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Part 4-4—Nominees

Part 4-4 Nominees

Division 1 Simplified outline of this Part

93   Simplified outline of this Part

A person may be appointed as a nominee to act on behalf of another person for the purposes of the scheme.

There are 2 types of nominees:

       (a)     correspondence nominees (who can receive notices on behalf of a person for the purposes of the scheme); and

      (b)     payment nominees (who can receive a redress payment on behalf of a person for the purposes of the scheme).

This Part deals with the appointment of nominees, their functions, duties and responsibilities, and other consequences of being a nominee for a person for the purposes of the scheme.

Division 2 Appointment of nominees

94   Appointment of nominees

Correspondence nominee

             (1)  The Operator may, in writing, appoint a person (including a body corporate) to be the correspondence nominee of another person for the purposes of the scheme.

Payment nominee

             (2)  The Operator may, in writing:

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

                     (b)  direct that the whole or a specified part of a redress payment payable by the Operator to the other person under section 44 or 115 be paid to the nominee.

Note:          A person may be appointed as both the correspondence nominee and the payment nominee of the same person.

             (3)  The Operator must not appoint a nominee for a person (the principal ) under this section except:

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

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

             (4)  The Operator must give a copy of an appointment under this section to:

                     (a)  the nominee; and

                     (b)  the principal.

95   Suspension and cancellation of nominee appointments

             (1)  If a nominee appointed under section 94 informs the Operator in writing that he or she no longer wishes to be a nominee under that appointment, the Operator must, as soon as practicable, cancel the appointment.

             (2)  If:

                     (a)  the Operator gives a nominee a notice under section 99; and

                     (b)  the nominee informs the Operator that:

                              (i)  an event or change of circumstances has happened or is likely to happen; and

                             (ii)  the event or change of circumstances is likely to have an effect referred to in paragraph 99(1)(b);

then the Operator may suspend or cancel the nominee’s appointment, or each of the nominee’s appointments.

             (3)  If:

                     (a)  the Operator gives a nominee a notice under section 99 or 100; and

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

then the Operator may suspend or cancel the nominee’s appointment, or each of the nominee’s appointments.

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

             (5)  The Operator 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 Operator must give the nominee and the person for which he or she is a nominee a copy of:

                     (a)  a suspension of the nominee’s appointment; or

                     (b)  a cancellation of the nominee’s appointment; or

                     (c)  a cancellation of a suspension of the nominee’s appointment.

Division 3 Duties, functions and responsibilities of nominees

96   Duty of nominee

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

             (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, the nominee reasonably believes that it is in the best interests of the person 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, the nominee reasonably believes that it is in the best interests of the person that the act not be done.

97   Actions of correspondence nominee

             (1)  If a person has a correspondence nominee, any act that may be done by the person under, or for the purposes of, this Act (other than Division 2 or this Division) may be done by that correspondence nominee.

             (2)  Without limiting subsection (1), if a person has a correspondence nominee, an application that may be made by a person under this Act may be made by that correspondence nominee on behalf of the person, and an application so made is taken to be made by the person.

             (3)  However, if under a provision of this Act the Operator 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.

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

98   Giving notices to correspondence nominee

             (1)  If a person has a correspondence nominee, any notice that the Operator is required or authorised by this Act to give to the person may be given by the Operator to that correspondence nominee.

             (2)  A notice given under subsection (1):

                     (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 by any other means approved by the Operator.

99   Nominee to inform Operator of matters affecting ability to act as nominee

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

                     (a)  either:

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

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

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

                              (i)  the ability of the nominee to act as the correspondence nominee or payment nominee of the person; or

                             (ii)  the ability of the Operator 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 Operator under this Act.

             (2)  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 Operator; and

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

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

             (3)  A notice under subsection (1) is not ineffective just because it does not comply with paragraph (2)(c).

             (4)  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 happens; or

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

             (5)  Subsection (4) does not apply to a requirement in a notice for a nominee to inform the Operator of any proposal by the nominee to leave Australia.

100   Statement by payment nominee regarding disposal of money

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

             (2)  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 Operator; and

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

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

             (3)  A notice under subsection (1) is not ineffective just because it does not comply with paragraph (2)(c).

             (4)  The period specified under paragraph (2)(d) must not end earlier than 14 days after the date of the notice.

             (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 Operator.

             (6)  A person commits an offence if:

                     (a)  the person is a nominee; and

                     (b)  the person refuses or fails to comply with a notice under subsection (1).

Penalty:  30 penalty units.

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

Note:          A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code ).

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

Division 4 Payment to payment nominee

101   Payment of redress payment to payment nominee

             (1)  If:

                     (a)  a person has a payment nominee; and

                     (b)  a redress payment is payable to the person; and

                     (c)  the Operator has given a direction in relation to the redress payment under paragraph 94(2)(b);

then the redress payment must be paid in accordance with the direction.

             (2)  A redress payment 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 this Act (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)  A redress payment 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 Operator may direct that the whole or a part of a redress payment 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 Operator gives such a direction, the redress payment must be paid in accordance with the direction.

             (5)  A direction given under subsection (4) is not a legislative instrument.

Division 5 Other matters relating to nominees

102   Protection of person against liability for actions of nominee

                   A person is not to be taken, because of the operation of this Part, to have committed an offence against this Act in relation to any act or omission of the person’s nominee.

103   Protection of nominee against criminal liability

             (1)  A nominee of a person is not subject to any criminal liability under this Act in relation to:

                     (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 100 (which deals with a statement by a payment nominee regarding the disposal of money).

104   Notification to nominee where notice given to person

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