I am not someone who has spent more than 3 months on Centrelink payments.

Lets be clear on something, I am not someone who has spent more than 3 months on Centrelink payments.
I have only accessed assistance thrice since 2010 due to medical issues.
I was sent a debt collection notice for $1300 approx. I knew on receiving this that there was a stuff up by Centrelink.
After several calls, I was able to contact Centrelink's Debt Collection agency only to be told that the debt had been handed over to a debt collection agency.
The Debt collection agency sent a text message at the start of December 2016.
I then contacted the debt collection agency and informed them of the following:
i) I would only make involuntary payments.
ii) That the payments would not exceed $5.00 per week.
iii) That I would not accept the BPay number being texted to me.
iv) That on receipt of an official letterhead/document containing the following:
a) the Bpay Number
b) the Company name ( of the debt collection agency)
c) that they must specify in writing who they were acting on behalf, or for.
d) the A.B.N, a legitimate name of a contact at the debt collection agency and direct contact number.
e) They were informed that as the debt collection notice specified a debt owed over a 20 year period, 1994 to 2014, then they needed to familiarise themselves with the legislation referring to the legal term "Statuary Debt".
f) They (( the debt collection agency)) were also told to familiarise themselves with the Federal court decision in Department of Social Security vs Anthony Southcott [1999] FCA 308, Centrelink cannot take any debt recovery action against an undischarged bankrupt (( this writer)) in respect of an over-payments debt owing to Centrelink as at the date of bankruptcy. Furthermore on discharge from the bankruptcy, the debtor is released from all liability for the over-payment.

NOTE:- If the debt to Centrelink ( or any creditor ) was incurred by fraud, the debtor is not released from the debt on discharge from bankruptcy. Centrelink MUST then either receive an admission of fraud from the debtor or institute a criminal prosecution and attempt to prove fraud and proceed to a criminal conviction. (( there has been no fraud or deception by this writer)). And yes I am an undischarged bankrupt. Centrelink is precluded from taking any recovery action against the debtor after he or she is discharged, unless the bankrupt has been convicted of fraud in relation to the debt,or has admitted fraud. (( NOT I !))

g) The debt collection agency were further informed that on receipt of that document involuntary payment of $5.00 per week would begin. A letter would then be sent to them making it clear that the debt could not be legally collected or enforced and that payment would only be made prior to immediate legal action being taken against them or any other proxy used by Centrelink.

The debt collection has not made any further contact since the initial contact in the first week of December 2016. Nor has any communication being received from Centrelink in this matter.

I am in my late 50's, I have not committed any crime of fraud, theft or deception and like most hard working people who have the vast majority of their life been employed, I detest having anything to do with Centrelink.

Two other areas of D.S.S legislation people should take note of:

1) Unconscionable conduct:
Understanding what unconscionable conduct means
Unconscionable conduct does not have a precise legal definition as it is a concept that has been developed on a case-by-case basis by courts over time. Conduct may be unconscionable if it is particularly harsh or oppressive. To be considered unconscionable, conduct it must be more than simply unfair—it must be against conscience as judged against the norms of society.

Business behaviour may be deemed unconscionable if it is particularly harsh or oppressive, and is beyond hard commercial bargaining.

For example, Australian courts have found transactions or dealings to be 'unconscionable' when they are deliberate, involve serious misconduct or involve conduct which is clearly unfair and unreasonable.

Determining whether conduct is unconscionable
There are a number of factors a court will consider when assessing whether conduct in relation to the selling or supplying of goods and services to a customer, or to the supplying or acquiring of goods or services to or from a business, is unconscionable.

