This is important, not only for sole administrative error, but also for the good faith argument. It was not only in those real estate forms that accompanied the disability support pension application, but also in many, many subsequent letters, where there were duties imposed on [the applicants] to disclose any income, such as, in particular, rental income, and real estate properties, and [the applicants] in my contention failed to comply with those obligations.[66]

1. Failure to provide information relevant to a social security claim may result in criminal sanctions and is a very serious matter. The respondent's representative referred to s 136.1(1) of the Commonwealth Criminal Code which provides, inter alia, that a person commits an offence if he or she makes a statement in a document knowing that the statement is false or misleading and the statement is made in connection with an application or claim for a benefit.[67] Section 136.1(4) deals with reckless conduct.
2. This is not the occasion to consider whether the applicant knowingly or indeed recklessly made any false statement or representation or knowingly failed or omitted to comply with a provision of the Code. The respondent acknowledged that this was not fraud case,[68] but he reserved his position on the question of bad faith.[69] A knowing representation or omission would be evidence of a criminal offence under sections 136.1 and 137.1 of the Criminal Code, as noted by the respondent.
3. Counsel for the applicant denies that any false statement or representation was made by either applicant. She says there was no omission to comply with the Act, and that there are special circumstances (other than financial hardship alone) that make it desirable to waive the debt.
4. In all the circumstances it is impossible to my mind to justify a positive finding that GGGD acted in good faith when he applied for DSP. I make a similar finding in respect of MXXR's claim for Wife Pension and subsequently, Aged Pension.

1. In the present case the applicants received multiple letters from the respondent over a number of years requiring updated information about their changing circumstances. For example, on 24 November 1992, MXXR was advised:

Under sections 172 and 173 of the Social Security Act 1991 you must tell us within 14 days...if any of these things happen or are likely to happen...If your combined assets go above $160,500.[70]

1. The respondent outlined many other occasions where the applicant had been notified of their reporting requirements.[71]
2. There are many cases where the reach of s 1237A has been curtailed by the applicant's subsequent failure to inform Centrelink of a change of circumstances. A recent example is Stafford and Secretary, Department of Social Services (Social services second review) [2018] AATA 2746 at [78], where the Tribunal noted:

78. ...It is at least arguable that, had the Applicant fully complied with the reporting requirements imposed on him, the debt for which he now finds himself liable might not have accrued. Without further evidence it is ultimately impossible to determine if this would have been the case. However, it is certainly not the case that, given his failure to comply with the reporting requirements made clear in the notices sent to them, the debt in question can be blamed solely on an administrative error on the part of the Commonwealth.

79. In the circumstances, section 1237A of the Act has no application to the facts of this case and the debt in question cannot be waived under section 1237A of the Act.

1. Counsel for the applicant's suggestion that there was nothing to report because their circumstances had not changed overlooks at the very least the escalating value of their real estate.
2. My conclusions on matters of fact relevant to s 1237A(1) are:
   • (a) Neither GGGD nor MXXR disclosed the existence of the Queensland property in November 1992 when making their respective claims for DSP and Wife Pension or at any time prior to 8 February 2018;[72]
   • (b) The existence of number 105 as an assessable property was disclosed to the Department in 1991 (in GGGD's application for sickness allowance);
   • (c) I make no finding with respect to the alleged disclosure in the 1989 unemployment claim form;
   • (d) GGGD and MXXR failed to disclose the existence of number 105 when applying for DSP and Wife Pension in 1992 respectively;
   • (e) There is insufficient evidence before the Tribunal to justify a finding that GGGD or MXXR even contemplated whether the 1991 disclosure of number 105 was sufficient for the purposes of a claim for DSP and Wife Pension in 1992. I am left in doubt as to whether they believed in November 1992 that "no disclosure was required", because number 105 had been "previously disclosed";
   • (f) I draw a negative inference from the fact that they took no steps in 1992 or thereafter to ensure that all relevant matters were disclosed to the Department.[73]
   • (g) In any case, the failure to disclose the Queensland property is fatal to a claim of sole attributable error.
3. The creation of the debts owed to the Commonwealth by GGGD and by MXXR cannot be said to be solely attributable to a Commonwealth administrative error. The applicants were entitled to be paid on the basis of information provided at the time of their claim.
4. I therefore find that the debts owed by GGGD and MXXR are not solely attributable to an administrative error by the Commonwealth.

1. Section 1237AAD provides a second string to the applicant's bow. The question posed by s 1237AAD(b) is whether there are special circumstances, other than financial hardship alone, that justify the waiving of the loan, either in whole or part.
2. In Angelakos and Secretary, Department of Employment and Workplace Relations [2007] FCA 25 at [33], Besanko J noted that it was an overstatement to equate "special" circumstances with "exceptional" circumstances. It was not the intention of Parliament to confine the exercise of discretion to an exceptional case. His Honour noted that:

There is less risk of overstatement if the words 'unusual' or 'uncommon' are emphasised. Those words indicate, correctly in my view, the fact that there must be something that distinguishes the case from the ordinary or usual case...

