Commonwealth of Australia Bills Commonwealth of Australia Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000
The Parliament
of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Family and
Community Services and Veterans’ Affairs Legislation Amendment (Debt
Recovery) Bill 2000
No. ,
2000
(Family and Community
Services)
A Bill for an Act to amend the
law relating to the recovery of debts due to the Commonwealth by social security
and family assistance recipients and veterans, and for related
purposes
ISBN: 0642 436606
Contents
A Bill for an Act to amend the law relating to the
recovery of debts due to the Commonwealth by social security and family
assistance recipients and veterans, and for related
purposes
The Parliament of Australia enacts:
This Act may be cited as the Family and Community Services and
Veterans’ Affairs Legislation Amendment (Debt Recovery) Act
2000.
(1) Subject to subsection (2), this Act commences on the day on which
it receives the Royal Assent.
(2) Items 3 to 27, 29, and 31 to 33, in Schedule 1, items 1
to 15 in Schedule 3, and items 1 to 8 in Schedule 4, commence, or
are taken to have commenced, on 1 January 2001.
Subject to section 2, each Act that is specified in a Schedule to
this Act is amended or repealed as set out in the applicable items in the
Schedule concerned, and any other item in a Schedule to this Act has effect
according to its terms.
1 Subsection 23(1) (definition of assurance
of support debt)
Omit all the words and paragraphs after paragraph (ca), substitute
“in respect of the payment to another person of a social security payment
of a kind mentioned in subregulation 2.38(1) of the Migration
Regulations.”.
2 Subsection 23(1) (definition of financial
institution)
Repeal the definition, substitute:
financial institution means a corporation that is an ADI for
the purposes of the Banking Act 1959.
3 Paragraph 1222(1)(b)
Repeal the paragraph, substitute:
(b) debts owed to the Commonwealth under section 1135; and
4 Subsection 1222(1) (note
1)
Repeal the note, substitute:
Note: The debts owed to the Commonwealth under Part 5.2
are as follows:
(a) section 1223 debts—debts arising under this
Act;
(b) section 1223AA debts—debts arising from
prepayments;
(c) section 1223AB debts—debts arising from AAT
stay orders;
(d) section 1224AA debts—person other than payee
obtaining payment of a cheque;
(e) section 1224AB debts arising from conviction of
person for involvement in offence by debtor;
(f) section 1224B debts—education entry
payment;
(g) section 1224D debts—mobility allowance
advance debts;
(h) section 1224E debts—debts arising from
advance payments of social security entitlements;
(i) section 1225 debts—compensation
debts;
(j) section 1226 debts—compensation payer and
insurer debts;
(k) section 1226A debts—compensation arrears
debts;
(l) section 1227 debts—assurance of support
debts;
(m) section 1227A debts—debts arising under the
Farm Household Support Act;
(n) section 1227B debts—debts arising under
Part 8 of the Student Assistance Act 1973 as in force immediately
before 1 July 1998;
(o) section 1229A debts—interest
debts;
(p) section 1229B debts—administrative charge
debts;
(q) section 1230 debts—garnishee notice
debts;
(r) section 1230A debts—failure to comply with
garnishee notice.
5 Subsection 1222(1) (note
2)
Repeal the note.
6 Subsection 1222(2)
Repeal the subsection, substitute:
(2) The methods of recovery available for the various types of debt are
set out in the following table:
|
Recovery methods table |
|||
|---|---|---|---|
|
Column 1 Item |
Column 2 Debt |
Column 3 Means |
Column 4 Provision |
|
1 |
1135 |
deductions |
1231, 1234A |
|
2 |
1223 |
deductions |
1231, 1234A |
|
3 |
1223AA |
deductions |
1231, 1234A |
|
4 |
1223AB |
deductions |
1231, 1234A |
|
5 |
1224AA |
deductions |
1231, 1234A |
|
6 |
1224AB |
deductions |
1231, 1234A |
|
7 |
1224B |
deductions |
1231, 1234A |
|
8 |
1224C |
deductions |
1231, 1234A |
|
9 |
1224D |
deductions |
1231, 1234A |
|
10 |
1224E |
deductions |
1231, 1234A |
|
11 |
1225 |
deductions |
1231, 1234A |
|
12 |
1226 |
legal proceedings |
1232 |
|
13 |
1226A |
deductions |
1231, 1234A |
|
14 |
1227 |
deductions |
1231, 1234A |
|
15 |
1227B |
deductions |
1231, 1234A |
|
16 |
1229A |
deductions |
1231, 1234A |
|
17 |
1229B |
deductions |
1231, 1234A |
|
18 |
1230 |
legal proceedings |
1232 |
|
19 |
1230A |
legal proceedings |
1232 |
7 Subsection 1223(1)
Repeal the subsection, substitute:
(1) Subject to this section, if:
(a) a social security payment is made; and
(b) a person who obtains the benefit of the payment was not entitled for
any reason to obtain that benefit;
the amount of the payment is a debt due to the Commonwealth by the person
and the debt is taken to arise when the person obtains the benefit of the
payment.
(1AA) If a social security payment is made to, or as directed or
authorised by, the person who is entitled to obtain the benefit of the payment,
subsection (1) does not apply to any other person who afterwards obtains
the benefit of the payment unless the other person obtained the benefit because
of a mistake made by the first person in connection with the giving of the
direction or authorisation.
