SAJ; Secretary, Department of Family and Community Services

[2002] AATA 430

CATCHWORDS – SOCIAL SECURITY – Parenting Payment (Partnered) – recovery of overpayment – whether debt owed to Commonwealth – whether applicant failed to comply with obligation – whether partner made false or misleading statements – whether debt may be waived – decision set aside

Social Security Act 1991 ss. 23(1), 500I(2), 1224(1), 1237(1), 1237A, 1237A(1) 1237AA, 1237AAA, 1237AAB, 1237AAC, 1237AAD, 1237AAD(1), 1237AAD(a), 1068B-D2 and 1068B-D3; Parts 2.10, 3.6A and 5.2
Family and Community Services and Veterans' Affairs Legislation Amendment (Debt Recovery) Act 2001
Social Security (Administration) Act 1999 ss. 23(15), 23(16), 68, 72, 72(1)(b), 72(8), 72(9)(b)
Acts Interpretation Act 1901 s. 29
Evidence Act 1995 s. 160

Re Secretary, Department of Family and Community Services and Jonauskas [2001] AATA 72

DECISION AND REASONS FOR DECISION [2002] AATA 430

ADMINISTRATIVE APPEALS TRIBUNAL     )          
  )          S2001/365
GENERAL ADMINISTRATIVE DIVISION     )          

ReSECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

AndSAJ

Respondent

DECISION

Tribunal:                   Miss S A Forgie (Deputy President)
Date:  6 June, 2002
Place:  Adelaide

Decision:The Tribunal:

1.sets aside the decision of the Social Security Appeals Tribunal dated 22 August, 2001; and

2.substitutes a decision that the respondent owes the Commonwealth a debt of $3,472.45 on the basis that Parenting Payment (Partnered) was overpaid to her during the period from 30 August, 2000 to 30 January, 2001.

S A FORGIE
  Deputy President

REASONS FOR DECISION

On 28 September, 2001, the applicant, the Secretary of the Department of Family and Community Services ("the Secretary"), applied for review of a decision of the Social Security Appeals Tribunal ("SSAT") dated 22 August, 2001.  The SSAT's decision affirmed a decision of a delegate of the Secretary dated 20 April, 2001 to raise a debt of $3,472.45 on the basis that Parenting Payment (Partnered) was overpaid to the respondent, known as SAJ, during the period from 30 August, 2000 to 30 January, 2001.  At the same time, the SSAT waived recovery of that debt on the basis that there were special circumstances.

1. At the hearing, SAJ was represented by Mr Roberts and the Secretary by his advocate, Mr Underwood. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") together with a statement by Mr Quici, an events summary from the computers of Centrelink, screen dumps, a statement of SAJ and a letter from Dr Jenny Robinson dated 26 November, 2001 were admitted into evidence.

THE ISSUES

1. There were two issues in this case.  The first is whether SAJ owed a debt to the Commonwealth.  Resolution of that issue depends on whether SAJ omitted or failed to comply with an obligation or whether her partner made a false or misleading statement.  If there is a debt, the second issue arises.  That is whether the debt may be waived.

BACKGROUND

1. There was no disagreement between the parties regarding many of the facts leading to the decision under review.  In view of that and on the basis of the evidence, I have made the findings of fact set out in this section of my reasons.

1. SAJ has three children ranging in ages from two to six years.  All are the children of her former partner with whom she began living in 1995.  She and her partner separated in the early months of 2000 but resumed living together in June, 2000.  She had thought that it was best for the children to be with their father but later believed that being away from drugs, which he still took, was what was best for them.  I find that, at all relevant times, the relationship was one in which SAJ was abused (emotionally more so than physically) and controlled by her partner in all matters.  He opened her mail and controlled the household finances and so directed what was to be spent. On the basis of SAJ's evidence, I find that he spent money on drugs, to which he was addicted, on repayments of his motor vehicles, girlfriends and traffic fines.  She had to account for all expenditure and return unspent money to him.  SAJ often found that she did not have sufficient money to pay for the necessities of life for her and her children.  If his household rules were not followed, SAJ's partner would become loud and violent towards objects and, on occasion, to her.  In order to minimise the distress to her and her children, SAJ tried to comply with each of his requests and rules.

