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Wednesday, 11 August 2004
Page: 26136


Senator HARRIS (1:34 PM) —I rise to speak on a matter of public interest and to raise an issue of deep concern in Queensland. I would like to place it very clearly on the record that I am using an example, but the primary role of that example is to raise the issue that the then Department of Social Security could override and ignore the decision of a judge in a review tribunal. Let me outline very quickly the particular case I am referring to. A customer, Mr Wise, had been in receipt of an age pension from 1975. At that time, there was no income assets test for such a pension. On 21 March 1985, the assets test was introduced. An ARO document provided from the then Department of Social Security office in Nambour said:

All customers that were not means tested were sent a form similar to an income and assets review form.

That is the statement from the department. I bring to the attention of the chamber and the people who are listening to this broadcast that, in 1992, Mr Wise was 91 years of age and, obviously, in 1998 he was 97. In 1991, Mr Wise was in complete control of all of his personal affairs and had responded to the department's communications over a number of years—in 1981, 1982, 1984 and 1985. The department provided the minister with a document headed `Response to Senator Harris regarding recovery of an age pension debt' which was tabled yesterday. Yesterday the minister said:

Records show that the customer had been contacted on several occasions while he was on age pension and that he had failed to update his circumstances until this was brought to Centrelink's attention five years ago.

So, in 1992 and 1998 the department, on its statement, sent a form to Mr Wise to fill out. The original document, from the department in Nambour, contains some profound statements:

Have checked old records for a copy of assets collection form. None on file and possibly batch or centrally stored—either way now destroyed.

Called policy who suggested I contact Retirements Help Desk and have them check with DFACS as they should have anything stored by Social Security.

Called Retirements Help Desk who are following up for me and will get back to me.

190100 Help Desk phoned back. They have spoken to DFACS who advise there is no information relating to the introduction of the assets test or data collection available.

I repeat:

... there is no information relating to the introduction of the assets test or data collection available.

They said they may be able to obtain something by going through archive but it would be a very expensive exercise. I advised that it would not be necessary.

So the officer, who lives in Nambour, made the decision that there was no need to provide the documentation that the department relied upon to base its claim for the repayment of this pension. At that stage, the pensioner was 91 years old. Geographically, the office that this person sat in was within 10 kilometres of the residence of Mr Wise. One of the forms that were sent from that office to Mr Wise asked for contact details. Mr Wise filled it in and said he did not have a phone. So the social security employee, who worked in Nambour less than 10 kilometres away, knew Mr Wise did not have a phone and that he had not responded on two forms that the government deemed—I stress `deemed'—he had received, but they did not have the courtesy to drive 10 kilometres to visit a 91-year-old man and ask him whether he got the forms. It is a gross dereliction of either social duty or moral duty.

Around that period, the department changed from paying pensions by cheque to paying them automatically into bank accounts. If there was a problem with Mr Wise being ineligible to receive this pension, why wasn't it raised then? The Social Security Appeals Tribunal handed down a decision on 14 June 2000. Some alarming statements were made as findings of fact. One finding was:

Mr Wise had not responded to these notices in so far as they related to the land value issue.

Mr Wise had not responded because Mr Wise had not received the forms. The department has verbally confirmed that it assessed those that it sent the forms out to. One of the questions that need to be answered by Centrelink is that, if it got it wrong back in 1985—if it did not make the right assessment and send the form out to the person who ultimately turned out to have assets above the limit—what processes did it have in place to correct that process? I believe the statement of fact that appears in this document from the Social Security Appeals Tribunal is nothing other than a statement of convenience to protect the department. In the tribunal's document, it says:

Section 73 of the Act provides that if a person does not respond to the Notice then the person ceases to be entitled to Age Pension.

Directly under that it says:

Automatic termination—recipient not complying with section 68 notification obligations.

So the act is abundantly clear. When they sent the notices to Mr Wise, to which he did not respond, the department should have terminated the pension. They did not. The Social Security Appeals Tribunal decision was then taken to the Administrative Appeals Tribunal, which published its reasons for decision, in which item 5 states:

The applicant was born on 19 November 1901. He had been on an age pension for many years before the relevant dates in this case. There is a scarcity of documents.

There was not a scarcity of documents; there was no document because the very documents asking Mr Wise to provide details of his assets were never sent. And here we have it: the department have admitted that they cannot provide the details of when those documents were sent. As I said earlier, we know that Mr Wise responded to the documents from the local office in 1980, 1981, 1982, 1983 and 1985. Why is there not a process which would show up differences when there is an incompatibility in a person's file? Item 8 of the reasons for decision states:

The applicant indicated a negligible income confined to bank interest. While he disclosed interest from a bank account, he denied any other assets.

That is manifestly incorrect. How can a member of the Administrative Appeals Tribunal make such a statement? Mr Wise did not refuse to fill in his assets. What Mr Wise did do was answer every question on every form he received. I am not going to table them, but I have the documents here and all the forms sent out by the Nambour office carrying Mr Wise's signature. But the documents they are claiming he received were sent out centrally from Brisbane, and that is where the problem lies. If we look further, item 30 in the decision states:

However, the fact remains that the Applicant was paid pension which was not payable because of the assets test. Both parties contributed to the error but I am satisfied it is likely that neither of them did so knowingly.

I have no problems with that in relation to the department. The department did not know-ingly fail to send the forms but the depart-ment have to accept that the accrual of the pension paid was their fault. Item 34 states:

This is not a case where administrative error by the Commonwealth is the sole cause of the overpay-ment. Omission by the Applicant played a part.

That is another convenient set of words to cover the department. In item 35, they go on:

... but he did unwittingly omit to comply.

He did not unwittingly omit to comply; he did not know about it. The important part is item 36, which states:

However, the circumstances of the Applicant are such that there is no capacity to repay this debt until the subject land is sold.

The land has not been sold. Therefore, Mr Wise's relatives believe that the department should honour the decision of the judge and cease harassing this family.