Commonwealth Director of Public Prosecutions

Social Security Fraud

Social Security Fraud

The Department of Human Services (DHS) refers the largest number of briefs of any agency to the CDPP.  These prosecutions play an essential role in protecting Commonwealth resources and thereby ensuring that support is provided where it is most needed in our community. Briefs relate to allegations that people have intentionally engaged in conduct and, as a result, received social security benefits, knowing that they are not entitled to receive them.

Cases typically involve a person receiving benefits that have been calculated on a false premise, such as that the person was unemployed when in fact they were receiving income from paid employment or that the person was single when in fact they were a member of a couple. Cases can also involve fraud where a person has received benefits on behalf of a person who is deceased or where multiple identities are used to obtain multiple benefits.  Prosecutions may involve significant sums particularly where there has been a continuing fraud over many years.

Social security fraud prosecutions can be very complex and demanding and involve technical evidence of DHS’s benefits systems.  The CDPP and DHS work closely together to seek to achieve best practice in investigating and prosecuting in this important area.

General deterrence is particularly important when considering the prosecution of social security fraud offences.

Commonly Used Offences

  • s.134.1(1) Criminal Code – obtaining property by deception
  • s.134.2(1) Criminal Code – obtaining a financial advantage by deception
  • s.135.1(5) Criminal Code – general dishonesty – causing a loss
  • s.135.2(1) Criminal Code – obtaining a financial advantage

Penalties

The maximum penalty for offences of obtaining property and obtaining a financial advantage by deception is 10 years imprisonment.

The maximum penalty for an offence of general dishonesty is 5 years imprisonment.

The maximum penalty for an offence of obtaining a financial advantage is 12 months imprisonment.

Sentencing

The CDPP provides sentencing data to the Commonwealth Sentencing Database (CSD). Permission to access the CSD can be obtained at http://njca.com.au/sentencing/ .

Significant Cases

Member of a Couple

  • Brooks v McShane (1996) 89 ACrimR 195

Offending by Omission

  • Poniatowska v DPP (Cth) [2010] SASCFC 19
  • DPP v Poniatowska (2011) 282 ALR 200
  • DPP (Cth) v Keating HCA 20 (08 05 2013)

Sentencing

  • R v Adami (1989) 51 SASR 229 – dependants
  • DPP v El Karhani (1990) 21 NSWLR 370 – general deterrence
  • R v Sopher (1993) 70 ACrimR 570 – mental health
  • Kovacevic v Mills (2000) 76 SASR 404
  • CoT v Baffsky (2001) 122 ACrimR 568 – section 19B
  • Saxon v CSDA (2003) 88 SASR 382 (repeat offending, mental health)
  • R v Desborough [2010] QCA 297
  • R v Newton (2010) 199 ACrimR 288
  • Arkrie v DPP (2012) 263 FLR 423
  • R v Leary [2012] TASSC 33

Relevant Legislation

Criminal Code

Social Security (Administration) Act 1999

Practice Group Instructions (PGI)

PGI RBF No. 1 –  PDF icon Charging Centrelink omission prosecutions pursuant to section 135.2 of the Criminal Code

PGI CFC No. 3 –  PDF icon Dishonesty offences under the Criminal Code

PGI RBF No. 4 – PDF icon Characterisation of social security fraud as omission or commission offending

PGI RBF No. 5 – PDF icon Charging social security fraud; number of charges

Law Reform

The Social Security Legislation Amendment (Miscellaneous Measures) Act 2011 commenced on 4 August 2011. This Act amended the Social Security (Administration) Act and inserted section 66A – General Requirement to Inform of a Change of Circumstances – into the Act.

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