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Administrative Appeals Tribunal of Australia |
Last Updated: 19 September 2003
ADMINISTRATIVE APPEALS TRIBUNAL )
GENERAL ADMINISTRATIVE DIVISION |
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Re |
SECRETARY, DEPARTMENT OF FAMILY and COMMUNITY SERVICES |
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And |
JULIA MORTLOCK |
Tribunal |
Senior Member M D Allen |
Decision
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The decision under review is affirmed. |
(Sgd) M D Allen
..............................................
Senior Member
CATCHWORDS
RECOVERY OF OVERPAYMENT- whether domestic violence amounted to special circumstances - obligation of former husband under the Social Security (Administration) Act 1999 not subject to Social Security Act 1991.
Social Security Act 1991 - s 1237AAD
Social Security (Administration) Act 1999 - s 68
Iannella v French (1968) 119 CLR 84
Vane v Yiannopoullos [1965] AC 486
Re Secretary Department of Family & Community Services and Lind (2003) 36 AAR 498
Re Callaghan and Department of Social Security (1996) 45 ALD 435
Pledger v Secretary, Department of Family and Community Services [2002] FCA 1576
Department of Social Security v Ellis (1997) 46 ALD 1
United Mexican States v Cabal and Ors (2001) 183 ALR 645
18 September 2003 |
Senior Member M D Allen |
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1. By application made 25 March 2002, the Applicant sought review of a determination by the Social Security Appeals Tribunal ("the SSAT") made 20 February 2002, which determination was that a debt of $2,915.55 owed by the Respondent to the Department of Social Security as a result of overpayment of parenting payment be waived.
2. In deciding the debt be waived, the SSAT purported to rely upon s 1237AAD of the Social Security Act 1991 which reads:
"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 make it desirable to waive; and
(c it is more appropriate to waive than to write off the debt or part of the debt."
3. Unfortunately, Ms Mortlock was not represented in the proceedings before me. However, she did not deny the existence of a debt, but stated that her former husband had told her that he had informed Centrelink at Dalby by telephone that he had commenced employment and the amount of wages received by him. She stated that her husband, having told her this, she had no reason to question him further.
4. From the material contained in the documents prepared for the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, it is clear that the relationship between the Respondent and her former husband was marked by domestic violence by him against her and this had resulted in an Apprehended Violence Order being taken out against him in her favour.
5. The Respondent also stated to a social worker (see T15) that she was kept ignorant of her husband's finances and that he controlled her life obsessively. As an example of this, her husband had placed a lock on the mailbox so she could not access mail and she was only allowed to withdraw money from their joint bank account in his presence and then had to account to him for all expenditure made by her.
6. Ms Mortlock also told the social worker that when she questioned her ex-husband as to whether he had told Centrelink about his earnings, "he went off the deep end".
7. The Respondent's former husband gave evidence by telephone. At all relevant times, he was also in receipt of a Social Security benefit, namely a Disability Support Pension and thus he had his own independent requirement to report any change of circumstance or receipt of income to Centrelink. Suffice it to say, I do not accept his evidence that he did notify the Centrelink office at Dalby of his earnings. That office has no record of any notification of earnings by the Respondent's former husband and whereas I am prepared to accept that errors and mistakes can be made, I do not accept that every notification the Respondent's former husband made to the Dalby office has gone unrecorded.
8. The Respondent sought permission, which was granted, to remain outside the hearing room while her ex-husband gave evidence on the ground that she was still traumatised by his ill treatment of her and even hearing his voice on the telephone would be upsetting to her. While the Respondent was absent, her grandmother remained in the hearing room and arrangements have been made to supply a copy of the relevant transcript to the Respondent. I considered the Respondent genuine in her fear and to me this corroborates her previous accounts of domestic violence.
9. I also regard it as significant that the Respondent's ex-husband is making repayments to the Applicant of Social Security benefits overpaid to him as a result of not declaring income. He has not sought to challenge the decision to recover the said overpayments, consequently, I regard the fact of his agreeing to make the repayments as an admission that his debt is due and owing.
10. Section 1237AAD of the Social Security Act 1991 uses the word "knowingly". The use of this word imports into the section what in the criminal law is referred to as mens rea: see Iannella v French (1968) 119 CLR 84 and Vane v Yiannopoullos [1965] AC 486. In other words, I must be satisfied that the Respondent was aware of her duty to inform Centrelink of her husband's earnings and made a deliberate decision not to do so.
11. Paragraph 5 of the Applicant's contentions contained in the Statement of Facts and Contentions dated 14 July 2003 (Exhibit A1) reads inter alia:
"The Secretary contends that Mr Croan (the ex-husband) knowingly failed to comply with his notification obligation under paragraph 68(2)(a) of the Admin Act to advise Centrelink of details of his income."
The reference to the "Admin Act" refers to the Social Security (Administration) Act 1999.
12. I am satisfied that the Respondent's ex-husband knowingly failed to comply with a provision of the Social Security (Administration) Act, namely para 68(2)(a), which reads:
"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."
