SSAct section 1237AA permits the waiver of a debt arising from an offence where the debtor has received an extended custodial sentence because the debtor is either unwilling or unable to repay the debt.
Section 1237AA requires that the whole of the proportion of the debt that arose in connection with the offence must be waived. It does not make provision for waiver of a part of that proportion of the debt.
Section 1237AA requires that the court must have indicated that the custodial sentence is a longer sentence AND that it was imposed because the debtor was unwilling or unable to repay the debt.
In Sears and SDSS (1996) 41 ALD 173 the AAT held that, for the purposes of section 1237AA, indicated has its everyday meaning of 'showed' or 'made known'. It is not necessary to use a broader construction of 'implied' or 'suggested' to enable the operation of the section.
It must be demonstrated that the sentence imposed was a longer than normal sentence AND that it was imposed because of the debtor's inability or unwillingness to repay the debt.
Proof of this should be obtained from the sentencing judge's remarks upon sentencing, or from the sentence itself.
It is important that the length of the sentence is not compared with other sentences for similar offences when making such a decision. This approach will not be sufficient to show the reasons the sentence was imposed.
Act reference: SSAct section 1237AA Waiver of debt relating to an offence
Last reviewed: 16 May 2011