Taurio and Secretary, Department of Family and Community Services
[2005] AATA 437
•16 May 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 437
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/532
GENERAL ADMINISTRATIVE DIVISION )
Re PETER TAURIO Applicant
And
SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICESRespondent
DECISION
Tribunal Dr EK Christie, Member Date16 May 2005
PlaceBrisbane
Decision The Tribunal affirms the decision under review. This means Mr Taurio’s application for review is unsuccessful.
...................[Sgd]......................
EK Christie
Member
CATCHWORDS
SOCIAL SECURITY – Austudy – overpayment - administrative error – special circumstances – waiver - whole or part of the debt – Words and Phrases: “full-time education” and “flexible delivery” - Procedure: observations on Departmental policy for pursuing concurrent civil actions and criminal prosecutions
Social Security Act 1991 s 1236, 1237A, 1237AAD
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Australian Tea Tree Oil Research Institute v Industry Research and Development Board (2002) 124 FCR 316; (2002) 70 ALD 1
Secretary, Department of Social Security v Jordan (1998) 49 ALD 496
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Re Callaghan and Secretary, Department of Social Security (1996-1997) 45 ALD 435
Prince v Secretary, Department of Education, Employment and Youth Affairs (1997) 50 ALD 186
R v Hay and Lindsay (1968) Qd R 459 at 476“Prosecution Policy of the Commonwealth”
( April 2005)
REASONS FOR DECISION
16 May 2005 Dr EK Christie, Member
1. This is an application by Peter Taurio for a review of the decision made by the Social Security Appeals Tribunal (the “SSAT”) on 18 May 2004 to recover an Austudy debt in the sum of $9606.88 for the period 1 April 2002 to 1 September 2003.
2. The evidence before the Tribunal comprised the documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” documents) [Exhibit 1] and the various exhibits lodged by the parties.
3. The applicant represented himself at the hearing. The respondent was represented by Ms J Dwyer, a Departmental Advocate.
Issues before the Tribunal
4. The only issue for the Tribunal to decide was whether the debt due to the Commonwealth could be waived, in part or in full, for either “administrative error” or “special circumstances”.
5. Ms Dwyer informed the Tribunal that the debt due to the Commonwealth was being currently recovered by instalments of $57 per fortnight. At the date of the hearing the balance of the debt was approximately $7,752. Ms Dwyer further informed the Tribunal that Mr Taurio had been prosecuted for social security fraud; Mr Taurio advised the Tribunal that he had pleaded guilty to the charge and was now awaiting sentencing.
6. At the end of the hearing the Tribunal exerted its inquisitorial powers and issued a Direction to the respondent to seek information from the Randwick TAFE in relation to:
(a)the enrolment status Mr Taurio had been given by the TAFE at the commencement of his course, as well as any changes over time;
(b)the advice given to students enrolled outside Sydney as to their enrolment status – including the implications on enrolment status for a student undertaking a course of study offered in the flexible delivery mode; and
(c)advice given to students undertaking the Advanced Diploma in Dental Prosthetics in terms of enrolment status and number of hours of face-to-face contact required each week to be considered as a full-time student.
Factual Evidence
7. Mr Taurio works as a dental technician making dental prostheses. He holds a Certificate in Dental Prosthetics from Sydney TAFE completed in 1993. In order to become a registered dental prosthetist and so qualify for a provider number, he enrolled in the Advanced Diploma in Dental Prosthetics offered by the Randwick (NSW) TAFE. Before commencing the course, he paid the Randwick TAFE an initial payment of $3750 – and, later, two further payments of $1875 to complete the course. Additional costs of $50 had to be paid in order to sit for each examination.
8. Mr Taurio now has an accumulated debt on his Visa Card that is currently around $29000. He can only afford to make the monthly minimum repayment [$600].
9. On the basis of the evidence before it, the SSAT made the following findings of fact:
(i)Mr Taurio claimed Austudy on 25 March 2002 describing himself as undertaking a full time enrolment as a student.
(ii)Mr Taurio was not a full time student at any time (T2, Folio 6).
10. In response to these findings of fact by the SSAT, Mr Taurio stated:
(i)that he believed that he was a full time student after contacting Barrie Alexander at the Randwick TAFE;
(ii)on completing his claim form for Austudy, he had left the box open that asked the question about his student status. He had sought assistance from a Centrelink staffer and then marked the box “full time”.
