Redman and Secretary, Department of Social Services (Social services second review)
[2021] AATA 4679
•19 November 2021
Redman and Secretary, Department of Social Services (Social services second review) [2021] AATA 4679 (19 November 2021)
Division:GENERAL DIVISION
File Numbers: 2021/2432
2021/2433
2021/2034
2021/3035
2021/2036
2021/2437
Re:Mr Michael Redman
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Ms A E Burke, AO Member
Date of decision: 19 November 2021
Date of written reasons: 17 December 2021
Place:Melbourne
For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal finds that the Applicant’s debts which were reviewed by the Social Services and Child Support Division of the Tribunal (AAT1) were correctly attributed to the Applicant. However, the Tribunal remits the debts reviewed by the AAT1 to the Respondent for recalculation according to the correct application of section 1068-G7A of the Social Security Act 1991 (Cth).
...........................[sgd].............................................
Ms A E Burke, AO Member
Catchwords
SOCIAL SECURITY – Newstart payment – overpayment – undeclared earnings – debt due to the Commonwealth – whether recovery of debt should be written off or waived – debt not attributable solely to error made by Centrelink – whether special circumstances – decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Crimes Act 1914 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)Cases
Anderson and Secretary, Department of Families and Community Services (2002] 69 ALD 494
Callaghan and Secretary Department of Social Security (1996] 45 ALD 435Falconer and Secretary, Department of Social Services (1996) 41 ALD 18Secretary, Department of Social Security v Hales (1998) 153 ALR 259
Secondary Material
Guide to Social Security Law
REASONS FOR DECISION
Ms A E Burke, AO Member
17 December 2021
Mr Redman (the Applicant) is seeking a second-tier review of the decision made by the Secretary of the Department of Social Services (the Respondent) that he owed debts to the Commonwealth.
The application was heard by telephone on 19 November 2021. Mr Redman was self-represented, and Mr Stephen Lloyd of Counsel instructed by Mr Karwan Eskerie of Sparke Helmore, appeared for the Respondent.
The Tribunal provided an oral decision at the hearing affirming the original decision. Mr Redman subsequently requested written reasons for the decision in accordance with section 43(2A) of the Administrative Appeals Tribunal Act 1975. These are those reasons.
BACKGROUND
Prior to the hearing, the Tribunal granted the Respondent an extension of time to lodge their Statement of Facts, Issues and Contentions and other materials and adjourned the original hearing date of 2 September 2021. Mr Redman opposed this, however the Tribunal firmly believed that there was no prejudice to Mr Redman in granting the extension of time, given the appeal related to events dating back over 20 years. Additionally, the Tribunal was mindful that certain issues raised by Mr Redman had not been adequately addressed by the Respondent. The Tribunal did not believe it could arrive at a correct and preferable decision without all the facts being made available to it prior to the hearing.
On 30 August 2021, the Tribunal provided reasons for the decision to grant the extension of time to the Respondent. At the same time, the Tribunal also issued Directions:
The Tribunal REMINDS the Applicant that:
1. Pursuant to section 33(1AB) of the Administrative Appeals Tribunal Act 1975 (the Act), he must use his best endeavours to assist the Tribunal to fulfill its objective under section 2A of the Act; and
2. Failure to comply with a Direction of the Tribunal may result in a dismissal of his application pursuant to section 42A(5)(b) of the Act; and
3. May constitute contempt of the Tribunal under section 63 of the Act
The Tribunal notes that Mr Redman failed to observe these Directions and was in contempt of the proceedings, however the Tribunal determined not to dismiss Mr Redman’s application as he had raised issues of genuine concern and Centrelink had failed to correctly calculate Mr Redman’s debt. The Tribunal did however make its expectations clear to Mr Redman of how he was to conduct himself during the hearing.
At the time when the debts were raised, Mr Redman was known by another name, however the Tribunal will refer to the Applicant as Mr Redman. Centrelink records indicate Mr Redman was on and off New Start Allowance (NSA) from 24 February 1997 until 6 August 2008 when he was granted the Disability Support Pension.
On 13 August 2020, Mr Redman contacted Centrelink to appeal debts which he disagreed with and questioned how they had been raised against him. Centrelink recorded the following on Mr Redman’s file:
Cus stated he disagreed with the debt raised at the time but did not know what to do, since it is not part of robotdebt, he would like to appeal against the debt which was raised incorrectly and he needs an explanation and requested for internal review to be completed so that he can take further to AAT. Customer requested all the appeals to be allocated to ARO with ARO decision letters sent to customer. Cus indicated he will take up to AAT if decision affirmed.
Appeals x 7 submitted individually against the debts ID (as per SME advise on DL):
P5296236 - Rent assistance - 23.07.2015 - 28.08.2016 - $3732.23 - Melton
P5183376 - Rent assistance -08.02.2013 - $2691.46 - Shepparton
S5036589 - NSA earning not declared - 08.08.2006 - $736.82 – Fraud Tip Off Team
S5033965 - NSA earning not declared - 30.06.2006 - $1382.15 – Cash Economy team
S5036579 - NSA earning not declared - 08.08.2006 - $113.56 - Fraud Tip Off team
S5036569 - NSA earning not declared - 08.08.2006 - $5837.29 - ID Fraud Perth
S3198227 - NSA earning not declared - 27.05.2006 - $4159.15 – Innaloo
Following Mr Redman’s appeal, a departmental Authorised Review Office (ARO) completed several internal reviews. These were all premised on the basis that the amount of income a person earns each fortnight can reduce the amount of NSA payable for that fortnight. A chronology of these reviews is summarised as follows.
(a)On 15 October 2020, an ARO reviewed and affirmed the decisions made on 27 May 2006 and 8 August 2006 that Mr Redman had:
(i)an NSA debt of $736.82 for the period 23 July 2004 to 16 March 2005 and applied a $73.65 recovery fee (debt number S5036589);
(ii)an NSA debt of $4,159.15 for the period 1 October 2004 to 16 February 2005 (debt number 63198227); and
(iii)a debt because he had not advised that he was working for Premium Security and Triden International or how much he was earning. This meant his income was not taken into account and his payments were not reduced as they should have been.
