Federal Register of Legislation - Australian Government

Primary content

Act No. 95 of 2002 as made
An Act to amend the social security law and the family assistance law, and for related purposes
Administered by: Social Services
Originating Bill: Family and Community Services Legislation Amendment (Budget Initiatives and Other Measures) Bill 2002
Date of Assent 10 Nov 2002
Table of contents.

 

 

 

 

 

Family and Community Services Legislation Amendment (Budget Initiatives and Other Measures) Act 2002

 

No. 95, 2002

 

 

 

 

 

An Act to amend the social security law and the family assistance law, and for related purposes

  

  


Contents

1............ Short title............................................................................................ 1

2............ Commencement.................................................................................. 2

3............ Schedule(s).......................................................................................... 2

Schedule 1—Amendment of the social security law relating to nominees  3

Social Security (Administration) Act 1999                                                            3

Schedule 2—Amendment of the family assistance law relating to nominees            17

A New Tax System (Family Assistance) (Administration) Act 1999                17

Schedule 3—Further amendment of the social security law                         31

Social Security Act 1991                                                                                          31

 


 

Family and Community Services Legislation Amendment (Budget Initiatives and Other Measures) Act 2002

No. 95, 2002

 

 

 

An Act to amend the social security law and the family assistance law, and for related purposes

[Assented to 10 November 2002]

The Parliament of Australia enacts:

1  Short title

                   This Act may be cited as the Family and Community Services Legislation Amendment (Budget Initiatives and Other Measures) Act 2002.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day on which this Act receives the Royal Assent

10 November 2002

2.  Schedule 1

1 July 2003

1 July 2003

3.  Schedule 2

1 July 2003

1 July 2003

4.  Schedule 3

The day on which this Act receives the Royal Assent

10 November 2002

Note:          This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

             (2)  Column 3 of the table is for additional information that is not part of this Act. This information may be included in any published version of this Act.

3  Schedule(s)

                   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.


 

Schedule 1Amendment of the social security law relating to nominees

  

Social Security (Administration) Act 1999

1  Subsection 44(1)

Omit “subsection (4) and”.

2  Subsection 44(2)

Omit “Subject to subsection (4), if”, substitute “If”.

3  Subsections 44(3) to (5)

Repeal the subsections, substitute:

             (3)  This section has effect subject to Part 3A.

4  Subsection 45(2)

Repeal the subsection, substitute:

             (2)  The Secretary may direct that the whole or a part of the instalments of youth allowance of a person referred to in subsection (1) is to be paid to the person.

5  At the end of section 45

Add:

             (4)  This section has effect subject to Part 3A.

6  Subsection 47(4)

Omit “subsection (6)”, substitute “Part 3A”.

7  Subsections 47(5) and (6)

Repeal the subsections.

8  Subsection 55(1)

Omit “An amount”, substitute “Subject to Part 3A, an amount”.

9  After Part 3

Insert:

Part 3ANominees

Division 1Preliminary

123A  Definitions

                   In this Part:

correspondence nominee means a person who, by virtue of an appointment in force under section 123C, is the correspondence nominee of another person.

nominee means a correspondence nominee or a payment nominee.

payment nominee means:

                     (a)  a person who, by virtue of an appointment in force under section 123B, is the payment nominee of another person; or

                     (b)  a person to whom instalments of youth allowance of another person are to be paid in accordance with subsection 45(1).

principal, in relation to a nominee, means:

                     (a)  in the case of a nominee appointed under section 123B or 123C, the person in relation to whom the nominee was appointed; or

                     (b)  in the case of a person to whom instalments of youth allowance are to be paid in accordance with subsection 45(1), the person on whose behalf those instalments are to be so paid.

relevant payment means:

                     (a)  instalments of a social security periodic payment; or

                     (b)  instalments of a special employment advance; or

                     (c)  a social security payment that is a lump sum benefit for the purposes of section 47.

Division 2Appointment of nominees

123B  Appointment of payment nominee

                   Subject to section 123D, the Secretary may, in writing:

                     (a)  appoint a person (including a body corporate) to be the payment nominee of another person for the purposes of the social security law; and

                     (b)  direct that the whole or a specified part of a specified relevant payment that is payable to the nominee’s principal, or would, but for subsection 45(1), be so payable, is to be paid to the nominee.

123C  Appointment of correspondence nominee

                   Subject to section 123D, the Secretary may, in writing, appoint a person (including a body corporate) to be the correspondence nominee of another person for the purposes of the social security law.

123D  Provisions relating to appointments

             (1)  A person may be appointed as the payment nominee and the correspondence nominee of the same person.

             (2)  The Secretary must not appoint a nominee for a person (the proposed principal) under section 123B or 123C except:

                     (a)  with the written consent of the person to be appointed; and

                     (b)  after taking into consideration the wishes (if any) of the proposed principal regarding the making of such an appointment.

             (3)  The Secretary must cause a copy of an appointment under section 123B or 123C to be given to:

                     (a)  the nominee; and

                     (b)  the principal.

