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Social security payments – the statutory scheme

Commonwealth Director of Public Prosecutions v Poniatowska [2011] HCA 43.

Social security payments – the statutory scheme

7. Entitlement to receipt of social security payments is governed by the Social Security Act 1991 (Cth) ("the Social Security Act"). The qualifications for receipt of the parenting payment are dealt with in Pt 2.10 of the Social Security Act. They include, in the case of a person who is not a member of a couple, that the person has a dependent child. The parenting payment may not be payable to a person who is otherwise qualified to receive it because, inter alia, the person's parenting payment rate, as determined by reference to a statutory calculation would be nil. This result may occur by virtue of a statutory "reduction for ordinary income", determined by reference to the extent to which a person's ordinary income exceeds that person's "ordinary income free area". This calculation may also result in a benefit being payable at a reduced rate.

8. The administration of social security payments is dealt with by the Social Security (Administration) Act 1999 (Cth) ("the Administration Act"). Under theAdministration Act, the Secretary of the Department may by written notice require a person who is a recipient of a social security payment to do certain things within a specified time. The Secretary may require the person to contact the Department and to give information to him or her. Failure to comply with the reasonable requirements of such a notice has the consequence that the social security payment is no longer payable. The Secretary may give a social security payment recipient a notice requiring that the person inform the Department if a specified event or change of circumstances occurs (or if the person becomes aware that such an event or change of circumstances is likely to occur). The person may be required by the notice to give the Department a statement about a matter that might affect the payment of the social security paymen. The Administration Act makes detailed provision with respect to the giving and content of statutory notices, including the period within which the recipient is to respond to the notice.

9. It is an offence under s 74 of the Administration Act for a person to fail to comply with a notice requiring that he or she inform the Department of a specified event or change of circumstances. The Administration Act creates a number of offences relating to the making of claims for, and the receipt of, social security payments. Each is a summary offence that is punishable by a maximum penalty of imprisonment for 12 months.

10. The Administration Act provides other mechanisms to assist in the detection and prevention of overpayments of social security payments. These include that the Secretary may request, but not compel, a recipient of a social security payment to give a written statement of his or her tax file number. If the Secretary makes such a request and the recipient does not comply with it within a specified period, the social security payment is generally not payable.


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