11. Mr Taurio stated that, based on what he had been told by the TAFE, he believed from the outset that he was a full-time student.
12. Mr Taurio tabled a single page document titled “Advanced Diploma in Dental Prosthetics” which set out academic arrangements for those students who would be undertaking their TAFE studies centred on Ballina. The Tribunal notes that this document has the sub-title: “Schedule – Flexible Delivery”. However, there is no information in the “T” Documents where the TAFE explains how their Flexible Delivery program affects a student’s enrolment status e.g. “full-time”, “part-time” or “external”. Furthermore, the only information in this regard is contained in a letter to Mr Taurio from the Sydney TAFE Institute (20 September 2001, T7, Folio 52) which states in part:
“Thank you for allowing the Short Course Centre at Sydney Institute to provide you with a proposal for the delivery of a course in Dental Prosthetics.
It is proposed that this program be delivered flexibly over a 2.5 year period. Please note that this time may vary depending on the individual participant’s progress.” [Tribunal emphasis]
13. Mr Taurio stated he had never been told in 2002/2003, in order to qualify as a full-time student in the Advanced Diploma offered by the TAFE, that he would be required to undertake at least 15 hours face-to-face contact each week. However, he acknowledged that at no stage during 2002/2003 had he met this requirement of 15 hours face-to-face contact each week.
14. He said that he had been confronted with organisational problems in undertaking the TAFE course. Firstly, a cheque for $3,750 he had sent in order to commence the course in Semester 1 2002 “got lost” in the TAFE system. This resulted in his being unable to enrol in the computing course offered in Semester 1 2002 as the TAFE regarded him as not being enrolled. In Semester 2 2002, the TAFE offered no courses in Lismore in the Advanced Diploma Course. In January 2003, he had enrolled in a course offered at Lismore and had passed.
15. Mr Taurio said that when he enrolled, based on the information given to him as well as his past experience, he believed that he could qualify in the course in about half a year.
16. A record of “Clinical Practice Hours” worked in the subject “Complete Dentures Introductory” over the period 2 April to 24 July 2002, indicates that Mr Taurio completed 7 hours of work each week (T30, Folio 109).
17. A Centrelink file note dated 1 April 2002 (T9, Folio 55) has Mr Taurio classified as a “full-time” student.
18. In response to a Centrelink request to the Randwick TAFE regarding Mr Taurio’s enrolment (8 September 2003, T24, Folio 84), the TAFE responded to the following questions as follows:
“1. What is the full Title/Name of the course? Advanced Diploma of
Dental Prosthetics
2. Is the study Full-time, Part-time or External? External
3.What is the student’s numbers of hours 8 hours attendance in each semester 2002/2003 the student 2002
Attended/completed?
4.Has the student altered enrolment to a N/A
Part time workload? If yes, on what date
Did the alteration occurred?
5.For what period was the student enrolled? 2002 – Feb →Dec
6.Did the student attend any classes or No
Hand in any work for the course?
7.Did the student complete at least 75% of No
The workload in each semester?
8.If student ceased studies please provide No contact since June
Date last attended? 2002”
These details were provided by a Dr Harold Lewis at the Randwick TAFE.
19. Mr Taurio provided the following details on his current weekly income and expenditure:
I – Weekly Income
(a) Dental Technician Work (Brisbane) $500
(b) Dental Technician Work (Northern NSW) $40-150
(c) Newstart Allowance $58 $(598-708)
II – Weekly Expenditure
(a) Visa Card (Minimum Monthly Repayment[1]) $150
[1] Total Visa Card debt: $29,000
(b) Accommodation (Brisbane) $225
(c) Accommodation (Ballina) $120
(d) Electricity $ 10
(e) Telephone $ 15
(f) Groceries $30-40
(g) Medication (chronic conditions) Nil (Cannot Afford)
(h) Work tools and books Nil
(i) Clothing “Recycled”
(j) Sport and entertainment Nil
(k) Motor vehicle fuel and running costs $60
(l) Motor vehicle registration $14
(m) Austudy debt recovery $28 $(652-662)
Contentions and Submissions of the Parties
20. Ms Dwyer submitted that Mr Taurio did not satisfy the requirements to be a full-time student whilst enrolled in the Advanced Diploma course from the Randwick TAFE. At no time in 2002 or 2003 had he undertaken a full-time study load – or 75% of the full-time study load. As he was not a full-time student, he was not entitled to Austudy.