(1AB) Without limiting by implication the circumstances to which
paragraph (1)(b) applies apart from this subsection, a person who obtained
the benefit of a social security payment is taken not to have been entitled to
obtain the benefit if the payment should not have been made for any one or more
of the following reasons:
(a) the payment was made to the person by mistake as a result of a
computer error or an administrative error;
(b) the person for whose benefit the payment was intended to be made was
not qualified to receive the payment;
(c) the payment was not payable;
(d) the payment was made as a result of a contravention of the social
security law, a false statement or a misrepresentation;
(e) the payment was made in purported compliance with a direction or
authority given by the person who was entitled to obtain the benefit of the
payment but the direction or authority had been revoked or withdrawn before the
payment was made;
(f) the payment was intended to be made for the benefit of someone else
who died before the payment was made.
(1AC) If a social security payment was made by mistake as a result of a
computer error or an administrative error, subsection (1)
applies:
(a) whether or not the payment was made under a determination that had
effect at the time when the payment was made; and
(b) whether or not a determination in relation to the payment could be
made after that time with effect from and including that time.
(1AD) Subsection (1AC) does not apply if the social security payment
was made when it should not have been made because of the occurrence of an event
or a change in circumstances where the event or change had not been notified to
the Secretary but no valid requirement for notification had been made under the
social security law.
(1AE) If subsection (1AC) applies in respect of a social security
payment:
(a) Divisions 8, 9 and 10 of Part 3 of the Social Security
(Administration) Act 1999 are to be disregarded; and
(b) any determination made under section 79 or 80 of that Act to
correct the error in the payment takes effect from the date stated in the
determination; and
(c) the date so stated may be a date earlier than the date on which the
determination is made.
8 Subsections 1223(2A) and
(5)
Repeal the subsections.
9 At the end of
section 1223
Add:
(9) In this section, unless the contrary intention appears, a reference to
a social security payment includes a reference to a part of a social security
payment.
10 Section 1224
Repeal the section.
11 Section 1224AB
Repeal the section, substitute:
If:
(a) a person is liable to pay a debt because the person contravened a
provision of this Act as in force immediately before 20 March 2000, or a
provision of the social security law; and
(b) another person is convicted of an offence under section 5, 7A or
86 of the Crimes Act 1914 in relation to the contravention;
the persons referred to in paragraphs (a) and (b) are jointly and
severally liable to pay the debt.
12 Sections 1229 and
1229A
Repeal the sections, substitute:
(1) If a debt by a person to the Commonwealth under the social security
law has not been wholly paid, the Secretary must give to the person a notice
specifying:
(a) the date on which it was issued (the date of the
notice); and
(b) the outstanding amount of the debt at the date of the notice;
and
(c) the day on which the outstanding amount is due and payable.
(2) The outstanding amount of the debt is due and payable on the 21st day
after the date of the notice.
(3) If the debt has not been wholly paid and:
(a) the person has not entered into an arrangement under section 1234
to pay the outstanding amount of the debt; or
(b) the person has entered into an arrangement under that section but has
failed to make a payment in accordance with the arrangement or, if the
arrangement has been amended, in accordance with the arrangement as
amended;
the Secretary may give to the person a further notice specifying:
(c) the date on which it was issued (the date of the further
notice); and
(d) the outstanding amount of the debt at the date of the further notice;
and
(e) the effect of sections 1229A and 1229AB; and
(f) how any interest under section 1229A is to be
calculated.
(4) A notice given under subsection (1) may also specify the matters
mentioned in paragraphs (3)(e) and (f) and, if it does so, it is taken also
to be a further notice given under subsection (3).
(1) This section applies to a person who:
(a) receives a further notice given under subsection 1229(3);
and
(b) is not in receipt of a social security payment or a payment of pension
or allowance under the Veterans’ Entitlements Act 1986.
(2) If:
(a) the person has not entered into an arrangement, on or before the final
payment day, to pay the outstanding amount of the debt; and
(b) the Secretary has notified the person in writing that the person will
be required to pay interest under this subsection;
the person is liable to pay interest:
(c) from and including the first day after the final payment day until the
debt is wholly paid; and
(d) at the penalty interest rate;
on the outstanding amount from time to time.
(3) If:
(a) the person has entered into an arrangement to pay the outstanding
amount of the debt; and
(b) the person has failed to make a particular payment in accordance with
the arrangement; and
(c) the Secretary has notified the person in writing that the person will
be required to pay interest under this subsection;
the person is liable to pay interest:
(d) if the failure occurs on or before the final payment day—from
and including the first day after the final payment day until the debt is wholly
paid; or
(e) if the failure occurs after the final payment day—from and
including the day after the day in respect of which the last payment in respect
of the debt was made until the debt is wholly paid;
at the penalty interest rate, on the outstanding amount from time to
time.
(4) For the purposes of subsections (2) and (3), the final
payment day is the later of the following days:
(a) the 90th day after the day on which the outstanding amount of the debt
was due and payable;
(b) the 21st day after the date of the further notice given under
subsection 1229(3).
(5) The interest payable on the outstanding amount of a debt is a debt due
to the Commonwealth.
(6) If:
(a) interest is payable on the debt; and
(b) an amount is paid for the purpose of paying the debt and the
interest;
the amount so paid is to be applied as follows:
(c) until the debt (excluding interest) is fully paid—in
satisfaction of the amount of the debt that is due when the payment is
made;
(d) after the debt (excluding interest) is fully paid—in
satisfaction of the interest that had become payable on the debt before the debt
was fully paid.
(7) In this section:
arrangement means:
(a) an arrangement entered into with the Secretary under
section 1234; or
(b) if such an arrangement has been amended—the arrangement as
amended.
