of the Act stipulates that an income amount earned, derived or received is a reference to income earned, derived or received by any means from any source within or outside of Australia.
Relevant to the present application are sections 1073B and 1073C of the Act, which came into effect from 20 September 2003[25]. The Tribunal notes there is a brief period at the commencement of the period for Debt 1 (that is, for the period of 15 July 2003 to 19 September 2003) where these provisions were not in force. However, sections 1073B and 1073C of the Act were in force for the entire periods of Debt 2, Debt 3 and Debt 4.
[25] Refer to Family and Community Services Legislation Amendment (Australians Working Together and other 2001Section 1073B of the Act is relevant to this application, as it relates to the daily attribution of employment income, and provides:
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
(c) the person has not reached pension age; 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.
Section 1073C is relevant to this application, as it relates to fortnightly or yearly expression of attributed employment income, it provides:
1073C Fortnightly or yearly expression of attributed employment income
If, in accordance with the operation of section 1073B, a person is taken to earn, derive or receive a particular amount of employment income on each day in an instalment period:
(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.
Section 1228B of the Act applies a 10% penalty for understatement of income, it provides:
1228B Additional 10% penalty for understatement etc. of income
(1) An amount by way of penalty is added to a debt due to the Commonwealth under this Chapter by a person in relation to a social security payment if:
(a) at the time the payment was made, the person:
(i) had attained the minimum age for youth allowance as defined by section 543A; and
(ii) had not reached pension age; and
Note: For pension age see subsections 23(5A), (5B), (5C) and (5D).
(b) the payment was:
(i) a social security benefit; or
(ii) a disability support pension; or
(iii) a wife pension; or
(iv) a widow B pension; or
(v) a pension PP (single); and
(c) the debt arose wholly or partly because the person had:
(i) refused or failed to provide information in relation to the person’s income from personal exertion; or
(ii) knowingly or recklessly provided false or misleading information in relation to the person’s income from personal exertion;
when required, under a provision of the social security law, to provide information in relation to the person’s income from personal exertion.
Note: For income from personal exertion see subsection 8(1).
(2) The amount added by way of penalty is an amount equal to 10% of so much of the debt as arose because the person refused or failed to provide the information or provided the false or misleading information.
(2A) To avoid doubt, the amount added by way of penalty is part of the debt.
(3) An amount worked out under subsection (2) must be rounded down to the nearest 5 cents.
(4) This section does not apply if the Secretary is satisfied that the person had a reasonable excuse for refusing or failing to provide the information.
(5) This section does not apply in relation to a debt due to the Commonwealth under section 1229C.
Debts
The following paragraphs outline relevant legislative provisions which apply to debts incurred resulting from a lack of qualification for a payment, or an overpayment. A debt pursuant to subsection 1223(1) of the Act is incurred when:
1223 Debts arising from lack of qualification, overpayment etc.
(1) Subject to this section, if:
(a) a social security payment is made; and
(b) a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit;
the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.
Writing off a debt
Section 1236 of the Act provides that the Secretary may write off a debt:
1236 Secretary may write off debt
(1) Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.
(1A) The Secretary may decide to write off a debt under subsection (1) if, and only if:
(a) the debt is irrecoverable at law; or
(b) the debtor has no capacity to repay the debt; or
(c) the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d) it is not cost effective for the Commonwealth to take action to recover the debt.
(1B) For the purposes of paragraph (1A)(a), a debt is taken to be irrecoverable at law if, and only if:
(b) there is no proof of the debt capable of sustaining legal proceedings for its recovery; or
(c) the debtor is discharged from bankruptcy and the debt was incurred before the debtor became bankrupt and was not incurred by fraud; or
(d) the debtor has died leaving no estate or insufficient funds in the debtor’s estate to repay the debt.
(1C) For the purposes of paragraph (1A)(b), if a debt is recoverable by means of:
(a) deductions from the debtor’s social security payment; or
(b) deductions under section 84 of the A New Tax System (Family Assistance) (Administration) Act 1999; or
(c) setting off under section 84A of that Act;
the debtor is taken to have a capacity to repay the debt unless recovery by those means would result in the debtor being in severe financial hardship.
(2) A decision made under subsection (1) takes effect:
(a) if no day is specified in the decision—on the day on which the decision is made; or
(b) if a day is specified in the decision—on the day so specified (whether that day is before, after or on the day on which the decision is made).
(3) Nothing in this section prevents anything being done at any time to recover a debt that has been written off under this section.
Sole administrative error
Section 1237A of the Act provides that:
1237A Waiver of debt arising from error
Administrative error
(1) Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.
Note: Subsection (1) does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor).
Special circumstances
Section 1237AAD of the Act provides that:
1237AAD Waiver in special circumstances
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a) the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii) failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and
(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c) it is more appropriate to waive than to write off the debt or part of the debt.
Relevant notice
Section 68(2) of the Administration Act, provides the following:
68 Person receiving social security payment or holding concession card
…
(2) The Secretary may give a person to whom this subsection applies a notice that requires the person to do any or all of the following:
(a) inform the Department if:
(i) a specified event or change of circumstances occurs; or
(ii) the person becomes aware that a specified event or change of circumstances is likely to occur;
(b) give the Department one or more statements about a matter that might affect the payment to the person of the social security payment;
…
Section 100(1) of the Administration Act provides that:
100 Automatic rate reduction—recipient not complying with subsection
68(2) notice
(1) Subject to subsection (2), if:
(a) a person who is receiving a social security payment is given a notice under subsection 68(2); and
(b) the notice requires the person to inform the Department of the occurrence of an event or change of circumstances within a specified period (the notification period); and
(c) the event or change of circumstances occurs; and
(d) the person does not inform the Department of the occurrence of the event or change of circumstances within the notification period in accordance with the notice; and
(e) because of the occurrence of the event or change of circumstances, the rate of the social security payment is to be reduced;
the social security payment becomes payable to the person at the reduced rate on the day on which the event or change of circumstances occurs.
[Bolding in original]
Therefore, in circumstances where a person is in receipt of a social security payment and is given notice pursuant to section 68(2) of the Administration Act by the Agency, and there is a change in the person’s circumstances and the person does not inform the Agency, the social security payment becomes payable to that person at the reduced rate on the day on which the change of circumstance occurs.
CONSIDERATION
The application was heard in Brisbane on 7 February 2022, with the Applicant (who was self-represented) and assisted by a support person, Mr Robert Afflick. The Respondent was represented by Mr Stephen Lloyd SC, who was instructed by Mr Karwan Eskerie of Sparke Helmore Lawyers. Also present for the Respondent were Ms Hannah Cook-Tonkin (Lawyer, Department of Social Services), Ms Amanda Robertson (Director, Department of Social Services), Mr James Larcombe (Principal Government Lawyer, Services Australia) and Ms Maleah Underhill (Senior Government Lawyer, Services Australia). All parties appeared before the Tribunal via Microsoft Teams.
The Tribunal has considered oral submissions made by the Applicant and Respondent, in addition to submitted written evidence, as outlined in the Exhibit Register (within Annexure 1 at the end of these reasons).
As the Applicant was self-represented, the Tribunal varied the usual order of proceedings, so that the Applicant had the benefit of hearing the Respondent’s opening submissions first, after which she was provided with an opportunity to provide her opening submissions to the Tribunal. Following cross-examination of the Applicant, the Tribunal provided the Applicant with an opportunity to clarify any of the evidence which she gave during the course of the hearing.