21. Ms Dwyer submitted that Mr Taurio had indicated that he was a full-time student. Mr Taurio had not responded to notification notices requiring him to advise of any changes in his enrolment e.g. “if he had stopped being a full-time student”. Consequently, the debt could not be waived under the administrative error provisions of the Act as Mr Taurio had contributed to the error that led to the overpayments.
22. Furthermore, Ms Dwyer contended that Mr Taurio knowingly made a false statement on the claim form in order to receive Austudy and be relieved from the activity test required to receive newstart allowance. As a result, the overpayments of Austudy could not be waived under the “special circumstances” provisions of the Act.
23. Mr Taurio submitted that he had never been told, from the outset, of the following requirement for entitlement to Austudy:
“[to] undertake at least 15 hours face to face study in a week (it may be a combination of lectures and formal consultations with course supervisors).”
24. At all times in 2002 and 2003 when he was enrolled in the Advanced Diploma Mr Taurio believed that he was a full-time student.
Supplementary Submissions
25. The Randwick TAFE provided the following responses to the questions raised in the Tribunal’s Direction; the Randwick TAFE response was filed on 31 March 2005.
§Tribunal Question 1: What category of student was Mr Taurio placed in at the commencement of his studies in 2002: “full-time”, “part-time” or “external”
“Mr Taurio was placed in Course 4392 as an external student offered training by flexible delivery. This was not a full time course.”
§Tribunal Question 2: What documentation was sent to Mr Taurio confirming the category of student he had been placed in at this date? A copy of any document sent to him should be provided by Randwick TAFE.
“All students enrolled in this course, and there were seven others apart from Mr Taurio, had the nature of the course outlined to them by discussion with our sections Senior Head Teacher at the time, Dr Barrie Alexander, and they were fully aware of the structure of the course, prior to them being enrolled. Following enrolment Mr Taurio was issued by post with a list of core and elective modules which he had to complete for course completion and graduation. These include Modules on Patient Assessment, Infection Control, Oral Structure and Function and Complete Dentures GH&J. A copy of a Supervisors Guide was forwarded, as Mr Taurio had nominated Mr Wolf Machatch 6 Earl St. Coffs Harbour as his mentor/supervisor. Some compulsory modules were granted as exemptions to Mr Taurio. I bring your attention to copies of documents numbered one to three, a list of the modules, a list in Mr Taurio's personal file noting the modules he planned to tackle and a copy of a letter to Dental Auxiliaries section of TAFE NSW which latter helps to demonstrate Mr Taurio's understanding of the course structure.”
§Tribunal Question 3: Mr Taurio’s enrolment indicated he lived in Alstonville. It is possible for a student enrolled outside of Sydney to undertake this work as a full-time student? What information (written/oral) was given to Mr Taurio by Randwick TAFE in this regard?
“It is possible for students living outside Sydney to be enrolled in Course 4392. At this time there are two students who travel from Queensland, and one from Evans Head to attend for one day’s tuition and clinical training each week for five semesters. Still this is only a part time course. Mr Taurio started and did not complete a similar course numbered 1356 in Dental Prosthetics in about 1991, which course carried identical attendance requirements to 4392. So he would have been quite conversant with the part time nature of course 4392.”
§Tribunal Question 4: Based on Mr Taurio’s academic progress in (a) 2002, and (b) 2003, did Randwick TAFE change his student category? If so, at what date(s) and what change to student category? What information or advice was provided to Mr Taurio by Randwick TAFE if such a change(s) occurred?
“Tafe did not at any time change Mr Taurio's student category. He simply did not complete the course apart from the exemptions granted and already noted for you.”
§Tribunal Question 5: Would a student enrolled in the Advanced Diploma in Dental Prosthetics, a course offered by flexible delivery by Randwick TAFE and undertaken by Mr Taurio whilst living and working in Alstonville, be categorised as (i) a “full-time” student, (ii) a “part-time” student or (iii) an “external” student? What information or advice was given to Mr Taurio in this regard? Copies of any documents sent to Mr Taurio should be provided by Randwick TAFE.