(1) The Secretary may determine that interest is not payable, or is not
payable in respect of a particular period, by a person on the outstanding amount
of a debt.
(2) The determination may relate to a period before, or to a period that
includes a period before, the making of a determination.
(3) The determination may be expressed to be subject to the person
complying with one or more specified conditions.
(4) If the person has been notified under subsection 1229A(2) or (3) that
he or she will be required to pay interest under that subsection, the Secretary
must give a written notice of the determination to the person as soon as
practicable after the determination is made.
(5) Contravention of subsection (4) does not invalidate the
determination.
(6) If:
(a) the determination is expressed to be subject to the person complying
with one or more specified conditions; and
(b) the person contravenes a condition or conditions;
the determination ceases to have effect from and including the day on which
the contravention or the earliest of the contraventions occurred.
(7) The Secretary may cancel or vary the determination by written notice
given to the person.
(1) When a person first becomes liable to pay interest under
section 1229A in respect of the outstanding amount of a particular debt,
the person is liable to pay an administrative charge of $100 in respect of the
outstanding amount of that debt.
(2) An administrative charge payable by a person is a debt due to the
Commonwealth.
13 Subsection 1229B(2)
Omit “for the purposes of sections 1229 and
1229A”.
14 Section 1229C
Repeal the section, substitute:
(1) The Minister must, not later than one month after:
(a) the day on which the Family and Community Services and
Veterans’ Affairs Legislation Amendment (Debt Recovery) Act 2000
receives the Royal Assent; or
(b) 1 January 2001;
whichever is the later, and thereafter from time to time, by writing,
determine guidelines for the operation of the provisions of this Act dealing
with penalty interest.
(2) A guideline determined under subsection (1) is a disallowable
instrument.
15 Section 1230B
Omit “1224,”.
16 Section 1230C
Repeal the section, substitute:
A debt due to the Commonwealth under this Act is recoverable by the
Commonwealth by means of one or more of the following methods:
(a) if the person who owes the debt is receiving a social security
payment—deductions from that person’s social security
payment;
(b) if, in respect of the debt, section 1234A applies to another
person who is receiving a social security payment—deductions from that
other person’s social security payment;
(c) repayment by instalments under an arrangement entered into under
section 1234;
(d) legal proceedings;
(e) garnishee notice.
17 Paragraph 1231(1)(a)
Repeal the paragraph, substitute:
(a) a debt under this Act as in force immediately before 20 March
2000;
(aaa) a debt under the social security law;
18 Subsection 1231(1)
Omit all the words and paragraphs after paragraph (d),
substitute:
may be recovered by making deductions of amounts determined under
subsection (1A):
(e) from any social security payments; or
(f) from any payments of arrears of social security payments; or
(g) partly from any social security payments and partly from any payments
of arrears of social security payments.
19 Subsection 1231(1A)
Repeal the subsection, substitute:
(1A) The Secretary is to determine the amount of a deduction that is to be
made from a particular payment, and may determine an amount that would reduce
the payment to nil if:
(a) the deduction is to be made from a social security payment that is
pension bonus or from a payment of arrears of social security payments;
or
(b) the deduction is to be made from a social security payment that is not
pension bonus and the person to whom the payment would, apart from the
deduction, be made has consented to the amount of the deduction being an amount
that would reduce the payment to nil.
(1AA) However, the Secretary must not make a determination that would
reduce a payment to nil if the reduction to nil would result in the person being
in severe financial hardship.
20 Subsection 1231(2B)
Omit “section 1224 of this Act (debt due to contravention of
Act)”, substitute “this Act as in force immediately before
20 March 2000 or the social security law,”.
21 Subsection 1232(3)
Omit “section 1224 (debt due to contravention of Act)”,
substitute “this Act as in force immediately before 20 March 2000 or
the social security law”.
22 Subsection 1233(7B)
Omit “section 1224 of this Act (debt due to contravention of
Act)”, substitute “this Act as in force immediately before
20 March 2000 or the social security law,”.
23 Section 1234
Repeal the section, substitute:
(1) The Secretary may, on behalf of the Commonwealth, enter into an
arrangement with a person under which the person is to pay a debt, owed by the
person to the Commonwealth, or the outstanding amount of such a debt, in a way
set out in the arrangement.
(2) An arrangement entered into under subsection (1) has effect, or
is taken to have had effect, on and after the day specified in the arrangement
as the day on which the arrangement commences (whether that day is the day on
which the arrangement is entered into or an earlier or later day).
(3) If an arrangement entered into under subsection (1) does not
specify a day as mentioned in subsection (2), it has effect on and after
the day on which it is entered into.
(4) The Secretary may at any time terminate an arrangement entered into
under subsection (1).
(5) In subsection (1):
debt means:
(a) a debt recoverable by the Commonwealth under Part 5.2;
or
(b) a debt under the 1947 Act.
24 Before
section 1234A
Insert:
(1) If:
(a) a social security payment or social security payments are made to a
financial institution for the credit of an account kept with the institution;
and
(b) the Secretary is satisfied that the payment or payments were intended
to be made for the benefit of someone who was not the person or one of the
persons in whose name or names the account was kept;
the Secretary may give a written notice to the institution setting out the
matters mentioned in paragraphs (a) and (b) and requiring the institution
to pay to the Commonwealth, within a period (being a reasonable period) stated
in the notice, the lesser of the following amounts:
(c) an amount specified in the notice, being the amount, or the sum of the
amounts, of the social security payment or social security payments;
(d) the amount standing to the credit of the account when the notice is
received by the institution.
