These matters can be complex. A discrepancy or overpayment does not automatically establish fraud. The Prosecution must prove the elements of the particular offence charged, including any required element of dishonesty, deception or knowledge.

At Chidiac & Associates, we provide experienced criminal defence representation to clients facing Centrelink and Commonwealth fraud allegations throughout Sydney and New South Wales. We carefully examine the allegations, relevant legislation and evidence relied upon by the Prosecution.

What is Centrelink Fraud?

“Centrelink fraud” is a general term used to describe allegations involving the dishonest obtaining of social security payments or other financial advantages.

There is no single offence called “Centrelink fraud”. Depending on the circumstances, a person may be charged under Commonwealth legislation, including the Social Security (Administration) Act 1999 (Cth) or the Criminal Code Act 1995 (Cth). In some circumstances, NSW fraud legislation may also be relevant.

Most social welfare fraud Prosecutions are commenced under the Social Security (Administration) Act 1999 (Cth), while more serious matters may be prosecuted under the Criminal Code Act 1995 (Cth).

Common allegations may include:

• failing to report income;
• falsely reporting income;
• failing to disclose employment;
• failing to disclose a change in relationship circumstances;
• failing to disclose assets or financial resources;
• providing false or misleading information in an application;
• obtaining payments to which a person was not entitled;
• continuing to receive a payment after a change in circumstances;
• using another person's identity or details to obtain a payment; or
• dishonestly obtaining a financial advantage from the Commonwealth.

The precise offence will depend upon the allegations and the legislation relied upon by the Prosecution.

Obtaining a Payment That Is Not Payable

One of the more common Commonwealth offences relevant to Centrelink fraud allegations is contained in section 215 of the Social Security (Administration) Act 1999 (Cth).

This provision concerns obtaining a social security payment that is not payable.

The circumstances surrounding how the payment was obtained are important. The Prosecution must establish the elements of the particular offence charged.

Social welfare fraud offences prosecuted under the Social Security (Administration) Act 1999 (Cth) may carry a maximum penalty of 60 penalty units and/or 12 months' imprisonment, subject to the applicable Commonwealth penalty provisions.

Obtaining a Financial Advantage by Deception

More serious Centrelink fraud allegations may be prosecuted under the Criminal Code Act 1995 (Cth).

Depending upon the allegations, charges may include offences involving:

• obtaining a financial advantage by deception;
• dishonestly causing a loss to the Commonwealth; or
• making a false or misleading statement in connection with a Commonwealth matter.

The Prosecution must prove the specific elements of the offence charged.

An allegation that a person received money to which they were not entitled does not, by itself, determine whether a criminal offence has been committed. The circumstances in which the payment was received and the person's knowledge and state of mind may be critical.

Fraud Under NSW Legislation

In some circumstances, allegations involving deception and financial advantage may also give rise to offences under NSW legislation.

Under section 192E of the Crimes Act 1900 (NSW), a person commits fraud where, by deception and dishonestly, they obtain property belonging to another person, obtain a financial advantage or cause a financial disadvantage.

The maximum penalty for fraud under section 192E is:

10 years' imprisonment

Under the legislation, deception may be by words or other conduct and must be intentional or reckless. Obtaining a financial advantage can include obtaining or retaining a financial advantage.

Whether a particular Centrelink matter is prosecuted under Commonwealth or NSW legislation will depend on the nature and circumstances of the alleged conduct.

Elements of a Centrelink Fraud Offence

The elements the Prosecution must establish depend upon the particular offence charged.

However, Centrelink fraud allegations commonly involve questions concerning the following.

1. Whether the Person Was Entitled to the Payment

The Prosecution may need to establish that the person was not entitled to receive the payment, or was not entitled to receive the amount received.

This can involve detailed consideration of matters such as:

• income;
• employment;
• assets;
• relationship circumstances;
• living arrangements;
• financial resources; and
• other information relevant to eligibility.

Eligibility rules can be complex. A careful examination of the relevant circumstances and applicable requirements is therefore essential.

2. Whether False or Misleading Information Was Provided

Depending on the charge, the Prosecution may allege that the accused provided information that was false or misleading.

This may involve allegations concerning information provided:

• in an application;
• through online reporting;
• during a telephone conversation;
• in writing;
• to a Centrelink officer; or
• in response to a request for information.

The precise information provided and the context in which it was provided may be important.

3. Whether the Required State of Mind Existed

Many fraud offences require the Prosecution to establish a particular state of mind, such as dishonesty, knowledge or deception.

A mistake, misunderstanding or administrative error is not necessarily equivalent to intentional or dishonest conduct.

Relevant issues may include:

• what the person understood their reporting obligations to be;
• what information they were given;
• whether they knew the information was incorrect;
• whether they understood that a change in circumstances affected their entitlement;
• whether the alleged omission was deliberate; and
• whether there was any intention to obtain a payment dishonestly.

The Prosecution must establish the elements of the particular offence charged beyond reasonable doubt.