“The students enrolled in Mr Taurio’s course were regarded as part time, external students in a commercial course delivered by flexible delivery.” [Emphasis added]
§Tribunal Question 6: In relation to Course Information (T30 Folio 111 which sets out prescribed courses [as Group 1 CORE], elective courses [Group 2 ELECTIVE] and Tutorials [Group 3], what information or advice was provided by Randwick TAFE to Mr Taurio informing him that he would have to undertake at least 15 hours of course work, in these three groups, in order to be categorised as a “full-time” student.
“Dental Auxiliaries has no record of any advice given to Mr Taurio as to what hours would be required to render him a ‘full time’ student in this course. The planned structure of the course precluded him from being a ‘full time’ student.”
The TAFE response concluded with the following statement:
“In summary, Mr Taurio enrolled in a commercial course as a part time, external student with training being offered by flexible delivery. He made one visit to Sydney to attend an introductory lecture given by Dr Barrie Alexander. He subsequently made no attempt to complete the course.”
26. Supplementary submissions, in respect to the “Randwick TAFE document”, were filed by the applicant on 12 April 2005 and from the respondent on 28 April 2005.
27. Mr Taurio stated that the Head Teacher of the course, Dr Barrie Alexander had never visited or contacted him, or any of the other students in the area, when he was in Ballina, during the period he was enrolled in the course.
28. Ms Dwyer submitted that the additional evidence provided by the TAFE indicated that the course Mr Taurio had enrolled in was not offered on a full-time basis – a fact she contended that Mr Taurio would have been aware. Furthermore, Ms Dwyer referred to the SSAT decision which referred to a statement of Mr Taurio that he “did not ever think he was a full-time student”. Finally, Ms Dwyer referred to the factual situation that Mr Taurio had made no contact with the TAFE after June 2002 and contended that, at this stage, Mr Taurio should have contacted Centrelink to indicate a change in his circumstances.
The Tribunal’s Decision-Making Powers
29. “The question for the determination of the Tribunal is whether the decision [under review] was the correct one [that is, when there is only one decision] or preferable one [that is, when a range of decisions is available] on the material before the Tribunal”: see Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, [per Bowen CJ and Deane J, at 68]. There are a range of decisions possible in this application for review.
30. Administrative decision-makers are generally required to address the evidence before them and not confine themselves to evidence before a prior decision-maker whose decision is being reviewed unless the relevant legislation requires a decision to be based upon the circumstances at a particular point of time: see Australian Tea Tree Oil Research Institute v Industry Research and Development Board (2002) 124 FCR 316 at 324-326. In this application for review, the Tribunal considers all the evidence and information before the Tribunal at the date of the hearing, including the supplementary submissions in relation to the Tribunal Direction and information on enrolment status provided by to the Randwick TAFE to Mr Taurio, the subject of the Tribunal’s Direction.
Statutory Requirements And Case Law
31. The meaning of “full-time course of education” was considered by the Federal Court in Secretary, Department of Social Security v Jordan (1998) 49 ALD 496, where at 502,503 Hill J commented:
“The classification of the course by the educational institution offering it is a factor to consider; indeed it may provide at the least a prima facie indication and perhaps often will, absent other factors, be determinative.But that classification can not be the only factor to be considered…..
Other relevant facts will include the number of hours the student is required to attend the university, the number of hours expected to be spent working at home on study and assessments and the times and days the student is required to attend the university. The task of statutory interpretation, however, is not to define an expression in the abstract. The context in which the expression is employed will cast light on the meaning which parliament intended. In the present case the context is that of conferring upon unemployed applicants a benefit where they are seeking work. An applicant who is enrolled in a full time course of educational or vocational study is to be regarded as not able to participate in the full time work force and thus disentitled to the benefit. Hence in construing the expression ‘full time course of education’ it will often be relevant to consider whether the course is so structured that it would be inconsistent with the ability of the applicant to become engaged in full time employment.” [Emphasis added].
32. Section 1237 of the Social Security Act 1991 provides for circumstances where a debt due by a recipient of social security to the Commonwealth may be waived, either in part or in full. These circumstances arise” where there were “special circumstances” that led to the overpayment – or if the overpayment arose from “administrative error”.
33. Section 1237AAD provides for a debt due to the Commonwealth to be waived, either in part or in full, because of “special circumstances”:
“1237AAD – WAIVER IN SPECIAL CIRCUMSTANCES
“The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a) the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or 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 make it desirable to waive; and
(c)it is more appropriate to waive than to write off the debt or part of the debt.” [Tribunal emphasis].