1. Up to some time after they resumed living together, SAJ's partner had been working and SAJ had been receiving Parenting Payment (single).  He then claimed a Newstart Allowance and SAJ changed to a Parenting Payment (partnered).  For some two months, her payments were made to her by cheque, which she collected over the counter.  In the main, she dealt with Mr Angelo Quici.  This finding is based also on the evidence of Mr Quici.  Her practice was to cash the cheque and hand the money to her partner.  In July, 2000, SAJ's need for money became acute and she approached Mr Quici for help.  He referred her to the Uniting Church for assistance. 

1. In August, 2000, SAJ began to receive harassing and threatening telephone calls from a former boyfriend, who had previously tried to kill her.  As she was concerned that he might find out where she was through Centrelink's records, arrangements were made for her mail to be sent to the manager of an office of Centrelink.  The manager would then write her address on the mail and post it to her.  That arrangement had been in place at an earlier time for her.

1. At the relevant times, SAJ received Parenting Payment and her partner received Newstart Allowance.  In a letter dated 17 August, 2000, the Secretary, through Centrelink, advised SAJ of her payments of Parenting Payment and the information used to calculate it.  That information was the amount of her assets, that she had no fortnightly earned income and that she and her partner had no annual income.  The letter went on to advise her that:

"… you must tell us about events or changes in circumstances affecting your payment within the 14 day period which starts on the day after the day on which they happen or are likely to happen.  You must tell us within 14 days if the incomes stated above, used to work out your payment rate are incorrect.  If your partner has to give a form to Centrelink on a regular basis, you can tell us about any changes on that form. This means that you and your partner do not have to tell us more than once.

If you are going to use your partner's form, you should make sure that it will be given to us on time – the due date is shown on the form.  If you think there is a chance that your partner will not give us the form on its due date (eg, your partner is away interstate looking for work), you should tell us about the changes yourself.  You can tell us by writing to us, by phoning or you can come in and talk to us at any Centrelink office.

This is an information notice given under the social security law." (T documents, page 28)

The letter then went on to specify particular "things" that she was required to advise them of if they happened or were likely to happen.  Listed were an increase in her personal income over $62.00 per fortnight, her partner's personal income over $0.00 per fortnight, the receipt by either of them of a lump sum amount of money or a one-off payment from any source and if their combined assets exceeded certain amounts.  A further letter dated 28 August, 2000 and including similar information was sent to SAJ (T documents, pages 31-33). 

1. A letter dated 13 September, 2000 also required her to provide Centrelink with the same information but gave her more limited options as to how she could advise Centrelink of it:

"You must tell us about events or changes in circumstances affecting your payment within the 14 day period which starts on the day after the day on which they happen or are likely to happen.  You can tell us by writing to us, by phoning or you can come in and talk to us at any Centrelink office.

This is an information notice given under the social security law." (T documents, page 34)

A letter dated 15 September, 2000 was similarly worded (T documents, page 37).

1. On 18 September, 2000, the applicant's partner returned his application for payment of Newstart Allowance.  That application had been issued to him on 13 September, 2000 and appears to have been posted to his residential address.  In his application, he answered questions relating to the period 30 August, 2000 to 12 September, 2000.  On none of the forms did he reveal any amount earned in the period or give any details of his employer's name.  Instead, he provided information about his job seeking activities together with the names and telephone numbers of the employers whom he had approached.  He advised that he had a partner, who had not done any work in that period.  His forms were completed on 15 and 26 September, 2000, 10 and 24 October, 2000, 7 and 21 November, 2000, 5 and 19 December, 2000 and 2 January, 2001.  In an undated note, SAJ's partner asked Centrelink for permission for SAJ to lodge his fortnightly form on his behalf as he was unable to do so due to a personal matter (T documents, page 58).  The forms dated 16 and 30 January, 2001 contained the same answers as before.

1. SAJ's partner had in fact been in full-time employment since 29 August, 2000 and was still in that employment on 14 February, 2001.  His previous employment had been from 4 December, 1999 to 29 June, 2000.  His employer revealed details of his employment on 14 February, 2001 in response to Centrelink's enquiries (T documents, page 65).  His income from that employment varied from week to week and ranged between $481.23 to $1,600.95 (T documents, pages 67-72). 