(b)On 16 October 2020, an ARO reviewed the decision made on 8 August 2006 that Mr Redman had an NSA debt of $1,382.15 for the period 2 April 2001 to 12 June 2001 and applied a $138.20 recovery fee (debt number S5033965). The ARO determined Mr Redman had a debt because he had not advised that he was working for New Force North Pty Ltd or how much he was earning.
(c)On 16 October 2020, an ARO reviewed the decision made on 8 August 2006 that Mr Redman had an NSA debt of $113.56 for the period 25 November 2003 to 14 January 2004 and applied an $11.35 recovery fee (debt number S5036579). The ARO determined Mr Redman had a debt because he had not advised that he was working for Whitsunday Key Security or how much he was earning.
(d)On 23 October 2020, an ARO reviewed the decision made on 8 August 2006 that Mr Redman had an NSA debt of $5,837.29 for the period 13 February 2002 to 27 March 2003 and applied a $583.70 recovery fee (debt number S5036569). The ARO determined Mr Redman had a debt because he had not advised that he was working for Salmac Pty Ltd, Nuage Security or Craden Security or how much he was earning.
On 26 October 2020, Mr Redman requested a review of the ARO decisions stating:
Centrelink have not answered my question. Based on what information did they raise the debts. What checks did they do, who did they speak to, where did they get their information from.
On 17 March 2021, the AAT1 affirmed the ARO’s decision. It found that:
Debts have arisen for non-entitled newstart allowance received by Mr Redman during the relevant periods because the full amount of his employment income was not taken into account by the Department when the rates of payment were originally calculated and paid. There are no grounds for non-recovery of the debts, which means they are to be recovered. Recovery fees have been applied according to law and there is no basis for those fees to be disregarded.
On 19 April 2020, Mr Redman sought a review of the AAT1 decision by this division of the Tribunal, as he disagreed with the decision, stating:
Applicant is challenging the member’s lawful authority to make a determination. This should be a court determination, not at the AAT. They also didn’t address specific question about how the debts were raised.
THE ISSUES IN CONTENTION
The Tribunal needed to consider the following relevant issues:
(a)Whether Mr Redman was overpaid New Start Allowance;
(b)If so, is the debt recoverable; and if yes
(c)Should the debt be waived due to administrative error pursuant to section 1237A of the Social Security Act 1991 (the Act); or
(d)Whether special circumstances exist such that the debt should be waived pursuant to section 1237AAD of the Act.
RELEVANT LEGISLATION
At the heart of Mr Redman’s issue is the basis of the Australian social security system: a safety net for those in need. The Social Security Guide (the Guide) states in the introduction to chapter 4:
Australia has an income support system that is designed to be a safety net for people unable to support themselves without calling on the resources of the community. The income and assets tests are used to target the system so that it remains sustainable and affordable for Australian taxpayers. The tests help ensure that the funds available for social security expenditure are directed to those in the community most in need. The tests are kept under review to ensure that they are meeting the requirements of the community for well-targeted income support.
The rate of income support payable depends on the income and assets tests. The rate of payment is calculated under the 2 separate tests and the test that results in the lower (or nil) rate is the one that applies.
Fundamentally, each dollar earned while receiving any social security benefit can reduce the amount of benefit an individual receives. All income earned must be declared. Any payments received in excess of what an individual is entitled to will create a debt to the Commonwealth.
The legislation relevant to Mr Redman’s appeal has been amended a number of times since Mr Redman’s numerous debts arose. For ease, in this decision the Tribunal will refer to the current provisions, however, the determination is based on the legislation as it applied during the relevant debt period.
Section 643 of the Act sets out how to work out a person’s JobSeeker payment rate:
Subject to this Division, a person’s jobseeker payment rate is to be worked out using Benefit Rate Calculator B at the end of section 1068.
Section 8 of the Act defines income, in relation to a person, to mean:
(a) an income amount earned, derived or received by the person for the person’s own use or benefit
Section 1068 of the Act sets out the Benefit Rate Calculator B including:
Module A — Overall rate calculation process
Method statement
Step 1. Work out the person’s maximum basic rate using MODULE B below.
Step 1A. Work out the pension supplement amount (if any) using Module BA below.
Step 1B. Work out the energy supplement (if any) using Module C below.
Step 2. Work out the amount per fortnight (if any) of pharmaceutical allowance using MODULE D below.
Step 3. Work out the applicable amount per fortnight (if any) for rent assistance in accordance with paragraph 1070A(a).
Step 4. Add up the amounts obtained in Steps 1 to 4: the result is called the maximum payment rate.
Step 5. Apply the income test using MODULE G below to work out the income reduction.
Step 6. Take the income reduction away from the maximum payment rate: the result is called the provisional fortnightly payment rate.
Step 7. The rate of benefit is the amount obtained by:
(a) subtracting from the provisional fortnightly payment rate any special employment advance deduction (see Part 3.16B); and
(b) if there is any amount remaining, subtracting from that amount any advance payment deduction (see Part 3.16A); and
(c) except where the person is a CDEP Scheme participant in respect of the whole or a part of the period for which the rate of benefit is being worked out, adding any amount payable by way of remote area allowance (see Module J).
and
Module G — Income test: This is how to work out the effect of a person’s ordinary income, and the ordinary income of a partner of the person, on the person’s maximum payment rate:
Effect of ordinary income on maximum payment rate
Method statement
Step 1. Work out the amount of the person’s ordinary income on a fortnightly basis.
Note: For the treatment of amounts received from friendly societies, see point 1068‑G4.
Step 2. If the person is a member of a couple, work out the partner income free area using point 1068‑G9.
Note: The partner income free area is the maximum amount of ordinary income the person’s partner may have without affecting the person’s benefit.
Step 3. Use paragraphs 1068‑G10(a), (b) and (c) to work out whether the person has a partner income excess.
Step 4. If the requirements of paragraphs 1068‑G10(a), (b) and (c) are not satisfied then the person’s partner income excess is nil.
Step 5. If the requirements of paragraphs 1068‑G10(a), (b) and (c) are satisfied, the person’s partner income excess is the partner’s ordinary income less the partner income free area.
Step 6. Use the person’s partner income excess to work out the person’s partner income reduction using point 1068‑G11.