These include:

the relative bargaining strength of the parties
whether any conditions were imposed on the weaker party that were not reasonably necessary to protect the legitimate interests of the stronger party
whether the weaker party could understand the documentation used
the use of undue influence, pressure or unfair tactics by the stronger party
the requirements of applicable industry codes
the willingness of the stronger party to negotiate
the extent to which the parties acted in good faith.
This is not an exhaustive list and it should be noted that the court may also consider any other factor it thinks relevant.
Section 20 of the ACL and section 12CA of the ASIC Act (special disadvantage)

This type of unconscionable conduct occurs when one party knowingly exploits the special disadvantage of another. This is general unconscionable conduct according to historical judge-made law. Factors that may give rise to a special disadvantage include:

ignorance of a debtor of important facts known to the staff or agent of the business
illiteracy or lack of education of the debtor
poverty or need of any kind of the debtor
the debtor’s age
infirmity of body or mind of the debtor
drunkenness of the debtor
lack of explanation and assistance when necessary.92
You should consider whether any circumstances of special disadvantage or vulnerability apply to a debtor whom you contact. If it does, make sure you interact with the debtor in a way that does not take advantage of their special disadvantage. Otherwise, your conduct is likely to be regarded as unconscionable and in breach of the law under this provision.

When you know or suspect a debtor lacks knowledge of the law, the debt recovery process, or the implications of non-payment of a debt, you must not take advantage of their ignorance.

Depending on the circumstances, it may be appropriate to encourage the debtor with a special disadvantage to seek the assistance of a financial counsellor or other suitably qualified representative to act on their behalf.

CASE STUDY

A company was found to have acted unconscionably when it used unfair tactics to obtain payment, such as creating a fake complaints handling body and a fake debt collection agency to manipulate and pressure debtors into paying alleged debts.

The court also found the company acted unconscionably by using scare tactics and unfounded claims to deter debtors from non-payment, including that if proceedings were commenced the court would order the debtor to pay a certain amount of compensation to the creditor for failing to pay on time and that any assets belonging to the debtor would be repossessed.

ACCC v Excite Mobile Pty Ltd [2013] FCA 350 (link is external)
Non-English speaking debtors

For someone who cannot speak English, appropriate interaction requires that the debtor can understand you. The assistance of an English-speaking family member or friend to translate should be sought, but only if the debtor proposes or agrees to this. Otherwise, the collector or creditor will need to engage a professional interpreter.93

Section 21 of the ACL (unconscionable conduct in connection with goods or services) and section 12CB of the ASIC Act (unconscionable conduct in connection with financial services)

‘A person must not in trade or commerce, in connection with the supply or possible supply of goods or services to a person … engage in conduct that is, in all the circumstances, unconscionable’.

Section 22 of the ACL and s. 12CC of the ASIC Act set out a long list of factors that courts may consider in determining whether a person has contravened s. 21 of the ACL and s. 12CB of the ASIC Act respectively, these include:

the relative bargaining strength of the parties
whether any conditions were imposed on the weaker party that were not reasonably necessary to protect the legitimate interests of the stronger party
whether the weaker party could understand the documentation used
the use of undue influence, pressure or unfair tactics by the stronger party
the price, or other circumstances, under which the weaker party would be able to buy or sell equivalent goods or services
the requirements of applicable industry codes
failure of the stronger party to disclose any intended conduct that might affect the interests of the weaker party
the willingness of the stronger party to negotiate
whether the stronger party has the right to unilaterally change contract terms.
These provisions apply widely to trade or commerce activities including debt collection activities.

Collectors risk breaching this prohibition particularly when they exert undue influence or pressure on, or unfair tactics against, a debtor who is at a special disadvantage or vulnerable.

CASE STUDY

A commercial agent acted unconscionably in trying to recover a debt that, unknown to the debtor, was statute-barred. It was also noted that the factual circumstances were sufficient to require the collector to establish that the transaction was fair, just and reasonable.

The debtor was an unemployed mother with a deaf, dependent child, who had originally defaulted on repayments for a car loan. The car was repossessed and sold. The residual debt was purchased by the commercial agent 10 years later, by which time accumulated interest had increased the amount owing to more than $10 000.