At the conclusion of the hearing on 7 February 2022, in light of issues which arose during the course of the hearing with respect to (1) the Respondent seeking to further revise debt calculations[26], and (2) the Applicant’s evidence with respect to not receiving reported earnings of her employer which she claimed she was able to verify with bank statements[27]; the Tribunal issued a direction seeking written closing submissions or further materials from the Applicant (due on 21 February 2022), written closing submissions from the Respondent (due on 7 March 2022), and provided the Applicant with an opportunity to respond in reply (due on 21 March 2022).
[26] Transcript 7 February 2022, page 16, lines 6 to 13.
[27] Transcript 7 February 2022, page 30, lines 14 to 34.
Was the Applicant overpaid PPS in excess of her entitlement for the relevant debt periods?
The first issue for the Tribunal to determine with respect to this application, is whether the Applicant was overpaid PPS in excess of her entitlement for the relevant debt periods, being:
(i)12 August 2003 to 8 March 2004 (Debt 1);
(ii)17 May 2004 to 9 August 2004 (Debt 2);
(iii)10 August 2004 to 24 January 2005 (Debt 3); and
(iv)13 September 2005 to 15 March 2006 (Debt 4).
The Tribunal is satisfied the Applicant had been provided with appropriate notice pursuant to section 68(2) of the Act, informing the Applicant of the importance of updating her income with the Agency with respect to changes in her employment status in a letter sent to the Applicant on 31 January 2003[28], observing the Applicant did receive numerous letters of this nature throughout the relevant debt periods[29]. The Applicant accepted that she had to notify the Agency of changes in her employment and income, the Tribunal refers to the following exchange during cross-examination[30]:
[28] Exhibit R4, Annexure A.
[29] Exhibit R3, T22, pages 914 to 916, 937 to 939, 991 to 992; and 998 to 1000; Exhibit R4, Annexure A.
[30] Transcript 7 February 2022, page 25, lines 37 to 47; page 26, lines 1 to 9.
“Respondent: Ms Judd, in my opening I took the court - the tribunal - to Annexure A, which is a letter, of 31 January 2003, which is - in the bundle of materials, that came with our statement of facts, issues, and contention. And it's a letter, which - amongst other things - I'm going to, just, read, a couple of bits of it, to you. 'You must tell us, within 14 days, if any of these things happen, or may happen. You can tell us, by writing to us, by phoning, or you can come in, and talk to us, at any of the offices. This is an information notice given under the social security law - - -'?
Applicant: ---And I did.
Respondent: And you understood, that, that letter required you to tell Centrelink if you started work, or recommenced work?
Applicant: ---Yes, I do.
Respondent: And you understood, that, if you - if your income increased, you had to tell them?
Applicant: ---Yes, I do.
…
Respondent: So, really, at all times, since, at least, 31 January 2003, you were aware of that. Is that fair enough?
Applicant: ---I was aware, that you have to notify Centrelink…”
The Tribunal will now review the evidence with respect to the Applicant’s employment during the relevant debt periods, and whether any overpayment arises with respect to the Applicant’s entitlement to PPS.
There are historical records before the Tribunal from the Applicant’s previous employers confirming she had received income during the relevant debt periods. The income received by the Applicant was greater than that which was declared to the Agency, with the Applicant in turn receiving PPS in excess of her entitlement in the relevant debt periods.
The Tribunal is satisfied these historical records from the Applicant’s past employers represent the best evidence available with respect to the income earned by the Applicant during the relevant debt periods, acknowledging that a significant period of time has since passed when the Applicant was formerly employed with respect to these historic debts.
Was the Applicant overpaid PPS in excess of her entitlement for the period of 12 August 2003 to 8 March 2004 (Debt 1)?
Demonstration Plus
The Applicant’s former employer, Demonstration Plus, confirmed with the Agency in writing that the Applicant had commenced work on 15 July 2003, on a casual basis, with varied hours in a form dated 15 March 2004. The Agency raised a debt on 15 July 2004, several months following the receipt of this information[31]. The Applicant’s former employer provided the following payroll information with respect to her earnings during her period of employment[32]:
[31] Exhibit R3, T22, page 966.
[32] Exhibit R1, T5, pages 166 to 171.
Dates worked Date payment received Gross income Total allowances (not considered income) Total allowances (considered income) Gross income less net allowances Start End Not stated 4/08/2003 $26.96 $26.96 Not stated 18/08/2003 $126.96 $126.96 Not stated 1/09/2003 $317.40 $317.40 Not stated 15/09/2003 $253.92 $253.92 Not stated 29/09/2003 $410.50 $410.50 Not stated 13/10/2003 $476.18 - $10.00 $466.18 Not stated 27/10/2003 $16.42 $16.42 Not stated 10/11/2003 $525.44 $525.44 Not stated 24/11/2003 $541.86 $541.86 Not stated 8/12/2003 $722.48 $722.48 Not stated 22/12/2003 $394.08 $394.08 Not stated 2/02/2004 $197.04 $197.04 Not stated 16/02/2004 $492.60 $492.60 Not stated 1/03/2004 $492.60 $492.60 $4,994.44 - $10.00 $4,984.44
As a general point with respect to the treatment of allowances received by the Applicant, the Tribunal refers to the Social Security Guide (here in referred to as the “Guide”).
Whilst the Tribunal is not bound to strictly apply the Guide, the Tribunal refers to His Honour Brennan J (as His Honour was then) in the decision of Drake and Minister for Immigration and Ethnic Affairs (No 2)[33], where he stated the following practice in relation to the Tribunal applying Ministerial policy:
In my view, the Tribunal, being entitled to determine its own practice in respect of the part which Ministerial policy plays in the making of Tribunal decisions, should adopt the following practice:
When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to Parliamentary scrutiny.
[33] (1979) 2 ALD 634 at 645.
In view of the approach outlined above, the Tribunal will take into account the established practices set out in the relevant sections of the Guide, as consistent application of the relevant policies is desirable unless cogent reasons exist not to.
The Guide at 4.3.2.10 states that with respect to payments received for reimbursement of expenses, some amounts are not considered to be income if they are paid to a person to reimburse them for the cost of specific expenses (e.g. work related) they have incurred[34]. In these situations, the person does not gain additional benefit from the payment. If a person receives more than the amount of the expenses they actually incurred, any extra is considered to be income.
[34] See 4.3.2.10 Income received to cover specific expenses | Social Security Guide (dss.gov.au).
With respect to allowances paid by employers, the Guide states that allowances received from an employer by an employee for work related expenses associated with their employment are not considered to be income. Where an employer pays more than the amount of the expenses actually incurred by an employee, the extra is considered to be income.
The Tribunal has reviewed the allowances received by the Applicant from her employment with Demonstration Plus and made an adjustment for one allowance the Applicant received in their pay of 13 October 2003, in the form of a travel allowance (of $10.00)[35].
[35] Exhibit R1, T5, page 170.
During the course of the hearing, the Applicant was questioned as to whether the payroll information provided by Demonstration Plus accurately recorded her gross wages. During cross-examination, the Applicant accepted that net wages as reported by her employer aligned with her bank statements at the time[36].
[36] Transcript 7 February 2022, page 30, lines 25 to 27.