Step 7. Work out whether the person’s ordinary income exceeds the person’s ordinary income free area under point 1068‑G12.
Note: A person’s ordinary income free area is the maximum amount of ordinary income the person may have without affecting the person’s benefit rate.
Step 8. If the person’s ordinary income does not exceed the person’s ordinary income free area, the person’s ordinary income excess is nil.
Step 9. If the person’s ordinary income exceeds the person’s ordinary income free area, the person’s ordinary income excess is the person’s ordinary income less the person’s ordinary income free area.
Step 10. Use the person’s ordinary income excess to work out the person’s ordinary income reduction using points 1068‑G14, 1068‑G15, 1068‑G16 and 1068‑G17.
Step 11. Add the person’s partner income reduction and ordinary income reduction: the result is the person’s income reduction referred to in Step 5 of point 1068‑A1.
Section 1223 of the Act outlines that debts arising from lack of qualification or overpayment are debts to the Commonwealth:
(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.
Section 1236 of the Act outlines when the Secretary may write off a 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.
Section 1237A of the Act provides that the Secretary must waive debts arising from sole administrative 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).
Section 1237AAD of the Act provides for waiver of debt 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.
Section 192 of the Social Security (Administration) Act 1999 (the Administration Act) defines the Secretary’s power to obtain information:
192 General power to obtain information
The Secretary may require a person to give information, or produce a document, to the Department if the Secretary considers that the information or document may be relevant to one or more of the following:
(a) the question whether a person who has made a claim for a social security payment is or was qualified for a social security payment;
(aa) the question whether a person is or was qualified for a social security payment for which a claim is not required;
(b) the question whether a social security payment is payable to a person who is receiving the payment;
(c) the question whether a social security payment was payable to a person who has received the payment;
(d) the rate of social security payment that is or was applicable to a person;
Section 196 of the Administration Act outlines the requirements for written notices:
(1) A requirement under this Division must be made by written notice given to the person of whom the requirement is made.
(2) The notice:
(a) may be given personally or by post or in any other manner approved by the Secretary; and
(b) must specify:
(ia) a description of the information or document to which the requirement relates; and
(i) how the person is to give the information or produce the document to which the requirement relates; and
(ii) the period within which the person is to give the information or produce the document to the Department; and
(iii) the officer (if any) to whom the information is to be given or the document is to be produced; and
(iv) that the notice is given under this section.
Section 204A of the Administration Act outlines the use of tax file numbers:
(1) The Secretary may require the Commissioner of Taxation to provide the Secretary with information about people, including tax file numbers, that was contained in TFN declarations lodged with the Commissioner under Division 3 of Part VA of the Income Tax Assessment Act 1936.
(2) Information provided to the Secretary under a requirement made under subsection (1) may be used only for the following purposes:
(a) to detect cases in which amounts of social security payments under the social security law have been paid when they should not have been paid;
(b) to verify, in respect of persons who have made claims for social security payments under the social security law, the qualification of those persons for those payments;
(ba) to verify, in respect of persons who have made claims under the social security law for seniors health cards, or health care cards that are income‑tested for those persons, the qualification of those persons for those cards;
(c) to establish whether the rates at which social security payments under the social security law are being, or have been, paid are, or were, correct.
EVIDENCE
On 1 December 2004, Premium Security provided Mr Redman’s payroll advice to Centrelink for his casual work for the period 14 July 2004 to 12 September 2004. The records include amounts earned, taxation withheld and superannuation contributions.
On 2 December 2004, Triden International provided Mr Redman’s payroll advice to Centrelink for his casual work for the period 1 January 2004 to 26 November 2004. The records include amounts earned, taxation withheld and superannuation contributions.
On 27 March 2004, Whitsunday Key Security provided Mr Redman’s payroll advice Centrelink for his part-time work for the period 25 November 2003 to 23 January 2004. The records include amounts earned, taxation withheld and superannuation contributions.
On 10 March 2005, Cradan Security provided Mr Redman’s gross payment advice to Centrelink for his casual work for the period 13 July 2002 to 30 November 2002. The records include amounts earned, taxation withheld and superannuation contributions.
On 17 May 2005, New Force North Pty Ltd provided Mr Redman’s pay details history to Centrelink for his casual work for the periods of 1 July 2002 to 6 May 2005, recording, however, that he did not work during that period.
On 17 July 2005, Salmac Pty Ltd provided Mr Redman’s payroll advice to Centrelink for his full-time work for the period 17 February 2002 to 28 April 2002. The records include amounts earned, taxation withheld and superannuation contributions.
On 12 August 2005, Nuage Security provided Mr Redman’s payroll advice to Centrelink for his casual work for the period 20 June 2005 to 12 April 2005. The records include amounts earned, taxation withheld and superannuation contributions.
Centrelink notes record a discussion with Mr Redman on 25 March 2004:
Advised that he has had many overpyaments and many time's breach has gone to be applied but has been revoked.
Cst stated that he can't live on current money he is getting.
Asked customer about employment with Whitsunday Key Security whom another TDF match has come up for and is currently being reviewed.
cst stated that he is not working there at present.
He did work there for 1 week.
He has not declared income to Centrelink again for this employer.
Advised cst that we will be following this employer up and an overpayment and breach may be result of non declaration of eans.
Advised cst that prosecution may occur because he continually does not declare his income.
Centrelink notes record a discussion with Mr Redman on 6 October 2004:
Advised cus of early payment policy. [Mr Redman]has had a lot of payments to start work. Over 4 this year. But yet no income had been declared on the system. Before this he had also had payday code changes, etc. I advised cus that in the last 12 fortnights, he had got early payments in 9 of them and this was unreasonable and had to stop. Cus wasn't happy with this.
Centrelink notes record a discussion with Mr Redman on 25 February 2005:
Cus was concerned about whs rate from nss… When I asked cus about any fortnightly earns - he said he has not worked for ages. EANS screen contradicted this as eans have regularly been coded for Triton Securities. CUs became very upset saying that people have coded earnings on his record and he was going to ring his DAD who is "high up in Centrelink" to have this matter sorted out. Again offered cus to continue with request to reduce withholdings but cus did not want to process and hung up.
