Operating under the authority conferred to them by the Commonwealth Fraud Control Guidelines 2002 (the Guidelines), Centrelink Fraud is responsible for investigating and preparing evidence briefs on cases of fraud.
Once Centrelink has suspected a person has committed a Centrelink fraud, in conjunction with the Australian Federal Police (AFP), they may first invite the person for an interview or go to their house for investigation. Alternatively, they will launch an investigation into the matter without notice to the person.
If satisfied there is a reason for a cause of action, Centrelink will prepare briefs of evidence and then refer the case to the Commonwealth Director of Public Prosecutions (CDPP). This is the body responsible for prosecuting fraud in Australia.
To ensure effectiveness in their scope of work, Centrelink came up with Centrelink’s Fraud Control Plan 2008–10. Following this plan, Centrelink can detect, deter, and prevent frauds before they occur.
It’s possible to be caught unaware of an offence of obtaining financial or property benefit dishonestly or through deception under the Criminal Code Act 1995 (Cth), Sections 134.2 and 135.2. This usually occurs when;
· Circumstances change unknowingly and fail to notify Centrelink;
· The information provided to Centrelink is insufficient; and
· The stated income exceeds Centrelink’s threshold and fails to notify them.
Centrelink is an Australian government services provider responsible for delivering social security payments and other support services to Australians. The services they offer include;
· Living arrangements
· Education and Disability
· Raising kids
Centrelink fraud or social security fraud occurs when a person misleads Centrelink deliberately to gain social benefits not entitled to. The stipulations of Centrelink fraud are contained in Section 134.2 of the Criminal Code Act (Cth) 1995 and Section 135.2 of the Criminal Code Act (Cth) 1995.
Under Section 134.2, it’s an offence to obtain financial advantage by deception. To be convicted of this indictable offence, the CDPP must prove;
· The accused engaged in dishonest conduct which resulted in obtaining financial advantage meant for himself, or another person,
· CDPP must also prove the defendant knew of his illegibility to receive financial benefits,
· It has to be proven the defrauded was Centrelink.
This offence carries a maximum penalty of 10 years imprisonment or an order to repay the debt. For a minor offence, the maximum fine is $10, 200, while for a major offence, the maximum fine is $102,000.
As for the offence of Obtaining Financial Advantage under Section 135.2, the CDPP has to prove that;
· The suspect engages or engaged in conduct,
· The conduct intended to obtain financial advantage either for him or another person knowing neither of them is ineligible to receive the financial benefit,
· And the defrauded is Centrelink (Commonwealth entity).
If the CDPP proves all the above, the maximum penalty is 12 months imprisonment.
The offences of Obtaining a Financial Advantage and Obtaining a Financial Advantage by Deception belonging to a commonwealth identity are heard in the Local Court or District Court of NSW. The amount defrauded determines where the case will be heard and determined.
· Obtaining money by making false statements such as exaggerating living conditions;
· Claiming a Centrelink payment when not entitled to;
· Under-reporting income;
· Submitting forged documents like pay slips;
· Obtaining more financial benefits than entitled to.
It’s impossible to know if Centrelink is investigating you. When they suspect you of defrauding them, investigations are launched discreetly. It’s until when they decide to interview that you get to know you’re being investigated. This interview is documented and used against you in Court.
If not invited for an interview, you get to know you’ve been investigated when the CDPP issues a charge of Obtaining a Financial Advantage for you.
Centrelink usually do their investigation after evaluating evidence brought before them, receiving reports of a Centrelink fraud, and after Centrelink detects a fraud through their investigation data systems. National Fraud Intelligence Bureau (NFIB) does also provide information to Centrelink to do their investigation.
Centrelink fraud investigation process is a cycle process and not a static process.
Between 20008-09, Centrelink investigated 26,084 fraud investigations out of which 5082 investigated cases were referred to the Commonwealth Director of Public Prosecutions (CDPP) for consideration. Only 2973 cases were successfully convicted.
So, how do Centrelink investigate fraud in Australia? Centrelink’s Business Integrity Division a department of Centrelink is responsible for investigating Centrelink fraud in Australia. To ensure the investigation process is done to the institution’s required standards, Centrelink came up with a framework – Fraud Investigation Model (FIM).
For the investigating process to be successful, the following considerations are taken into account;
· All reasonable and possible lines of inquiry
· Gathering of any necessary material
· Parameters of the investigation
· The credibility of the facts established
· Identification of those responsible
Investigators from the Centrelink Business Integrity Division a department have to follow the FIM investigation structure. This model helps fraud investigators to;
· Disrupt fraudulent activities
· Focus more on preventing further loss
· Restrict fraud investigation period
· Counter fraud activities with a better logical approach
· Save time and resources taken by the police to gather data
All Centrelink fraud investigations are guided by processes, policies, procedures, and systems. The investigation parameters are found in the Social Security (Administration) Act 1999, the Public Service Act 1988, the Freedom of Information Act 1982, and the Privacy Act 1988.