1. On 14 March, 2001, a delegate of the Secretary raised a debt of $3,472.45 against SAJ on the basis that she had failed to advise Centrelink that her partner had returned to work.  The amount of the debt equalled the amount paid to SAJ during the period from 30 August, 2000 to 30 January, 2001 (T documents, page 77).

1. SAJ and her partner separated for the final time on 7 April, 2001.

LEGISLATIVE FRAMEWORK

Recovery of overpayment of Parenting Payment as a debt

1. Parenting Payment is the subject of Part 2.10 of the Social Security Act 1991 ("the Act").  There is no question that SAJ by herself qualified for its payment to her during the period from 30 August, 2000 to 30 January, 2001.  Equally, there is no question that it was not payable to her for that period for, after her partner's income was taken into account, her parenting payment rate would have been nil.  That is the effect of s. 500I(2).

1. In general terms and in the context of this case, an amount paid to a person under the Act becomes a debt recoverable by the Commonwealth from him or her if it is a debt recoverable under Part 5.2.  Section 1224(1) was in operation at the time that the payments were made.  It has since been repealed by the Family and Community Services and Veterans' Affairs Legislation Amendment (Debt Recovery) Act 2001 with effect from 1 July, 2001 (Schedule 1, Item 10).  As its repeal applies only to social security payments made on or after 1 July, 2001, its repeal does not affect the payments made to SAJ before that date and s. 1224 continues to be relevant.

"(1)   If:

(a)an amount has been paid to a recipient by way of social security payment; and

(b)the amount was paid because the recipient or another person:

(i)made a false statement or a false representation; or

(ii)failed or omitted to comply with a provision of the social security law or this Act as in the force immediately before 20 March 2000 or the 1947 Act;

the amount so paid is a debt due by the recipient to the Commonwealth."

1. A "social security payment" includes a Parenting Payment (s. 23(1)).  The "social security law" includes the Act and the Social Security (Administration) Act 1999 ("Administration Act").  Sections 23(15) and (16) of the Act, which have been in operation since 20 March, 2000 and so before the time with which I am concerned, provide that:

"(15) A reference in this Act to the social security law is a reference to this Act, the Administration Act and any other Act that is expressed to form part of the social security law.

(16)A reference in this Act to a provision of the social security law is a reference to a provision of this Act, the Administration Act or any other Act that is expressed to form part of the social security law."

1. Section 68 of the Administration Act provides that:

"(1)   Subsection (2) applies to a person to whom a social security payment is being paid.

(2)The Secretary may give a person to whom this subsection applies a notice that requires the person to do either or both 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 a statement about a matter that might affect the payment to the person of the social security payment.

(3)…

(4)…

(5)An event or change of circumstances is not to be specified in a notice under this section unless the occurrence of the event or change of circumstances might affect the payment of the social security payment or the person's qualification for the concession card, as the case requires."

1. Section 72 of the Administration Act provides for the manner in which any notice under Subdivision B of Division 6, of which s. 68 is a provision, is to be given.  In so far as giving the notice is concerned, it may be given personally, by post or in any other manner approved by the Secretary (s. 72(1)(b)). The effect of s. 29 of the Acts Interpretation Act 1901 ("AI Act") is that, where a document may be served by post, service is, unless the contrary intention appears in the Administration Act or unless the contrary is proved to be the case, deemed to be effected by pre-paid post and to have been delivered in the ordinary course of post. Section 160 of the Evidence Act 1995 provides that, unless there is evidence to the contrary, an article sent by prepaid post to an address in Australia is deemed to have been received at that address on the fourth working day after having been posted.  A working day is not a Saturday, Sunday, public holiday or bank holiday in the place to which it was addressed.

1. A person is taken to have failed to comply with a notice under s. 68 if he or she "… knowingly or recklessly gives information or a statement that is false or misleading" (s. 72(8)). Nothing in s. 72 prevents a notice being given to the same person in receipt of the same social security payment (s. 72(9)(b)).

Power to waive recovery of debt

1. The Secretary may waive the Commonwealth's right to recover the whole or part of a debt from a person only in the circumstances set out in ss. 1237A 1237AA, 1237AAA, 1237AAB, 1237AAC or 1237AAD of the Act (s. 1237(1)).  Two sections are of relevance in this case.  The first is s. 1237A(1) which provides that:

"(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.

