42. In the light of this conclusion it is unnecessary for the Tribunal to make a finding on whether the second requirement prescribed by s.1237(2) of the Act has been satisfied - namely, whether the applicant received in good faith the payments that gave rise to the debt (see s.1237(2)(b)). Suffice it to say, however, that having regard to the considerations mentioned in paragraphs 39 and 40 above the Tribunal would have some difficulty in finding that this requirement had been satisfied in this case.

43. The discretionary power to write off a debt, conferred by s.1236(1) of the Act, was not affected by the 1993 amendments to the Act referred to in paragraph 34 above. Accordingly, the respondent and, on appeal, the Tribunal retain a general discretion to write off such a debt. In deciding whether or not to exercise this discretion, however, the Tribunal must have regard to all the relevant circumstances of the particular case and to the scope and purposes of the Act: Riddell v Secretary, Department of Social Security [1993] FCA 261; (1993) 42 FCR 443 at 450. The Tribunal, however, has customarily had particular regard to certain matters referred to by the Federal Court of Australia (Full Court) in Director-General of Social Services v Hales [1983] FCA 81; (1983) 47 ALR 281. The "Hales factors" were summarised by the Tribunal (Senior Member J Dwyer) in Re Waller and Secretary, Department of Social Security (1985) 8 ALD 26 at 42 as follows:

"(a) the fact that the applicant has received public moneys to

which she was not entitled;

(b) the way in which the overpayment arose whether as a result

of innocent mistake or fraud;

(c) the financial circumstances of the (applicant);

(d) the prospect of recovery;

(e) whether a compromise is offered;

(f) whether recovery should be delayed if there is a prospect

that the circumstances of the person who received the

overpayment may improve;

(g) compassionate considerations and the fact that the Act is

social welfare legislation and any financial hardship which

may result from an action for recovery."

44. The applicant has received public moneys, by way of payments of JSA and NA during the period from 22 February 1993 to 29 November 1993, to which she was not entitled. A substantial contributing cause of those payments was the applicant's false statements or representations, in the application forms for JSA and NA which she lodged with the DSS during that period, that she had not enrolled as a full-time student. The Tribunal has already stated (paragraph 38 above) that it is not prepared to make a finding that the applicant made these false statements or representations deliberately and intentionally for a fraudulent purpose; but nor, having regard to the considerations previously mentioned in paragraphs 38-40, does the Tribunal regard the applicant's conduct in this matter as entirely innocent.

45. The financial circumstances of the applicant, as outlined in paragraph 22 above, while not favourable, cannot be described as desperate or unduly straitened. Furthermore, her employment prospects are, according to her own evidence, favourable so that her financial circumstances are likely to improve dramatically in the near future. Accordingly, the prospect of recovery of the debt - which is presently being recovered by way of a fortnightly deduction of $28 from her NA - must be described as very good. Finally, the Tribunal is not satisfied that the present rate of recovery of the debt is causing undue financial hardship to the applicant.

46. The Tribunal, nevertheless, has some sympathy for the applicant's plight. It is particularly sympathetic to her claim that, had she not been incorrectly advised by the DSS officer in early August 1992 as she alleges, she would have re-arranged her future course of study in such a way that she would have been entitled to AUSTUDY benefits in semester 2 of 1992 and to JSA or NA in 1993 (see paragraph 15 above).

47. Such sympathy, however, is not a legitimate consideration or purpose in deciding whether or not to exercise the discretion conferred by s.1236(1) of the Act to write off a debt. As has been pointed out by the Tribunal in earlier decisions, the purpose for which this power was conferred on the respondent was to ensure that the accounts of the DSS presented an accurate view of the value of its assets and that public money was not wasted on vain efforts to recover "bad" debts which in practice were not recoverable: Re Darker and Secretary, Department of Social Security (1987) 14 ALD 545 at 547-8; Re Secretary, Department of Social Security and Glossop (1989) 17 ALD 213 at 217.

48. Accordingly, the Tribunal concludes that it would be a misuse of the discretionary power conferred by s.1236(1) of the Act - and, therefore, an error of law - for the Tribunal to write off the debt in this case in circumstances where the debt is presently being effectively recovered by instalments and where the prospect of recovery of the outstanding balance of the debt is very good.

49. In conclusion the Tribunal would briefly refer to the decision in Re Allinson and Secretary, Department of Social Security (unreported, Decision No. 9431, 15 April 1994) on which the applicant chiefly relied in her submissions. That case concerned the discretionary power to waive the Commonwealth's right to recover the whole or a part of a debt under s.1237 of the Act as it stood before the 1993 legislation repealed that section and substituted two new and substantially different sections (viz ss.1237 and 1237A). Allinson's Case is, therefore, quite distinguishable from the present case. Furthermore, in Allinson's Case, the Tribunal found that the applicant in that case was partially responsible for the debt arising and, accordingly, decided to waive the Commonwealth's right to recover only part of that debt. It is clear that, had the present ss.1237 and 1237A of the Act been applicable in Allinson's Case, the Tribunal would have decided that there was no power in the circumstances to waive the debt either wholly or in part. The Tribunal would add that s.1237A of the Act, which deals with partial waiver, was clearly not applicable on the facts of the present case and, for that reason, was not raised as an issue.

50. On the present state of the law the Tribunal has, for the reasons explained above, no alternative but to affirm the decision under review. The Tribunal expresses the view, however, that the applicant's complaint of administrative error, in the form of incorrect advice by an officer in the Perth East office of the DSS, is a matter which she could request the Commonwealth Ombudsman to investigate. In accordance with paragraph 5.2 of the Administrative Arrangements agreed between the President of the Tribunal and the Ombudsman (May 1988), a copy of these reasons will be forwarded to the Ombudsman for consideration.

51. The Tribunal affirms the decision under review.