34. For this section of the Act to apply to Mr Taurio’s factual situation, there must be “special circumstances” that led to the overpayment of social security entitlements. In addition, Mr Taurio must not have “knowingly” made a false statement or false representation or failed to have complied with a provision of the Act. Both these requirements must be satisfied for Mr Taurio to succeed under the “special circumstances” provisions of the Act.
35. The Tribunal has had to consider the meaning and application of the expression “special circumstances” on many occasions. The decision of the Tribunal in Re Beadle and Director-General of Social Security (1984) 6 ALD 1 has been an oft-quoted benchmark as to the interpretation of “special circumstances”. In that case the Tribunal said (at 3):
“An expression such as ‘special circumstances’ is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.”
36. In Groth v Secretary, Department of Social Security (1995) 40 ALD 541 (a case on “special circumstances” and section 1184 of the Act) at 545, Kiefel J, after referring to the Federal Court’s decision in Beadle, observed that special circumstances:
“…would require something to distinguish Mr Groth’s case from others, to take it out of the usual or ordinary case…It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary.”
37. The principles in Re Callaghan and Secretary, Department of Social Security (1996-1997) 45 ALD 435 are relevant with respect to the meaning of “knowingly” at Paragraph 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 of 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 debt.”
and later at paragraph 50,
“Knowingly omitting them is something different from fraudulently omitting them and I draw the distinction in this case.” [Tribunal emphasis]
38. Section 1237A provides for a debt due to the Commonwealth to be waived, either in part or in full, because of “administrative error”:
“SECTION 1237A – WAIVER OF DEBT ARISING FROM ERROR
1237A(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).” [Tribunal emphasis]
39. For this section of the Act to apply to Mr Taurio’s factual situation, Mr Taurio must not have contributed, in any way, to the administrative error that led to the overpayment. In addition, Mr Taurio must have received his overpayments of social security entitlements in “good faith”. Both these requirements must be satisfied for Mr Taurio to succeed under the “administrative error” provisions of the Social Security Act.
40. The legal meaning of “good faith” was considered by the Federal Court in Prince v Secretary, Department of Education, Employment and Youth Affairs [1997-98] 50 ALD 186. In this case, Finn J stated:
“if that person knows or has reason to know that he or she is not entitled to a payment received - i.e. is not entitled to use the moneys received as his or her own - that person does not receive the payment in good faith. Absent such knowledge or reason to know, the receipt would be in good faith…the [legislation] does seem in all probability to be directed to a payee who receives the money (to put the matter positively) in the good faith belief that he or she is entitled to receive it. In other words the frame of the section is to exclude from the right to a waiver, a person who knows or has reason to know that he or she is not entitled to receive the payment. It would be surprising to find that the Parliament intended otherwise”.
Consideration of the Issues
41. The first issue for the Tribunal to consider is the factual evidence relating to whether the debt could be waived under the “administrative error” provisions of the Act.
42. The Tribunal concludes that Centrelink, Mr Taurio and the Randwick TAFE have all contributed to the administrative error that led to the overpayments of Austudy to Mr Taurio.
43. Jordan’s case makes it quite clear that whilst an educational institution’s classification of a course as full-time may be determinative, this is not the only factor that can be considered. One relevant factor referred to in Jordan’s case is “whether the course is so structured that it would be inconsistent with the ability of the applicant to become engaged in full-time employment”.
44. The Randwick TAFE’s supplementary documentation refers to the course in terms of it not being a “full-time” course. Rather, it was “regarded as part-time, external [course]” being “offered by flexible delivery”. There is no indication in the TAFE’s documentation as to what “flexible delivery” means. For example, does it mean a student can progress at their own rate dependent on the number of units they elect to enrol in during any one semester [i.e. to complete the course in a very short period of time by enrolling in many units] – or enrolling in a small number of units and taking much longer to complete the course? Alternatively, does “flexible delivery” mean that there is little face-to-face (or direct) teaching contact so that the students learning process is wholly a function of electronic communication and/or written materials provided to them? Both these approaches are reflected in the use of “flexible delivery” as a teaching model in Australian Universities today.