1. The couple is now elderly; GGGD is 84, and MXXR is 77. The medical issues suffered by the applicant and his wife are significant. GGGD suffers from chronic obstructive pulmonary disorder and requires ongoing care by a respiratory physician, and had a bypass in 2004.[74] MXXR suffers from Parkinson's disease, anxiety and depression and experiences tremors of the hands, legs and head.[75] No doubt the present proceedings weigh heavily on them and have taken an inevitable toll. But it is not possible to discern any special feature of their health conditions that would take the case outside the unfortunate but predictable deterioration of health that often accompanies old age. Poor health and language difficulties in particular are not uncommon.
2. In the present case the language difficulties experienced by GGGD presented a handicap, but there were also ready means available to him to assist with translation of the various letters and notices he received, including asking for help from members of his family: see The Secretary, Department of Family and Community Services and Jonauskas [2001] AATA 72. GGGD and MXXR do not appear to be financially naïve in financial or administrative affairs. At the very least they were careless as to how they went about providing this critical information to the Department. In this context it is noteworthy that the applicants had the additional strong support of their adult children, and their two sons attended the hearing in person.[76] It is hard to believe that given their overall asset position, which included two residential investment properties and a valuable Sydney property, that questions were not raised in anyone's mind as to GGGD and MXXR's entitlement to social security payments. They were not alone in the world and it is clear that their son took a keen interest in their financial affairs. It is indeed surprising that over this entire period of time no-one questioned whether their relative affluence might render them ineligible to receive regular social security payments.
3. The size of the debt, the lengthy period of time over which it accumulated and GGGD's English language difficulties are distinctive features of the case. On the balance, however, is hard to discern why such factors should be accorded special status.
4. There is no doubt that the applicants received a substantial amount of money over the past quarter of a century that they were simply not entitled to. Despite the obligation to repay these monies, the applicants will remain in a strong asset position. Given that the properties were purchased before September 1985 they are not liable to capital gains tax.[77] The circumstances of this case are in my view far removed from being sufficiently special to justify a discretionary waiver of the debt.
5. There are no "special circumstances" under s 1237AAD applicable to either GGGD or MXXR such that the debt owed by either applicant should be waived.

I certify that the preceding 93 (ninety three) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member.

...........................[sgd].......................................

[2] GGGD, Affidavit, 17 May 2019, para 2.

[3] GGGD, Affidavit, 17 May 2019, para 12.

[5] GGGD, Affidavit, 17 May 2019, para 12.

[6] Transcript, 14 June 2019, p 34 [30] and p 39 [10]. According to the respondent's SFIC, number 103 was purchased in 1962: Respondent's SFIC, para 2.2; but in evidence, GGGD stated that number 103 was purchased in 1978. The latter year is accepted by the respondent: Transcript, p 62 [40].

[7] Transcript, 14 June 2019, p 34 [40].

[8] Transcript, 14 June 2019, pp 31 [6]; 34 [35].

[9] Transcript, 14 June 2019, p 57 [45].

[10] Transcript, 14 June 2019, p 57 [15].

[12] GGGD, Affidavit, 17 May 2019, para 16.

[15] Transcript, 14 June 2019, p 36 at [30].

[31] Transcript ,14 June 2019, pp 3 [10], 6 [4] and 25.

[32] Applicant's Closing Submissions ('ACS'), para 84.

[33] Social Security Act 1991 (Cth) s 1236; see Transcript,14 June 2019, p 7 [45].

[34] Social Security Act 1991 (Cth) s 1237A.

[37] Social Security Act 1991 (Cth) s 1237A.

[38] Social Security Act 1991 (Cth) s 1237AAD.

[39] Acts Interpretation Act 1901 (Cth) s 13(1).

[40] https://guides.dss.gov.au/guide-social-security-law, 6.7.3.30.

[41] See Jordan v Secretary, Department of Family and Community Services [2004] FCA 1582 (failure to disclose NEIS payments); Phelps and Department of Family and Community Services [2000] AATA 638 (failure to disclose that he was a full-time student receiving Austudy).

[42] See SAJ; Secretary, Department of Family and Community Services [2002] AATA 430 (the applicant's partner falsely misstated his income, resulting in an overpayment to her).

[43] See Wendt and Secretary, Department of Social Security [1998] AATA 571 (the applicant left an answer to a question which related to her income blank on her claim form, leading to the inference that she had no income).

[44] See Meyer; Secretary, Department of Family and Community Services [2004] AATA 240, at [36]-[39].

[46] ST2, p 654; Transcript, 14 June 2019, p 44 [16].

[47] Transcript, 14 June 2019, p 47 [17].

[48] Transcript, 14 June 2019, p 51[12].

[50] Applicant's Closing Submission (ACS), para 24.

[51] As noted above the Queensland property was sold for just over one million on 6 August 2018 and each of the Sydney properties was worth over a million.

[52] MXXR entered into A Deed of Renunciation as a Beneficiary under the trust on 12 April 2018.

[53] Transcript, 14 June 2019, p 52 [45]; ACS, para 29.

[65] Transcript, 14 June 2019, p 20 [14], [24].

[66] Transcript, 14 June 2019, p 20 [30].

[67] See Criminal Code Act 1995 (Cth), Schedule - The Criminal Code.

[68] Transcript, 14 June 2019, p 20 [39].

[69] Transcript, 14 June 2019, p 62 [22].

[71] Respondent's SFIC, para 2.26 - 2.44.

[76] Transcript, 14 June 2019, p 65 [10].