(2) If:
(a) a social security payment or social security payments that are
intended for the benefit of a person are made to a financial institution for the
credit of an account that was kept with the institution by the person or by the
person and one or more other persons; and
(b) the person died before the payment or payments were made;
the Secretary may give a written notice to the institution setting out the
matters mentioned in paragraphs (a) and (b) and requiring the institution
to pay to the Commonwealth, within a period (being a reasonable period) stated
in the notice, the lesser of the following amounts:
(c) an amount specified in the notice, being the amount, or the sum of the
amounts, of the social security payment or social security payments;
(d) the amount standing to the credit of the account when the notice is
received by the institution.
(3) A financial institution must comply with a notice given to it under
subsection (1) or (2).
Penalty: 300 penalty units.
(4) It is a defence to a prosecution of a financial institution for
failing to comply with a notice given to it under subsection (1) or (2) if
the financial institution proves that it was incapable of complying with the
notice.
(5) If a notice is given to a financial institution under
subsection (1) (payment made to wrong account) or under subsection (2)
(death of person in whose name the account was kept) in respect of a social
security payment or social security payments, any amount recovered by the
Commonwealth from the institution in respect of the debt reduces any debt owed
to the Commonwealth by any other person in respect of the social security
payment or social security payments.
25 Paragraph 1234A(1)(a)
After “the 1947 Act”, insert “, the A New Tax System
(Family Assistance) (Administration) Act 1999”.
26 Paragraph 1236(1A)(d)
Omit “the debtor is not receiving a social security payment under
this Act and”.
27 Paragraph 1236(1B)(a)
Omit “from a person’s youth training
allowance”.
28 After paragraph
1236(1B)(a)
Insert:
(aa) the debt cannot be recovered by means of deductions or setting off
because the relevant 6 year period mentioned in section 86 of the A New
Tax System (Family Assistance) (Administration) Act 1999 has elapsed;
or
29 Paragraph 1236(1B)(c)
Omit “the discharge”, substitute “the debtor became
bankrupt”.
30 Subsection 1236(1C)
Repeal the subsection, substitute:
(1C) For the purposes of paragraph (1A)(b), if a debt is recoverable
by means of:
(a) deductions from the debtor’s social security payment;
or
(b) deductions under section 84 of the A New Tax System (Family
Assistance) (Administration) Act 1999; or
(c) setting off under section 84A of that Act;
the debtor is taken to have a capacity to repay the debt unless recovery by
those means would result in the debtor being in severe financial
hardship.
31 Paragraph 1237AA(1)(b)
Repeal the paragraph, substitute:
(b) the court imposed a custodial sentence on the debtor; and
(c) the court, in imposing the sentence, expressly stated that, because
the debtor was unable or unwilling to pay the debt, the sentence was longer than
the court would otherwise have imposed;
32 Subsection 1237AAB(5)
Repeal the subsection, substitute:
Limits on agreement to accept part-payment in satisfaction of
outstanding debt
(5) The Secretary must not make an agreement described in
subsection (4) unless the Secretary is satisfied that the agreed amount is
at least the present value of the unpaid amount if it is repaid in instalments
of amounts, and at times, determined by the Secretary.
33 Section 1237B
Repeal the section.
34 Application
(1) The amendments made by items 1, 7 to 10 and 25 apply to social
security payments made on or after 1 January 2001.
(2) The amendments made by items 6, 16 to 23 and 32 apply
to:
(a) debts that are owed at the commencement of 1 January 2001;
and
(b) debts that arise after that time.
(3) The amendment made by item 11 applies where the relevant
conviction occurs on or after 1 January 2001.
(4) The amendment made by item 12:
(a) applies to a person in respect of a debt owed by the person to the
Commonwealth immediately before 1 January 2001 under the social security
law if, and only if, the person had not, before that day, been given a notice in
respect of the debt under subsection 1229(1) of the Social Security Act
1991 as in force at any time before that day; and
(b) applies to a person in respect of a debt owed by the person to the
Commonwealth under the social security law that arises on or after that
day.
(5) To avoid doubt, sections 1229 and 1229A of the Social Security
Act 1991 as in force immediately before 1 January 2001 continue to
apply to a person in respect of a debt owed by the person to the Commonwealth
immediately before that day as mentioned in paragraph 1229(1)(b) of that Act as
so in force if the person had, before that day, been given a notice in respect
of the debt under subsection 1229(1) of that Act as in force at any time before
that day.
(6) The amendments made by items 28 and 30 apply to debts that arise
after the commencement of those items.
(7) The amendment made by item 29 applies to a person who is
discharged from bankruptcy on or after 1 January 2001.
(8) The amendment made by item 31 applies where the relevant sentence
is imposed on or after 1 January 2001.
1 At the end of Part 1
Add:
(1) The Secretary may arrange for the use, under the Secretary’s
control, of computer programs for any purposes for which the Secretary may make
decisions under the social security law.
(2) A decision made by the operation of a computer program under an
arrangement made under subsection (1) is taken to be a decision made by the
Secretary.
2 At the end of subsection
123(1)
Add:
; or (e) the end of the day immediately before the day on which the person
dies.
3 Application
The amendment made by item 2 applies to determinations in force at the
commencement of the day on which this Act receives the Royal Assent and
determinations made after that time.
1 Subsection 3(1)
Insert:
financial institution means a corporation that is an ADI for
the purposes of the Banking Act 1959.
2 Subsection 71(1)
Omit “Subject to subsection (2), if:”, substitute
“If:”.