Centrelink records indicate that in the period 11 January 2005 to 16 March 2005, Mr Redman submitted five Application for Payment Forms in which he declared that he did not do any paid work during the following periods:
(a)29 December 2004 to 11 January 2005;
(a)20 January 2005 to 2 February 2005;
(b)3 February 2005 to 16 February 2005;
(c)17 February 2005 to 2 March 2005; and
(d)3 March 2005 to 16 March 2005.
Centrelink records indicate that in the period 28 March 2001 to 16 March 2005, Mr Redman was sent 21 notices informing him of his obligation under section 68(2) of the Administration Act to notify the agency within 14 days if he commenced paid work.
Centrelink also recorded a discussion with Mr Redman on 3 August 2006:
Customer was contacted regarding debts raised as part of a review conducted by Business Integrity WA (S5033965).
Customer was advised that as of 1/07/06 a 10% recovery fee applied
to debts raised as a result of income from employment and was asked if there was any reason that he failed or incorrectly declared his income. Whilst attempting to go through the employers one by one, customer stated that he already had debts raised for some of these employers. Customer became quite agitated and said he knew a manager in a Centrelink office in Victoria who he would talk to in relation to this matter. I advised customer that I would call him back at a later time to go over the specifics, where any debts overlapped and any periods of debt for employers that customer had already been advised of as he was not able stay on one subject at the time of our conversation. Customer asked how this review had come about and I told him it was as a result of public information. He became annoyed that "someone has been sticking their nose in my business".
He asked how far back these debts went and I told him. Whilst customer was never abusive, he was obviously irritated and in no mood to continue the conversation. At no time did customer offer an explanation for failing to correctly declare income.
Mr Redman’s Prosecution Report dated 2 March 2009 states:
NATURE OF OFFENCES (INCLUDING ACT, SECTION & NO. OF CHARGES):
OFFENCE
Obtain a Financial Advantage – Commonwealth Entity, contrary to section. 135.2(1) Criminal Code Act 1995 (Cth)
Charge 1: 17.02.2002 to 15.11.2002
Charge 2: 06.02.2003 to 27.03.2003
Charge 3: 20.06.2003 to 15.08.2003
Charge 4: 23.07.2004 to 17.03.2005
Charge 5: 04.04.2005 to 30.06.2005
FRAUD
Amount overpaid on the charges: $16,593.93
WAS BAIL EVER REFUSED PRIOR TO SENTENCING?: No
PLEA: Guilty
RESULT: Community Based Order
The defendant was convicted and ordered to be placed on a Community Based Order, under section 20AB of the Crimes Act 1914 (Cth) and section 36 of the Sentencing Act 1991 (Vic), for a period of 12 months with a condition that he perform 200 hours of unpaid community work over 12 months. All core Community Based Order conditions apply to the order. The defendant was ordered to attend at the Broadmeadows Community Corrections Centre by 4:00 pm on 26 February 2009.
As a separate order the defendant was ordered to pay costs of $62.80 and make reparation of $15,318.45.
COMMENCEMENT OF SENTENCE: 24 February 2009
REPARATION: $15,318.45 to the Commonwealth of Australia, namely Centrelink.
The ARO recorded a discussion with Mr Redman on 22 September 2020:
Customer was very agitated and was not willing to enter into discussion of circumstances. Customer made multiple claims that he wanted to take staff members who were involved in raising the debts to court, he wanted to sue. He claims the debts may have been raised unlawfully and that there was a vindictive case made against him by staff members who were in cohoots. He wants me to be able to prove to him that the debts were raised lawfully. He wanted me to show him the mechanics behind the raising of the debts. He wanted to know they had been raised in accordance with the law. He wanted to know how the information was verified. He wanted to know where the evidence came from. He wanted to know if the evidence came from more than one source. He wanted the names of the staff members concerned and the offices they worked in. He wants to claim damages for the pain and suffering he has been put through. He has a huge family with lawyers, wealthy business people, and a great great uncle who was deputy PM. He has the contacts to take everyone to court. He used to work in security and he has the contacts to be able to track staff members down and make them take responsibility for their actions in raising the debts. He is concerned that the debts were generated in the same way as robo debts and he has not had the option to be part of the class action. We also spoke about the RA debts and he said that he had always kept the agency up to date with his accommodation details. His friend Jason owned the property at Tilson St Shepparton and he moved out of the mid July 2010 as Jason sold the property, he moved to Melton, he was paying rent to a real estate agent and was living by himself. He said he had been homeless and living in Geelong in 2015, the Salvos found him motel accommodation and he told the agency about this.
He said he was living in Carrisbrook and the rent was being deducted from his payments so we must have known about his accommodation. He said he was in Perth between June 2011 to November 2011. He said he spent time in gaol and was released on parole to Albury. He said he moved out of Shepparton in July 2010 and told the agency, if other details are coded then it has been coded incorrectly by staff members. He said he has not been able to receive the help he has needed in the way of advance payments and he wants damages as a result of this. He has missed out on 2 years on pension advances. His family is big enough to be able to take DHHS to court. He believes staff have been vindictive against him. He wants due diligence paid to this or he will go public, he will go to channel 7. He said he had nothing else to say to me as all the debts were unlawful. Customer was yelling and said I was deplorable, the actions were deplorable and he hung up.
22 September 2020 at 4.36 customer left message on my phone that DPP had taken him to court for these cases and he was found guilty. He said that this will not end with my review and that he was going public and he would sue the pants off them.
I spoke to customer on 23 September 2020 at 10.03. Customer rang and said he had spoken to his sister who is a lawyer who spoke to a Barrister and they have told him that I cannot review these debts because he was charged by the DPP on 5 counts of committing fraud against the Commonwealth and he plead guilty to all counts. He said that he could not trust me to act impartially and that I would be subject to coercion. He wanted the reviews done by an independent non- government organisation. I said I could not arrange that for him and did he want me to withdraw the reviews so he could pursue other avenues. He said that his files would be redacted and lost if he tried to get them himself through FOI. I asked if he wanted the reviews withdrawn.