In evidence, the Applicant stated that she did not receive her final payment of $492.60 on 1 March 2004, and that she had verified this from her bank statement (despite not submitting such evidence to the Tribunal, nor previously to the Respondent)[37]. The Applicant was provided with an opportunity by the Tribunal to substantiate this claim in written closing submissions, but no such corroborative evidence was received.
[37] Transcript 7 February 2022, page 30, lines 14 to 19.
The Tribunal observes that with respect to the Applicant’s employment income at Demonstration Plus, the Applicant failed to declare any income to the Agency, apart from $60.00 which she reported on 25 February 2004, as outlined in an Agency report, with the reference “NVE” (for non-verified earnings)[38].
Margaret Woodcroft Cheesecakes
[38] Exhibit R1, T12, page 295.
The Applicant’s former employer, Margaret Woodcroft Cheesecakes, provided information to the Agency that she had commenced work on 27 October 2003 and worked on a casual basis with varied hours in a form dated 22 March 2004. The Tribunal observes the Applicant only worked for this former employer for a brief period, with the Applicant’s former employer providing the following payroll information with respect to her earnings[39]:
[39] Exhibit R1, T6, pages 172 to 174.
Dates worked Date payment received Gross income Total allowances (not considered income) Total allowances (considered income) Gross income less net allowances Start End Not stated 31/10/2003 $ 217.72 $ 217.72 Not stated 7/11/2003 $ 272.14 $ 272.14 $ 489.86 $ 489.86
During the course of the hearing, the Applicant was questioned as to why she did not declare the above income from her employer, with the Applicant stating that she, “… didn’t even think it was relevant…”, as she had had only briefly worked for this employer[40].
[40] Transcript 7 February 2022, page 31, lines 24 to 31.
Clearly, the Applicant ought to have declared her income from both Demonstration Plus and Margaret Woodcroft Cheesecakes to the Agency, as she had been notified of the importance of doing so, as the income which she earned from these employers would have impacted her entitlement to social security payments she was in receipt of at the time.
The Tribunal accepts that a significant period of time has passed since the Applicant worked for Demonstration Plus and Margaret Woodcroft Cheesecakes; however, the evidence before the Tribunal from the Applicant’s former employers clearly indicates she had received income which was not declared to the Agency which, in turn, affected her entitlement to PPS which she had received.
With respect to calculating the amount of overpaid PPS received by the Applicant, the Tribunal observes the Respondent has submitted revised calculations in closing submissions with respect to Debt 1[41].
[41] Exhibit R5, Annexure E.
As outlined in earlier reasons of this decision, with respect to the calculation of Debt 1, sections 1073B and 1073C of the Act came into effect from 20 September 2003. This, in turn, means that these sections were not in force at the commencement of the period of Debt 1 (that is, for the period up to 19 September 2003).
With respect to the calculation of Debt 1, the Respondent has contended[42]:
63. As the High Court observed in Harris[43], in determining a person’s income, it is necessary to have regard to their sources of income at the relevant time and to find out what each of those sources would yield over the period of a year assuming the current yields from those sources were to continue. In cases where a person is employed intermittently, the Court observed it may be appropriate in some cases to treat the intermittent work as a source of income and to take an average of earnings over a period as the yield from that source. It also observed that the respondent may administratively adopt an appropriate period in respect of which an average is calculated as a fair method of ascertaining a person’s ordinary income at a particular time[44].
64. Following the introduction of Part 3.10, Division 1AA (discussed above at [49]-[54]) facilitated the recognition and apportionment of income in a manner that was consistent with the existing approach from cases such as Harris and Rolley[45]. In each case, the respondent (or Tribunal) has regard to the available evidence and must reach an evaluative factual conclusion as to when income was “earned, derived or received” before apportioning it in a manner that is consistent with the SSA as it applied from time to time.
65. Each case must be approached by reference to the specific evidence available to the respondent (or Tribunal). In the present case, the applicant was receiving periodic employment income in respect of payroll periods that varied but were generally between 1 - 2 weeks. It is open to the Tribunal to infer from the payroll materials that her pay was derived as a result of work which was referable to a particular payroll period adopted by each employer. She was not, for example, paid large lump sums based on project-related work.
66. As the respondent observed during the hearing, and as was noted at SFIC [49]-[50], the Multical calculations above at [60]-[62] recognise the applicant’s ordinary income in the instalment period in which that income was first “earned, derived or received” based upon the information disclosed in the documents identified above at [6]-[18]. In circumstances where the available evidence does not permit the respondent to identify the particular date on which employment income was earned, he has taken the approach of recognising the income at the point at which it was first received by the applicant (by reference to the relevant pay date).
67. The principal difference between the Multical calculations previously relied upon by the respondent before AAT1 and those identified above at [60]-[62] is evident from a comparison of the Verified Earnings Details sheet in the Casual Earnings Apportionment table of the Multical tools at Annexure D and Annexure E, with those at T11-13. In identifying when income was “earned, derived or received” based upon the information disclosed in the primary documents, the respondent previously recognised income by inferring that it was earned or derived over the course of the payslip period in question.
68. Both of these approaches are consistent with the definition of “ordinary income” above at [44] (and its use of the words “earned, derived or received”), the methodology for the calculation of PPS described above at [35]-[42] and the provisions referred to above [49]-[54] (insofar as they applied to the relevant debts). That is, both approaches are legally correct. However, the respondent considers that the approach adopted in the revised Multical calculations is administratively preferable in the circumstances of the applicant’s case. It has the advantage in this case of permitting the respondent to use identified pay dates as the basis for the relevant calculations…
[42] Exhibit R5, pages 18 to 19, paragraphs 63 to 68.
[43] Harris v Director-General of Social Security (1985) 7 ALD 278 at 282.
[44] Harris v Director-General of Social Security (1985) 7 ALD 278 at 283.
[45] Secretary to the Department of Family and Community Services v Rolley (2000) 75 ALR 4.
The Tribunal is of the view that in circumstances where:
(i)the best available evidence with respect to the Applicant’s earnings from her employment with Demonstration Plus and Margaret Woodcroft Cheesecakes does not definitively state the period the Applicant worked for each payment she received;
(ii)the Tribunal is unable to ascertain with certainty the periods of employment in which the Applicant’s receipt of income relates;
(iii)the statutory time period for the Applicant’s past employers to keep records of the Applicant’s employment has expired; and
(iv)given the brief period of time between the commencement of the relevant debt period and the operation of the revised statutory scheme which came into effect on 20 September 2003;
the fairest method of ascertaining the rate of income at a particular time, is to recognise the Applicant’s income at the point at which it was first received by the Applicant with reference to the relevant date of payment as evidenced by the employment records of the Applicant before the Tribunal. That is, the Tribunal agrees with the position of the Respondent as outlined in their closing submissions, transposed by the Tribunal in the above reasons.
In view of the agreed basis upon which the Applicant’s income will be recognised, the Tribunal has reviewed and agreed the revised calculations of the Respondent[46], and notes the:
(a)commencement period for Debt 1 is now 26 August 2003, this being the first fortnight where the Applicant's apportioned earnings received from Demonstration Plus were above the income free threshold[47];
(b)fortnightly apportioned income of the Applicant for the period ending 20 October 2003 has been reduced to account for the $10.00 in travel allowance received by the Applicant[48]; and
(c)Applicant received the maximum rate of PPS for the fortnights ending 12 January 2004 and 26 January 2004 as the Applicant received no apportioned income in these fortnight periods, this, in turn, resulted in the Applicant accruing working credits which have been accounted for in the revised calculations by the Respondent[49].