Note: The heading to subsection 71(1) is altered by omitting
“—debt generally owed by person”.
3 Sections 77 and 78
Repeal the sections, substitute:
(1) If a debt by a person to the Commonwealth under a provision of this
Part has not been wholly paid, the Secretary must give to the person a notice
specifying:
(a) the date on which it was issued (the date of the
notice); and
(b) the outstanding amount of the debt at the date of the notice;
and
(c) the day on which the outstanding amount is due and payable.
(2) The outstanding amount of the debt is due and payable on the 21st day
after the date of the notice.
(3) If the debt has not been wholly paid and:
(a) the person has not entered into an arrangement under section 91
to pay the outstanding amount of the debt; or
(b) the person has entered into an arrangement under that section but has
failed to make a payment in accordance with the arrangement or, if the
arrangement has been amended, in accordance with the arrangement as
amended;
the Secretary may give to the person a further notice specifying:
(c) the date on which it was issued (the date of the further
notice); and
(d) the outstanding amount of the debt at the date of the further notice;
and
(e) the effect of sections 78 and 78B; and
(f) how any interest under section 78 is to be calculated.
(4) A notice given under subsection (1) may also specify the matters
mentioned in paragraphs (3)(e) and (f) and, if it does so, it is taken also
to be a further notice given under subsection (3).
(1) This section applies to a person who:
(a) receives a further notice given under subsection 77(3); and
(b) is not receiving instalments of family tax benefit.
(2) If:
(a) the person has not entered into an arrangement, on or before the final
payment day, to pay the outstanding amount of the debt; and
(b) the Secretary has notified the person in writing that the person will
be required to pay interest under this subsection;
the person is liable to pay interest:
(c) from and including the first day after the final payment day until the
debt is wholly paid; and
(d) at the penalty interest rate;
on the outstanding amount from time to time.
(3) If:
(a) the person has entered into an arrangement to pay the outstanding
amount of the debt; and
(b) the person has failed to make a particular payment in accordance with
the arrangement; and
(c) the Secretary has notified the person in writing that the person will
be required to pay interest under this subsection;
the person is liable to pay interest:
(d) if the failure occurs on or before the final payment day—from
and including the first day after the final payment day until the debt is wholly
paid; or
(e) if the failure occurs after the final payment day—from and
including the day after the day in respect of which the last payment in respect
of the debt was made until the debt is wholly paid;
at the penalty interest rate, on the outstanding amount from time to
time.
(4) For the purposes of subsections (2) and (3), the final
payment day is the later of the following days:
(a) the 90th day after the day on which the outstanding amount of the debt
was due and payable;
(b) the 21st day after the date of the further notice given under
subsection 77(3).
(5) The interest payable on the outstanding amount of a debt is a debt due
to the Commonwealth.
(6) If:
(a) interest is payable on the debt; and
(b) an amount is paid for the purpose of paying the debt and the
interest;
the amount so paid is to be applied as follows:
(c) until the debt (excluding interest) is fully paid—in
satisfaction of the amount of the debt that is due when the payment is
made;
(d) after the debt (excluding interest) is fully paid—in
satisfaction of the interest that had become payable on the debt before the debt
was fully paid.
(7) In this section:
arrangement means:
(a) an arrangement entered into with the Secretary under section 91;
or
(b) if such an arrangement has been amended—the arrangement as
amended.
(1) The Secretary may determine that interest is not payable, or is not
payable in respect of a particular period, by a person on the outstanding amount
of a debt.
(2) The determination may relate to a period before, or to a period that
includes a period before, the making of a determination.
(3) The determination may be expressed to be subject to the person
complying with one or more specified conditions.
(4) If the person has been notified under subsection 78(2) or (3) that he
or she will be required to pay interest under that subsection, the Secretary
must give written notice of the determination to the person as soon as
practicable after the determination is made.
(5) Contravention of subsection (4) does not invalidate a
determination.
(6) If:
(a) the determination is expressed to be subject to the person complying
with one or more specified conditions; and
(b) the person contravenes a condition or conditions;
the determination ceases to have effect from and including the day on which
the contravention or the earliest of the contraventions occurred.
(7) The Secretary may cancel or vary the determination by written notice
given to the person.
(1) When a person first becomes liable to pay interest under
section 78 in respect of the outstanding amount of a particular debt, the
person is liable to pay an administrative charge of $100 in respect of the
outstanding amount of that debt.
(2) An administrative charge payable by a person is a debt due to the
Commonwealth.
4 Subsection 79(2)
Omit “for the purposes of sections 77 and 78”.
5 After section 79
Insert:
(1) The Minister must, not later than one month after:
(a) the day on which the Family and Community Services and
Veterans’ Affairs Legislation Amendment (Debt Recovery) Act 2000
receives the Royal Assent; or
(b) 1 January 2001;
whichever is the later, and thereafter from time to time, by writing,
determine guidelines for the operation of the provisions of this Act dealing
with penalty interest.
(2) A guideline determined under subsection (1) is a disallowable
instrument.
6 Paragraph 82(1)(c)
After “under”, insert “an arrangement entered into
under”.
7 After paragraph 84(2)(a)
Insert:
(aa) a determination under paragraph (a) may be an amount that would
reduce the payment to nil if the person has consented to the amount of the
deduction being an amount that would reduce the payment to nil; and
8 Section 91
Repeal the section, substitute:
(1) If, under section 82, a debt owed by a person is recoverable by
the Commonwealth by repayment by instalments under an arrangement entered into
under this section, the Secretary may, on behalf of the Commonwealth, enter into
an arrangement with the person under which the person is to pay the debt, or the
outstanding amount of the debt, in a way set out in the arrangement.