             (4)  The Secretary must not appoint a payment nominee for a person who is the holder of a concession card but is not receiving a social security payment.

123E  Suspension and revocation of nominee appointments

             (1)  If a person who is a nominee by virtue of an appointment under section 123B or 123C informs the Secretary in writing that the person no longer wishes to be a nominee under that appointment, the Secretary must, as soon as practicable, revoke the appointment.

             (2)  If:

                     (a)  the Secretary gives a person who is a nominee a notice under section 123K; and

                     (b)  the person informs the Department that:

                              (i)  an event or change of circumstances has occurred or is likely to occur; and

                             (ii)  the event or change of circumstances is likely to have an effect referred to in paragraph 123K(1)(b);

the Secretary may suspend or revoke the appointment by virtue of which the person is a nominee.

             (3)  If:

                     (a)  the Secretary gives a person who is a nominee a notice under section 123K or 123L; and

                     (b)  the person does not comply with the requirement of the notice;

the Secretary may suspend or revoke the appointment, or each appointment, by virtue of which the person is a nominee.

             (4)  While an appointment is suspended, the appointment has no effect for the purposes of this Part.

             (5)  The Secretary may, at any time, cancel the suspension of an appointment under subsection (2) or (3).

             (6)  The suspension or revocation of an appointment, and the cancellation of such a suspension, must be in writing.

             (7)  The revocation of an appointment has effect on and from such day, being later than the day of the revocation, as is specified in the revocation.

             (8)  Subsections (2) and (3) do not apply to a person who is a payment nominee by virtue of paragraph (b) of the definition of payment nominee in section 123A.

             (9)  The Secretary must cause a copy of:

                     (a)  a suspension of an appointment; or

                     (b)  a revocation of an appointment; or

                     (c)  a cancellation of a suspension of an appointment;

to be given to:

                     (d)  the nominee; and

                     (e)  the principal.

Division 3Payments to payment nominee

123F  Payment of instalments etc. to payment nominee

             (1)  If:

                     (a)  a person has a payment nominee; and

                     (b)  the whole or a part of a relevant payment is payable to the person, or would, but for subsection 45(1), be so payable; and

                     (c)  the Secretary has given a direction in relation to the relevant payment under section 123B;

the relevant payment is to be paid in accordance with the direction.

             (2)  An amount paid to the payment nominee of a person:

                     (a)  is paid to the payment nominee on behalf of the person; and

                     (b)  is taken, for the purposes of the social security law (other than this Part), to have been paid to the person and to have been so paid when it was paid to the nominee.

             (3)  An amount that is to be paid to the payment nominee of a person must be paid to the credit of a bank account nominated and maintained by the nominee.

             (4)  The Secretary may direct that the whole or a part of an amount that is to be paid to a payment nominee be paid to the payment nominee in a different way from that provided for by subsection (3). If the Secretary gives such a direction, an amount to which the direction relates is to be paid in accordance with the direction.

             (5)  Subsections (3) and (4) do not apply in the case of a person who is a payment nominee by virtue of paragraph (b) of the definition of payment nominee in section 123A.

Division 4Functions and responsibilities of nominees

123G  Definition

                   In this Division:

benefit recipient means a person who:

                     (a)  has made a claim for, or is receiving, a social security payment; or

                     (b)  has made a claim for, or is the holder of, a concession card.

123H  Actions of correspondence nominee on behalf of benefit recipient

             (1)  Subject to section 123S and subsection (4), any act that may be done by a benefit recipient under, or for the purposes of, the social security law (other than an act for the purposes of Division 2 or 3) may be done by the benefit recipient’s correspondence nominee.

             (2)  Without limiting subsection (1), an application or claim that may be made under the social security law by a benefit recipient may be made by the benefit recipient’s correspondence nominee on behalf of the benefit recipient, and an application or claim so made is taken to be made by the benefit recipient.

             (3)  An act done by a benefit recipient’s correspondence nominee under this section has effect, for the purposes of the social security law (other than this Part), as if it had been done by the benefit recipient.

             (4)  If, under a provision of the social security law, the Secretary:

                     (a)  gives to a benefit recipient who has a correspondence nominee a notice making a requirement of the benefit recipient; or

                     (b)  notifies a benefit recipient who has a correspondence nominee that the benefit recipient is required to do an act;

subsection (1) does not authorise the correspondence nominee to do an act that is required by the notice or the notification, as the case may be, to be done by the benefit recipient.

123I  Giving of notices to correspondence nominee

             (1)  Any notice that the Secretary is authorised or required by the social security law to give to a benefit recipient may be given by the Secretary to the benefit recipient’s correspondence nominee.

             (2)  The notice:

                     (a)  must, in every respect, be in the same form, and in the same terms, as if it were being given to the benefit recipient; and

                     (b)  may be given to the correspondence nominee personally or by post or in any other manner approved by the Secretary.

