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Business Services Wage Assessment Tool Payment Scheme Bill 2014

Part 4 Nominees

Division 1 Introduction

42   Simplified outline of this Part

The Secretary may appoint nominees to act for persons in relation to the BSWAT payment scheme. Some appointments will be made on the Secretary’s own initiative, and others at the request of the person, depending on the person’s circumstances. Not everyone will have a nominee.

A nominee has a duty to ascertain the person’s preferences in relation to the scheme, and to act in a way that gives effect to those preferences.

43   Definition of participant

Any person who:

                     (a)  might be eligible for the BSWAT payment scheme; or

                     (b)  has an intellectual impairment and wants to make or has made an application under section 15;

is a participant .

44   Act that may be done

                   A reference in this Part to an act that may be done by a participant includes a reference to refraining from doing an act in order to give effect to a decision.

Division 2 Functions and responsibilities of nominee

45   Actions on behalf of participant

             (1)  Any act that may be done by a participant under or for the purposes of this Act may be done by the participant’s nominee, except to the extent specified in the instrument of appointment of the nominee.

Note:          See section 50 for the appointment of nominees.

             (2)  Without limiting subsection (1), a request or application that may be made under this Act by a participant may be made by the person’s nominee on behalf of the participant.

             (3)  An act done by a participant’s nominee because of this section has effect for the purposes of this Act (other than this Part) as if it had been done by the participant.

             (4)  If the participant’s nominee was appointed on the initiative of the Secretary, the nominee may only do an act if the nominee considers that the participant is not capable of doing, or being supported to do, the act.

46   Duties of nominee to participant

             (1)  It is the duty of a nominee of a participant to ascertain the preferences of the participant in relation to the BSWAT payment scheme and to act in a manner that gives effect to those preferences.

             (2)  A nominee does not breach the duty imposed by subsection (1) by doing an act if, when the act is done, the nominee reasonably believes that:

                     (a)  the nominee has ascertained the preferences of the participant in relation to the act; and

                     (b)  the doing of the act gives effect to those preferences.

             (3)  A nominee does not breach the duty imposed by subsection (1) by refraining from doing an act if, at the relevant time, the nominee reasonably believes that:

                     (a)  the nominee has ascertained the preferences of the participant in relation to the act; and

                     (b)  not doing the act gives effect to those preferences.

             (4)  The rules may modify the duty of a nominee under subsection (1) in relation to participants who cannot formulate preferences.

             (5)  The rules may prescribe other duties of a nominee, including duties requiring the nominee:

                     (a)  to support decision-making by the participant personally; or

                     (b)  to have regard to, and give appropriate weight to, the views of the participant; or

                     (c)  to inform the Secretary and the participant if the nominee has, acquires, or is likely to acquire, any interest, pecuniary or otherwise, that conflicts or could conflict with the performance of the nominee’s duties.

47   Giving of notices to nominee

             (1)  Any notice that the Secretary is authorised or required by this Act to give to a participant must be given by the Secretary to the participant’s 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 participant; and

                     (b)  may be given to the nominee personally, by post or by any other means approved by the Secretary.

             (3)  If:

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

                     (b)  the Secretary has already given, or afterwards gives, the participant a notice that:

                              (i)  is expressed to be given under the same provision of this Act as the nominee notice; and

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

section 48 ceases to have effect, or does not come into effect, as the case requires, in relation to the nominee notice.

48   Compliance by nominee

             (1)  If, under section 47, a notice is given to a participant’s nominee, the following paragraphs have effect:

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

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

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

                     (b)  any requirement made of the person to:

                              (i)  inform the Secretary of a matter; or

                             (ii)  provide information or a document to the Secretary;

                            may be satisfied by the nominee;

                     (c)  any act done by the nominee for the purposes of satisfying such a requirement has effect, for the purposes of this Act, as if it had been done by the participant;

                     (d)  if the nominee fails to satisfy such a requirement, the participant is taken, for the purposes of this Act, to have failed to comply with the requirement.

             (2)  To avoid doubt, for the purposes of this Act, the participant is taken to have complied with a requirement if:

                     (a)  the requirement imposes an obligation on the participant to inform the Secretary of a matter, or provide information or a document, within a specified period; and

                     (b)  the nominee does so within that period.

             (3)  To avoid doubt, for the purposes of this Act, the participant is taken not to have complied with a requirement if:

                     (a)  the requirement imposes an obligation on the participant to inform the Secretary of a matter, or provide information or a document, within a specified period; and

                     (b)  the nominee does not do so within that period.

49   Nominee to inform Secretary of matters affecting ability to act as nominee

             (1)  The Secretary may give a nominee of a participant a written notice that requires the nominee to inform the Secretary 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 nominee of the participant; 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)  A notice under subsection (1) must specify:

                     (a)  how the nominee is to inform the Secretary; and

                     (b)  the period within which the nominee is to inform the Secretary, which must be a period of at least 14 days starting on whichever of the following days is applicable:

                              (i)  the day on which the event or change of circumstances happens;

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

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

             (4)  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 3 Appointment and cancellation or suspension of appointment

50  Appointment of nominee

             (1)  The Secretary may, in writing, appoint a person to be a nominee of a participant for the purposes of this Act.