Customer continued to refer to my lack of impartiality, conflict of interest, claims that my superiors would be applying pressure. I said none of these things were true or had occurred. He wanted to know the name of the person who raised the debt 14 years ago, I said I could not give that to him and he claimed this was part of my non impartiality, my conflict of interest. He said that he believed my superiors would be nervy about his reviews and his files will be redacted and I will be coerced to make a decision to find him guilty. He wanted a guarantee that his files will not be lost as he believes this is what will happen. He said there will be massive damages to be paid as his families reputation was damaged and he lost his security licence because debts have been unlawfully raised against him.
Customer continued with accusations of targeted and vilified actions taken against him. Customer believes that I don’t know what I am getting myself into or what I am up against. He was going to contact Stuart Roberts and tell him my name and report what has happened. Customer was yelling and swearing and I asked him to stop swearing but he continued to swear and yell about the treatment he feels he has received and hung up.
23 September 2020 10.40 am, customer left message on ARO phone that he had spoken to Stuart Roberts and he was informed that the ARO was to go ahead with the reviews and send him the decisions once they are completed. He will go to the AAT and have his family lawyers involved at that stage.
The AAT1 decision of 17 March 2021 noted:
Mr Redman told the Tribunal that his “main concern is how Centrelink obtained the information [about his employment] to investigate and raise the debts”. He said that one of the businesses that employed him has since stopped trading (but did not challenge any of the payroll data). He demanded to know “how Centrelink came across the details” and stressed that he believes the Department was not authorised to do so. Mr Redman also contended that the debts “are no different to ‘robodebts’” and so should be cancelled.
CONTENTIONS
Applicant
Mr Redman submitted he had not just requested a review of the five debts which the ARO considered but asked for all his debts to be reviewed. Mr Redman submitted he had two questions for these proceeding:
(a)How had Centrelink obtained the information used to raise the debt? and
(b)What method was used to calculate the debt?
Mr Redman submitted that he was criminally prosecuted on debts that were calculated through a misapplication of the legislation and therefore his debts should be waivered in their entirety. Mr Redman stated at the hearing:
So what they did with regards to the debts, okay, was simply from this application and legislation, they daily attributed income to me that I did not earn. That’s all this matter is to me about, is when they calculated the debts they were required by law to calculate them correctly. They did not calculate them correctly by law, they did not do it in conjunction with module G, they didn’t use the rate calculator in there that they were required to do by law. They’re not doing that, they breached the law, they misapplied the legislation, therefore the debts should never have been raised; never.
If you do not get the debts down to the exact cent that they were when you created them and you got the correct amount, 15 years later they’ve identified that they think they have the correct amount; it should never have been put there in the first place. That’s my contention.
Mr Redman submitted that it was implausible that Centrelink was able to gather information about his earnings from multiple employers in different parts of the country:
The original question that I asked the ARO officer, with regards to the review of all debt, okay, with what I had, was the fact of, how did Centrelink obtain the information that it required to initiate and investigate me regarding alleged income debts that were to be put against my name? Now, this whole question, going back to her in August last year, has never been addressed. Now, the problem I see that Centrelink face here is that according to them that not all five of the current debts at the moment, that I face criminal convictions, okay, or subject to criminal convictions. According to them only two resulted in criminal convictions, but the point is that all information that’s used in a court is required to be obtained lawfully, okay, otherwise it’s not unlawful, you can’t get a prosecution, a successful prosecution.
So I’ve gone to ascertain how did Centrelink’s fraud investigation team in 2006 obtain the information, how did they obtain - we’re talking seven security companies across three states over four years. Now, that is very, very specific information; okay, how did they obtain the information to then, okay, go, “We’re going to investigate Mr Redman now because we’ve received this information”; how?
Mr Redman submitted that as Centrelink could not establish all the debts against his name or provide reference numbers for all the debts attributed to him, the debts were caused by administrative error.
Mr Redman also submitted that the court had ordered reparations of $15,318.45 to the Commonwealth of Australia, namely Centrelink, and this should have been enforced. This would have allowed him to declare himself bankrupt and the debts to be waived accordingly.
Respondent
The Respondent submitted that the evidence clearly indicates that Mr Redman omitted to declare his income accurately, or at all, during the debt periods.
The Respondent submitted the evidence also indicates that Mr Redman was sent 21 notices informing him of his obligation under s 28(2) of the Administration Act in the period from 28 March 2001 to 16 March 2005. Additionally, they submitted that various other communications and declarations were sent to Mr Redman which referred to the need for him to declare any income earned.
The Respondent contended that as a result of Mr Redman’s failure to declare his actual earnings, his rate of NSA was incorrectly calculated, and he received NSA allowance in excess of his entitlement.
The Respondent contended it was for the Tribunal to therefore determine, on the evidence before it, the amounts of the debts from this overpayment.
The Respondent submitted it had reviewed the debt calculations in relation to each of debts under review and the recalculations indicate that a slight variation in the debts raised was appropriate. The Respondent submitted debts as initially raised did not apply the methodology in s 1068-G7A.
The Respondent’s Statement of Facts, Issues and Contentions provided the following:
For the purposes of these proceedings, calculations have been performed which take into account Mr Redman’s ordinary income in the fortnight in which it was first earned, derived or received based upon the specific payroll information disclosed in the T-Documents in these proceedings. Those calculations attribute income to an instalment period based on the payment date in the relevant payslip or payroll document. The calculations result in the following overpayment amounts, recovery fees and debt amounts.
Debt
Period of debt
Amount overpaid ($)
Recovery fee ($)
Debt amount ($)
Debt 1
29 March 2001 to 15 May
2001
980.50
98.05
1078.55
Debt 2
30 January 2002 to 27 March
2003
6511.81
651.18
7162.99
Debt 3
25 November 2003 to 14
January 2004
826.69
82.67
909.36
Debt 4
9 July 2004 to 16 September
2004
1341.19
134.12
1475.31
Debt 5
1 October 2004 to 30
November 2004
1356.77
nil
1356.77
Total
11982.98
The Respondent contended that all of the debts arose wholly because Mr Redman had failed to provide information in relation to his income and as such, a 10% penalty was correctly applied to the debts.
