Welfare Rights Centre (NSW) The Prosecution of Social Security offences from a CLC’s perspective

1. Welfare Rights Centre (NSW)The Prosecution of Social Security offences from a CLC’s perspective www.welfarerights.org.au This presentation was prepared by the Welfare Rights Centre, NSW

2. Welfare Rights Centre • The Welfare Rights Centre is a Community Legal Centre specialising in Social Security law, administration and policy. • The Centre provides a casework services to people with income support problems that come under Social Security and Family Assistance law in NSW. This presentation was prepared by the Welfare Rights Centre, NSW

3. Programs • Advice and casework • Policy and law reform • Community Legal Education • Publications (“Handbook”, newsletters, factsheets, website, case digests) This presentation was prepared by the Welfare Rights Centre, NSW

4. Casework service • Telephone advice service • Toll-free number for callers outside of Sydney • Casework undertaken according to Casework Guidelines This presentation was prepared by the Welfare Rights Centre, NSW

5. Centrelink debts • Biggest area of the Centre’s advice and casework relates to debts: • Debt calculation • Debt recovery • Waiver of recovery of debt • Prosecution This presentation was prepared by the Welfare Rights Centre, NSW

6. Debt waiver • Was the debt caused solely by the Commonwealth’s administrative error and did the person receive the payments in good faith? OR • Did the person unknowingly fail to declare their circumstances or make a misrepresentation and are there special circumstances in the person’s case? This presentation was prepared by the Welfare Rights Centre, NSW

7. Administrative Review Process • Authorised Review Officer • Social Security Appeals Tribunal • Administrative Appeals Tribunal • Federal Court This presentation was prepared by the Welfare Rights Centre, NSW

8. Prosecution • Over recent years the Centre has experienced a stead increase in request for advice about Social Security prosecutions matters: • 2005/2006- 252 advices • 2006/2007- 359 advices • 2007/2008- 355 advices • 2008/2009- 459 advices This presentation was prepared by the Welfare Rights Centre, NSW

9. Centrelink referrals to CDPP • Centrelink refers the largest number of prosecutions to the Commonwealth Director of Public Prosecutions (CDPP) • 2008/2009- Centrelink referred 5082 matters. • CDPP prosecuted 3388 of these referrals (66%). This presentation was prepared by the Welfare Rights Centre, NSW

10. Centrelink referrals to the CDPP • Guidelines state some cases are generally to be referred (eg dual claims, forged documents) • Guidelines mandate that some cases should be investigated for prosecution: • Cases where alleged offenders have previously been convicted of similar offences • Cases where alleged offenders have previously been issued a “warning letter” • Cases involving “serious misconduct” • Cases where the debt is over $5,000 This presentation was prepared by the Welfare Rights Centre, NSW

11. CDPP statistics • 2008/2009 • 3388 prosecuted • 34 acquitted • 381 offence proven, but no conviction recorded (section 19B Crimes Act) This presentation was prepared by the Welfare Rights Centre, NSW

12. Client contact • Most of these clients contact after a debt has been raised and an invitation to a “taped” prosecution interview has been sent out. • General advice: do not attend the taped interview. • No resources to go along to taped interviews with clients (cf Western Australia) This presentation was prepared by the Welfare Rights Centre, NSW

13. Causes of debt • Income and assets- non-declaration vs under-declaration of income • “fiddling was, in essence, a rather poorly calculated act of desperation” (Dean and Melrose, 1997) • “Member of a couple” cases • Rare to come across “dual identity” or “false identity” debts This presentation was prepared by the Welfare Rights Centre, NSW

14. WRC referrals and casework • In most cases a direct referral to LAC or other criminal solicitors will be made. • Where appropriate, administrative review will be undertaken • Representations to Centrelink not to refer for prosecution • Representations to CDPP not to prosecute This presentation was prepared by the Welfare Rights Centre, NSW

15. Where the matter already with the CDPP • In some circumstances the Centre has made representations directly to the CDPP that the matter not proceed either because • The evidence does not support any possible charge • There are public policy considerations in the case This presentation was prepared by the Welfare Rights Centre, NSW

16. Case example- Nicola • $11,000 debt for Parenting Payment (Single) 2006-2008 • Nicola contacted after invited to taped interview • Advised not to attend, and to obtain Centrelink file under FOI • 3 weeks later matter referred to CDPP This presentation was prepared by the Welfare Rights Centre, NSW

17. Nicola’s case • Centrelink file showed: • Small discrepancies at first, as client failed to advise of a small award increase, however advised of salary change when promoted • Client advised of further change in rate of pay in 2007, but Centrelink record stated “did not update eans” as the client was in the process of being investigated. This presentation was prepared by the Welfare Rights Centre, NSW

18. Nicola’s case • Wrote to CDPP arguing no reasonable prospects of success. • Attached copies of Centrelink records showing that Centrelink properly advised in 2007, but failed to investigate in a timely manner. • CDPP decided not to proceed This presentation was prepared by the Welfare Rights Centre, NSW

19. “Public Policy” considerations • Set out at paragraph 2.10 of The Prosecution Policy of the Commonwealth. Include, but are not limited to: • The youth, age, intelligence, physical health, mental health or special vulnerability of the alleged offender • The alleged offender’s antecedents and background • Whether the consequences of any resulting conviction would be unduly harsh and oppressive This presentation was prepared by the Welfare Rights Centre, NSW

20. Maxine’s case • Maxine contacted in relation to an Austudy debt of $8,000 due to under-declared income (2005- 2007). The matter had already been referred to CDPP but no CAN issued yet. • Long-standing psychiatric condition- no evidence on Centrelink file as client not on a disability-related payment This presentation was prepared by the Welfare Rights Centre, NSW

21. Maxine’s case • Obtained Centrelink file- income reported erratically and then same amount maintained for last 6 months, despite changes in income • Wrote to CDPP arguing not in the public interest to prosecute- attached medical evidence and evidence relating to disciplinary proceedings at client’s workplace during that time • CDPP decided not to prosecute “on this occasion” This presentation was prepared by the Welfare Rights Centre, NSW

22. Final comments • Lack of resources to intervene more frequently in cases such as Maxine and Nicola • Lack of resources to obtain Centrelink file in every case where a person alleges Centrelink error • Lack of criminal expertise makes it difficult to decide if best to let administrative review happen first • However, obvious that many of these case should not be going ahead to prosecution This presentation was prepared by the Welfare Rights Centre, NSW