(1A)  Subsection (1) only applies if:

(a)the debt is not raised within period of 6 weeks from the first payment that caused the debt; or

(b)if the debt arose because a person has complied with a notification obligation, the debt is not raised within a period of 6 weeks from the end of the notification period;

whichever is the later."

1. The second section that is relevant is s. 1237AAD, which provides that:

"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 or the 1947 Act; and

(b)there are special circumstances (other than financial hardship alone) that makes it desirable to waive; and

(c)it is more appropriate to waive than to write off the debt or part of the debt."

CONSIDERATION

1. The first question to consider is whether the Parenting Payment was paid to SAJ from 30 August, 2000 to 30 January, 2001 because she failed or omitted to notify the Secretary of a change in her circumstances that might affect the payment of a social security payment to her when she had been required to do so by a notice under s. 68 of the Administration Act. The letters the Secretary (through Centrelink) sent to SAJ and dated 17 and 28 August, 2000 and 13 and 15 September, 2000 were notices under s. 68.  They stated that they were but, more importantly, met the criteria for a notice specified in that section.  In particular, the requirement that SAJ notify it if her partner's income went over $0.00 per fortnight was a matter that might affect the payment of Parenting Payment to her if only in the amount that was paid to her.

1. Did the Secretary give SAJ the notices? SAJ said in her evidence that she did not recall receiving them but she did know that she had to tell someone if her partner started to work again. I have set out the substance of s. 29 in the AI Act above. There is no indication in the Administration Act to suggest that service should not be deemed to have occurred in the ordinary course of post. There is no evidence to suggest that it was not delivered and, indeed, SAJ knew that she had to advise Centrelink if her partner returned to work. In view of that, I am satisfied that the notice dated 17 August, 2000 was given to her pursuant to s. 68 of the Administration Act.

1. Did SAJ fail or omit to notify Centrelink as required by the notice dated 17 August, 2000?  SAJ stated in her evidence that she telephoned Centrelink on or about 13 September to advise that her partner had returned to work.  In her statement, she stated that she was transferred to three or so officers before being transferred to Mr Quici.  She could not advise how much her partner would earn as she did not know.  SAJ stated that she thought that her Parenting Payment would be stopped.  She was told, she said, that Centrelink would send out some forms to advise her partner's earnings.  She presumed that Centrelink had sent the forms out as her partner led her to believe that he had completed the forms and returned them to Centrelink.  Her partner was often away from home for days at a time with his work.  She said that he led her to believe that he was depositing part of his income in her bank account.  Only he had access to her account when he was at home but, when he was away, he would give her the access card and tell her how much to withdraw and what bills to pay.

1. In her oral evidence, SAJ said that she might not have telephoned Mr Quici.  Although she had his telephone number and as the letter had said that she could telephone any officer in Centrelink, she might have telephoned the general office number.  She said that she knew that she had telephoned as she had written it in her diary as a job to do on 13 September, 2000.  It was crossed out so that meant that she had telephoned as it was her practice to cross out a job when it was done. 

1. Mr Quici recalls SAJ by sight and recalls his dealings with her over the counter cheques.  He could not recall her speaking to him on 13 September, 2000 but said that Centrelink's computer record indicated that he had logged on to her file on that day.  It followed that he must have seen her.  Mr Quici agreed with Mr Roberts that it appeared from Centrelink's computer records that computer difficulties with the payment of Parenting Payment had been resolved by 17 August, 2000 (Exhibit A) but said that he thought that the payment had been suspended once more.  That appears from the Event Summary from the computer records (Exhibit 3).  Even so, Mr Quici agreed with Mr Roberts that SAJ could have told him on 13 September, 2000 that her partner had started work.  It is not his practice, he said, to make a record of such a conversation and did not think that any other officer would have.  It did not matter that a document was not created as there was no information about the amount of earnings, he said, and the partner had not started.  When he started work, it would have been documented on the form, he added.  Mr Quici said that he would have congratulated her and told her to make sure that her partner put his earnings on a form and declare the information to Centrelink.  Mr Quici said that he was not aware of any forms on which a person in receipt of Parenting Payment would provide that information.  He did not know of any forms that were sent out.