13. The wording of s 1237AAD of the Social Security Act 1991 is clear and unambiguous and the fact that the Respondent's former husband had not notified Centrelink of his earnings would not by that fact alone avail the Respondent, as the section is quite specific in that it is sufficient if the failure to comply with a provision of that Act or the 1947 Act is by the debtor (ie the Respondent in this case) or some other person (Tribunal's emphasis).
14. Whereas I am satisfied that the Respondent's former husband knowingly failed to comply with his notification obligation, that obligation had been imposed upon him pursuant to para 68(2)(a) of the Social Security (Administration) Act 1999 (see para 5 of Exhibit A1). As was pointed out by Deputy President Wright, QC in Re Secretary Department of Family & Community Services and Lind (2003) 36 AAR 498 (in a decision with which I respectfully agree), a reference in the Social Security Act 1991 to "this Act" does not include a reference to the Social Security (Administration) Act 1999. This is particularly so in s 1237AAD of the Social Security Act 1991 as that section refers specifically to "a provision of this Act or the 1947 Act".
15. Had the Respondent's former husband been notified of his obligation to report any earnings pursuant to the Social Security Act 1991, that would have been an end of this matter and the decision under review set aside. As however the notification to him was pursuant to para 68(2)(a) of the Social Security (Administration) Act 1999, then the term "knowingly" in s 1237AAD of the Social Security Act 1991 as it applies to the Respondent remains to be considered.
16. As stated above, I am of the opinion that the word "knowingly" in s 1237AAD imports both the concept of actual knowledge and either a deliberate act or omission or an act or omission indifferent to the consequences: see Re Callaghan and Department of Social Security (1996) 45 ALD 435 at 445.
17. An analogous case is that of Pledger v Secretary, Department of Family and Community Services [2002] FCA 1576, where Weinberg J has imported the doctrine of "mens rea" into social security law.
18. I am satisfied that the Respondent was content to accept her then husband's statement that he had notified the Centrelink office at Dalby of his earnings. In the circumstances of the marriage as it then existed, with the husband being controlling and violent towards the Respondent, I am satisfied that she was dissuaded from making further inquiries, but in any event, a party to a marriage is ordinarily entitled to accept and act upon the other party's statements, as in this case, namely that the ex-husband had notified Centrelink of his earnings.
19. As the debt did not arise from the Respondent "knowingly" failing or omitting to comply with a provision of the Social Security Act 1991 nor from any false statement or representation on her part, the question of special circumstances can be considered.
20. The term "special circumstances" was discussed by Carr J in Department of Social Security v Ellis (1997) 46 ALD 1 at 4-5 namely:
"In Beadle v Director-General of Social Security (1985) 7 ALD 670; 60 ALR 225, a full court of this court had to consider whether the Administrative Appeals Tribunal had erred in its interpretation of s 102 (1) (a) of the Act which provided for an extension of time in which to claim a family allowance ''... in special circumstances ...'. At ALR 228 the full court said:
Presumably in this context special circumstances must include events which would render the 6 months unfair or inappropriate ... It would depend upon the circumstances of the particular case whether these constituted special circumstances. We do not think it is possible to lay down precise limits or precise rules. The matter is one for the Director-General bearing in mind the purpose for which the power is given. The phrase `special circumstances', although lacking precision, is sufficiently understood in our view not to require judicial gloss.
In Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at 545, Kiefel J, after referring to Beadle, said:
... for present purposes it is sufficient to observe that it would require something to distinguish Mr Groth's case from others, to take it out of the usual or ordinary case. That was, I consider, the only inquiry to be undertaken in this 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. The inquiry I have referred to would involve considering what would be the effect, if the provision in question or the principle of liability it creates, is applied."
21. Additional comment as to what constitutes "special circumstances" was by the Hight Court in United Mexican States v Cabal and Ors 183 ALR 645 at 664 namely:
"To constitute `special circumstances', the matters relied on `need to be extraordinary and not factors applicable to all defendants facing extradition'."
22. In this matter, the Respondent was in a relationship that was marked by intimidation and violence. The end result was that the Respondent left her husband and an Apprehended Violence Order was taken out against him after he had assaulted her. Previously, the husband had acted in a way not normally associated with a normal domestic relationship, eg he placed a lock on the letterbox and insisted that the Respondent only withdraw monies from the joint bank account in his presence. His behaviour was such that he sought to completely control the Respondent's activities.
23. Accepting the truthfulness of these complaints, it seems to me that it can be said that to now make the Respondent liable for the extra monies nominally received by her but paid into a bank account over which the husband exercised effective control, while not perhaps extraordinary, would amount to something unfair or unjust to use the words of Kiefel J in Groth's case supra.
24. I am satisfied that in this matter, the Respondent has shown that special circumstances exist and that she did not knowingly make any false statement or representation nor knowingly fail to omit or comply with a provision of the Social Security Act 1991. The decision under review is therefore affirmed.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of:
Signed: (K. Wong) .......................................................................................
Associate
Date of Hearing 30 July 2003
Date of Decision 18 September 2003
Advocate for the Applicant Ms R Quinn, Department of Family and Community Services
Representative for the
Respondent Self-represented
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