The Respondent submitted; in respect of Mr Redman’s contention the debts had not been calculated legally:
There’s an administrative element to it but that’s not actually what creates the debt. The Social Security Act creates the debt and so it’s a combination of the matters which are set out in our Statement of Facts, Issues and Contentions from paragraph 5.9 but, in essence, when income is earnt - so, let’s not talk about Mr Redman, in particular. If a person on a Social Security benefit earns income in circumstances stated in section 100(1) that you’ve been notified that you should report it, and you don’t report it, then that reduces your entitlement. Then the next time you’re paid on a non-reduced basis under section 1223, a debt of that amount, whatever the true amount is, arises to the Commonwealth. Then there’s separately to that an administrative process saying, well, we think this is the amount of the debt and to recover that amount of debt and, of course, that would be the subject of review in the AAT.
But, ultimately, the debts that arise don’t arise because of an administrative draft thinks they arise, they arise because the Act operates and so what we were seeking to do by giving the recalculations, in light of the slightly different approach, was just to identify what were the true debts for those periods, or the correct or preferable debts for those periods. It’s not correct that - we say, anyway, it’s not correct if the original debt calculation was wrong, it doesn’t mean there’s no debt. The debt was created by the Act. All it could possibly mean is that the first calculation was wrong and we’re saying, well, we think this is the better way of calculating and that’s why we’re proffering the revised calculations.
In respect of Mr Redman’s argument about reparation, the Respondent submitted:
The answer to that is that the creditor, which is to say the Commonwealth of Australia has a choice and the Commonwealth of Australia doesn’t have to seek to use the courts enforcement mechanisms, it only other mechanisms to recover debts and which it can do by, obviously, conducting future pensions. It comes under the Social Security Act and the Social Security Administration Act that allows for the deductions
So, I just note that the bankruptcy has a provision that allows for a bankrupt not to be relieved from debts if the release from debt involved a debt that arose by fraud, which I find that these debts did, and the charges with which he was convicted were related to fraud. So, if it had have been enforced under the reparation, and (indistinct) wasn’t, and he had have been bankrupted, it’s not clear that he would have been relieved from the debts anyway. So, I don’t think there’s anything in that. Another point I made is that there was some suggestion that things don’t just arise
CONSIDERATION
The Tribunal was at a distinct disadvantage in respect of reaching a correct and preferable decision on this matter on several fronts. One being that the Applicant, Mr Redman, was unwilling to assist the Tribunal in its deliberations. This meant the Tribunal was unable to elicit any evidence from Mr Redman on any matter. Mr Redman was only prepared to pose his questions and was affronted by the suggestion that he himself should have to answer anything.
The other more concerning issue was Centrelink’s approach to Mr Redman’s appeal. From the outset, the Tribunal could not ascertain why Centrelink had only reviewed the following debts, particularly as Mr Redman had asked for a review of all his debts.
(a)NSA debt of $1,382.15 for the period 2 April 2001 to 12 June 2001 and a $138.20 recovery fee (Debt 1);
(b)NSA debt of $5,837.29 for the period 13 February 2002 to 27 March 2003 and a $583.70 recovery fee (Debt 2);
(c)NSA debt of $113.56 for the period 25 November 2003 to 14 January 2004 and a $11.35 recovery fee (Debt 3);
(d)NSA debt of $736.82 for the period 23 July 2004 to 16 March 2005 and a $73.65 recovery fee (Debt 4); and
(e)NSA debt of $4,159.15 for the period 1 October 2004 to 16 February 2005 (Debt 5).
Centrelink’s decision to review only these five debts was baffling. The decision not to review all the debts for which Mr Redman had been prosecuted was not adequately explained to the Tribunal. Mr Redman has on numerous occasions made it abundantly clear he is most aggrieved by the debts which resulted in his prosecution by the Commonwealth. The absurdity of Centrelink’s approach to Mr Redman’s appeal was apparent in the Respondent’s Statement of Facts, Issues and Contentions:
Charges 1, 3 and 5 relate to periods that do not overlap with the debts under review, but Charges 2 and 4 overlap with periods in respect of which the debts under review arose. The periods of the charges and the debts under review were as follows:
Charges (per Charge Sheet and Debts under review
Prosecution Report)
02.04.2001 – 12.06.2001 (Debt 1)
17.02.2002 – 15.11.2002 (Charge 1)
06.02.2003 – 27.03.2003 (Charge 2) 13.02.2003 – 27.03.2003 (Debt 2)
20.06.2003 – 15.08.2003 (Charge 3)
25.11.2003 – 14.01.2004 (Debt 3)
23.07.2004 – 17.03.2005 (Charge 4) 23.07.2004 – 16.03.2005 (Debt 4)
01.10.2004 – 16.02.2005 (Debt 5)
04.04.2005– 30.06.2005 (Charge 5)
The Tribunal was at a loss as to why the matter had progressed as it had. However, the Tribunal could not consider all of Mr Redman’s debts, including two for which he was prosecuted, as they had not been reviewed at first instance by the ARO or the AAT1. Given the ongoing issues of concern Mr Redman has with his debts, the Tribunal directed the Respondent at the conclusion of the hearing to provide Mr Redman with a full list of all the debts against his name. The Tribunal nevertheless proceeded to consider the debts under review.
The Tribunal found Mr Redman was overpaid NSA as he failed to declare his earnings to Centrelink. During the debt periods in question, Mr Redman was sent 21 notices and other communications which advised him of his obligation to declare any earnings to Centrelink. During the period 11 January 2005 to 16 March 2005, Mr Redman submitted payment forms in which he declared he had not performed any paid work. Payment records from five different employers clearly indicate Mr Redman received income for work during this period. As Mr Redman failed to accurately declare his income, the Tribunal found Mr Redman had a debt to the Commonwealth.
The Tribunal found the debts were raised by Centrelink using a combination of employer declarations and payslip information obtained from the relevant employers. Mr Redman insisted that he has never been advised how Centrelink’s fraud investigation unit obtained the information which was used to prosecute him for the five debts. Mr Redman submitted that the debts had not been raised lawfully and therefore he should not have faced prosecution or be required to repay the debts. His evidence was:
…., but the point is that all information that’s used in a court is required to be obtained lawfully, okay, otherwise it’s not unlawful, you can’t get a prosecution, a successful prosecution.