             (3)  If:

                     (a)  under subsection (1), the Secretary gives a notice (the nominee notice) to a benefit recipient’s correspondence nominee; and

                     (b)  the Secretary afterwards gives the benefit recipient a notice that:

                              (i)  is expressed to be given under the same provision of the social security law as the nominee notice; and

                             (ii)  makes the same requirement of the benefit recipient as the nominee notice;

section 123J ceases to have effect in relation to the nominee notice.

             (4)  If:

                     (a)  under subsection (1), the Secretary gives a notice (the nominee notice) to a benefit recipient’s correspondence nominee; and

                     (b)  the Secretary has already given to the benefit recipient a notice that:

                              (i)  is expressed to be given under the same provision of the social security law as the nominee notice; and

                             (ii)  makes the same requirement of the benefit recipient as the nominee notice;

section 123J does not have effect in relation to the nominee notice.

123J  Compliance by correspondence nominee

             (1)  If, under section 123I, a notice is given to a benefit recipient’s correspondence nominee, the following paragraphs have effect:

                     (a)  for the purposes of the social security law, other than this Part, the notice is taken:

                              (i)  to have been given to the benefit recipient; and

                             (ii)  to have been so given on the day on which the notice was given to the correspondence nominee;

                     (b)  any requirement that the notice makes of the benefit recipient may be satisfied by the correspondence nominee;

                     (c)  any act done by the correspondence nominee for the purpose of satisfying a requirement of the notice has effect, for the purposes of the social security law (other than Part 6 of this Act), as if it had been done by the benefit recipient;

                     (d)  if the correspondence nominee fails to satisfy a requirement of the notice, the benefit recipient is taken, for the purposes of the social security law, to have failed to comply with the requirement;

                     (e)  for the purposes of determining whether anything done by the correspondence nominee constitutes compliance with the notice, the social security law has effect as if a reference in the notice to the benefit recipient becoming aware that a specified event or change of circumstances is likely to occur were a reference to the correspondence nominee becoming so aware.

             (2)  In order to avoid doubt, and without limiting subsection (1), it is declared as follows:

                     (a)  if the notice requires the benefit recipient to inform the Department of a matter within a specified period and the correspondence nominee informs the Department of the matter within that period in accordance with the notice, the benefit recipient is taken, for the purposes of the social security law, to have complied with the requirement set out in the notice;

                     (b)  if the notice requires the benefit recipient to give a statement about a matter, or produce a document, to the Department within a specified period and the correspondence nominee gives a statement about that matter, or produces the document, as the case may be, to the Department within that period in accordance with the notice, the benefit recipient is taken, for the purposes of the social security law, to have complied with the requirement set out in the notice;

                     (c)  if the notice requires the benefit recipient to inform the Department of a matter within a specified period and the correspondence nominee does not inform the Department of the matter within that period in accordance with the notice, the benefit recipient is taken, for the purposes of the social security law, to have failed to comply with the requirement set out in the notice;

                     (d)  if the notice requires the benefit recipient to give a statement about a matter, or produce a document, to the Department within a specified period and the correspondence nominee does not give a statement about that matter, or produce the document, as the case may be, to the Department within that period in accordance with the notice, the benefit recipient is taken, for the purposes of the social security law, to have failed to comply with the requirement set out in the notice.

123K  Notification by nominee of matters affecting ability to act as nominee

             (1)  The Secretary may give a nominee of a benefit recipient a notice that requires the nominee to inform the Department if:

                     (a)  either:

                              (i)  an event or change of circumstances occurs; or

                             (ii)  the nominee becomes aware that an event or change of circumstances is likely to occur; and

                     (b)  the event or change of circumstances is likely to affect:

                              (i)  the ability of the nominee to act as the payment nominee or correspondence nominee of the benefit recipient, as the case may be; or

                             (ii)  the ability of the Secretary to give notices to the nominee under this Act; or

                            (iii)  the ability of the nominee to comply with notices given to the nominee by the Secretary under this Act.

             (2)  Subject to subsection (3), a notice under subsection (1):

                     (a)  must be in writing; and

                     (b)  may be given personally or by post or by any other means approved by the Secretary; and

                     (c)  must specify how the nominee is to give the information to the Department; and

                     (d)  must specify the period within which the nominee is to give the information to the Department.

             (3)  A notice under subsection (1) is not ineffective merely because it fails to comply with paragraph (2)(c).

             (4)  Subject to subsection (5), the period specified under paragraph (2)(d) must not end earlier than 14 days after:

                     (a)  the day on which the event or change of circumstances occurs; or

                     (b)  the day on which the nominee becomes aware that the event or change of circumstances is likely to occur.

             (5)  If a notice requires the nominee to inform the Department of any proposal by the nominee to leave Australia, subsection (4) does not apply to that requirement.

             (6)  This section extends to:

                     (a)  acts, omissions, matters and things outside Australia, whether or not in a foreign country; and

                     (b)  all persons, irrespective of their nationality or citizenship.

123L  Statement by payment nominee regarding disposal of money

             (1)  The Secretary may give the payment nominee of a benefit recipient a notice that requires the nominee to give the Department a statement giving particulars of the disposal by the nominee of money paid under the social security law to the nominee on behalf of the benefit recipient.