1. Having regard to the evidence both of SAJ and of Mr Quici as well as to the course of their dealings over the previous months in relation to the counter cheques, I am satisfied that SAJ did contact Mr Quici and did advise him that her partner had started work.  Her evidence as to their prior dealings is consistent with his memory in so far as he is able to rely on it given the large number of people he sees each day and is consistent with the documentary evidence.  He does not dispute her evidence that she told him and simply does not recall.

1. In view of that, I am also satisfied that SAJ complied with the relevant requirement in the notice dated 17 August, 2000.  That was that her partner's fortnightly income was likely to increase over $0.00.  It was implicit in her advising that her partner had started work that he would receive some income.  However little it was, it was likely to be over a nil income.

1. Were the subsequent notices given to SAJ?  As they were after the harassment by SAJ's former boyfriend, her evidence is that they would have been sent to the Manager at Centrelink.  That is consistent with the address line in the letter dated 28 August, 2000 but it is not consistent with the letters dated 13 September, 2000 or 15 September, 2000 for they bear the residential address shown on the letter of 17 August, 2000. 

1. With regard to the letter dated 28 August, 2000, there is no evidence from the Manager of the relevant Centrelink office that he or she re-addressed the letter and sent it on to SAJ. In a case such as this, I am prepared to accept that standard, computer generated letters have been sent to the address shown on their face. There is no challenge to their having been sent. It follows that they are deemed to have been received. Without more, I am not prepared to go beyond that. The deeming provisions of the AI Act and the Evidence Act only apply in relation to a letter that has been properly addressed and sent by pre-paid post. In relation to the letter of 28 August, 2000, there is no evidence of the address to which it was sent and so no evidence that it was properly addressed or that it was sent on by pre-paid post. Consequently, I am not satisfied that SAJ was given a notice pursuant to s. 68 of the Administration Act and dated 28 August, 2000.

1. I am satisfied that she was given the notices dated 13 and 15 September, 2000 for they were addressed to her residential address and the combined effect of s. 29 of the AI Act and s. 160 of the Evidence Act is that she would be deemed to have received them 4 working days after they were sent. On the assumption that they were posted on the day that they were dated, that would have meant that she would have received the earlier on 19 September, 2000 and the later on 21 September, 2000.

1. Even though SAJ had earlier advised Centrelink that her partner was working, I find that she did not do so again. Each time the Secretary sent her a notice under s. 68 in the form of a letter, a new obligation arises to inform Centrelink of the matters on which it required to be informed.  Given that she was required to advise Centrelink within 14 days of her partner's no longer having a nil income and given that he had done so more than 14 days earlier, she was obliged to advise Centrelink on the days on which she received the letter i.e. 19 September and 21 September, 2000.

1. As SAJ failed to comply with the notice she failed to comply with her obligation under s. 68 of the Administration Act. As she did not do so, I am satisfied that she was paid an amount of Parenting Payment that she would not otherwise have been paid. As she did not fail to comply with the notice until 19 September, 2000, I find that, if only her omission is relevant, the payments that would not have otherwise have been paid did not begin to be made until 19 September, 2000 rather than 30 August, 2000.

1. Is only SAJ's omission relevant?  Section 1224(1) refers to an amount's having been paid because the recipient or another person made a false statement or representation or omitted or failed to comply with a provision of the social security law.  That brings me to SAJ's partner.  He was in receipt of Newstart Allowance.  The amount that he received in his income, including his Newstart Allowance, is relevant in calculating the amount paid to her as Parenting Payment (partnered) (ss. 1068B-D2 and 1068B-D3 and see Part 3.6A of the Act, generally). On the basis of the evidence of Mr Quici, I find that there is a computer link so that SAJ's advising Centrelink of his income in his fortnightly returns is taken into account in calculating SAJ's Parenting Payment. It follows that, if SAJ's partner does not advise Centrelink of the amount of his income, Centrelink will not be able to calculate correctly the rate of Parenting Payment (Partnered) payable to SAJ.