After being contacted by an employee of the commercial agent and told that legal action may be taken if a satisfactory arrangement could not be reached, the debtor agreed to pay $5000 to finalise the debt, of which $4500 was immediately charged to her credit card. On appeal, the court upheld the original decision that the agent through its employee had acted unconscionably.

The court noted that:

… the fact of someone from a firm of lawyers ‘cold-calling’ a woman of the respondent’s socio-economic standing at home at 6.30 in the evening, and interrogating her as to her personal and financial circumstances while insinuating that in the absence of her agreement to pay legal proceedings may be instituted, is capable of constituting pressure of a very high order.94

The court ordered that the debtor did not have to pay the $5000 debt and instead, that the creditor return the monies paid by the debtor.

Collection House v Taylor [2004] VSC 49 (link is external)
CASE STUDY

A creditor acted unconscionably by failing to stop efforts to repossess a car subject to a chattel mortgage when there was reasonable cause to understand that there would be a physical confrontation if they continued in their attempt.

Other factors considered in the court’s declaration of unconscionability included the creditor sending the debtor a notice implying that they would not or could not lawfully repossess the car without a court order, and then proceeding to repossess the vehicle without such an order, as well as the fact that the collection company’s agents entered the debtor’s residence by jumping a gate and opening a garage door from the inside.

2) Statuary Barred Debt:
Old debts
If you are contacted about a debt that's several years old, do not confirm the debt or make a payment until you get independent advice. You might have a defence against a debt if:

a long period of time has passed since you last made a payment or confirmed the debt
no court action has been taken to recover the debt in the meantime.
Generally, you can rely on this defence if six years have passed since you last made a payment or confirmed the debt, and there is no court judgement against you. In the Northern Territory, the time period is three years.

If this is the case, recovery of the debt through the courts is said to be ‘statute-barred’ and the courts will not enforce the debt. If you think a debt collector is contacting you about a debt that is ‘statute-barred’, you should get legal advice before you make any payment or confirm the debt in writing.

HOWEVER AN UNPUBLICISED change to D.S.S legislation is now in effect:-

6.7.3.08 No Time Limit on Debt Recovery
Summary
As of 1 January 2017, legal proceedings or any action to recover a social security debt can be commenced at any time. The former 6 year statute of limitations no longer applies.

A debt that was deemed irrecoverable at law prior to 1 January 2017 cannot be pursued, however, Centrelink can still accept voluntary repayments of the debt.

Even when a debt was deemed irrecoverable at law due to the former statute of limitations, the debt still exists. The debt may be waived where appropriate.

Act reference: SSAct section 1234B No time limit on debt recovery action

3) 6.7.3.30 Waiver for Administrative Error Debt
Summary
Recovery of a proportion of a debt must be waived if:

the proportion of the debt was caused solely by administrative error, and
the payments were received in good faith, and
the debt was not raised within 6 weeks from the later of the first payment that caused the debt or within 6 weeks of the end of a relevant notification period if the debt arose because the person complied with a notification obligation.
Recovery of a proportion of a debt must also be waived if:

the proportion of the debt was caused by the debtor or debtor's partner underestimating the value of their property, and
the estimate was made in good faith, and
the value of the property could not be easily determined at the time of estimation.
A proportion of a debt can also be the entire debt amount.

Act reference: SSAct section 1237A Waiver of debt arising from error
When is a debt attributable solely to administrative error?
In general, wherever a mistake has been made in administering a payment, the debt will arise 'solely to an administrative error' providing the recipient's conduct has not contributed to the debt in any way.

Examples of administrative error include mistakes in:

calculating the amount of a payment,
determining which social security payment/s a person is entitled to be paid, and
correctly actioning information provided by the recipient.
The requirement that part of the debt must have arisen 'solely' from administrative error means that there must have been no other factors that caused the debt to arise or contributed to the debt arising. The part of the debt must have arisen as a result of administrative error alone.