             (2)  Subject to subsection (3), a notice under subsection (1):

                     (a)  must be in writing; and

                     (b)  may be given personally or by post or by any other means approved by the Secretary; and

                     (c)  must specify how the nominee is to give the statement to the Department; and

                     (d)  must specify the period within which the nominee is to give the statement to the Department.

             (3)  A notice under subsection (1) is not ineffective merely because it fails to comply with paragraph (2)(c).

             (4)  The period specified under paragraph (2)(d) must not end earlier than 14 days after the day on which the notice is given.

             (5)  A statement given in response to a notice under subsection (1) must be in writing and in accordance with a form approved by the Secretary.

             (6)  A nominee must not refuse or fail to comply with a notice under subsection (1).

Penalty:  60 penalty units.

             (7)  Subsection (6) applies only to the extent to which the person is capable of complying with the notice.

             (8)  Subsection (6) does not apply if the person has a reasonable excuse.

             (9)  An offence against subsection (6) is an offence of strict liability.

           (10)  This section extends to:

                     (a)  acts, omissions, matters and things outside Australia, whether or not in a foreign country; and

                     (b)  all persons, irrespective of their nationality or citizenship.

Division 5Other matters

123M  Protection of principal against liability for actions of nominee

                   Nothing in this Part has the effect of rendering a person guilty of an offence against this Act in respect of any act or omission of the person’s correspondence nominee.

123N  Protection of nominee against criminal liability

             (1)  A nominee is not subject to any criminal liability under the social security law in respect of:

                     (a)  any act or omission of the principal; or

                     (b)  anything done, in good faith, by the nominee in his or her capacity as nominee.

             (2)  This section has effect subject to section 123L.

123O  Duty of nominee to principal

             (1)  It is the duty of a person who is the payment or correspondence nominee of another person at all times to act in the best interests of the principal.

             (2)  A nominee does not commit a breach of the duty imposed by subsection (1) by doing an act if, when the act is done, there are reasonable grounds for believing that it is in the best interests of the principal that the act be done.

             (3)  A nominee does not commit a breach of the duty imposed by subsection (1) by refraining from doing an act if, at the relevant time, there are reasonable grounds for believing that it is in the best interests of the principal that the act be not done.

123P  Saving of Secretary’s powers of revocation

                   Nothing in this Part is to be taken to be an expression of a contrary intention for the purposes of subsection 33(3) of the Acts Interpretation Act 1901.

123Q  Saving of Secretary’s powers to give notices to principal

                   Nothing in this Part is intended in any way to limit or affect the Secretary’s powers under other provisions of the social security law to give notices to, or make requirements of, a person who has a nominee.

123R  Notification of nominee where notice given to principal

                   If, under a provision of the social security law (other than a provision of this Part), the Secretary gives a notice to a person who has a correspondence nominee, the Secretary may inform the correspondence nominee of the giving of the notice and of the terms of the notice.

123S  Right of nominee to attend with principal

             (1)  If:

                     (a)  under a provision of the social security law (other than a provision of this Part), the Secretary gives a notice to a person who has a correspondence nominee; and

                     (b)  the notice requires the person:

                              (i)  to attend the Department; or

                             (ii)  to attend a particular place; and

                     (c)  the Secretary informs the person’s correspondence nominee of the giving of the notice;

the correspondence nominee may attend the Department or place, as the case may be, with the person if the person so wishes.

             (2)  If:

                     (a)  under a provision of the social security law (other than a provision of this Part), the Secretary gives a notice to a person who has a correspondence nominee; and

                     (b)  the notice requires the person to undergo a medical, psychiatric or psychological examination;

the correspondence nominee may accompany the person while the examination is being conducted:

                     (c)  if the person so wishes; and

                     (d)  to the extent to which the person conducting the examination consents.

             (3)  If a person’s correspondence nominee is a body corporate, the last reference in subsection (1) or (2) to the correspondence nominee is to be read as a reference to an officer or employee of the correspondence nominee.

10  After subsection 208(3)

Insert:

          (3A)  In spite of any other provision of this Part, the Secretary may disclose information of a kind referred to in paragraph (a) or (b) of the definition of protected information in subsection 23(1) of the 1991 Act to a person who is the payment nominee or correspondence nominee, within the meaning of Part 3A, of the person to whom the information relates (the principal) as if the nominee were the principal.

11  Continuation of existing payment directions

(1)        In this item:

Administration Act means the Social Security (Administration) Act 1999.

payment recipient means the person to whose relevant payment a pre-existing direction related.

pre-existing direction means:

                     (a)  a direction in force, under subsection 44(3) of the Administration Act; or

                     (b)  a direction given by virtue of paragraph 45(2)(b) of that Act and in force; or

                     (c)  a direction in force under subsection 47(5) of that Act;

immediately before the commencement of this Schedule.

relevant payment has the same meaning as in Part 3A of the Administration Act, as amended by this Schedule.

representative means the person specified in a pre-existing direction as the person to whom the relevant payment, or part of the relevant payment, to which the direction related was to be paid.