Note:          The Secretary must make the appointment in accordance with section 51.

             (2)  An appointment may be made:

                     (a)  at the request of the participant; or

                     (b)  on the initiative of the Secretary.

             (3)  An appointment may limit the matters in relation to which the appointee is the nominee of the participant.

             (4)  An appointment may provide that it has effect for a specified term.

             (5)  Without limiting the manner of specifying a term for the purposes of subsection (4), it may be specified by reference to the expiry of a specified period or the occurrence of a specified event.

             (6)  To avoid doubt, the Secretary may appoint more than one person to be a nominee of a participant for the purposes of this Act.

51   Provisions relating to appointments

             (1)  The Secretary must not appoint a person as a nominee of a participant under section 50 except:

                     (a)  with the written consent of the appointee; and

                     (b)  after taking into consideration the preferences (if any) of the participant regarding the making of the appointment.

             (2)  In appointing a person as a nominee of a participant under section 50, the Secretary must consider whether the person is able to comply with section 46.

             (3)  In appointing a nominee of a participant under section 50, the Secretary must have regard to whether there is a person who, under a law of the Commonwealth, a State or a Territory:

                     (a)  has guardianship of the person; or

                     (b)  is a person appointed by a court, tribunal, board or panel (however described) who has power to make decisions for the participant and whose responsibilities in relation to the participant are relevant to the duties of a nominee.

             (4)  The Secretary must cause a copy of an appointment under section 50 to be given to:

                     (a)  the nominee; and

                     (b)  the participant.

             (5)  The rules may prescribe:

                     (a)  persons who must not be appointed as nominees; and

                     (b)  criteria the Secretary is to apply or matters to which the Secretary is to have regard in considering the appointment of a nominee.

52   Circumstances in which the Secretary must cancel appointment of nominees

At the request of a participant

             (1)  If:

                     (a)  a person is appointed as a nominee of a participant under section 50 at the request of the participant; and

                     (b)  the participant requests the Secretary to cancel the appointment;

the Secretary must, as soon as practicable, cancel the appointment by written instrument.

             (2)  A request under paragraph (1)(b) need not be made in writing. If the request is not made in writing, the Secretary must make a written record of the request.

Nominee no longer wishes to be a nominee

             (3)  If:

                     (a)  a person is appointed as a nominee of a participant under section 50; and

                     (b)  the person 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 by written instrument.

Copy of instrument of cancellation to be given

             (4)  If the appointment of a person as a nominee of a participant is cancelled under this section, the Secretary must give the person and participant a copy of the instrument of cancellation.

53   General circumstances in which Secretary may cancel or suspend appointment of nominees

At the request of a participant

             (1)  If:

                     (a)  a person is appointed as a nominee of a participant under section 50 on the initiative of the Secretary; and

                     (b)  the participant requests the Secretary to cancel the appointment;

the Secretary may, by written instrument, cancel the appointment.

             (2)  A request under paragraph (1)(b) need not be made in writing. If the request is not made in writing, the Secretary must make a written record of the request.

             (3)  If a request is made under paragraph (1)(b):

                     (a)  the Secretary must decide whether to cancel the appointment within 14 days after receiving the request; and

                     (b)  if the Secretary decides not to cancel the appointment—the Secretary must give the person and participant written notice of the Secretary’s decision.

Ability to act as a nominee affected

             (4)  The Secretary may, by written instrument, suspend or cancel one or more of a nominee’s appointments if:

                     (a)  the Secretary gives the nominee a notice under section 49; and

                     (b)  in response to the notice, the nominee informs the Secretary that an event or change of circumstances has happened or is likely to happen; and

                     (c)  having regard to that response, the Secretary is satisfied that it is appropriate to do so.

Failure to comply with a notice under section 49

             (5)  The Secretary may, by written instrument, suspend or cancel one or more of a nominee’s appointments if:

                     (a)  the Secretary gives the nominee a notice under section 49; and

                     (b)  the nominee does not comply with a requirement specified in the notice.

Copy of instrument of cancellation or suspension to be given

             (6)  If the appointment of a person as a nominee of a participant is cancelled or suspended under this section, the Secretary must give the person and participant a copy of the instrument of cancellation or suspension.

54   Suspension etc. of appointment of nominees in cases of physical, mental or financial harm

Suspension of appointment

             (1)  The Secretary may, by written instrument, suspend the appointment of a person as a nominee of a participant if the Secretary reasonably believes that:

                     (a)  the person has caused, or is likely to cause, physical, mental or financial harm to the participant; or

                     (b)  the person has failed to fulfil the person’s duty under subsection 46(1).

             (2)  Any financial harm that might be caused to the participant by the nominee acting in a manner that gives effect to the participant’s preferences in relation to the BSWAT payment scheme is to be disregarded for the purposes of subsection (1).