Example: Henry receives YA and reports that he started earning income. He continues to receive YA at the full rate for 3 weeks without realising that Centrelink has made a mistake. Henry receives a notice stating that his income is zero, and that he must inform Centrelink within 14 days if this is wrong. Henry does not notify Centrelink as required. Centrelink raises a debt against Henry 9 weeks later. The amount that was overpaid between the time that he reported his income to Centrelink and receiving the letter is due solely to administrative error. However, the remaining part of the debt cannot be attributed solely to administrative error as Henry contributed to the debt by not complying with his notification obligations.

What constitutes 'good faith'?
In Falconer and SDSS (1996) 41 ALD 187, the AAT held that the crucial question in determining whether a recipient received a payment in good faith is: 'Did the recipient know that the amount had been paid contrary to the Act?'

If a recipient knows or had reason to know that they were not entitled to a payment they received, they cannot be said to have received the payment in good faith.

The decision of whether the recipient received the payment in good faith must be based on the recipient's state of mind at relevant times, based on the best evidence available. It is essential to consider all circumstances of a case, including, but not limited to:

Information given to the recipient via letters and other literature, interviews, and phone contact. This may help to establish the recipient's reasonable expectation about their payments.
Information provided by the recipient about their circumstances. This may help to establish their expectations about future payments and the impact of any new information they provide to Centrelink.
The recipient's regular pattern of payment - what would they reasonably expect to receive on a regular basis? What would be an unexpected payment or amount?
The amount of the excess payment - it might be expected that a recipient would question a large amount.
The period of time over which the incorrect payments were made - a short period could be considered by the recipient to be administrative delay in actioning new information, while a longer period may not.
Whether the recipient had questioned the payment and received incorrect assurances that all was in order. In such cases, there may be grounds for attributing good faith, if the recipient has a well-grounded belief that they are entitled to some payment.
It is also important to consider whether the recipient has been 'wilfully blind' in relation to the overpayment.

Example: If a recipient has been aware of an irregularity in payments that they are receiving but fails to take steps to bring the situation to Centrelink's attention.

In the case of Jazazievska v Secretary Department of Family & Community Services (2000) [FCA 00/1484, 20/10/00], the Federal Court considered that although the applicant had been overpaid family allowance because her original income estimate was rendered obsolete by the receipt of a redundancy payment, Centrelink had failed to consider the applicant's evidence that she had disclosed receipt of the redundancy payment to Centrelink, and so had erred in law. However the applicant had queried a later receipt of a duplicate payment of basic family payment at her bank but had not contacted Centrelink, and therefore had not received the payment in good faith.

In the case of Haggerty v Department of Education Training & Youth Affairs (2000) [FCA 00/1287, 8/9/00], the Federal Court held that a student had not received Austudy in good faith because his sister, who was living with him in a family home, had applied for Austudy at the same time and was rejected on the basis of the actual means test, and therefore the brother had reason to know that he was ineligible for Austudy payments.

In the case of Pledger v Secretary Department of Family & Community Services (2002) [FCA 1576, 19/12/02], the Federal Court found that the term 'good faith' did not have any special meaning in the SSAct. Justice Weinberg found that the term good faith should be given 'their ordinary and natural meaning' and that the 'values which they reflect must be the values of ordinary, decent members of the community'. This means that decision makers must have regard to what the ordinary person in the street would think is meant by good faith in deciding on the meaning to give to the expression 'received in good faith'.

When is a payment 'received'?
Whether good faith exists must be considered at the time the payment is received. The Federal Court, in Secretary, Department of Education, Employment, Training & Youth Affairs v Prince (1997) [152 ALR 127] held that a payment is received when it becomes available for the recipient's use.

A payment can be received even if a recipient is unaware that a payment has been received (e.g. deposited into their bank account).

So if you have a head for all of this, you should realise by now that I do not agree with the debt claimed NOR DO I INTEND TO FUCKING WELL PAY IT !!.