1. The Respondent's documents reflect the Applicant as having made contact with Centrelink on 13 August 2012 and the record of this contact, made by Centrelink, was that:

Customer contacted CC TOOWOOMBA on 13 AUG 2012 regarding General Enquiry for Customer Contact Details. Information was obtained via Phone Call. Document created by T04 on 13 AUG 2012.

During conversation cus stated that he was living with his girl friend, whom is working. Cus stated that he will not provide details of her earnings.

1. When asked about this record of contact at the hearing, the Applicant stated that he did not concede this was an accurate record of any discussion, he did not remember the phone call and he has no reason to believe it is accurate. He agreed he was married as of that date, but did not agree he had provided incorrect information to Centrelink (in describing himself as having a girlfriend rather than a wife) and asserted that this is "common wording" and common language. When asked if he appreciated the differences between a girlfriend and a wife, he responded by stating that different people talk in different ways and he refers to her as his partner, his room mate, his girl and this is "common language". He stated that he told Centrelink he was living with someone but doesn't remember the wording he used.

The Applicant's contact with Centrelink on 21 August 2012

1. The Respondent's documents reflect that the Applicant contacted Centrelink on 21 August 2012 and that the entry also reflected the earlier contact of 13 August. The entry reads as follows:

during conversation cus stated that he was living with his girl friend. Cus stated that he will not provide ptr earnings.

Contacted customer on 21/08/12 to complete JCN appt. Customer advised that he was living with [wife's name and date of birth]. Customer advised that she is in country on temporary visa and that she works part-time.

Customer [presentation, not relevant to the issues before the Tribunal]... stated that what she earns has nothing to do with him or us and when asked for further information, would not give it but kept asking what it had to do with his claim and with anything and then phone cut out. No further action.

1. When taken to this record of entry at the hearing, the Applicant did not agree that the entry accurately recorded the contact he had with Centrelink. When asked what part of the entry was inaccurate, the Applicant stated that he doesn't remember the words he stated but this is Centrelink's notes and he doesn't remember the conversation.

Letter sent to the Applicant by Centrelink on 13 September 2012

1. The Tribunal notes that it is unfortunate that the claim form for newstart allowance, submitted by the Applicant in 2012, is no longer available for the purposes of these proceedings. Following lodgement of the claim, the Applicant was sent a notice by the Respondent, dated 13 September 2012, which was contained in the documents provided to the Tribunal. The contents of the letter appear to reflect the contents of the newstart allowance claim form, on the basis that they provide information relevant to the claim and note towards the end that: "The claim form for Newstart Allowance has been read by me/to me and the information I have given in this claim form is complete and correct." The contents of the letter also reflects the Applicant as having advised his relationship status was "single".
2. When taken to this information during the hearing, the Applicant stated he did not concede this was an accurate record of information he had provided to Centrelink for his claim. He did not otherwise provide an explanation of how or why the information reflected in the letter may be incorrect.

Contacts of 19 September 2012 and 25 September 2012

1. The Applicant contacted Centrelink on 19 September 2012 and the record of this contact included the following information, in relevant part:

Customer contacted JCN VIRTUAL on 19 SEP 2012 regarding General Enquiry, Claim, for Newstart Allowance. Information was obtained via Phone Call....

Customer advised to attend CSC on (25/09/12 to lodge CDF and provide the following documents for verification:

5. MOD P required as CUS indicated Partner to call centre

Customer has been advised that payments may be suspended/cancelled if they do not attend and supply partner details

cust said that the person with whom he lives is his room mate and they have independent lives. no mod p issued.

1. When taken to this record, the Applicant stated he did not concede the record was accurate. When asked whether the record reflects him providing false information to Centrelink he responded by stating he did not concede that.