[46] Exhibit R5, Annexure E.
[47] Exhibit R5, Annexure E, page 2.
[48] Exhibit R5, Annexure E, pages 2 and 6.
[49] Exhibit R5, Annexure E, page 3.
Accordingly, the Tribunal finds that the Applicant was overpaid PPS of $1,159.51 for the period of 26 August 2003 to 8 March 2004.
Was the Applicant overpaid PPS in excess of her entitlement for the period of 17 May 2004 to 9 August 2004 (Debt 2)?
Blue Care
The Applicant’s former employer, Blue Care, confirmed with the Agency that she had commenced work on 17 May 2004, and worked on average 24 hours per week, with her employment ceasing on 21 January 2005, in a form dated 6 June 2005. The Applicant’s former employer provided the following payroll information with respect to her earnings during her period of employment, observing that the Tribunal has adjusted the Applicant’s earnings for allowances received during the period as reported by Blue Care (in line with earlier reasons regarding the treatment of allowances received)[50]:
[50] Exhibit R1, T7, pages 175 to 180.
Dates worked Date payment received Gross income Total allowances (not considered income) Total allowances (considered income) Gross income less net allowances Start End 17/05/2004 24/05/2004 27/05/2004 $ 639.96 $ 2.22 $ 637.74 25/05/2004 7/06/2004 10/06/2004 $ 920.56 $ 3.33 $ 917.23 8/06/2004 21/06/2004 24/06/2004 $ 1,023.31 $ 377.14 $ 646.17 22/06/2004 5/07/2004 8/07/2004 $ 1,129.77 $ 104.13 $ 1,025.64 6/07/2004 19/07/2004 22/07/2004 $ 1,155.06 $ 180.53 $ 974.53 20/07/2004 2/08/2004 5/08/2004 $ 1,052.31 $ 133.33 $ 918.98 3/08/2004 16/08/2004 19/08/2004 $ 652.28 $ 2.59 $ 649.69 17/08/2004 30/08/2004 2/09/2004 $ 669.38 $ 2.59 $ 666.79 31/08/2004 13/09/2004 16/09/2004 $ 971.30 $ 355.82 $ 615.48 14/09/2004 27/09/2004 30/09/2004 $ 896.29 $ 2.96 $ 893.33 28/09/2004 11/10/2004 14/10/2004 $ 703.17 $ 96.22 $ 606.95 12/10/2004 25/10/2004 28/10/2004 $ 935.13 $ 3.33 $ 931.80 26/10/2004 8/11/2004 11/11/2004 $ 1,222.29 $ 140.90 $ 1,081.39 9/11/2004 22/11/2004 25/11/2004 $ 1,056.85 $ 167.80 $ 889.05 23/11/2004 6/12/2004 9/12/2004 $ 740.31 $ 9.40 $ 730.91 7/12/2004 20/12/2004 23/12/2004 $ 1,264.71 $ 271.78 $ 992.93 21/12/2004 3/01/2005 6/01/2005 $ 955.10 $ 9.40 $ 945.70 4/01/2005 17/01/2005 20/01/2005 $ 510.63 $ 151.58 $ 359.05 18/01/2005 31/01/2005 3/02/2005 $ 204.80 $ 204.80 $ - $ 16,703.21 $ 2,219.85 $ 14,483.36
During the course of the hearing, the Applicant was questioned as to whether her former employer’s records at Blue Care were an accurate record of her gross employment income, and after some questioning, ultimately accepted that the gross income reported by Blue Care was accurate[51].
[51] Transcript 7 February 2022, page 35, lines 1 to 18.
“Senior Member: So, the question, from the respondent, to you, was, whether or not the gross payment amounts, in that particular column, were accurate. And your evidence is that you don't agree, that, that was accurate reflection of what your earnings were?
Applicant: ---No. No. They are. Yes. But mine are higher - - -
Senior Member: They are. So, you now accept - - -?
Applicant: ---Yes. Mine (indistinct ) - - -
SeniorMember: So, you now accept - I'm going to put this question to you, from the tribunal - you now accept that the gross payment amount, listed for those periods, for the dates worked, is accurate?
Applicant: ---Yes. But my allowances have to be deducted from those amounts.
Senior Member: I accept that?
Applicant: ---And she's written down the allowances beside it.
Senior Member: I accept that?
Applicant: ---Yes.
Senior Member: I accept that. Thank you?
Applicant: ---I thought you were talking about something else. Sorry about that.”
During the relevant period that relates to Debt 2, being 17 May 2004 to 9 August 2004, the Tribunal finds the Applicant earned the following income from Blue Care:
Dates worked Date payment received Gross income Total allowances (not considered income) Total allowances (considered income) Gross income less net allowances Start End 17/05/2004 24/05/2004 27/05/2004 $ 639.96 $ 2.22 $ 637.74 25/05/2004 7/06/2004 10/06/2004 $ 920.56 $ 3.33 $ 917.23 8/06/2004 21/06/2004 24/06/2004 $ 1,023.31 $ 377.14 $ 646.17 22/06/2004 5/07/2004 8/07/2004 $ 1,129.77 $ 104.13 $ 1,025.64 6/07/2004 19/07/2004 22/07/2004 $ 1,155.06 $ 180.53 $ 974.53 20/07/2004 2/08/2004 5/08/2004 $ 1,052.31 $ 133.33 $ 918.98 3/08/2004 16/08/2004 19/08/2004 $ 652.25 $ 2.59 $ 649.66 $ 6,573.22 $ 803.27 $ 5,769.95
The income of the Applicant has been reduced by the Tribunal to account for allowances she received during each pay period.
During the relevant debt period, the Applicant declared earnings of $300 on 28 June 2004; $647.77 on 12 July 2004; $460 on 26 July 2004; and $420 on 9 August 2004, totalling $1,827.77 during the debt period, which is significantly less than the Applicant’s actual earnings during the debt period[52].
[52] Exhibit R1, T12, pages 293 to 295.
The Applicant received PPS from 9 March 2004 through to the end of the debt period, being 9 August 2004. During the period of 9 March 2004 to 16 May 2004, there is no evidence before the Tribunal that the Applicant earned income whilst she was in receipt of the full PPS[53].
[53] Exhibit R4, Annexure D, pages 10 and 11.
The Tribunal notes that with respect to the employment records of Blue Care, the Respondent submitted that[54]:
The periods of the “Dates Worked” on the Employment Declaration questionnaire response varied and the “Date Paid” generally post-dated the end of each period by 3 days. The first period was an 8-day period. Subsequent periods were generally 14-day periods. The first “Dates Worked” period commenced on 17 May 2004 and the last period concluded on 31 January 2005…
[54] Exhibit R5, page 4, paragraph 14.
The Tribunal observes that in the Respondent’s original Multical calculations, the Applicant’s income was apportioned for the Agency’s pay period fortnights, noting the historical employment records of Blue Care state the period worked by the Applicant for the gross payment she received[55]. In the Respondent’s revised Multical calculations, the income of the Applicant is recognised in the Agency’s pay period fortnight in which it was first received[56].