(2)        On and after the commencement of this Schedule, a pre-existing direction continues in force as if:

                     (a)  the representative had consented in writing to appointment under section 123B of the Administration Act, as amended by this Schedule, as the payment nominee of the payment recipient; and

                     (b)  as if the direction were:

                              (i)  an appointment under section 123B of the Administration Act, as amended by this Schedule, of the representative as the payment nominee of the payment recipient; and

                             (ii)  a direction under that section that the whole, or the same part, as the case may be, of the relevant payment be paid to the payment nominee of the payment recipient.


 

Schedule 2Amendment of the family assistance law relating to nominees

  

A New Tax System (Family Assistance) (Administration) Act 1999

1  Subsection 23(4)

Repeal the subsection.

2  Subsection 23(6)

Repeal the subsection, substitute:

             (6)  This section is subject to Part 4, Division 3 of Part 8B and sections 225 and 226.

3  Subsection 24(2)

Repeal the subsection.

4  Subsection 24(4)

Repeal the subsection, substitute:

             (4)  This section is subject to Part 4, Division 3 of Part 8B and sections 225 and 226.

5  Section 35

Repeal the section, substitute:

35  Payment of family tax benefit advance

             (1)  If an individual is entitled to be paid a family tax benefit advance, the Secretary must, at such time and in such manner as the Secretary considers appropriate, pay the individual the advance.

             (2)  This section is subject to Part 4, Division 3 of Part 8B and sections 225 and 226.

6  Subsection 47(1)

Omit “Subject to this section, if”, substitute “If”.

7  Subsections 47(2) and (4)

Repeal the subsections, substitute:

             (2)  This section is subject to Part 4, Division 3 of Part 8B and sections 225 and 226.

8  Subsection 56(2)

Repeal the subsection.

9  Subsection 56(4)

Repeal the subsection, substitute:

             (4)  This section is subject to Part 4 and to Division 3 of Part 8B.

10  Subsection 56A(2)

Repeal the subsection.

11  Subsection 56A(4)

Repeal the subsection, substitute:

             (4)  This section is subject to Part 4 and to Division 3 of Part 8B.

12  After Part 8A

Insert:

Part 8BNominees

Division 1Preliminary

219TA  Definitions

                   In this Part:

correspondence nominee means a person who, by virtue of an appointment in force under section 219TC, is the correspondence nominee of another person.

nominee means a correspondence nominee or a payment nominee.

payment nominee means a person who, by virtue of an appointment in force under section 219TB, is the payment nominee of another person.

principal, in relation to a nominee, means the person in relation to whom the nominee was appointed.

relevant benefit means:

                     (a)  family tax benefit by instalment; or

                     (b)  family tax benefit for a past period; or

                     (c)  family tax benefit by single payment/in substitution because of the death of another individual; or

                     (d)  maternity allowance; or

                     (e)  maternity immunisation allowance; or

                      (f)  child care benefit by fee reduction; or

                     (g)  child care benefit for a past period; or

                     (h)  child care benefit by single payment/in substitution.

Division 2Appointment of nominees

219TB  Appointment of payment nominee

                   Subject to section 219TD, the Secretary may, in writing:

                     (a)  appoint a person (including a body corporate) to be the payment nominee of another person for the purposes of the family assistance law; and

                     (b)  direct that the whole or a specified part of a specified relevant benefit payable to the nominee’s principal be paid to the nominee.

219TC  Appointment of correspondence nominee

                   Subject to section 219TD, the Secretary may, in writing, appoint a person (including a body corporate) to be the correspondence nominee of another person for the purposes of the family assistance law.

219TD  Provisions relating to appointments

             (1)  A person may be appointed as the payment nominee and the correspondence nominee of the same person.

             (2)  The Secretary must not appoint a nominee for a person (the proposed principal) under section 219TB or 219TC except:

                     (a)  with the written consent of the person to be appointed; and

                     (b)  after taking into consideration the wishes (if any) of the proposed principal regarding the making of such an appointment.

             (3)  The Secretary must cause a copy of an appointment under section 219TB or 219TC to be given to:

                     (a)  the nominee; and

                     (b)  the principal.

             (4)  The Secretary must not appoint a payment nominee or correspondence nominee for an approved child care service or for the operator of such a service.

219TE  Suspension and cancellation of nominee appointments

             (1)  If a person who is a nominee by virtue of an appointment under section 219TB or 219TC informs the Secretary in writing that the person no longer wishes to be a nominee under that appointment, the Secretary must, as soon as practicable, cancel the appointment.

             (2)  If:

                     (a)  the Secretary gives a person who is a nominee a notice under section 219TJ; and

                     (b)  the person informs the Department that:

                              (i)  an event or change of circumstances has occurred or is likely to occur; and

                             (ii)  the event or change of circumstances is likely to have an effect referred to in paragraph 219TJ(1)(b);

the Secretary may suspend or cancel the appointment by virtue of which the person is a nominee.

