Control Of Government Action Text Cases And Commentary – Robin Creyke (1)

<224> In the present case, the steps leading to a decision to raise a debt under s 1224 are … namely that an officer in the Department form an opinion that there has been a failure to comply with a provision of the Act …, or that there has been a false statement or representation, and that a benefit has been paid because of that, and that it would not otherwise have been paid. These are facts capable of being ascertained from objective evidence.

The opinion to be formed is simply that the facts exist. Upon a review, the correctness of the opinions of the officer can be tested against the available evidentiary material. The officer in forming the requisite opinion and raising a debt under s 1224 is not exercising discretionary power. These are considerations which favour the view that an authorised officer may lawfully exercise functions of this kind in the name of the Secretary, or delegate of the Secretary, without holding a formal instrument of delegation under s 1299.

If this view be correct, where a question arises whether the officer who formed the requisite opinion and raised a debt under s 1224 had authority to do so, it will be necessary to consider evidence as to the nature and scope of the duties of the position which the officer held … In contrast with the terms of s 1224, the power in s 1237(1) to waive a debt is clearly a discretionary power, and it is one vested expressly in the Secretary.

The exercise of the discretion is one that significantly affects the rights and liabilities of a person who is otherwise indebted to the Commonwealth. Moreover, the discretion is one that is likely to be exercised in a manner that implements broad policy objectives under the Act, and where applicable, directions of the Minister given under s 1237(3).

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