So I’ve gone to ascertain how did Centrelink’s fraud investigation team in 2006 obtain the information, how did they obtain - we’re talking seven security companies across three states over four years. Now, that is very, very specific information; okay, how did they obtain the information to then, okay, go, “We’re going to investigate Mr Redman now because we’ve received this information”; how? I was prosecuted, Ms Burke, on two of these debts in 2009, okay? So the way that they obtain this information had to have been done lawfully, yet nobody in 15 months has been willing to address how they obtained the information
The Tribunal was sympathetic to Mr Redman’s concern that the fraud charges had not formed part of the ARO determinations of 15,16 and 23 October 2020 or the AAT1 hearing. The ARO notes of a 22 September 2020 conversation with the Applicant clearly indicate:
Customer made multiple claims that he wanted to take staff members who were involved in raising the debts to court, he wanted to sue. He claims the debts may have been raised unlawfully and that there was a vindictive case made against him by staff members who were in cahoots. He wants me to be able to prove to him that the debts were raised lawfully.
At the commencement of these proceedings, the Tribunal requested information in respect of Mr Redman’s prosecutions. At the outset it would seem odd that an individual who has been found guilty of fraud against the Commonwealth would have the ability to appeal such debts. However, this is not the case, as criminal proceedings and administrative proceedings are two separate actions. The Tribunal, as correctly pointed out by Mr Redman, has no authority to review Mr Redman’s criminal convictions, does however, have the jurisdiction to review Mr Redman’s Centrelink debts
Section 1223 of the Act provides Centrelink with the authority to raise and recover overpayments. Section 192 and 196 of the Administration Act provides the Secretary with the power to obtain information. Section 204A of the Administration Act also gives the Secretary the power to require the Commissioner of Taxation to provide the Secretary with information about people, including their tax file numbers for the purpose of detecting cases of overpayment of social security payments.
Based on all the evidence before it, the Tribunal found that the information utilised to raise and recover Mr Redman’s debts under review had been legally obtained. Centrelink records clearly outline that on numerous occasions Centrelink had discussions with Mr Redman about his failure to declare his earnings. On numerous occasions Mr Redman advised Centrelink he was pursuing paid employment, including receiving advances of his NSA to pay for his security licence, uniform and petrol to travel interstate to secure work. Mr Redman provided his tax file number to his various employers. The following are just some examples taken from Mr Redman’s Centrelink file. All indicate that Centrelink advised Mr Redman of their concerns about his continual failure to report his earnings or living arrangements:
The matching of our data with the ATO's Employment Declaration Form information indicates that you may have employed (Mr Redmna’s former name).
Information received from the ATO shows that you recently signed an Employment Declaration Form. We need your assistance to make sure that you are receiving the correct rate of Newstart Allowance.
We have a responsibility to make sure that customers receive the correct rate of payment including that of rent assistance. One way of doing this is by cross-matching our records.
Information from these matches indicates that you or people with whom you share accommodation may be paying rent at a rate that affects your entitlement to rent assistance from us.
This letter is about your Centrelink account. At the time of writing, the amount owing is $3244.78.
Centrelink regularly compares its records with information provided by employers to the Australian Tax Office. As a result the Australian Taxation Office has indicated that you may be employed.
Centrelink is currently paying you Rent Assistance. However, as you have recently changed the address where you live, it is likely that your rent details have changed. In order for us to continue paying you Rent Assistance please complete and return this form within 14 days so that we can assess your eligibility for Rent Assistance.
You will need to prove how much rent you pay. Acceptable proof is a current lease or tenancy agreement.
cus is very upset, he also claims to be starting new casual work with Nuage security PtyLtd. tonight for a couple of nights, and will not be paid for this until next Thurs. approx.
please investigate all details thoroughly on each contact customer 'at risk' this is for the benefit of cusotmer as well as Centrelink to avoid overpayments, excessive EBT/urgent payments, etc a clear and accurate picture of this customer's circumstances is necessary at all times
The Tribunal found that Mr Redman’s debts to the Commonwealth had been raised in accordance with social security legislation and were recoverable. The Tribunal notes Centrelink advised Mr Redman that continual failure to accurately report his earnings could result in criminal prosecution. Centrelink records a discussion with Mr Redman on 25 March 2004:
Asked customer about employment with Whitsunday Key Security whom another TDF match has come up for and is currently being reviewed.
cst stated that he is not working there at present.
He did work there for 1 week.
He has not declared income to Centrelink again for this employer.
Advised cst that we will be following this employer up and an overpayment and breach may be result of non declaration of eans.
Advised cst that prosecution may occur because he continually does not declare his income.
However, the Tribunal found Mr Redman’s debts had been incorrectly calculated and remitted the debts reviewed by the AAT1 to the Respondent for recalculation according to the correct application of section 1068-G7A of the Act. The Tribunal did not concur with Mr Redman that this finding made the debts invalid and therefore irrevocable at law.
As the Tribunal had determined Mr Redman’s debts under review were recoverable, it then explored if any of the debts were attributable to administrative error on the Respondent's part; or if there were special circumstances to write off or waive all or part of the debt.
Writing off the debt
The Tribunal, standing in the shoes of the Secretary, has the discretion to write off the debt under section 1236 of the Act.
The Respondent submitted that Part 5.4 of Chapter 5 of the Act allows for debts to the Commonwealth to be written off or waived in certain circumstances. They referred the Tribunal to the Federal Court decision of Secretary, Department of Social Security v Hales (1998) 153 ALR 259, in which French J stated at 260:
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.
The Respondent submitted Mr Redman’s debt could not be written off under section 1236 of the Act for the following reasons:
(a)The debt was not irrecoverable at law;
(b)Mr Redman had the capacity to repay the debt;
(c)Recovery of the debt would not cause Mr Redman severe financial hardship; and
(d)His whereabouts were known, and it was cost-effective for the Commonwealth to recover the debt.
Based upon the evidence before it, the Tribunal finds it is not reasonable to write-off the debt under section 1236 of the Act as Mr Redman does not meet the requirements of this section of the Act.
Waiver of the debt
The Respondent contended that sections 1237AA, 1237AAA, 1237AAB, 1237AAC and 1237AB of the Act were plainly inapplicable in these circumstances.