(2) An arrangement entered into under subsection (1) has effect, or
is taken to have had effect, on and after the day specified in the arrangement
as the day on which the arrangement commences (whether that day is the day on
which the arrangement is entered into or an earlier or later day).
(3) If an arrangement entered into under subsection (1) does not
specify a day as mentioned in subsection (2), it has effect on and after
the day on which it is entered into.
(4) The Secretary may at any time terminate an arrangement entered into
under subsection (1).
(5) In subsection (1):
debt means a debt recoverable by the Commonwealth under
Division 2.
9 At the end of Division 3 of
Part 4
Add:
(1) If:
(a) a family assistance payment or family assistance payments are made to
a financial institution for the credit of an account kept with the institution;
and
(b) the Secretary is satisfied that the payment or payments were intended
to be paid to someone who was not the person or one of the persons in whose name
or names the account was kept;
the Secretary may give a written notice to the institution setting out the
matters mentioned in paragraphs (a) and (b) and requiring the institution
to pay to the Commonwealth, within a period (being a reasonable period) stated
in the notice, the lesser of the following amounts:
(c) an amount specified in the notice, being the amount, or the sum of the
amounts, of the family assistance payment or family assistance
payments;
(d) the amount standing to the credit of the account when the notice is
given to the institution.
(2) If:
(a) a family assistance payment or family assistance payments that are
intended to be paid to a person are made to a financial institution for the
credit of an account that was kept with the institution by the person or by the
person and one or more other persons; and
(b) the person died before the payment or payments were made;
the Secretary may give a written notice to the institution setting out the
matters mentioned in paragraphs (a) and (b) and requiring the institution
to pay to the Commonwealth, within a period (being a reasonable period) stated
in the notice, the lesser of the following amounts:
(c) an amount specified in the notice, being the amount, or the sum of the
amounts, of the family assistance payment or family assistance
payments;
(d) the amount standing to the credit of the account when the notice is
received by the institution.
(3) A financial institution must comply with a notice given to it under
subsection (1) or (2).
Penalty: 300 penalty units.
(4) It is a defence to a prosecution of a financial institution for
failing to comply with a notice given to it under subsection (1) or (2) if
the financial institution proves that it was incapable of complying with the
notice.
(5) If a notice is given to a financial institution under
subsection (1) (payment made to wrong account) or under subsection (2)
(death of person in whose name the account was kept) in respect of a family
assistance payment or family assistance payments, any amount recovered by the
Commonwealth from the institution in respect of the debt reduces any debt owed
to the Commonwealth by any other person in respect of the family assistance
payment or family assistance payments.
10 Paragraph 95(2)(d)
Omit “the debt cannot be recovered by deductions under this Act or
the Social Security Act 1991 and”.
11 After subparagraph
95(3)(a)(i)
Insert:
(iaa) deductions under section 1231 of the Social Security Act
1991; or”.
12 Paragraph 95(3)(c)
Omit “the discharge”, substitute “the debtor became
bankrupt”.
13 After paragraph 95(4)(a)
Insert:
(aa) deductions under section 1231 of the Social Security Act
1991; or
14 Paragraph 98(1)(b)
Repeal the paragraph, substitute:
(b) the court imposed a custodial sentence on the debtor; and
(c) the court, in imposing the sentence, expressly stated that, because
the debtor was unable or unwilling to pay the debt, the sentence was longer than
the court would otherwise have imposed;
15 Subsection 100(5)
Repeal the subsection, substitute:
Limits on agreement to accept part-payment in satisfaction of
outstanding debt
(5) The Secretary must not make an agreement described in
subsection (4) unless the Secretary is satisfied that the agreed amount is
at least the present value of the unpaid amount if it is repaid in instalments
of amounts, and at times, determined by the Secretary.
16 Section 223
Repeal the section, substitute:
(1) The Secretary may arrange for the use, under the Secretary’s
control, of computer programs for any purposes for which the Secretary may make
decisions under the family assistance law.
(2) A decision made by the operation of a computer program under an
arrangement made under subsection (1) is taken to be a decision made by the
Secretary.
17 Application
(1) The amendment made by item 3:
(a) applies to a person in respect of a debt owed by the person to the
Commonwealth immediately before 1 January 2001 under the family assistance
law if, and only if, the person had not, before that day, been given a notice in
respect of the debt under subsection 77(1) of the A New Tax System (Family
Assistance) (Administration) Act 1999 as in force at any time before that
day; and
(b) applies to a person in respect of a debt owed by the person to the
Commonwealth under the family assistance law that arises on or after that
day.
(2) To avoid doubt, sections 77 and 78 of the A New Tax System
(Family Assistance) (Administration) Act 1999 as in force immediately before
1 January 2001 continue to apply to a person in respect of a debt owed by
the person to the Commonwealth immediately before that day as mentioned in
paragraph 77(1)(a) of that Act as so in force if the person had, before that
day, been given a notice in respect of the debt under subsection 77(1) of that
Act as in force at any time before that day.
(3) The amendments made by items 7, 8 and 15 apply to:
(a) debts that are owed at the commencement of 1 January 2001;
and
(b) debts that arise after that time.
(4) The amendment made by item 12 applies to a person who is
discharged from bankruptcy on or after 1 January 2001.
(5) The amendment made by item 14 applies where the relevant sentence
is imposed on or after 1 January 2001.