[55] Exhibit R1, T12, page 223.
[56] Exhibit R4, Annexure D, page 13.
The Respondent has contended that, for the purposes of this application before the Tribunal, the calculations have been performed to take into account the Applicant’s ordinary income in the instalment period in which it was first earned, derived or received based upon the information disclosed by the Applicant’s former employers[57].
[57] Exhibit R4, page 8, paragraph 49.
With respect to this particular debt, the historical employment records of the Applicant’s former employer Blue Care, clearly state the periods the Applicant worked with respect to the payments she received[58].
[58] Exhibit R1, T7, page 176, repeated at T7, page 179.
The Respondent has contended that, in circumstances where the available evidence does not permit the Respondent to identify the particular date on which employment income was earned, they have taken the approach of recognising the income at the point at which it was first received by the Applicant (by reference to the relevant pay date)[59].
[59] Exhibit R5, page 19, paragraph 66.
Regarding the calculation of this debt, respectfully, the Tribunal could find no basis in the Respondent’s submissions as to why the income of the Applicant was taken into account on the day it was first received in the corresponding Agency pay period fortnight, and not apportioned by the number of days in the pay period the income was earned, pursuant to section 1073B(1)(d) of the Act which was in force at the time.
As transposed in earlier reasons and repeated here, section 1073B(1)(d) of the Act provides:
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
(c) the person has not reached pension age; 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.
[Tribunal bold, underline for emphasis]
On 10 February 2022, the Tribunal requested the underpinning calculations the Respondent performed with respect to the directions of the SSCSD of the Tribunal, in its decision of 18 January 2021, summarised in the Respondent’s Statement of Issues, Facts and Contentions dated 12 November 2021[60]. The Respondent provided these calculations to the Tribunal and the Applicant on 17 February 2022[61].
[60] Exhibit R4, page 5, paragraph 26.
[61] Exhibit R6.
The Tribunal has reviewed and agreed the revised calculations of the Respondent which were provided to the Tribunal on 17 February 2022[62], and notes that:
(a)the Applicant was entitled to the accrual of working credits in a period in which she did not earn income, being 4 May 2004 to 16 May 2004 (this was omitted in the Respondent’s original Mulical debt calculations with respect to this debt[63], but it was corrected in the Respondent’s revised calculations[64]); and
(b)the debt period commenced on 18 May 2004, as this was the first period in which the apportioned earnings of the Applicant exceeded the income free threshold[65].
[62] Exhibit R6, pages 9 to 13.
[63] Exhibit R1, T12, page 220.
[64] Exhibit R6, page 10.
[65] Exhibit R6, page 10.
Accordingly, the Tribunal finds that the Applicant was overpaid PPS of $1,554.95 for the period of 18 May 2004 to 9 August 2004.
Was the Applicant overpaid PPS in excess of her entitlement for the period of 10 August 2004 to 24 January 2005 (Debt 3)?
During the relevant debt period, the Tribunal finds the Applicant earned the following income from Blue Care (observing the Tribunal’s earlier reasons equally apply to this debt period with respect to the Applicant’s evidence regarding income earned from her past employment with Blue Care):
Dates worked Date payment received Gross income Total allowances (not considered income) Total allowances (considered income) Gross income less net allowances Start End 3/08/2004 16/08/2004 19/08/2004 $ 652.28 $ 2.59 $ 649.69 17/08/2004 30/08/2004 2/09/2004 $ 669.38 $ 2.59 $ 666.79 31/08/2004 13/09/2004 16/08/2004 $ 971.30 $ 355.82 $ 615.48 14/09/2004 27/09/2004 30/09/2004 $ 896.29 $ 2.96 $ 893.33 28/09/2004 11/10/2004 14/10/2004 $ 703.17 $ 96.22 $ 606.95 12/10/2004 25/10/2004 28/10/2004 $ 935.13 $ 3.33 $ 931.80 26/10/2004 8/11/2004 11/11/2004 $ 1,222.29 $ 140.90 $ 1,081.39 9/11/2004 22/11/2004 25/11/2004 $ 1,056.85 $ 167.80 $ 889.05 23/11/2004 6/12/2004 9/12/2004 $ 740.31 $ 9.40 $ 730.91 7/12/2004 20/12/2004 23/12/2004 $ 1,264.71 $ 271.78 $ 992.93 21/12/2004 3/01/2005 6/01/2005 $ 955.10 $ 9.40 $ 945.70 4/01/2005 17/01/2005 20/01/2005 $ 510.63 $ 151.58 $ 359.05 18/01/2005 31/01/2005 3/02/2005 $ 204.80 $ 204.80 $ - $ 10,782.24 $ 1,419.17 $ 9,363.07
During the relevant debt period, the Applicant declared earnings which were significantly less than the Applicant’s actual earnings during the relevant debt period, the Tribunal refers[66]:
[66] Exhibit R1, T12, pages 293 to 295.
(a)$561 on 23 August 2004;
(b)$450 on 6 September 2004;
(c)$400 on 20 September 2004;
(d)$260 on 4 October 2004;
(e)$260 on 18 October 2004;
(f)$260 on 1 November 2004;
(g)$260 on 15 November 2004;
(h)$300 on 29 November 2004;
(i)$300 on 13 December 2004;
(j)$300 on 27 December 2004;
(k)$300 on 10 January 2005; and
(l)$200 on 24 January 2005.
As with Debt 2, the Tribunal observes that in the Respondent’s original Multical calculations, the Applicant’s income was apportioned for the Agency’s pay period fortnights based on the dates the Applicant earned income, as stipulated in Blue Care’s forms provided to the Respondent[67]. Again, the Tribunal notes the historical employment records of Blue Care state the period worked by the Applicant for the gross payment she received[68].
[67] Exhibit R1, T12, page 253.
[68] Exhibit R1, T7, page 176, repeated at T7, page 179.
With respect to confirming the amount of overpaid PPS, the Tribunal makes the same findings as were made regarding the calculation of Debt 2, that:
(a)the historical employment records of the Applicant’s former employer Blue Care, clearly state the periods the Applicant worked with respect to the payments she received; and
(b)the income of the Applicant is therefore able to be apportioned by the number of days in the pay period the income was earned, pursuant to section 1073B(1)(d) of the Act.
In view of this, the Tribunal has reviewed and agreed the Respondent’s original Mulitcal calculations regarding Debt 3, and notes[69]:
(a)with respect to the overlap in the earning period of 3 August 2004 to 16 August 2004 as between Debt 2 and Debt 3, in its review of the calculations, it has found the Respondent has correctly apportioned income to ensure there was no double counting of the Applicant’s earnings; and
(b)the Applicant was earning income prior to the relevant debt period, and through the debt period, and, as such, did not accrue working credits.
[69] Exhibit R1, T12, pages 248 to 254.
Accordingly, the Tribunal finds that the Applicant was overpaid PPS of $2,074.91 for the period of 10 August 2004 to 24 January 2005.
Was the Applicant overpaid PPS in excess of her entitlement for the period of 13 September 2005 to 15 March 2006 (Debt 4)?