In particular, the Respondent submitted that:
(a)Section 1237AA is inapplicable because no custodial sentence was imposed on Mr Redman in relation to these debts;
(b)Section 1237AAA is inapplicable because none of the debts under review were less than $200 in value;
(c)Section 1237AAB is inapplicable because there has been no settlement, agreement for part payment and the Commonwealth has not recovered at least 80% of the original value of the debt;
(d)Section 1237AAC is inapplicable because there is no evidence to suggest that there was an entitlement to a family or parenting payment or allowance; and
(e)Section 1237AB is inapplicable because the debts at issue are not debts falling with a class of the kind referred to in that provision.
On the evidence before it, the Tribunal determined that Mr Redman’s debts under review cannot be waivered in accordance with the above sections as:
(a)Mr Redman did not receive a custodial sentence for any of the debts under review. On 24 February 2009, Mr Redman received a community-based order under section 20AB of the Crimes Act 1914 (Cth) for five counts of obtaining a financial advantage for himself from a Commonwealth entity. This not a custodial sentence;
(b)None of Mr Redman’s debts under review are under $200 in value;
(c)There has been no settlement of the debt;
(d)Mr Redman is not entitled to any family or parenting payment or allowance; and
(e)None of Mr Redman’s debts fall within the class referred to in this provision.
Waiver the debt on the basis of administrative error
Under section 1237A of the Act, the Tribunal has a discretion to waive the right to collect the debt if it was due solely to administrative error and the payment was received in good faith.
The Respondent submitted that the debt had not arisen as a result of administrative error, and consequently section 1237A of the Act was not satisfied. The Respondent argued that the debt had arisen through Mr Redman's failure to report his earnings to the department.
Mr Redman contended that the debt was solely attributable to a departmental error and should be waived in its entirety, as Centrelink had incorrectly calculated the amount of debt he owed and had been unable to advised how the information was obtained to calculate the debt.
The Respondent contended Mr Redman’s debt could not be waivered under section 1237A of the Act as he had not received the overpayments in good faith.
The Tribunal relied upon the concise and often quoted finding in Falconer and Secretary, Department of Social Services (1996) 41 ALD 187 where the AAT found that key question for determining whether a recipient received a payment in good faith is whether the recipient knew that the amount was paid contrary to the Act. That is, if a recipient knows or had reason to know that they were not entitled to a payment they received, they cannot be said to have received the payment in good faith.
The Tribunal, considering all the evidence before it, found that Mr Redman's debt had arisen through his failure to advise Centrelink of his earnings in the debt period. The Tribunal found the debt could not be waived under section 1237A(1) of the Act as it was not attributable solely to administrative error. The Tribunal found Mr Redman was aware he had received payment of NSA to which he was not entitled. The Tribunal found Mr Redman’s debts therefore cannot be waived because he had not received the payment in good faith.
Waiver of all or part of the debt in special circumstances
The Tribunal, standing in the shoes of the Secretary, also has the discretion to waive all or part of Mr Redman's to debt in special circumstances. For the discretion to be exercised, all three conditions contained in subsections (a), (b), and (c) of section 1237AAD must be satisfied.
Knowingly
In order to waive part or all of the debt under section 1237AAD of the Act, the Tribunal must be satisfied that Mr Redman did not knowingly make a false representation to Centrelink or fail to comply with the relevant legislative provisions. The term 'knowingly' has not been defined in the Act, although it has been considered extensively by the Tribunal in similar circumstances.
In Callaghan and Secretary Department of Social Security (1996) 45 ALD 435, Deputy President Forgie said at 445 [48]:
There is nothing in section 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 that he or she is failing or admitting to comply with a provision of the Act. The 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 of omission.
In Anderson and Secretary, Department of Families and Community Services (2002] 69 ALD 494, the Tribunal stated at 496 [27]:
… it is open to the Tribunal to infer that the applicant has actual knowledge of his obligations under the act where there are opportunities for that knowledge to be gained when there are no obstacles to him acquiring knowledge. In this case, the applicant has had the opportunity to gain an understanding of his obligations under the Act to the provision of advice letters to him from the respondent. The Tribunal is not aware of any obstacles that would prevent Mr Anderson from understanding those letters and gaining that knowledge.
The Respondent contended that Mr Redman had failed to comply with the provisions of the Act as he had knowingly made false representations on his application for payment forms and had failed to declare income in circumstances where it had plainly been earned, derived or received.
The Respondent therefore contended, given these circumstances, that Mr Redman's debt could not be waived as section 1237AAD of the Act was not enlivened. The Respondent argued Mr Redman’s debt had risen as a direct consequence of his failure to comply with his obligations under social security law.
The Tribunal did not receive direct evidence from Mr Redman about his actual knowledge of his obligation under the Act as he refused to answer any questions. However, based on Mr Redman’s submissions at the hearing and Centrelink records, the Tribunal found that Mr Redman was fully aware of his obligations under the Act.
The Tribunal found that by omitting to declare his earnings on numerous occasions, Mr Redman had knowingly made a false representation to Centrelink and failed to comply with the relevant legislative provisions and therefore his debt could not be waived as section 1237AAD(a) of the Act had not been satisfied.
Special circumstances
The Tribunal was not satisfied there were special circumstances that make waiving the debts desirable. The Tribunal did not consider Mr Redman’s concern expressed to the ARO amounted to special circumstances:
You told me that you feel you have been disadvantaged by the debt because you have not been able to get any advances on your payments and this has caused you stress and problems over the years.
Regardless, the Tribunal did not consider Mr Redman’s special circumstances, as he could not succeed in his application as he had not fulfilled all the requirements of the section as he had knowingly made false representations and not received the payment in good faith.
DECISION
For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal finds that the Applicant’s debts which were reviewed by the Social Services and Child Support Division of the Tribunal (AAT1) were correctly attributed to the Applicant. However, the Tribunal remits the debts reviewed by the AAT1 to the Respondent for recalculation according to the correct application of section 1068-G7A of the Social Security Act 1991 (Cth).
I certify that the preceding 93 (ninety-three) paragraphs are a true copy of the written reasons for the decision of Ms A E Burke AO, Member
......................[sgd]...................................
Associate
Dated: 17 December 2021
Date of hearing: 19 November 2021 Applicant: Self-represented Counsel for the Respondent:
Solicitors for the Respondent:
Mr Stephen Lloyd
Mr Karwan Eskerie Sparke Helmore
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