             (3)  If:

                     (a)  the Secretary gives a person who is a nominee a notice under section 219TJ or 219TK; and

                     (b)  the nominee does not comply with the requirement of the notice;

the Secretary may suspend or cancel the appointment, or each appointment, by virtue of which the person is a nominee.

             (4)  While an appointment is suspended, the appointment has no effect for the purposes of the family assistance law.

             (5)  The Secretary may, at any time, cancel the suspension of an appointment under subsection (2) or (3).

             (6)  The suspension or cancellation of an appointment, and the cancellation of such a suspension, must be in writing.

             (7)  The cancellation of an appointment has effect on and from such day, being later than the day of the cancellation, as is specified in the cancellation.

             (8)  The Secretary must cause a copy of:

                     (a)  a suspension of an appointment; or

                     (b)  a cancellation of an appointment; or

                     (c)  a cancellation of a suspension of an appointment;

to be given to:

                     (d)  the nominee; and

                     (e)  the principal.

Division 3Payments to payment nominee

219TF  Payment of amounts to payment nominee

             (1)  If:

                     (a)  a person has a payment nominee; and

                     (b)  the whole or a part of a relevant benefit is payable to the person; and

                     (c)  the Secretary has given a direction in relation to the relevant benefit under section 219TB;

the relevant benefit is to be paid in accordance with the direction.

             (2)  An amount paid to the payment nominee of a person:

                     (a)  is paid to the payment nominee on behalf of the person; and

                     (b)  is taken, for the purposes of the family assistance law (other than this Part), to have been paid to the person and to have been so paid when it was paid to the nominee.

             (3)  An amount that is to be paid to the payment nominee of a person must be paid to the credit of a bank account nominated and maintained by the nominee.

             (4)  The Secretary may direct that the whole or a part of an amount that is to be paid to a payment nominee be paid to the payment nominee in a different way from that provided for by subsection (3). If the Secretary gives such a direction, an amount to which the direction relates is to be paid in accordance with the direction.

Division 4Functions and responsibilities of nominees

219TG  Actions of correspondence nominee on behalf of principal

             (1)  Subject to section 219TR and subsection (4), any act that may be done by a person under, or for the purposes of, the family assistance law (other than an act for the purposes of Division 2 or 3) may be done by the person’s correspondence nominee.

             (2)  Without limiting subsection (1), an application or claim that may be made under the family assistance law by a person may be made by the person’s correspondence nominee on behalf of the person, and an application or claim so made is taken to be made by the person.

             (3)  An act done by a person’s correspondence nominee under this section has effect, for the purposes of the family assistance law (other than this Part), as if it had been done by the person.

             (4)  If, under a provision of the family assistance law, the Secretary gives a notice to a person who has a correspondence nominee, subsection (1) does not extend to an act that is required by the notice to be done by the person.

219TH  Giving of notices to correspondence nominee

             (1)  Any notice that the Secretary is authorised or required by the family assistance law to give to a person may be given by the Secretary to the person’s correspondence nominee.

             (2)  The notice:

                     (a)  must, in every respect, be in the same form, and in the same terms, as if it were being given to the person; and

                     (b)  may be given to the correspondence nominee personally or by post or in any other manner approved by the Secretary.

             (3)  If:

                     (a)  under subsection (1), the Secretary gives a notice (the nominee notice) to a person’s correspondence nominee; and

                     (b)  the Secretary afterwards gives the person a notice that:

                              (i)  is expressed to be given under the same provision of the family assistance law as the nominee notice; and

                             (ii)  makes the same requirement of the person as the nominee notice;

section 219TI ceases to have effect in relation to the nominee notice.

             (4)  If:

                     (a)  under subsection (1), the Secretary gives a notice (the nominee notice) to a person’s correspondence nominee; and

                     (b)  the Secretary has already given to the person a notice that:

                              (i)  is expressed to be given under the same provision of the family assistance law as the nominee notice; and

                             (ii)  makes the same requirement of the person as the nominee notice;

section 219TI does not have effect in relation to the nominee notice.

219TI  Compliance by correspondence nominee

             (1)  In this section:

requirement means a requirement, made by the Secretary under this Act, to:

                     (a)  inform the Secretary of a matter; or

                     (b)  give information, or produce a document, to an officer; or

                     (c)  give a statement to the Secretary.

             (2)  If, under section 219TH, a notice making a requirement of a person is given to the person’s correspondence nominee, the following paragraphs have effect:

                     (a)  for the purposes of the family assistance law, other than this Part, the notice is taken:

                              (i)  to have been given to the person; and

                             (ii)  to have been so given on the day on which the notice was given to the correspondence nominee;

                     (b)  any requirement made of the person may be satisfied by the correspondence nominee;

                     (c)  any act done by the correspondence nominee for the purpose of satisfying a requirement of the notice has effect, for the purposes of the family assistance law (other than Division 3 of Part 6 of this Act), as if it had been done by the person;

                     (d)  if the correspondence nominee fails to satisfy a requirement of the notice, the person is taken, for the purposes of the family assistance law, to have failed to comply with the requirement.