1. The Applicant was sent correspondence by Centrelink dated 19 October 2012, headed "Your Newstart Allowance", which set out the Applicant's payments from 6 October 2012 onwards. The letter noted, under the heading "What Is Income", that: "If you have a partner, that person's income may affect your payment".
2. When asked whether he remembered receiving such notices, the Applicant stated that he doesn't recall receiving any notices from Centrelink, even generally. When asked whether he would have read such notices if they were received, the Applicant responded that he doesn't recall. When asked if the notice had been sent to the correct address, the Applicant stated he doesn't remember the exact dates he lived there.
3. The contents of the notice were discussed with the Applicant at the hearing and the Applicant was asked if, had he read the notice, he would have become aware that a person's income affected their payment. The Applicant responded by stating he doesn't recall.
4. The notice of 19 October 2012 was accompanied by a reporting statement for the period 20 October 2012 to 2 November 2012. The reporting statement noted that it "is an information notice given under social security law". When asked to clarify his evidence that he had no recollection of receiving reporting statements, the Applicant responded by stating he doesn't remember. When asked whether he remembered lodging reports online, he stated he doesn't remember how he would lodge them.
5. The Applicant was taken to Question 3 in the reporting statement, which contained the question: "Are you married or living in a registered or de facto relationship with someone of the opposite or same-sex (includes temporarily living away from a partner to improve study/job prospects)?". The Applicant responded by stating that in 2013 Centrelink was notified he was living with someone and Centrelink had the duty to look into it. He has acted in good faith and told Centrelink he was living with someone.
6. The applicant was asked whether, because of question 3 in the form he was aware he needed to tell Centrelink if he was married. He responded by stating he did in 2012 and 2013. When asked the question again, he then stated that Centrelink had known in 2013 and continued to pay him for another nine to 10 months. When asked again, he stated yes he was aware; he had to tell Centrelink if he was living with someone but doesn't remember the exact wording of it. The Applicant was asked, if he had read the reporting statement he would have been aware he had to tell Centrelink. He responded by stating that he doesn't have any recollection of the forms sent to him.

1. On 24 October 2012, the Applicant was sent a notice by Centrelink headed "Suspension of your Newstart Allowance". He stated he did not recollect receiving the letter. The letter included the following information:

You must tell us within 14 days about events or changes in circumstances affecting your payment. If you get a Reporting Statement (Application for Payment), report your earnings or changes in circumstances on your reporting day...

• - you marry; are in or commence a registered or de facto relationship (either opposite or same-sex); reconcile with a former partner or start living with someone as their partner.

1. When taken to the letter, the Applicant stated he doesn't remember receiving it. When asked whether he was aware that income earned by his wife might affect his level of newstart allowance, he stated no, he doesn't know how Centrelink calculates income.

1. The Applicant submits that the debt is due to administrative error by Centrelink on the basis that he had not concealed anything and had told Centrelink he was living with someone. He referred in his written submissions to the contact he had made with Centrelink on 13 September 2013. The record of this contact is that:

Customer contacted PST MOORABBIN on 13 SEP 2013 regarding General Enquiry for Newstart Allowance. Information was obtained via Phone Call. Document created by [customer service officer reference] on 13 SEP 2013.

Cus adv PST during CCA that he is currently living with his partner.

CUS states that he has been living with her for the past 12 months and recently went to China with her to visit her parents. When asked how he funded his trip, he stated his partner paid for the ticket and everything while in China was free. Cus adv his partner is not on a payment and is working part time and studying. MOD P has been sent.

1. A corresponding letter indicates that a "Mod P" form and a reply paid envelope were sent to the Applicant. The Respondent submits that the Applicant did not return the form to Centrelink and the Applicant did not assert otherwise at the Tribunal hearing.

1. As noted above, the contents of the Applicant's claim for newstart allowance were reflected back to him in a notice dated 13 September 2012, including that he had stated he was single. There is no evidence that the Applicant contacted Centrelink to advise the information contained in the notice was incorrect and the Tribunal finds accordingly.
2. The Applicant subsequently represented to Centrelink that he had a girlfriend (13 August 2012), that he was living with someone but it was nothing to do with Centrelink (21 August 2012) and that he had a partner (19 September 2012), although in a follow up appointment to this indication, that she was his roommate (25 September 2012). He advised Centrelink on 13 September 2013 that he had been living with a partner for 12 months, although the Tribunal noted that he had been residing with his wife since at least February 2011 by that time.
3. Given the Applicant did not respond to the notice sent by Centrelink on 13 September 2012, containing incorrect details about his relationship status, and given his representation to Centrelink at various points that he had a girlfriend and his stated refusal to engage with Centrelink around his wife's income, the Tribunal finds that the debt has not been caused by sole administrative error. Rather, it was caused by the Applicant's incorrect representation about his relationship to Centrelink. The debts (being the recalculated newstart allowance debt and associated interest charges) cannot be waived under subsection 1237A(1) of the Social Security Act.

