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
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
Programs
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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
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
Centrelink debts
• Biggest area of the Centre’s advice and
casework relates to debts:
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Debt calculation
Debt recovery
Waiver of recovery of debt
Prosecution
This presentation was prepared by the
Welfare Rights Centre, NSW
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
Administrative Review Process
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Authorised Review Officer
Social Security Appeals Tribunal
Administrative Appeals Tribunal
Federal Court
This presentation was prepared by the
Welfare Rights Centre, NSW
Prosecution
• Over recent years the Centre has
experienced a stead increase in request for
advice about Social Security prosecutions
matters:
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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
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
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
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
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
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
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
Where the matter already with the
CDPP
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In some circumstances the Centre has
made representations directly to the CDPP
that the matter not proceed either because
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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
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
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
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
“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
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
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
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