             (3)  In order to avoid doubt, it is declared as follows:

                     (a)  if the requirement imposes an obligation on the person to inform the Secretary of a matter, or give the Secretary a statement, within a specified period and the correspondence nominee informs the Secretary of the matter, or gives the Secretary the statement, as the case may be, within that period, the person is taken, for the purposes of the family assistance law, to have complied with the requirement set out in the notice;

                     (b)  if the requirement imposes an obligation on the person to give information, or produce a document, to an officer within a specified period and the correspondence nominee gives the information, or produces the document, as the case may be, to the officer within that period, the person is taken, for the purposes of the family assistance law, to have complied with the requirement set out in the notice;

                     (c)  if the requirement imposes on the person an obligation to inform the Secretary of a matter, or give the Secretary a statement, within a specified period and the correspondence nominee does not inform the Secretary of the matter, or give the Secretary the statement, as the case may be, within that period, the person is taken, for the purposes of the family assistance law, to have failed to comply with the requirement set out in the notice;

                     (d)  if the requirement imposes an obligation on the person to give information, or produce a document, to an officer within a specified period and the correspondence nominee does not give the information, or produce the document, as the case may be, to the officer within that period, the person is taken, for the purposes of the family assistance law, to have failed to comply with the requirement set out in the notice.

219TJ  Notification by nominee of matters affecting ability to act as nominee

             (1)  The Secretary may give a nominee of a person a notice that requires the nominee to inform the Department if:

                     (a)  either:

                              (i)  an event or change of circumstances occurs; or

                             (ii)  the nominee becomes aware that an event or change of circumstances is likely to occur; and

                     (b)  the event or change of circumstances is likely to affect:

                              (i)  the ability of the nominee to act as the payment nominee or correspondence nominee of the person, as the case may be; or

                             (ii)  the ability of the Secretary to give notices to the nominee under this Act; or

                            (iii)  the ability of the nominee to comply with notices given to the nominee by the Secretary under this Act.

             (2)  Subject to subsection (3), a notice under subsection (1):

                     (a)  must be in writing; and

                     (b)  may be given personally or by post or by any other means approved by the Secretary; and

                     (c)  must specify how the nominee is to give the information to the Department; and

                     (d)  must specify the period within which the nominee is to give the information to the Department.

             (3)  A notice under subsection (1) is not ineffective merely because it fails to comply with paragraph (2)(c).

             (4)  Subject to subsection (5), the period specified under paragraph (2)(d) must not end earlier than 14 days after:

                     (a)  the day on which the event or change of circumstances occurs; or

                     (b)  the day on which the nominee becomes aware that the event or change of circumstances is likely to occur.

             (5)  If a notice requires the nominee to inform the Department of any proposal by the nominee to leave Australia, subsection (4) does not apply to that requirement.

             (6)  This section extends to:

                     (a)  acts, omissions, matters and things outside Australia, whether or not in a foreign country; and

                     (b)  all persons, irrespective of their nationality or citizenship.

219TK  Statement by payment nominee regarding disposal of money

             (1)  The Secretary may give the payment nominee of a person a notice that requires the nominee to give the Department a statement about a matter relating to the disposal by the nominee of an amount paid to the nominee on behalf of the person.

             (2)  Subject to subsection (3), a notice under subsection (1):

                     (a)  must be in writing; and

                     (b)  may be given personally or by post or by any other means approved by the Secretary; and

                     (c)  must specify how the nominee is to give the statement to the Department; and

                     (d)  must specify the period within which the nominee is to give the statement to the Department.

             (3)  A notice under subsection (1) is not ineffective merely because it fails to comply with paragraph (2)(c).

             (4)  The period specified under paragraph (2)(d) must not end earlier than 14 days after the day on which the notice is given.

             (5)  A statement given in response to a notice under subsection (1) must be in writing and in accordance with a form approved by the Secretary.

             (6)  A nominee must not refuse or fail to comply with a notice under subsection (1).

Penalty:  60 penalty units.

             (7)  Subsection (6) applies only to the extent to which the person is capable of complying with the notice.

             (8)  Subsection (6) does not apply if the person has a reasonable excuse.

             (9)  An offence against subsection (6) is an offence of strict liability.

           (10)  This section extends to:

                     (a)  acts, omissions, matters and things outside Australia, whether or not in a foreign country; and

                     (b)  all persons, irrespective of their nationality or citizenship.

Division 5Other matters

219TL  Protection of person against liability for actions of nominee

                   Nothing in this Part has the effect of rendering a person guilty of an offence against this Act in respect of any act or omission of the person’s correspondence nominee.

219TM  Protection of nominee against criminal liability

             (1)  A nominee of a person is not subject to any criminal liability under the family assistance law in respect of:

                     (a)  any act or omission of the person; or

                     (b)  anything done, in good faith, by the nominee in his or her capacity as nominee.

             (2)  This section has effect subject to section 219TK.

219TN  Duty of nominee to principal

             (1)  It is the duty of a person who is the payment or correspondence nominee of another person at all times to act in the best interests of the principal.