1. SAJ's partner was required by Centrelink to fill in and return the fortnightly return "immediately or the next working day".  Payment of Newstart Allowance would be stopped if it were returned late.  Given that the first fortnightly return was issued on 13 September and presuming that it was posted on that day, he is deemed to have received it on 19 September, 2000.  It would seem that he received it at an earlier time and lodged it on 18 September, 2000.  He complied with that obligation when he lodged it on 18 September, 2000 but, in not revealing his employment or his income, he made a false statement.  By that time, I have found, he was in employment and had received payments from his employer on three occasions, two of which fell in the scope of the fortnightly return. As the form that he was obliged to lodge required him to notify Centrelink of his employment and of his income and as his income affected SAJ's Parenting Payment, his failure to comply with his obligation led to SAJ's being paid amounts of Parenting Payment that she would not otherwise have been paid.  The payments that were affected were payments made in arrears as a Parenting Payment (Partnered) is only payable when the person's partner receives a specified payment, one of which is a Newstart Allowance.  As a Newstart Allowance is paid in arrears, the first payment affected must be that commencing from 30 August, 2000. 

1. It follows that, pursuant to s. 1224(1), the amount overpaid to SAJ after 30 August, 2000 is a debt owed to the Commonwealth.  May that debt be waived?  Section 1237A(1) is not relevant as the debt is not attributable solely to an administrative error of the Commonwealth. It is attributable partly to it for it did not follow up SAJ's advice to it but it is not attributable solely to the Commonwealth's error for SAJ's partner falsely stated his position. My finding that Centrelink failed to follow up SAJ's advice is not a criticism of Mr Quici's actions in dealing with the information he was given. I am satisfied that he was simply following the practice of Centrelink not to follow up information that a payment recipient is required to give it. It may be that Centrelink's practice will not normally lead to grief for the information as to the amount of income will come from other sources if the person is receiving a social security payment or benefit under the Act. Where it does not, either innocently or fraudulently, a person such as SAJ who has acted innocently and has complied with her obligations will incur a debt through circumstances over which she has no control.

1. Whether s. 1237AAD permits a debt to be waived depends, in the first instance, on whether the debt resulted wholly or partly from SAJ's partner's knowingly making his false statement or representation.  Mr Roberts submitted that, in the absence of SAJ's partner, I could not make that finding.

1. In Re Secretary, Department of Family and Community Services and Jonauskas [2001] AATA 72, I reviewed previous cases that had considered the meaning of the word "knowingly" as used in s. 1237AAD(a):

"63.                 Each of the three limbs of the section must be satisfied before the debt may be waived.  In relation to the first, Mr Walsh submitted that the word "knowingly" should be read as including a person's reckless indifference to becoming informed.  In this case, he said, Mr Jonauskas failed to read the backs of the letters he received and was reckless as to whether or not they contained information that he needed to know and so whether he needed to take any steps in relation to that information.  He relied upon the High Court's judgements in Cameron v Holt (1980) 142 CLR 342 (Barwick CJ, Stephen, Mason, Murphy and Aickin JJ) and a decision of the Tribunal in Saunders and Secretary, Department of Family and Community Services (unreported, [1999] AATA 952, 15 December, 1999, Senior Member Kiosoglous).

64.                  The High Court in Cameron v Holt was concerned with a complaint made by an officer of DSS that Mr Holt had, on three occasions and contrary to s. 138(1)(d) of the Social Services Act 1947, presented a document that was false in a material particular.  At first instance, the magistrate had convicted Mr Holt even though he found that he did not have a guilty mind.  The magistrate had found that the offence was one of strict liability and did not require that to be an element of the offence.  In separate judgements, each of the Justices concluded that the Full Court of the Supreme Court of South Australia (Holt v Cameron (1979) 22 SASR 321, King CJ, Mitchell and Legoe JJ) had been correct in finding that "… to convict of the offence in question, an accused must be shown either to have known of the falsity of the relevant statement or to have made it with reckless indifference. …" (Stephen J at page 347).