1 Section 5 (index of
definitions)
Insert in its appropriate position (determined on a letter-by-letter
basis):
|
recoverable amount |
205(8) |
2 Subsection 5Q(1) (definition of financial
institution)
Repeal the definition, substitute:
financial institution means a corporation that is an ADI for
the purposes of the Banking Act 1959.
3 Subsection 5Q(1)
Insert:
recoverable amount has the meaning given by subsection
205(8).
4 Subsection 205(1A)
Omit “as provided in subsections (1B) and (1C)”,
substitute “in any one or more of the ways provided by
subsections (1B), (1C) and (1D) and section 205A”.
5 After subsection 205(1C)
Insert:
(1D) A recoverable amount may be recovered by instalments in accordance
with a determination made under paragraph 206(1)(c).
6 Subsections 205(5) and
(6)
Repeal the subsections.
7 After section 205
Insert:
(1) If:
(a) a recoverable amount has not been wholly paid to the Commonwealth;
and
(b) the right of the Commonwealth to recover the outstanding amount has
not been waived under paragraph 206(1)(b);
the Commission must give to the person to whom, or on whose account, the
recoverable amount was paid a notice specifying:
(c) the date on which it was issued (the date of the
notice); and
(d) the outstanding amount at the date of the notice; and
(e) the day on which the outstanding amount is due and payable.
(2) The outstanding amount is due and payable on the 21st day after the
date of the notice.
(3) If the recoverable amount has not been wholly paid and:
(a) the person has not entered into an arrangement with the Commission to
pay the outstanding amount; or
(b) the person has entered into such an arrangement with the Commission
but has failed to make a payment in accordance with the arrangement;
the Commission may give to the person a further notice
specifying:
(c) the date on which it was issued (the date of the further
notice); and
(d) the outstanding amount at the date of the further notice;
and
(e) the effect of sections 205AAB and 205AAD; and
(f) how any interest under section 205AAB is to be
calculated.
(4) A notice given under subsection (1) may also specify the matters
mentioned in paragraphs (3)(e) and (f) and, if it does so, it is taken also
to be a further notice given under subsection (3).
(1) This section applies to a person who:
(a) receives a further notice given under subsection 205AAA(3);
and
(b) is not in receipt of a pension, allowance or other pecuniary benefit
under this Act or the social security law.
(2) If:
(a) the person has not entered into an arrangement with the Commission, on
or before the final payment day, to pay the outstanding amount of the
recoverable amount; and
(b) the Commission has notified the person in writing that he or she will
be required to pay interest under this subsection;
the person is liable to pay interest:
(c) from and including the first day after the final payment day until the
recoverable amount is wholly paid; and
(d) at the penalty interest rate;
on the outstanding amount from time to time.
(3) If:
(a) the person has entered into an arrangement with the Commission to pay
the outstanding amount of the recoverable amount; and
(b) the person has failed to make a particular payment in accordance with
the arrangement; and
(c) the Commission has notified the person in writing that he or she will
be required to pay interest under this subsection;
the person is liable to pay interest:
(d) if the failure occurs on or before the final payment day—from
and including the first day after the final payment day until the recoverable
amount is wholly paid; or
(e) if the failure occurs after the final payment day—from and
including the day after the day in respect of which the last payment in respect
of the recoverable amount was made until the recoverable amount is wholly
paid;
at the penalty interest rate, on the outstanding amount from time to
time.
(4) For the purposes of subsections (2) and (3), the final
payment day is the later of the following days:
(a) the 90th day after the day on which the outstanding amount of the
recoverable amount was due and payable;
(b) the 21st day after the date of the further notice given under
subsection 205AAA(3).
(5) The interest payable on the outstanding amount of a recoverable amount
is a debt due to the Commonwealth and may be recovered as if it were a
recoverable amount for the purposes of section 205.
(6) If:
(a) interest is payable on the outstanding amount of a recoverable amount;
and
(b) an amount is paid for the purpose of paying the recoverable amount and
the interest;
the amount so paid is to be applied as follows:
(c) until the recoverable amount (excluding interest) is fully
paid—in satisfaction of the outstanding amount of the recoverable amount
that is due when the payment is made;
(d) after the recoverable amount (excluding interest) is fully
paid—in satisfaction of the interest that had become payable on the
outstanding amount of the recoverable amount before the recoverable amount was
fully paid.
(1) The Commission may determine that interest is not payable, or is not
payable in respect of a particular period, by a person on the outstanding amount
of a recoverable amount.
(2) The determination may relate to a period before, or to a period that
includes a period before, the making of a determination.
(3) The determination may be expressed to be subject to the person
complying with one or more specified conditions.
(4) If the person has been notified under subsection 205AAB(2) or (3) that
he or she will be required to pay interest under that subsection, the Commission
must give written notice of the determination to the person as soon as
practicable after the determination is made.
(5) Contravention of subsection (4) does not invalidate a
determination.
(6) If:
(a) the determination is expressed to be subject to the person complying
with one or more specified conditions; and
(b) the person contravenes a condition or conditions;
the determination ceases to have effect from and including the day on which
the contravention or the earliest of the contraventions occurred.
(7) The Commission may cancel or vary the determination by written notice
given to the person.
(1) When a person first becomes liable to pay interest under
section 205AAB in respect of the outstanding amount of a particular
recoverable amount, the person is liable to pay an administrative charge of $100
in respect of the outstanding amount.
(2) An administrative charge payable by a person is a debt due to the
Commonwealth and may be recovered as if it were a recoverable amount for the
purposes of section 205.