             (2)  A nominee does not commit a breach of the duty imposed by subsection (1) by doing an act if, when the act is done, there are reasonable grounds for believing that it is in the best interests of the principal that the act be done.

             (3)  A nominee does not commit a breach of the duty imposed by subsection (1) by refraining from doing an act if, at the relevant time, there are reasonable grounds for believing that it is in the best interests of the principal that the act be not done.

219TO  Saving of Secretary’s powers of revocation

                   Nothing in this Part is to be taken to be an expression of a contrary intention for the purposes of subsection 33(3) of the Acts Interpretation Act 1901.

219TP  Saving of Secretary’s powers to give notices to principal

                   Nothing in this Part is intended in any way to limit or affect the Secretary’s powers under other provisions of the family assistance law to give notices to, or make requirements of, a person who has a nominee.

219TQ  Notification of nominee where notice given to principal

                   If, under a provision of the family assistance law (other than a provision of this Part), the Secretary gives a notice to a person who has a correspondence nominee, the Secretary may inform the correspondence nominee of the giving of the notice and of the terms of the notice.

219TR  Right of nominee to attend with principal

             (1)  If:

                     (a)  under a provision of the family assistance law (other than a provision of this Part), the Secretary gives a notice to a person who has a correspondence nominee; and

                     (b)  the notice requires the person:

                              (i)  to attend the Department; or

                             (ii)  to attend a particular place; and

                     (c)  the Secretary informs the person’s correspondence nominee of the giving of the notice;

the correspondence nominee may attend the Department or place, as the case may be, with the person if the person so wishes.

             (2)  If a person’s correspondence nominee is a body corporate, the last reference in subsection (1) to the correspondence nominee is to be read as a reference to an officer or employee of the correspondence nominee.

13  At the end of section 168

Add:

             (4)  In spite of any other provision of this Part, the Secretary may disclose information of a kind referred to in paragraph (a) or (b) of the definition of protected information in subsection 3(1) to a person who is the payment nominee or correspondence nominee, within the meaning of Part 8B, of the person to whom the information relates (the principal) as if the nominee were the principal.

14  Continuation of existing payment arrangements

(1)        In this item:

Administration Act means the A New Tax System (Family Assistance) (Administration) Act 1999.

benefit recipient means the person to whom a relevant benefit is payable.

payment recipient means a person to whom, immediately before the commencement of this Schedule, the whole or part of a relevant benefit was being paid under a relevant provision.

relevant benefit has the same meaning as in Part 8B of the Administration Act, as amended by this Schedule.

relevant provision means subsection 23(4), 24(2), 47(2), 56(2) or 56A(2) of the Administration Act, as in force immediately before the commencement of this Schedule.

(2)        If, immediately before the commencement of this Schedule, the whole or part of a relevant benefit was being paid, under a relevant provision, to a person other than the benefit recipient, the following paragraphs have effect:

                     (a)  the payment recipient is taken, for the purposes of the Administration Act, as amended by this Schedule, to have consented in writing to appointment under section 219TB of that Act as the payment nominee of the benefit recipient;

                     (b)  the payment recipient is taken, for the purposes of the Administration Act, as amended by this Schedule, to have been appointed, on the day of commencement of this Schedule, under section 219TB of that Act as the payment nominee of the benefit recipient;

                     (c)  if, immediately before the commencement of this Schedule, the whole of the relevant benefit was being paid to the payment recipient, the Secretary is taken, for the purposes of the Administration Act, as amended by this Schedule, to have given, on the day of commencement of this Schedule, a direction under section 219TB of that Act that the whole of the relevant benefit be paid to the payment nominee of the benefit recipient;

                     (d)  if, immediately before the commencement of this Schedule, part of the relevant benefit was being paid to the payment recipient, the Secretary is taken, for the purposes of the Administration Act, as amended by this Schedule, to have given, on the day of commencement of this Schedule, a direction under section 219TB of that Act that the same part of the relevant benefit be paid to the payment nominee of the benefit recipient.


 

Schedule 3Further amendment of the social security law

  

Social Security Act 1991

1  Subsection 197(1) (definition of profoundly disabled child)

After “subsection (2)”, insert “or (2A)”.

2  Subparagraph 197(2)(c)(vi)

After “certified”, insert “in writing”.

3  After subsection 197(2)

Insert:

          (2A)  A child is a profoundly disabled child if a medical practitioner has certified in writing that:

                     (a)  the child:

                              (i)  has a terminal condition; and

                             (ii)  is in the advanced phase of that condition; and

                     (b)  either:

                              (i)  the child has a life expectancy measured in weeks or months; or

                             (ii)  it is possible that the child will live for more than 12 months but unlikely that he or she will live for a period substantially greater than 12 months; and

                     (c)  because of the condition referred to in paragraph (a), the child will need continuous personal care for the remainder of his or her life.

 

 

[Minister’s second reading speech made in—

House of Representatives on 26 September 2002

Senate on 21 October 2002]

 

(217/02)