65.                  The High Court was concerned with a criminal offence in which Parliament had not specified whether any mental element was required.  It applied well settled principles that:

"… there is a presumption – in my opinion, a strong presumption – that in creating a criminal offence the legislature intends a guilty intent appropriate to the nature of the offence to be an ingredient of the offence.  This presumption can only be displaced if the language of the statute read along with its subject matter requires the conclusion that the legislature intended that such guilty intent should not form part of the prescription of the offence: Lim Chin Aik v The Queen [1963] AC 160, at p 173, affirming the expression of Wright in Sherras v De Rutzen [1895] 1 QB 918, at p 921; see also Sweet v Parsley [1970] AC at pp 162, per Lord Diplock …" (page 346, per Barwick CJ)

66.                  Section 1237AAD does not create a criminal offence but determines one of the circumstances in which the administrative action of waiver of a debt may be undertaken.  The presumptions that are applicable in the interpretation of a criminal offence do not necessarily lend themselves to the interpretation of provisions regulating administrative action.  A "guilty mind" of the sort that may be generally be presumed to be part of a criminal offence, may not necessarily be present at all in provisions regulating administrative action.  An example of that arises in s. 81(5) where, in determining the date of effect of a determination, it is irrelevant to consider whether a person's contravention of a provision of the Act must be made knowingly or unknowingly or innocently or fraudulently. All that is relevant is to determine that there has been such a determination (see paragraphs 50-51 above).

67.                  Mr Walsh drew my attention to the Tribunal's decision in Re Saunders and Secretary, Department of Family and Community Services (unreported, [1999] AATA 952, 15 December, 1999, per Senior Member Kiosoglous). After reviewing other authorities in the Tribunal (Re Callaghan and Secretary, Department of Social Security (1996-97) 45 ALD 435, Deputy President Forgie; Re Morgan and Secretary, Department of Family and Community Services, unreported, [1999] AATA 390, 8 June, 1999, Associate Professor Hotop, then Senior Member; and Re Armitage and Secretary, Department of Family and Community Services [1999] AATA 700, 17 September, 1999, Dr Christie (Member)), Senior Member Kiosoglous concluded:

"Following these decisions, in this Tribunal's opinion, the interpretation to be given the phrase 'knowingly failing' requires a standard of conscious, deliberate failure to comply with a provision of the Act. Inadvertent or unintentional failure does not constitute 'knowingly', even when an applicant knows he needs to notify. It is a civil standard of proof where 'knowingly' is a conscious and deliberate choice (Re Morgan) and also can include recklessness to the consequence of failing to comply with a provision of the Act." (paragraph 22)

68.                  Although I am reluctant to disagree with a colleague and have only respect for Senior Member Kiosoglous, I must do so on this occasion and maintain the position I adopted in Re Callaghan when I said:

"(48) 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." (page 445)

69.                  I reached that conclusion after considering the discussion of "knowledge" by Matheson J in Hooi v Brophy (1984) 52 ALR 710; 3 IPR 16. He referred at pp. 712-713, to a discussion of "knowledge" by Devlin J (as he then was) in Taylor's Central Garages (Extra) Ltd v Roper [1951] WN (Eng) 383 at 385:

"…'There are, I think, three degrees of knowledge which it may be relevant to consider in cases of this sort.  The first is actual knowledge, and, of course, the justices may find it because they infer from it the nature of the act that was done, for no man can prove the state of another man's mind; and they may find it, of course, even if the defendant gives evidence to the contrary.  They may disbelieve him, and think that that was his state of mind.  They may feel that the evidence falls short of that, and, if they do, they have then to consider what might be described as knowledge of the second degree: they have to consider then whether what the defendant was doing was, as it has been called, shutting his eyes to an obvious means of knowledge.  Various expressions have been used to describe that state of mind.  I do not think it necessary to look further, certainly not in cases of this type, than the expression used by Lord Hewart CJ, in a case under this section.  Evans v Dell (1937) 53 TLR 310 at 313: "… the respondent deliberately refrained 'from making inquiries', the results of which he might not 'care to have'."