The penalty interest rate is the rate in force from time to time under
section 1229B of the Social Security Act 1991.
8 After section 205AA
Insert:
(1) If:
(a) a payment or payments of a pension, benefit or other pecuniary amount
are made to a financial institution for the credit of an account kept with the
institution; and
(b) the Commission is satisfied that the payment or payments were intended
to be made for the benefit of someone who was not the person or one of the
persons in whose name or names the account was kept;
the Commission may give a written notice to the institution setting out the
matters mentioned in paragraphs (a) and (b) and requiring the institution
to pay to the Commonwealth, within a period (being a reasonable period) stated
in the notice, the lesser of the following amounts:
(c) an amount specified in the notice, being the amount, or the sum of the
amounts, of the payment or payments;
(d) the amount standing to the credit of the account when the notice is
given to the institution.
(2) If:
(a) a payment or payments of a pension, benefit or other pecuniary amount
that are intended for the benefit of a person are made to a financial
institution for the credit of an account that was kept with the institution by
the person or by the person and one or more other persons; and
(b) the person died before the payment or payments were made;
the Commission may give a written notice to the institution setting out the
matters mentioned in paragraphs (a) and (b) and requiring the institution
to pay to the Commonwealth, within a period (being a reasonable period) stated
in the notice, the lesser of the following amounts:
(c) an amount specified in the notice, being the amount, or the sum of the
amounts, of the payment or payments;
(d) the amount standing to the credit of the account when the notice is
received by the institution.
(3) A financial institution must comply with a notice given to it under
subsection (1) or (2).
Penalty: 300 penalty units.
(4) It is a defence to a prosecution of a financial institution for
failing to comply with a notice given to it under subsection (1) or (2) if
the financial institution proves that it was incapable of complying with the
notice.
(5) If a notice is given to a financial institution under
subsection (1) (payment made to wrong account) or under subsection (2)
(death of person in whose name the account was kept) in respect of a payment or
payments of a pension, benefit or other pecuniary amount, any amount recovered
by the Commonwealth from the institution in respect of the debt reduces any debt
owed to the Commonwealth by any other person in respect of the payment or
payments.
9 Application and
transitional
(1) The amendments made by items 6 and 7 apply to a person in respect
of an amount that becomes a recoverable amount on or after 1 January
2001.
(2) In the case of a person in respect of whom an amount was a recoverable
amount immediately before 1 January 2001, the following provisions of this
item have effect.
(3) If the person was at 1 January 2001 receiving a pension, allowance
or other pecuniary benefit under the Veterans’ Entitlements Act
1986 or under the social security law:
(a) if the person had not become liable before that day to pay an
additional amount in respect of the relevant debt under subsection 205(5) of the
Veterans’ Entitlements Act 1986 as in force at any time before that
day—neither the subsections repealed by item 6 nor the sections
inserted by item 7 apply to the person in respect of the debt; or
(b) if the person had become liable before that day to pay an additional
amount in respect of the relevant debt under subsection 205(5) of the
Veterans’ Entitlements Act 1986 as in force at any time before that
day—the subsections repealed by item 6 continue to apply to the
person in respect of the debt and the sections inserted by item 7 do not
apply.
(4) If:
(a) the person was not at 1 January 2001 receiving a pension,
allowance or other pecuniary benefit under the Veterans’ Entitlements
Act 1986 or under the social security law; and
(b) the person had repaid part of the relevant debt before that
day;
the following paragraphs have effect:
(c) if the person had become liable before that day to pay an additional
amount in respect of the relevant debt under subsection 205(5) of the
Veterans’ Entitlements Act 1986 as in force at any time before that
day—the subsections repealed by item 6 continue to apply to the
person in respect of the debt but, if the person fails on or after that day to
make a payment in respect of the debt in accordance with an arrangement entered
into with the Commission:
(i) the Commission may give to the person a further notice in accordance
with subsection 205AAA(3) inserted by item 7; and
(ii) sections 205AAB, 205AAC and 205AAE inserted by that item
apply;
(d) if the person had not become liable before that day to pay an
additional amount in respect of the relevant debt under subsection 205(5) of the
Veterans’ Entitlements Act 1986 as in force at any time before that
day and the person fails on or after that day to make a payment in respect of
the debt in accordance with an arrangement entered into with the
Commission:
(i) the Commission may give to the person a further notice in accordance
with subsection 205AAA(3) inserted by item 7; and
(ii) sections 205AAB to 205AAE inserted by that item apply.
(5) If:
(a) the person was not at 1 January 2001 receiving a pension,
allowance or other pecuniary benefit under the Veterans’ Entitlements
Act 1986 or under the social security law; and
(b) the person had not repaid any part of the relevant debt before that
day;
the following paragraphs have effect:
(c) if the person had become liable before that day to pay an additional
amount in respect of the relevant debt under subsection 205(5) of the
Veterans’ Entitlements Act 1986 as in force at any time before that
day—the subsections repealed by item 6 continue to apply to the
person in respect of the debt;
(d) if the person had not become liable before that day to pay an
additional amount in respect of the relevant debt under subsection 205(5) of the
Veterans’ Entitlements Act 1986 as in force at any time before that
day:
(i) the Commission may give to the person a further notice in accordance
with subsection 205AAA(3) inserted by item 7; and
(ii) sections 205AAB to 205AAE inserted by that item
apply.
1 Subsection 112(3)
Omit “or the Child Support Act 1988”, substitute
“, the Child Support Act 1988 or the Social Security Act
1991”.