1. Section 1237AAD of the Social Security Act provides for discretionary waiver where:

(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, the Administration 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.

1. The interpretation of "knowingly" within the context of social security debts has been considered extensively by the AAT.[5]
2. In Re Callaghan and Secretary, Department of Social Security [1996] AATA 413; (1996) 45 ALD 435, the AAT stated (at [48]-[49]):

There is nothing in s 1237AAD which suggests that the word 'knowingly' should be given any meaning other than that a person has actual knowledge, rather than constructive knowledge, that he or she is making a false statement or representation or that he or she is failing or omitting to comply with a provision of the Act. The actual knowledge is to be ascertained by reference to the statements of the person as to his or her actual state of knowledge at the time and to events surrounding the false statement or the act or omission.

In this case, the emphasis of Mr and Mrs Callaghan's evidence was more upon their belief that the one department paid them than upon their state of mind in complying with their obligations under the Act. Mr Callaghan has acknowledged that he had received notices under section 727 of the Act and that he had read at least one of them. I am satisfied both on the material in the T documents and on his oral evidence that he received more than one of them and that he read the first one. One the basis of the notices themselves I am satisfied that they clearly set out his obligation to advise the department should his income, or that of Mrs Callaghan, change. I am also satisfied from the notice that it quite clearly stated that income included Austudy benefits. Taking into account Mr Callaghan's knowledge of the notice and of his having read at least one of them, I find that he knew that he had an obligation to advise of a change in Mrs Callaghan's income. Therefore, when he failed to advise of the change he knowingly omitted to comply with a provision of the SS Act.

1. In Re Anderson and Secretary, Department of Families and Community Services [2002] AATA 495; (2002) 69 ALD 494, the AAT stated (at [27]) that:

...it is open for the Tribunal to infer that the applicant has actual knowledge of his obligations under the Act where there are opportunities for that knowledge to be gained and where there are no obstacles to him acquiring that knowledge. In this case, the applicant has had the opportunity to gain an understanding of his obligations under the Act through the provision of advice letters to him from the respondent. The tribunal is not aware of any obstacles that would prevent Mr Anderson from understanding those letters and gaining that knowledge.

1. In Wall and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 740 at [28]- [29] the AAT stated that:

In Taylor's Central Garages (Exeter) Ltd v Roper [1951] WN 383 at 385, Devlin J considered the meaning of "knowledge" and found that actual knowledge can be inferred from the evidence and the nature of the acts done. Further, in RCA Corporation v Custom Cleared Sales Pty Ltd (1979) 19 ALR 123 at 126, the Court of Appeal in the Supreme Court of New South Wales said:

"In inferring knowledge, a court is entitled to approach the matter in two stages; where opportunities for knowledge on the part of the particular person are proved and there is nothing to indicate that there are obstacles to the particular person acquiring the relevant knowledge, there is some evidence from which the court can conclude that such a person has the knowledge. However, this conclusion may be easily overturned by a denial on his part of the knowledge which the court accepts, or by a demonstration that he is properly excused from giving evidence of his actual knowledge."

Following the decision in RCA Corporation, it is open to the Tribunal to infer that a person had actual knowledge of their obligations under the Act where there were opportunities for them to gain that knowledge and where there were no obstacles to them acquiring the knowledge. In the present case, the respondent sent letters to the Applicant notifying him of his obligations under the Act.

