FCRC Professional Development Series Understanding Social Security Prosecutions

1. FCRC Professional Development Series Understanding Social Security Prosecutions David Grove, Senior Lawyer Commonwealth Entitlements Program

2. Understand the basic prosecutions framework for social security overpayments Identify from client instructions potential prosecution situations Understand what services Victoria Legal Aid provides and when it is appropriate to refer for legal advice Outline of session

3. Department of Public Prosecutions (Cth) Established to prosecute alleged offences against Commonwealth law “Policy” threshold of $10,000 debt Investigation (Business Integrity) Unit Connection with civil debt – understanding the difference Prosecutions – basic legal framework

4. Usually s135.2 – obtaining financial advantage - engage in conduct - consequent financial advantage from Cth - knowledge or belief of non-entitlement s135.1 – general dishonesty - does anything with intention of dishonestly obtaining a gain from the Cth S134.1 – obtain property by deception. Similar to s135.1 with deception added Offences – Criminal Code Act 1995

5. Clients do not have to have intent to obtain something they weren’t entitled to. They can be prosecuted if they had knowledge or belief that they were not entitled to the full benefit they received. It is often very difficult to prove that clients didn’t have some idea that they weren’t fully entitled to what they received. Clients are legally obliged to notify Centrelink of a change in circumstances within 14 days. Prosecution Issues

6. Social security prosecutions (nationwide)Centrelink statistics

7. Centrelink has immense information gathering powers: - data matching - access to bank, employment, ebay records - tip offs; private investigators Centrelink may find that a person has failed to declare a relationship or under declared their income This will result in a debt being raised, and may also result in a prosecution Your clients need to take care to: report correctly advise Centrelink about changed circumstances within 14 days What Centrelink investigates

10. The outcome depends on: what the client has been charged with the nature of the debt the client’s circumstances Range of penalty is from a a promise to be of good behaviour to imprisonment The higher the debt, the more likely imprisonment will be the outcome Penalties

11. DPP (Cth) v Poniatowska DPP (Cth) v Keating Since Keating we know 30% of convictions wrong at law Post-Keating Prosecution Issues

12. Single & partnered rates Income and assets test MLR factors: the financial aspects of the relationship the nature of the household the social aspects of the relationship any sexual relationship between the people The nature of the commitment to each other Common issues:Marriage-like relationships

13. a person who obtains the benefit of a payment to which they were not entitled for any reason Undeclared or underdeclared employment income Failure to declare a relationship Overpayment waiver Sole administrative error Special circumstances Centrelink debts are legally recoverable from a person’s Centrelink benefit Common issues:Overpayments

14. Victoria Legal Aid David Grove (03) 9269 0222 david.grove@vla.vic.gov.au Other Resources Welfare Rights Unit Factsheets: www.welfarerights.org.au Social Security Rights Victoria Further information