45. The material and evidence before the Tribunal indicates that the educational meaning of the “flexible delivery” model used by Randwick TAFE in Mr Taurio’s course is not entirely clear and that there is uncertainty to its meaning. For example, a letter sent to Mr Taurio (T17, Folio 52, 20 September 2001) states that it was proposed to offer the course by flexible delivery over a 2.5 year period – but “that time may vary depending on the individual participant’s progress” i.e. the “model” (referred to in paragraph 44) in which the time taken to complete the course is a function of the number of Units of study enrolled in during each semester.
46. Furthermore, a Centrelink filenote (T8, Folio 54; T9, Folio 55) indicate that, at the time Mr Taurio commenced the course, Centrelink determined the course was a full-time course by simply dividing the total number of hours of the course by the number of teaching weeks to complete the course - based on information provided by Randwick TAFE.
“Txt: grant austudy under section 568 ssa 91.
a/n is studying full time at tafe doing dentistry. a/n states course is for 2.5 years. on tafe course list states course runs for 996 hours this converts to approx 66 weeks at 15 hrs/week. have coded course details to 29/6/03.
poi satisfied.” (T8, Folio 54)
47. The simple equation relied on by Centrelink gave an answer of 15 hours per week, and so Centrelink concluded that Mr Taurio would be a full-time student and to be in accordance with the statutory requirements for entitlement to Austudy. No further clarification was sought by Centrelink in relation to the course being offered by flexible delivery by Randwick TAFE or the requirement for Austudy entitlement of “15 hours face-to-face study each week”. Moreover, Randwick TAFE has no record of any advice given by them to Mr Taurio as to the number of hours required by the TAFE to be considered a “full-time student” – as the structure of the course precluded him from being a “full-time” student.
48. Mr Taurio’s evidence was that he believed, based on information given to him, and his past experience, that he could complete the course in about half a year. His evidence was that he had never been informed that entitlement to Austudy required him to undertake at least 15 hours of face-to-face contact each week. He also acknowledged that he had never met this requirement during the period that he was enrolled in the Course.
49. The Tribunal concludes that the central source of the administrative error relates to an understanding of the requirements for being considered as a full-time student for Austudy purposes. This error resides with the Randwick TAFE - as well as Mr Taurio and Centrelink who have also contributed to the error. As Mr Taurio has contributed to the “administrative error” – by not querying his situation when he did not undertake any coursework in Semester 1, 2002, the debt cannot be waived under this statutory provision.
50. Next, the Tribunal considers the factual evidence relating to whether the debt could be waived under “special circumstances” provisions of the Act.
51. The Tribunal considers the “knowingly” issue in relation to Mr Taurio’s state of knowledge at the time, and to events surrounding the false statement or the act or omission.
52. The Tribunal concludes that Mr Taurio’s state of knowledge at the time he completed the claim form – as well as the events surrounding the statement or the act or omission, do not represent a situation whereby he had "knowingly" made a false statement or act and omission. The correct application of Callaghan’s case requires that the person to have “actual knowledge” that he or she is making a false statement.
53. In Mr Taurio’s case such a conclusion cannot be made as he had enrolled in the Randwick TAFE Advanced Diploma with the expectation that he would complete the course, a course offered in the flexible delivery mode in about half a year viz. the TAFE information that “[the] time may vary depending on the individual participant’s progress” (see paragraph 45). He also believed that he was a full-time student after contacting Barry Alexander at the Randwick TAFE. He had further sought assistance from a Centrelink staffer in terms of his enrolment status when completing his Austudy claim form. Based on the Centrelink advice given to him he had marked his student category box, “full-time”. Furthermore, the Tribunal considers that information provided to Mr Taurio by Randwick TAFE at the outset, as to his enrolment status, did not necessarily provide him with the clarity of meaning required to confirm that undertaking and completing the course in about half a year – a course offered by flexible delivery - would not qualify him for the status of “full-time” student. The Tribunal concludes that the lack of clarity of the meaning of the term “full-time student” – for Austudy purposes, when Mr Taurio’s course was taken by “flexible delivery”, has created confusion as to the real status of Mr Taurio’s enrolment category.
54. Accordingly, the Tribunal concludes that, given these findings, Mr Taurio could only have had “constructive knowledge” rather than “actual knowledge” that he was making a false statement or representation or that he was failing or omitting to comply with a provision of the Act. The Tribunal notes that the meaning of “knowingly” is something quite different from “fraudulently”: see Callaghan’s case.