Secondhand Centre
The Applicant’s former employer, Secondhand Centre, confirmed with the Agency in a form received by the Agency on 11 December 2007 that the Applicant had commenced work on 1 September 2005, and she worked 38 hours per week with varied hours, and that she had ceased work on 14 October 2007[70]. The Tribunal observes the Agency subsequently raised a debt on 12 December 2007[71]. The Applicant’s former employer provided the following payroll information with respect to her earnings during her period of employment[72]:
[70] Exhibit R1, T8, pages 181 to 188.
[71] Exhibit R3, T22, page 1034.
[72] Exhibit R1, T8, pages 183 to 188.
Dates worked Date payment received Gross income Total allowances (not considered income) Total allowances (considered income) Gross income less net allowances Start End Not stated 2/09/2005 $229.12 $229.12 Not stated 9/09/2005 $560.74 $560.74 Not stated 16/09/2005 $560.74 $560.74 Not stated 23/09/2005 $560.74 $560.74 Not stated 30/09/2005 $718.26 $718.26 Not stated 7/10/2005 $560.74 $560.74 Not stated 14/10/2005 $560.74 $560.74 Not stated 21/10/2005 $718.26 $718.26 Not stated 28/10/2005 $560.74 $560.74 Not stated 4/11/2005 $718.26 $718.26 Not stated 11/11/2005 $718.26 $718.26 Not stated 18/11/2005 $560.74 $560.74 Not stated 25/11/2005 $560.74 $560.74 Not stated 2/12/2005 $718.26 $718.26 Not stated 16/12/2005 $718.26 $718.26 Not stated 23/12/2005 $544.30 $544.30 Not stated 30/12/2005 $544.30 $544.30 Not stated 6/01/2006 $718.26 $718.26 Not stated 13/01/2006 $718.26 $718.26 Not stated 20/01/2006 $718.26 $718.26 Not stated 27/01/2006 $544.30 $544.30 Not stated 3/02/2006 $718.26 $718.26 Not stated 10/02/2006 $718.26 $718.26 Not stated 17/02/2006 $718.26 $718.26 Not stated 24/02/2006 $718.26 $718.26 Not stated 3/03/2006 $544.30 $544.30 Not stated 10/03/2006 $544.30 $544.30 Not stated 17/03/2006 $718.26 $718.26 Not stated 24/03/2006 $718.26 $718.26 Not stated 31/03/2006 $718.26 $718.26 Not stated 7/04/2006 $544.30 $544.30 Not stated 14/04/2006 $544.30 $544.30 Not stated 21/04/2006 $544.30 $544.30 Not stated 28/04/2006 $560.74 $560.74 Not stated 4/05/2006 $718.26 $718.26 Not stated 12/05/2006 $718.26 $718.26 Not stated 19/05/2006 $544.30 $544.30 Not stated 26/05/2006 $544.30 $544.30 Not stated 2/06/2006 $718.26 $718.26 Not stated 9/06/2006 $544.30 $544.30 Not stated 16/06/2006 $544.30 $544.30 Not stated 23/06/2006 $544.30 $544.30 Not stated 30/06/2006 $544.30 $544.30 $26,542.92 $26,542.92
The Applicant told the Tribunal that she was underpaid her superannuation from her employment with Secondhand Centre, which the Tribunal explained to the Applicant was a separate matter to this application. The Applicant stated that she was pursuing this matter through the Australian Taxation Office[73].
[73] Transcript 7 February 2022, page 28, lines 7 to 11.
During cross-examination, when the Applicant was questioned as to whether the records of her former employer Secondhand Centre accurately recorded her gross wages in the payroll information supplied to the Agency, the Applicant told the Tribunal that she was paid in cash and was only aware of her net earnings[74].
[74] Transcript 7 February 2022, page 29, lines 1 to 14.
In the transcript of 16 April 2008, with respect to proceedings brought against the Applicant in 2008 which led to her conviction for obtain financial advantage knowing or believing not eligible to receive (Failed to accurately declare income from employment whilst in receipt of social security benefits, namely Parenting Payment Single) the Applicant confirmed that although she worked full-time, the days which she worked were inconsistent and she would take days off[75].
[75] Exhibit R4, Annexure B, page 27 of 48.
The Tribunal notes that the payroll records of the Applicant’s former employer, Secondhand Centre, did not consistently state the period to which the Applicant’s employment income relates[76]. The hand annotated ledger submitted by the Applicant’s former employer inconsistently annotated the number of days worked in a pay period, though the majority of entries did not record the number of days worked in a pay period.
[76] Exhibit R1, T8, pages 187 and 188.
The Tribunal notes there is no evidence before it to confirm the Applicant declared any income to the Agency with respect to the entire period relating to Debt 4[77].
[77] Exhibit R1, T12, page 247.
With respect to the Applicant’s arguments regarding the accuracy of the payroll records from her previous employer (the Secondhand Centre) in the absence of corroborative evidence to the contrary, the Tribunal is of the view the payroll records of the Secondhand Centre can be relied upon with respect to the Applicant’s gross income for the purposes of calculating the Applicant’s entitlement to PPS during the relevant debt period.
The Tribunal observes the payroll records with respect to the Applicant’s reported gross income of $26,542.92 aligns with the Applicant’s PAYG Payment Summary for the 2006 financial year, which recorded the Applicant’s gross income from the Secondhand Centre as $26,543[78].
[78] Exhibit R2, T14, page 342.
Consistent with the basis for the approach the Tribunal found with respect to the calculation of Debt 1, the Tribunal is of the view that in circumstances where:
(i)the best available evidence with respect to the Applicant’s earnings from the Secondhand Centre does not definitively state the period the Applicant worked for each payment she received[79];
(ii)the Tribunal is unable to ascertain with certainty the periods of employment in which the Applicant’s receipt of income relates; and
(iii)the statutory time period for the Applicant’s past employers to keep records of the Applicant’s employment has expired;
the fairest method of ascertaining the rate of income at a particular time, is to recognise the Applicant’s income at the point at which it was first received by the Applicant with reference to the relevant date of payment as evidenced by the employment records of the Applicant before the Tribunal.
[79] Exhibit R1, T8, pages 187 and 188.
In view of the agreed basis upon which the Applicant’s income will be recognised, the Tribunal has reviewed the revised calculations of the Respondent[80], and notes:
(a)the Tribunal agrees with the Applicant’s apportioned earnings as outlined in the Agency entitlement periods for the relevant debt[81];
(b)the Respondent’s entitlement calculations omit the period commencing 27 December 2005, so the Tribunal is unable to verify the earnings used by the Respondent in this period[82];
(c)the Respondent’s entitlement calculations use income of $846.69[83] in the period commencing 7 March 2006, instead of $544.30[84]; and
(d)the Respondent has incorporated the SSCSD of the Tribunal’s direction with respect to the accrual of working credits between 23 August 2005 to 31 August 2005[85].
[80] Exhibit R4, Annexure D, pages 22 to 30.
[81] Exhibit R4, Annexure D, page 30.
[82] Exhibit R4, Annexure D, page 25.
[83] Exhibit R4, Annexure D, page 26.
[84] Exhibit R4, Annexure D, page 30.
[85] Exhibit R4, Annexure D, page 24.
Accordingly, the Tribunal finds that the Applicant was overpaid PPS for the period of 13 September 2005 to 15 March 2006 and directs the Respondent to recalculate the amount of overpayment in this period, in accordance with the above findings of the Tribunal.
Whether any overpayment of PPS identified constitutes a debt to the Commonwealth?
