Beyond the High Court’s “statutory fiction” decision: Does Centrelink’s failure to declare the “Waiver of debt due to Centrelink error” legally constitute Corruption?

What exactly is meant by the well-known term “corrupt conduct by public officials”?  The following information provided by the New South Government on its Independent Commission Against Corruption website at:

http://www.icac.nsw.gov.au/about-corruption/what-is-corrupt-conduct

Corrupt conduct, as defined in the Independent Commission Against Corruption Act 1988, is deliberate or intentional wrongdoing, not negligence or a mistake. It has to involve or affect a NSW public official or public sector organization.

While it can take many forms, corrupt conduct occurs when:

  • a public official improperly uses, or tries to improperly use, the knowledge, power or resources of their position for personal gain or the advantage of others
  • a public official acts dishonestly or unfairly, or breaches public trust
  • a member of the public influences, or tries to influence, a public official to use his or her position in a way that is dishonest, biased or breaches public trust.

The NSW community expects public officials to perform their duties with honesty and in the best interests of the public. Corrupt conduct by a public official involves a breach of public trust that can lead to inequality, wasted resources or public money and reputational damage.

Do these same principles apply when it comes to the conduct of federally employed public officials and is it corrupt conduct occurs if:

  1.  A Centrelink official improperly uses, or tries to improperly use, the knowledge, power or resources of their position for the advantage of “others”.
  2. A Centrelink official improperly uses, or tries to improperly use, the knowledge, power or resources of their position for the advantage of others?
  3. A Centrelink official acts dishonestly or unfairly and breaches public trust?

Centrelink officials do have a public duty when recovering over-payments to act within the law and to ensure than when welfare recipients are overpaid, that they are correctly informed so that when deciding how to respond to a Letter of Demand from Centrelink they are able to make informed decisions; this not possible in the misleading <redacted> letter shown here.

Centrelink's "shock and awe" tactics include a letter of Demand that may be deliberately misleading for "the law' requires that Centrelink totally waive any debt if they do not pick their overpayment error within 6 weeks. NOTE: It has to be TOTALLY Centrelink's error.

Centrelink’s “shock and awe” tactics include a letter of Demand that may be deliberately misleading for “the law’ requires that Centrelink totally waive any debt if they do not pick their overpayment error within 6 weeks. NOTE: It has to be TOTALLY Centrelink’s error.

 In this grossly misleading, letter of demand, the explanation “Why this amount is payable”, Centrelink clearly acknowledges that a systemic error had been made, i.e. “Other income from <redacted> was not taken into account”, and consequently the welfare recipients had been overpaid more than $7,000 which Centrelink is trying to “recover.” Any reasonable person, unaware of the true facts, would have accepted as accurate the statement “We are, therefore required to recover this amount”.

In reality, it is a grossly misleading act of misrepresentation! Paragraph 1,237A of the Social Security Act says is that “The Secretary must waive…” any debt that is solely due to Centrelink error if Centrelink do not correct the error within 6 weeks.  Hiding this is a “failure to declare”, i.e. an Act of Omission, that violates Section 135.2 of the Commonwealth Criminal Code Act (1995) and allows Centrelink to obtain a financial advantage to which it is not entitled; a fancy way of saying that Centrelink is committing fraud.

1.     Note the phrase “must waive…” That statutory obligation for debts caused solely by Centrelink errors is totally at odds with the statement “We are, therefore required to recover this amount.”
2.     There is no “if” or “but” about what Centrelink officials have been doing for many years; they have been, to plagiarize the New South Wales ICAC website, engaged in actions that, dishonestly or unfairly, breached public trust.”
3.     It is all about a nation-wide scandal in which “public official(s) improperly uses, or tries to improperly use, the knowledge, power or resources of their position(s) for personal gain or the advantage of others.”
In the case of this 6 Week Rule fraud scam, “the advantage of others”  has two clearly identifiable financial beneficiaries:

  • The Federal Government. When the 7 Network broadcast the over-payments “owed’ claim along with Hank Jongen singing the “We will get you…”  hymn back in 2011, the allegation was that $3 Billion was owed.
  • However, in April 2011, little more than 2 weeks after Report 2780 was released, the 7 Network was now claiming a reduced figure of $2.8 Billion, a figure which indicates that welfare recipients may have been either deceived or coerced in repaying the Federal Government perhaps as much as $200 Million.
  • Was this Corruption and Larceny on a grand scale?
  • Centrelink’s Tier 1, Tier 2 and Tier 3 management. They receive an “annual performance bonus”, a payment which is a financial incentive “to improperly use, the knowledge, power or resources of their position(s) for personal gain”’ in order to recover any of the $3 Billion in erroneous payments made by Centrelink.

Is it okay for Centrelink to prosecute welfare recipients for withholding information that leads to “financial advantage or “obtaining a benefit by deception” when Centrelink staff deliberately conceal the “Waiver of debt due to Centrelink” law found in paragraph 1,239a of the Social Security Act?

Equality before the Law is a principle that cuts both ways and if Centrelink tries to rip you off by demanding repayment of over-payments caused by their error and not your, then you have a simple solution, file a complaint both the police and the Commonwealth Ombudsman alleging a failure to comply with section 135.2 of the Criminal Code Act (1995).

  1. Charges under this section of the federal law are based on commissions (false statements) and/or omissions (failure to declare).
  2. Section 135.2 states that a person is guilty of the offence of obtaining a financial advantage from an entity (e.g. you) where the person “engages in conduct” that results in the person knowingly obtaining a financial advantage, to which they are not entitled, for themselves or another person or organization.
  3. In 2011 the 7 Network was claiming that welfare recipients had been over-paid $3 Billion and they had Centrelink’s general manager, Hank Jongen, on stage singing the Centrelink hymn, “We will get you.”
  4. In April 2012 the 7 Network was claiming that (only) $2.8 Billion was owed. This suggests that Centrelink had recovered some $200 Million and it is London to brick that a fair whack of that money should not have been repaid.

With some Centrelink staff flatly refusing to talk about the “Waiver of debt” law as recently as yesterday (8th August 2013) and ‘negotiating on the basis of do as we say or else, I strongly recommend that you keep accurate records of the information that you give to Centrelink. I also strongly recommend that if Centrelink phones to ‘discuss’ repayment of over-payments that you do the following:

Do unto Centrelink as Centrelink will be doing unto you, i.e. recording the phone conversation. If you have a speaker phone, turn the speaker on. Fire up the video camera on your mobile phone and point it at yourself and then place it alongside the land line phone that Centrelink is calling you on. If the Centrelink official refuses to discuss the waiver of debt law, you then have evidence of a “Failure to disclose” that violates Section 135.2 of the Commonwealth Criminal Code Act (1995). File complaints with the police, the Commonwealth Ombudsman, your state MP and your federal MP plus some of the Opposition senators who represent your state.

Centrelink likes to brag about prosecuting welfare recipients but there is no reason why welfare recipients cannot brag about Centrelink staff who are prosecuted for “a failure to disclose” the waiver of debt law and other rights that you may have.

Ronald Medlicott ( A Christian advocate for justice. )

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