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It has been revealed that Services Australia utilises telecommunications metadata and software which bypasses account passwords in order to investigate if welfare recipients are in ‘secret’ relationships whilst claiming single payment rates to crack down on Centrelink fraud claims.

Following the ‘robo-debt’ scandal, which saw inaccurate debts unlawfully pursued against recipients by the agency, Centrelink was stripped of its ability to seek direct access to phone databases in 2015.

However, it can still request for the Australian Federal Police to access metadata, in the case of suspected fraud.

The agency reports that this will mainly occur in cases where tertiary students or jobseekers are suspected of claiming single rate payments whilst they are actually in a relationship.

Police may seize the individual’s device and use password-cracking software for the purposes of reading messages to garner evidence regarding whether the person claiming to be single is actually involved in a relationship.

A spokesperson for Services Australia commented that: “telecommunications metadata is only used to support potential criminal cases.”

“It is not used in our compliance activities, which aim to prevent avoidable debt as a result of customers being overpaid due to changes of their circumstances,” the spokesperson continued.

However, there is no clear publicised threshold for what amount of money alleged to be overpaid will trigger a criminal investigation.

According to its recent annual report surveying the 2021-22 financial year, Services Australia has conducted 709 criminal investigations.

However, only 203 referrals have been made to the Commonwealth Director of Public Prosecutions.

The CDPP is the body responsible for prosecuting taxation fraud matters.

Concerns have been raised with respect to how data may be extracted from mobile devices prior to charges being laid, with Services Australia also able to continue to pursue the debt as a non-compliance investigation even where the recipient is not criminally pursued.

Police use metadata provided by telecommunications companies as well as password-bypassing technology named ‘Cellebrite’ which allows data from devices to be extracted and viewed.

Services Australia provides that when assessing whether a person is in a relationship, they will consider the financial and social aspects of a relationship including whether it is sexual and the overall nature of a household, which metadata may be used to support.

In 2022, Services Australia sought for the second time for its direct access powers to metadata to be re-instated, with the government ultimately deciding against this.

Notably, the body has sought to confirm that Cellebrite was only used for devices seized with search warrants issued in relation to Commonwealth offences.

“Warrants are issued in accordance with the Crimes Act 1914, and are executed by the Australian Federal Police,” the spokesperson said.

Obtaining Financial Advantage Against Centrelink Fraud Offence

The Criminal Code Act 1995 (Cth) contains multiple offences that may be applied to Centrelink or social security fraud, which apply across Australia.

One of the main offences those who commit Centrelink fraud may face is obtaining financial advantage, by deception, against a Commonwealth entity, as per section 134.2(1).

The maximum penalty applicable is 10 years imprisonment.

The prosecution must prove, beyond reasonable doubt, that:

  1. The accused’s conduct involved deception, which resulted in financial advantage,
  2. The financial benefit was received from a Commonwealth entity, such as Centrelink or the Australian Taxation Office,
  3. The accused’s conduct was dishonest, such as where they were aware that they were not entitled to make a claim, what they were doing was wrong,
  4. The accused, at the time of their conduct, knew that there was a substantial risk that they would benefit financially, yet proceeded.

Dishonesty is defined by the Act, as dishonest according to the standards of ordinary people, and known by the accused person to be dishonest according to those standards.

Deception can involve intentional or reckless deception, and can be via words or other conduct, including via electronic means.

There is also an alternative offence within section 135.2(1), labelled ‘obtaining financial advantage from commonwealth entity’.

This carries a considerably lower maximum penalty of 12 months imprisonment.

The prosecution must prove, beyond reasonable doubt, that:

  1. The accused’s conduct results in them receiving a financial advantage from a Commonwealth entity, such as the ATO or Centrelink,
  2. The accused, at the time of their conduct, knew that they were not eligible to receive the financial advantage.

 

Image credit: MJConline

Published on 09/06/2023

AUTHOR Poppy Morandin

Poppy Morandin is the managing law clerk and an integral part of the team of criminal lawyers at Criminal Defence Lawyers Australia . She's also a part of CDLA's content article production team. Poppy is passionate about law reform and criminal justice.

View all posts by Poppy Morandin