The Tribunal has found that the Applicant was overpaid PPS in excess of her entitlement, as follows:
(i)the Applicant was overpaid PPS of $1,159.51 for the period of 26 August 2003 to 8 March 2004 (Debt 1);
(ii)the Applicant was overpaid PPS of $1,554.95 for the period of 18 May 2004 to 9 August 2004 (Debt 2);
(iii)the Applicant was overpaid PPS of $2,074.91 for the period of 10 August 2004 to 24 January 2005 (Debt 3); and
(iv)the Applicant was overpaid PPS for the period of 13 September 2005 to 15 March 2006 and directs the Respondent to recalculate the amount of overpayment in this period (Debt 4) in accordance with this decision of the Tribunal.
As outlined in earlier paragraphs of this decision, section 1223(1) of the Act states that for debts arising from overpayment (where a social security payment has been made to a person who obtains the benefit of a payment they were not entitled to), the amount of that payment is a debt due to the Commonwealth (arising from when the person obtains the benefit of the payment).
The Tribunal has found that the amount of PPS received by the Applicant as outlined in the relevant debt periods above, was calculated on the incorrect income of the Applicant. The Tribunal finds the subsequent overpayment of PPS received by the Applicant is a legally recoverable debt due to the Commonwealth pursuant to section 1223(1) of the Act.
For the legally recoverable debts identified by the Tribunal, whether any debt owed to the Commonwealth is recoverable in part or in full?
In establishing whether the Applicant’s debts are recoverable in part or in full, the Tribunal refers to His Honour French J (as his Honour was then), in Secretary, Department of Social Security v Hales[86], where he stated:
The taxpayer is entitled to expect that in the ordinary course money paid to people which they are not entitled to receive will be recovered, albeit in a way appropriate to the circumstances which led to the overpayment and the circumstances of the persons concerned. However, the confining of a recovery regime by rigid rules, particularly in this area of the law, is likely to be productive of unfair or harsh outcomes in some of the great variety of fact situations that can arise. There are provisions in the Act which recognise that reality. They relate to the writing off and the waiver of debts otherwise due to the Commonwealth.
[86] (1998) 82 FCR 154.
As previously outlined in these reasons, there are circumstances where the recovery of outstanding debts to the Commonwealth can be either written off or waived. Relevant to the Applicant’s legally recoverable debt, the Respondent may write off or waive the debt if any of the provisions set out in sections 1236, 1237A or 1237AAD of the Act are met.
Write off debt (section 1236 of the Act)?
Section 1236 of the Act gives the Secretary the power to write off a debt for a stated period, or otherwise, if one or more criteria are met pursuant to section 1236(1A) of the Act (set out in earlier reasons of this decision).
As outlined by the Tribunal in earlier paragraphs of this decision, with respect to the original debts raised against the Applicant, the Tribunal observes the Applicant had paid the following respective balances off in full, on the following dates:
(i)Debt 1 with a balance of $999.59 on 27 July 2005[87];
(ii)Debt 2 with a balance of $1,887.63, on 17 June 2009[88];
(iii)Debt 3 with a balance of $2,074.87, on 23 July 2014[89]; and
(iv)Debt 4 with a balance of $5,746.63, on 24 January 2018[90].
[87] Exhibit R1, T13, pages 326 to 327.
[88] Exhibit R1, T12, pages 271 to 272.
[89] Exhibit R1, T12, pages 278 to 280.
[90] Exhibit R1, T11, pages 210 to 212.
Based on the Tribunal’s findings, the Tribunal observes the following changes in the value of the outstanding historical debts:
Change to Applicant's debts with Agency Previous debt balance paid in full Revised debt balance Net Change Debt 1 26 August 2003 to 8 March 2004 $ 999.59 $ 1,159.51 ($ 159.92) Debt 2 18 May 2004 to 9 August 2004 $ 1,887.63 1,554.95 $ 332.68 Debt 3 10 August 2004 to 24 January 2005 $ 2,074.87 $ 2,074.91 ($ 0.04) Debt 4 13 September 2005 to 15 March 2006 $ 5,746.63 To be recalculated by the Respondent To be determined
To the extent that there is a net increase in the value of the debts of the Applicant, the Tribunal has not been presented with evidence that the Applicant would be unable to repay the balance. The Tribunal observes the Applicant would be able to repay any net outstanding balance by way of modest withholdings, which she could negotiate with the Agency, particularly in the event her financial circumstances change significantly.
The Tribunal finds that the Applicant’s debt to the Commonwealth cannot be written off pursuant to section 1236 of the Act.
Waiver of debt arising from Administrative error (section 1237A of the Act)?
Section 1237A of the Act provides that the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth, if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt (set out in earlier reasons of this decision).
The Tribunal refers to Sekhon v Secretary, Department of Family and Community Services[91], where the Full Federal Court observed:
The ordinary or usual interpretation of the phrase ‘attributable solely to’ is that it refers to the single or sole cause of the relevant act or event. The word ‘attributable’ means ‘capable of being attributed’. It involves an objective assessment of causation. The words ‘a debt attributable solely to an administrative error’ can be paraphrased as meaning that the only cause that objectively can be ascribed to the relevant debt is an administrative error.
[91] (2003) 132 FCR 126 at [35].
In the present matter, the Tribunal is satisfied that the debts raised were not solely due to an administrative error on the basis that the Applicant was informed of her obligation to provide updated information to the Agency (including changes to her income) in notices sent to the Applicant pursuant to section 68(2) of the Administration Act. The genesis of the Applicant’s debt has arisen from the Applicant not declaring her employment income appropriately to the Respondent.
The Tribunal finds the debts of the Applicant are unable to be waived pursuant to section 1237A of the Act.
Waiver in special circumstances (section 1237AAD of the Act)?
Section 1237AAD of the Act provides that the Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that there are special circumstances (set out in earlier reasons of this decision).
The Tribunal refers to authority in Re Beadle and Director-General of Social Security[92]:
An expression such as ‘special circumstances’ is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.
[Tribunal underlining for emphasis]
[92] (1984) 6 ALD 1 at 3.
The Tribunal also refers to Davy and Secretary Department of Employment and Workplace Relations[93]:
‘special circumstances’ are not merely directed to the person's own circumstances. Rather, they are directed to those that are ‘special circumstances … that make it desirable to waive’. That necessarily requires a consideration of the person's individual circumstances but also a consideration of the general administration of the social security system. Waiver of the debt would mean that Mr Davy would have had the benefit of part of his DSP in circumstances in which he was not entitled to it. Certainly, he did not know that his father was giving him his own money but the fact that he was deceived by his father does not mean that it is desirable to waive the debt. He has had the benefit of the money and there is no injustice in requiring him to repay the money of which he has had the benefit but not the entitlement. His not knowing that his father had continued to receive the money does not take him outside the expectation that all social security recipients should repay money when they receive money but are not entitled to it. The system of administration of the SS Act does not visit any injustice for many if not all social security recipients but it did not lead to any injustice or unfairness on Mr Davy that is not visited, or potentially visited, upon all other recipients of social security payments under the Act. Therefore, I am not satisfied that there are special circumstances that make it desirable to waive the debt under s 1237AAD of the Act.
[93] (2007) 94 ALD 693 at [80].
