Evidentiary Burdens and the Recovery of Social Security Debts: Chaplin v Secretary, Department of Social Services (Cth)

Abstract

In Chaplin v Secretary, Department of Social Services (Cth), the High Court of Australia will determine the standard of satisfaction required before the Commonwealth may recover an alleged social security debt. The appeal — the first social security related case to reach the High Court in more than a decade — concerns the construction of a statutory requirement that income be taken into account when ‘first earned, derived or received’, and the consequences where evidence of the earning fortnight is no longer available. In this column, we argue that the approach of the Full Federal Court of Australia majority risks authorising the recovery of debts whenever individuals are unable to substantiate their entitlement, including where original records have been lost or were never maintained. We also examine competing constructions of the provisions across fora, the implications of retrospective legislation purporting to validate the very practice under challenge in this appeal, and whether private law facilitation principles, properly understood, support or undermine the Federal Court majority’s approach to the evidentiary gap.