4. Whether a Financial Advantage or Payment Was Obtained

The Prosecution may also rely on evidence concerning the payment or financial advantage allegedly obtained.

This may involve consideration of:

• the amount allegedly overpaid;
• the period over which payments were received;
• whether the payments would have been made if accurate information had been provided; and
• whether the accused retained a financial advantage to which they were not entitled.

The amount of any alleged overpayment and the method by which it is calculated may require careful examination.

What Are the Penalties for Centrelink Fraud?

The maximum penalty depends on the precise offence charged.

Possible penalties may include:

Social Security Offences

For relevant offences prosecuted under the Social Security (Administration) Act 1999 (Cth), the maximum penalty may be:

• 60 penalty units;
• 12 months' imprisonment; or
• both.

Commonwealth Criminal Code Offences

More serious allegations may be prosecuted under the Criminal Code Act 1995 (Cth).

For example, commonly used Commonwealth fraud offences include obtaining a financial advantage and dishonestly causing a loss, with the applicable maximum penalty depending on the specific provision and whether the matter is dealt with summarily or on indictment.

NSW Fraud

Where section 192E of the Crimes Act 1900 (NSW) applies, the maximum penalty is:

10 years' imprisonment

A maximum penalty is the highest penalty available for an offence. It does not mean that every person convicted will receive that penalty.

The outcome will depend on the particular offence, the amount involved, the period of offending and the individual circumstances of the offender.

Relevant sentencing considerations may include:

• the amount of the alleged overpayment;
• the duration of the alleged offending;
• the nature of the alleged deception;
• whether the conduct was planned;
• the number of payments or transactions involved;
• whether false documents or identities were used;
• whether the money has been repaid;
• the person's criminal history;
• whether a guilty plea was entered;
• the person's personal circumstances; and
• prospects of rehabilitation.

Repayment of Centrelink Debts and Criminal Charges

An alleged Centrelink overpayment or debt is not necessarily the same as a criminal fraud charge.

A person may be assessed as having received an overpayment without that fact alone establishing that they committed a criminal offence.

Similarly, repayment of an alleged debt does not automatically determine whether a criminal Prosecution will proceed.

The questions of:

• whether an overpayment occurred;
• whether a debt is owed; and
• whether a criminal offence can be proved

are separate issues that may require different legal and factual considerations.

Defending a Centrelink Fraud Charge

Being accused of Centrelink fraud does not mean that you are guilty.

The Prosecution bears the burden of proving the elements of the particular criminal offence charged beyond reasonable doubt.

Depending on the circumstances, issues in defending a Centrelink fraud allegation may include:

• the accused was entitled to receive the payment;
• the payment was correctly calculated;
• the alleged overpayment has been incorrectly calculated;
• the information provided was not false or misleading;
• the accused did not know the information was incorrect;
• the accused misunderstood their reporting obligations;
• the alleged failure to report information was not deliberate;
• the accused did not act dishonestly;
• the accused did not intend to deceive Centrelink;
• the relevant change in circumstances did not affect the person's entitlement;
• Centrelink records are incomplete or inaccurate;
• there are inconsistencies in the Prosecution evidence; or
• the Prosecution cannot establish every element of the offence beyond reasonable doubt.

The particular reporting obligations and information available to the accused at the relevant time may be central to the defence of the matter.

Evidence in Centrelink Fraud Cases

Centrelink fraud investigations can involve substantial documentary and electronic evidence.

Depending on the allegations, the Prosecution may rely upon:

• Centrelink applications and forms;
• online reporting records;
• income declarations;
• payslips;
• employer records;
• bank statements;
• transaction records;
• tax records;
• records of telephone conversations;
• written communications;
• electronic account records;
• social media material;
• witness statements; and
• records concerning payments received.

At Chidiac & Associates, we carefully examine the evidence relied upon by the Prosecution, including the accuracy of financial calculations and the evidence said to establish dishonesty, knowledge or deception.

Centrelink Fraud Investigations

A Centrelink fraud allegation may initially be investigated by Services Australia or another Commonwealth investigative agency.

A person may be contacted and asked to provide documents, information or an explanation regarding their circumstances.

Police or investigators may also seek to interview a person about the allegations.

If you become aware that you are the subject of an investigation, obtaining legal advice before participating in an interview can be important.

Early legal advice can assist you in understanding the allegations, assessing the evidence and making informed decisions about how to respond.

How We Can Help

Centrelink fraud allegations can involve complex Commonwealth legislation, detailed financial records and significant questions concerning a person's knowledge and state of mind.

At Chidiac & Associates, we provide:

• confidential advice about Centrelink fraud allegations;
• advice during investigations;
• advice concerning interviews with police or investigators;
• detailed analysis of Prosecution evidence;
• examination of Centrelink and financial records;
• assessment of alleged overpayments;
• analysis of issues concerning dishonesty, knowledge and intention;
• representation at court appearances;
• negotiations with prosecutors where appropriate;
• preparation for defended hearings and trials; and
• sentencing advice and representation.

Our approach is built on thorough preparation, careful analysis of the evidence and strong courtroom advocacy.