55. The Tribunal considers the following factual situation in relation to the legal meaning for “special circumstances”:
(a)that Mr Taurio, at no stage from the commencement of his enrolment, had ever met the Austudy requirement of 15 hours face-to-face contact a week; and
(b)that he had not undertaken a course in Semester 1, 2002 because enrolment problems associated with Randwick TAFE administration precluded this; and
(c)that in Semester 2, 2002 Randwick TAFE offered no external courses in Lismore.
56. The Tribunal concludes that for any one of these “facts” Mr Taurio should have raised a query with Centrelink concerning his student enrolment status/category – given (i) that notices had been sent by Centrelink to him setting out his obligations as an Austudy recipient and (ii) that some of his circumstances had changed.
57. When the legal principles that have been defined by the Federal Court are applied (see paragraphs 31 - 40), the Tribunal concludes that there is not something “unusual”, "uncommon” or “exceptional” to take the matter out of the ordinary or that there was something “unfair” or “unintended” in the circumstances that have led to the overpayment.
58. Consequently, “special circumstances” do not apply and the debt due to the Commonwealth cannot be waived under the “special circumstances” provisions of the Social Security Act.
59. The Tribunal makes the observation that Mr Taurio’s factual case is a situation whereby a criminal prosecution preceded the civil action to recover the debt due to the Commonwealth. The civil and criminal standards of proof are clearly different. However, findings in a civil action may be a relevant consideration in arriving at a decision to exercise the discretion to prosecute.
60. The duty of the prosecutor to the court has been clearly described by Campbell J (as he then was) in R v Hay and Lindsay (1968) Qd R 459 at 476:
“…not to obtain a conviction by all means … It cannot be too often made plain that the business of Counsel for the Crown is fairly and impartially to exhibit all the facts to the jury (or to the Magistrate in summary proceedings)… Its [the Crown] only interest is that the right person should be convicted, that the truth be known, and that justice be done.”
61. In addition, the “Prosecution Policy of the Commonwealth” notes:
“(2.2) The decision whether or not to prosecute is the most important step in the prosecution process. In every case great care must be taken in the interests of the victim …. the suspected offender and the community at large to ensure that the right decision is made. A wrong decision to prosecute or, conversely, a wrong decision not to prosecute, both tend to undermine the confidence of the community in the criminal justice system.
(2.3)The criteria for the exercise of this discretion cannot be reduced to something akin to a mathematical formula; indeed it would be undesirable to attempt to do so. The breadth of the factors to be considered in exercising this discretion indicates a candid recognition of the need to tailor general principles to individual cases.” ( April 2005)
62. In Mr Taurio’s case, he has pleaded guilty to the criminal offence prior to his application for review being heard by the Tribunal. However, the civil proceeding before the Tribunal raised the evidentiary issue as to whether there had been an “intent” on Mr Taurio’s part to “knowingly” violate the law – or whether there had been some uncertainty in terms of his understanding of the meaning of being a “full-time” student with respect to Austudy entitlement whilst undertaking an academic course, offered in the flexible delivery mode, by the Randwick TAFE. The Tribunal’s findings are based on the civil standard of proof (“balance of probabilities”) and not the criminal standard of proof (“beyond reasonable doubt”). In addition, case law indicates that the legal meaning of “knowingly omitting” is something different from “fraudulently omitting”.
63. The Tribunal makes the further observation that, in cases where the respondent is seeking to pursue a concurrent civil action and a criminal prosecution, it may be prudent for the respondent to have in place Departmental Policy Guidelines. Specifically guidelines that prescribe criteria when and how the discretion to prosecute is to be applied to pursue a criminal referral - prior to all appeal avenues being exhausted in the civil action.
64. Finally, the Tribunal notes the precarious state of Mr Taurio’s financial affairs and has assumed that the amount of the instalments being recovered each fortnight has been based on a “Statement of Financial Circumstances” prepared by Mr Taurio.
65. For all of the above reasons, the Tribunal has no option other than to affirm the decision under review.
I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed: Camille Banks
Associate
Date/s of Hearing 2 March 2005 [at Ballina]
Date of Decision 16 May 2005 [at Brisbane]
The Applicant appeared in person
For the Respondent Ms J Dwyer, Departmental Advocate
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