The Centrelink fraud investigation process starts after a person has been suspected, or reported of committing an offense within the definitions of Centrelink fraud.
A fraud allegation or suspicion is instigated by the victim reporting their case, reports received from the police, after detection by Centrelink, through communications from other law enforcement agents, and through reports from the National Fraud Intelligence Bureau (NFIB).
All the reasons for the suspicion are then forwarded to the evaluation desk.
The second step involves the evaluation of the reports or data received at the FIM fraud investigation desk. Factors to be taken into account at the evaluation desk are;
Thirdly, If after evaluation the investigators believe there is a cause for action, they may opt to start investigating the offense directly. But if the fraudulent activity is ongoing, the next step will be to prevent or disrupt any further fraudulent activity occasioning more loss.
Fourthly, at this stage, Centrelink fraud investigators may invite law enforcement agencies, and partnering with other agencies for the purposes of gathering material evidence, monitoring and arresting the suspect, and protecting the witnesses.
Fifthly, the joint force now conducts further investigations into the matter. Centrelink has more manifested powers to gather more information from individuals and organizations.
Sixthly, after conducting further investigation, the evidence collected is evaluated. Once satisfied there’re enough reasonable reasons to continue with the case, Centrelink prepares evidence briefs. This brief of evidence contains the allegations and the legislation referencing the allegation, facts of the allegations, and admissibility of the evidence.
Finally, it’s now time to refer the briefs of evidence to the CDPP. For the briefs to be admissible, they must;
If CDPP is satisfied with the evidence briefs, a charge will issue the suspect with a charge of Obtaining a Financial Advantage by Deception or Obtaining Financial Advantage. The Criminal Code Act 1995 under which these charges lie applies to all territories and states in Australia.
Once served with a Centrelink fraud, just like any other citizen, you’ve got the right to legal representation and the right to reply.
Here are the defences to a charge of Centrelink fraud;
· Lack of dishonesty;
· Constitutional violation;
· Lack of intent; and
How long Centrelink takes to investigate a fraud allegation isn’t specified. But, generally, it will take weeks to months to complete the investigations and prepare briefs of evidence for referral to the CDPP.
Every case has its circumstances that determine the procedures, agencies, and procedures to be involved during the investigation.
Besides misinforming Centrelink, the other common cause for obtaining financial advantage from Centrelink is false claims. Giving false information on relationship status, disability status, or understating income with an aim of receiving benefits from the welfare or social security warrants a cause for action.
If proven guilty of obtaining financial advantage by deception by the Commonwealth Director of Public Prosecutions, the maximum penalty is 10 years, or a fine not exceeding $102,000.
Among the common Centrelink false claims that prove evidence of criminal behaviour you can be charged for are;
· Falsifying to be a single mother to receive tax and health benefits from Centrelink while married;
· Falsifying to be in a de facto relationship while still benefiting from the ex-partner’s assets;
· Exaggerating medical condition;
· Understating employment income.
Both Sections 134.2 and 1352 of the Criminal Code Act (Cth) 1995 elaborate on the consequences of Centrelink fraud in Australia. Judicial precedents are also good sources of knowledge on the consequences of defrauding Centrelink.
In Tasmania, Kristy Lee Wessing, 36, while before the Supreme Court in Hobart was found guilty of receiving $160,766 from Centrelink for falsifying about her living arrangements and marital status not entitled to. She was sentenced to 3 years imprisonment.
Besides the consequences of conviction, the court in its discretion may order as follows;
· Release on probation
· Recognisance release order
· Community Service
· Intensive Correction Order
· Conditional Release Order with or without conviction
· Debt repayment.
In coming up with the above sentences, the court will factor the following as set out in the Crimes Act section 16A;
i. Corporations with law enforcement agencies
ii. Course of conduct
iii. Loss resulting from the offence
iv. Other offences
v. Guilty plea entered
vi. Nature and circumstance of the fraud
Individual Rights during Centrelink Investigation
Every individual has the right to defend himself or ask for legal assistance at any stage during the investigation process. The foremost right is to ask for legal assistance before responding to any question if invited for an interview by the Centrelink investigators.
You also have the right to request Centrelink to write the questions (if called for an interview) and send them in an official notice to seek legal advice before responding to them.
Other individual rights are;
· Asking for an interpreter.
· Arrange to respond to their question another time.
· Right to be given a booklet of your rights.
· Not to let Centrelink officials into your house unless accompanied by a police officer with a warrant.
Centrelink fraud offences are serious indictable offences that can lead to a conviction and full time custodial sentence. Lyons Law Group has professional criminal defence lawyers to advise you on any fraud-related criminal matter.
Contact us for expert legal advice and representation.