'The third sort of knowledge is what is generally known in the law as constructive knowledge.  It is what is encompassed by the words 'ought to have known' in the phrase 'know or ought to have known'.  It does not mean actual knowledge at all: it means that the defendant had in effect the means of knowledge.' (my emphasis)" (page 385)

70.                  It seems to me that it is the first type of knowledge, actual knowledge, that it is meant by the reference to "knowingly" in s. 1237AAD. From an examination of the remaining provisions of the Act as they were in force at the time the delegate's decision was made on 9 April, 1999 and the SSAT's decision was made on 13 September, 1999, it seems to me that the Parliament has quite deliberately distinguished between "knowingly" and "recklessly". It has done so in the context of offences under the Act and I refer, for example, to s. 1344(1), which provides that a person must not "knowingly or recklessly make a false or misleading statement" in connection with his or her or with another's claim for, among other matters, a social security payment.  Other examples are found in ss. 1345 and 1346.  With effect from 20 March, 2000, the substance of these provisions is now found in ss. 212, 213 and 214 of the Social Security (Administration) Act 1999 ("Administration Act").

71.                  Section 1347, however, refers only to "knowingly" when it provides:

"A person must not knowingly obtain:

(a)payment of a social security payment under this Act or of fares allowance; or

(b)payment of an instalment of a social security payment under this Act;

for which the person is not eligible, or which is:

(c)not payable at all; or

(d)only payable in part."

72.                  Similarly, s. 1348 refers both to "knowingly" and, in a different context, to "knowingly and recklessly" when it provides:

"A person must not knowingly obtain:

(a)payment of a social security payment under this Act or of fares allowance; or

(b)payment of an instalment of a social security payment under this Act; or

(ba)payment of financial supplement;

by means of:

(c)a false or misleading statement made knowingly or recklessly; or

(d)impersonation; or

(e)a fraudulent device."

Sections 1347 and 1348 are now found in ss. 215 and 216 of the Administration Act.

73. In the context of the Act, it is clear that Parliament is aware of the "three degrees of knowledge" and has deliberately distinguished between the first two.  It has also distinguished the first two from constructive knowledge and examples of that are found in ss. 1358A and 1358B of the Act (ss. 229-232 of the Administration Act). In view of that, it seems to me that its use of "knowingly" in s. 1237AAD is a deliberate choice and means actual knowledge.  That is not to say that recklessness is irrelevant in s. 1237AAD for it is relevant in determining, together with other matters, whether or not there are special circumstances."

1. SAJ's partner was not called to give evidence but I do have the evidence of the forms that he completed and the evidence from his employer's records.  There is no suggestion that he could not read the forms that he was required to complete or that it was not his hand that completed them.  In so far as information was given in the forms, it was responsive to the questions even if incorrect.  The licence requirements for the employment in which he was engaged, suggest that he had to pass a written test as well as a practical test.  Against this background, I have concluded that SAJ's partner, who was working when he completed the relevant forms, must have known that he was working at the time and receiving income and that he consciously decided to omit it when completing the forms.  His omission amounted to his falsely stating that the did not have employment or income and, consequently, I have decided that he knowingly made a false statement about those matters.

1. As each of the criteria specified in s. 1237AAD(1) must be fulfilled before it permits the debt to be waived, I am unable to waive the debt. That seems to be a very unfortunate outcome. Although SAJ has received Parenting Payment to which she was not entitled, she has tried to meet her obligations. She advised Centrelink that her partner was working and, having done that once, it is understandable that she did not repeat her advice each time she received a notice under s. 68.  I am satisfied that she did not receive bank statements, which would have shown her that the Parenting Payment was being paid into her account.  She did not receive those statements as the bank had noted her address as "address unknown" from 1 September, 2000 to 19 April, 2001.  At the same time, I find that her partner had led her to believe that he was paying some of his income into her bank account.  She was very much under his control at this time.  All of these matters, though, are irrelevant in considering whether the debt may be waived under s. 1237AAD(1).

1. For the reasons I have given, I:

1.set aside the decision of the Social Security Appeals Tribunal dated 22 August, 2001; and

2.substitute a decision that the respondent owes the Commonwealth a debt of $3,472.45 on the basis that Parenting Payment (Partnered) was overpaid to her during the period from 30 August, 2000 to 30 January, 2001.

I certify that the forty-one preceding paragraphs are a true copy of the reasons for the decision herein of
Miss S A Forgie (Deputy President),

Signed:          …………………………………..
  Paul Paczkowski      Associate

Dates of Hearing  23 January, 2002
Date of Decision  6 June, 2002
For the Applicant  Mr Underwood, departmental advocate
For the Respondent  Mr Roberts, Welfare Rights Centre (SA) Inc