1. The Tribunal is satisfied from the information sent to the Applicant in the notice dated 13 September 2012 that, in the claim for newstart allowance, the Applicant had declared himself to be single. The Tribunal finds that the Applicant represented himself to Centrelink as single, in the year after he had been married to his wife, and that this was a false statement.
2. The Tribunal finds that the Applicant represented himself as having a girlfriend to Centrelink on 13 August 2012, at the same time stating he was refusing to provide details of her earnings. The Tribunal considered that the Applicant understated the nature of his relationship with his wife during the conversation on 13 August 2012. The Tribunal finds that there was a false representation made to Centrelink on 13 August 2012.
3. The Tribunal finds that, after advising Centrelink that he was partnered on 19 September 2012 and being advised he was required to complete a "Mod P" form, the Applicant made further contact with Centrelink on 25 September 2012, at which time he described his wife as his "room mate". The Tribunal finds that this was an understatement of the relationship between the Applicant and his wife. The Tribunal finds that there was a false statement made to Centrelink on 25 September 2012.
4. The Tribunal finds that on 13 September 2013, the Applicant described to Centrelink that he had a partner with whom he had been living for 12 months. The Applicant had, at that time, been married and living with his wife for over two and a half years. The Tribunal finds that the Applicant misrepresented the length of his relationship to Centrelink on 13 September 2013.
5. The Tribunal finds that the Applicant was aware that his relationship with his wife had an impact on his payments, as evidenced by his refusal to provide details of her income and an understatement of their relationship at the point he was required to complete a "Mod P" form about their relationship. The Tribunal finds that the false statements and false representations made by the Applicant, as set out above, were made knowingly. In these circumstances, the debt is unable to be waived under section 1237AAD of the Social Security Act. The associated interest charges, arising from the newstart allowance debt, are also unable to be waived.

Can the debt and interest charges be written off for a period of time?

1. Subsection 1236(1A) of the Social Security Act allows for write off of a debt for a period of time where:

(b) the debtor has no capacity to repay the debt; or

(c) the debtor's whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or

(d) it is not cost effective for the Commonwealth to take action to recover the debt.

1. The Tribunal finds that the debt is recoverable at law, the Applicant's whereabouts are known and it is cost effective for the Commonwealth to take action to recover the debt.
2. As to whether the Applicant has capacity to repay the debt, the Applicant declined to provide the Tribunal any information about his circumstances at the hearing, although referred at several points in his evidence to running a business. He also referred to having a home with a mortgage. The Tribunal inferred from these comments that the Applicant currently has a source of income from which he is assisting to support his family. Given this, the Tribunal was not persuaded that the Applicant would face financial hardship if required to make repayments towards the debt if required to do so at a modest, reasonable rate of repayment.
3. The Tribunal finds that the legislative requirements for write off of the debts are not met in this case.
4. No other provisions in Part 5.4 of the Social Security Act apply to the Applicant's circumstances and, for this reason, the recalculated debt and interest charges are to be recovered by the Commonwealth.

The Tribunal sets aside the decision under review and substitutes its decision that:

(i) There is a debt to the Commonwealth for overpayment of newstart allowance in the period 13 August 2012 to 30 May 2014 and the debt is to be recalculated in accordance with the comments of the Tribunal in paragraphs 32 and 33 of this Statement of Reasons;

(ii) Interest charges are to be imposed for the periods 21 February 2020 to 1 December 2020 and 14 May 2021 to 28 March 2025 and the quantum of the interest charges are to be recalculated by the Respondent for these periods and are debts due to the Commonwealth;

(iii) The debts are recoverable by the Commonwealth.

[1] Respondent's Statement of Facts Issues and Contentions (SFIC) at paragraph 5.5.

[2] The Tribunal noted that oral submissions made at the hearing referred to a letter dated 19 October 2012. As the written submissions regarding the letter of 12 October 2012 were reiterated in the Respondent's subsequent submissions, the Tribunal first considered the letter of 12 October 2012 and its impact on the Applicant's newstart allowance payments.

[3] Referred to in Respondent's SFIC at page 24.

[4] Referred to in Respondent's SFIC at page 24.

[5] Callaghan, Anderson and Wall cited in Respondent's SFIC at pages 28-29.