Section 1237AAD(a) of the Act requires the Secretary to waive the right to recover all or part of a debt if the Secretary is satisfied that the debt did not result wholly or partly from the Respondent knowingly making a false statement or representation, or knowingly failing or omitting to comply with a provision of the Act or the Administration Act.
In regard to applying section 1237AAD(a) of the Act, and the term “knowingly” in the circumstances of this application, the Tribunal refers to ReCallaghan and Secretary, Department of Social Security[94]:
There is nothing in s 1237AAD which suggests that the word “knowingly” should be given any meaning other than that a person has actual knowledge, rather than constructive knowledge, that he or she is making a false statement or representation or that he or she is failing or omitting to comply with a provision of the Act. That actual knowledge is to be ascertained by reference to the statements of the person as to his or her actual state of knowledge at the time and to events surrounding the false statement or the act or omission.
[94] (1996) 45 ALD 435 at [48].
In the present application, it is the Tribunal’s view that the Applicant did not provide any evidence which would give rise to claims, nor was any corroborative evidence submitted to support such claims, with respect to the relevant considerations of this provision of the Act.
Based on the evidence before it, the Tribunal does not consider the Applicant’s circumstances to be sufficiently special or unusual as to warrant the exercise of the discretion in section 1237AAD of the Act to waive the Applicant’s debt. Therefore, the Applicant’s debt cannot be waived pursuant to section 1237AAD of the Act.
For the legally recoverable debts identified by the Tribunal, whether a penalty ought to be applied (and recovered)?
As outlined by the Tribunal in earlier reasons of this decision, section 1228B of the Act applies a 10% penalty for understatement of income. In relation to Debt 4, in circumstances where the Applicant:
(i)failed to declare any income during the debt period to the Agency for this debt (during the period of 13 September 2005 to 15 March 2006)[95];
(ii)admitted that she was aware that she ought to have updated the Agency with respect to any changes in her income or employment[96];
(iii)the Tribunal finds that there was no reasonable excuse from the Applicant for failing to report her earnings to the Agency;
(iv)the Applicant had attained the minimum age for youth allowance and not reached pension age, pursuant to sections 1228B(1)(a)(i) and (ii) of the Act;
(v)the Applicant was in receipt of a social security benefit pursuant to section 1228B(1)(b)(i) of the Act; and
(vi)the Applicant failed to provide information in relation to her income from personal exertion to the Agency which she acknowledged that she ought to have done, pursuant to section 1228B(1)(c)(i) of the Act[97];
the Tribunal finds that it is appropriate in the circumstances to apply a penalty of 10% of the value of Debt 4. The amount of this penalty is to be added to Debt 4 upon its recalculation by the Respondent.
[95] Exhibit R1, T12, page 247.
[96] Transcript 7 February 2022, page 25, lines 37 to 47; page 26, lines 1 to 9.
[97] Transcript 7 February 2022, page 25, lines 37 to 47; page 26, lines 1 to 9.
Other contentions raised by the Applicant in closing submissions
The Applicant raised some additional contentions in her closing submissions received on 14 February 2022, which the Tribunal will separately address[98]. With respect to the remaining contentions of the Applicant, the Tribunal has addressed these in the reasons of this decision.
[98] Exhibit A4.
The first issue the Tribunal will address relates to the Applicant’s claim that she was not afforded an opportunity to provide her submissions at the hearing. The Tribunal rejects this contention of the Applicant. In earlier reasons the Tribunal outlined how the Applicant was afforded procedural fairness in circumstances where she was self-represented, by reversing the order of proceedings and ensuring the Applicant was provided with an opportunity to clarify her evidence following cross-examination at the hearing. Additionally, the Applicant was provided with the opportunity to submit evidence to support her application and provide written submissions to the Tribunal.
The Tribunal makes a general point with respect to the Applicant’s submissions regarding the accuracy of the debt calculations by the Respondent, and that is, the genesis of the Applicant’s debts is due to the fact that she did not accurately declare her income to the Respondent, despite being appropriately notified of the requirement to do so. Whilst there have been changes to the calculation of the Applicant’s debts over time which have impacted the final value of those debts, arriving at the correct value of the Applicant’s debts is indeed different to an error having been made leading to an overpayment - which is not the case in the present application.
DECISION
Pursuant to section 43(1)(c)(i) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decisions of the Social Services and Child Support Division of the Administrative Appeals Tribunal, dated 18 June 2021 (2020/B155588, 2020/B154468, and 2020/B153400) and substitutes it with a decision that:
(a)The Applicant has the following legally recoverable debts to the Commonwealth arising from the overpayment of her Parenting Payment Single pursuant to section 1223(1) of the Social Security Act 1991 (Cth), for the following debt periods:
(v)$1,159.51 for the period of 26 August 2003 to 8 March 2004;
(vi)$1,554.95 for the period of 18 May 2004 to 9 August 2004;
(vii)$2,074.91 for the period of 10 August 2004 to 24 January 2005; and
(viii)the Tribunal directs the Respondent to recalculate the Applicant’s debt for the period of 13 September 2005 to 15 March 2006 in accordance with this decision.
(b)To the extent that any of the above debts identified by the Tribunal have been over-recovered, the amount over-recovered is to be refunded to the Applicant.
(c)With respect to the Applicant’s debt for the period of 13 September 2005 to 15 March 2006, a 10% penalty is to be applied to the value of the debt the Respondent has been directed to recalculate, with this penalty to be added to the value of this debt.
(d)The debts identified by the Tribunal must be recovered; write-off on the basis of severe financial hardship, waiver on the basis of administrative error, or waiver on the basis of special circumstances is not warranted.
I certify that the preceding 120 (one-hundred and twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member B. Pola
………[SGD]……….………………
Associate
Dated: 11 April 2022
Date of hearing: 7 February 2022
Applicant: Ms Machelle Judd (Self-represented)
Ms Robert Afflick (Support person)
Solicitor for Respondent: Mr Stephen Lloyd SC (Counsel)
Instructed by Mr Karwan Eskerie (Sparke Helmore)
Annexure 1 – Exhibit Register
Exhibit Number Description of Exhibit Party Date of Document Date of Receipt R1 Section 37 T Documents – Part 1 (pages 1 to 332) R 13 April 2021 13 April 2021 R2 Section 37 T Documents – Part 2 (pages 333 to 721) R 13 April 2021 13 April 2021 R3 Section 37 T Documents – Part 3 (pages 722 to 1133) R 13 April 2021 13 April 2021 R4 Respondent Statement of Facts, Issues and Contentions (pages 1 to 16)
Annexures A – D (pages 17 to 99)R 12 November 2021 12 November 2021 R5 Respondent Closing Submissions and Annexure E (pages 1 to 30) R 7 March 2022 7 March 2022 R6 Respondent Recalculated Debts (pages 1 to 19) R 17 February 2022 17 February 2022 A1 Applicant Submission (pages 1 to 82) A Various dates 17 August 2021 A2 Applicant Statement of Facts, Issues and Contentions (pages 1 to 7) A 22 November 2021 22 November 2021 A3 Applicant Submission Centrelink Prosecutions at the Employment Benefit Nexus (pages 1 to 68) A 2011 22 November 2021 A4 Applicant Closing Submissions (pages 1 to 5) A 14 February 2022 14 February 2022 A5 Applicant Closing Submissions in Reply A None received None received
Budget Measures) Act 2003 (Cth).
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3
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