             (3)  If the person’s appointment is suspended under subsection (1), the Secretary must:

                     (a)  give the person and participant a copy of the instrument of suspension; and

                     (b)  by written notice given to the person, request the person to give the Secretary, within 28 days after the notice is given, a statement setting out reasons why the person’s appointment should not be cancelled by the Secretary under this section.

Cancellation of appointment following suspension

             (4)  If the person gives the Secretary the statement within the 28 day period, the Secretary may, by written instrument, cancel the person’s appointment.

             (5)  The Secretary must decide whether to cancel the person’s appointment under subsection (4) as soon as practicable after receiving the statement.

             (6)  If the Secretary decides not to cancel the person’s appointment under subsection (4):

                     (a)  the suspension of the person’s appointment ends; and

                     (b)  the Secretary must give the person and participant written notice of the Secretary’s decision.

             (7)  If the person does not give the Secretary the statement within the 28 day period, the Secretary must, by written instrument, cancel the person’s appointment as soon as practicable after that period ends.

Copy of instrument of cancellation to be given

             (8)  If the person’s appointment is cancelled under this section, the Secretary must give the person and participant a copy of the instrument of cancellation.

55   Other matters relating to cancellation or suspension of appointment

             (1)  While a person’s appointment as a nominee is suspended, the appointment has no effect for the purposes of this Act.

             (2)  If a person’s appointment as a nominee of a participant is suspended under section 53 or 54, the Secretary may appoint another person under section 50 to be the nominee of the participant for a period specified in the instrument of appointment.

56   Rules may prescribe requirements etc.

                   The rules may prescribe:

                     (a)  requirements with which the Secretary must comply relating to the appointment of nominees or the cancellation or suspension of the appointment of nominees; and

                     (b)  criteria the Secretary is to apply or matters to which the Secretary is to have regard in appointing nominees or cancelling or suspending the appointment of nominees.

57   Secretary’s powers of revocation

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

Division 4 Review of certain decisions about nominees

58   Review of certain decisions about nominees

             (1)  The Secretary may, on his or her own initiative, review any of the following if the Secretary is satisfied that there is enough reason to do so:

                     (a)  a decision under section 50 to appoint a person to be the nominee of a participant;

                     (b)  a decision under section 52, 53 or 54 to cancel or suspend, or not to cancel or suspend, the appointment of a nominee.

             (2)  On review of a decision, the Secretary must:

                     (a)  affirm the decision; or

                     (b)  vary the decision; or

                     (c)  set the decision aside and substitute a new decision.

59   Application for review

             (1)  A person whose interests are affected by a decision referred to in subsection 58(1) may apply to the Secretary for review of the decision within 28 days, or such longer period as the Secretary allows, after the day on which the person first received notice of the decision.

             (2)  The person must give reasons for the application.

             (3)  The application must be made by:

                     (a)  sending or delivering a written application to the Secretary in accordance with the rules (if any); or

                     (b)  making an oral application, in person or by telephone or other means, to the Secretary in accordance with the rules (if any).

             (4)  If a person makes an oral application in accordance with paragraph (3)(b), the person receiving the oral application must:

                     (a)  make a written record of the details of the application; and

                     (b)  note on the record the day the application is made.

60   Withdrawal of application

             (1)  A person who has applied for review of a decision may withdraw the application at any time before a decision is made under section 61, by:

                     (a)  sending or delivering a written notice to the Secretary in accordance with the rules (if any); or

                     (b)  contacting the Secretary and withdrawing the application orally, whether in person, by telephone or by other means in accordance with the rules (if any).

             (2)  If an application is withdrawn in accordance with paragraph (1)(b), the person receiving the oral withdrawal must make a written record of the details of the withdrawal and note on the record the day the withdrawal is made.

             (3)  If an application for review of a decision is withdrawn, the application is taken never to have been made.

61   Review of decisions following application under section 59

                   If a person applies under section 59 for review of a decision, the Secretary must:

                     (a)  review the decision; and

                     (b)  do one of the following:

                              (i)  affirm the decision;

                             (ii)  vary the decision;

                            (iii)  set the decision aside and substitute a new decision.

62   Notice and date of effect

             (1)  The Secretary’s decision (the decision on review ) to affirm, vary or set aside a decision takes effect:

                     (a)  on the day specified in the decision on review; or

                     (b)  if a day is not specified—on the day on which the decision on review was made.

             (2)  The Secretary must notify the applicant of the decision on review, and the reasons for that decision, as soon as practicable after making the decision on review.

Division 5 Other matters relating to nominees

63   Secretary’s powers to give notices to participant

                   Nothing in this Part is intended in any way to affect the Secretary’s powers under other provisions of this Act to give notices to a participant who has a nominee.

64   Notification of nominee where notice is given to participant

                   If, under this Act (other than this Part), the Secretary gives a notice to a participant who has a nominee, the Secretary must inform the nominee of the giving of the notice and of the terms of the notice.

65   Protection of participant against liability for actions of nominee

                   Nothing in this Part renders a participant guilty of an offence against this Act in relation to any act or omission of the participant’s nominee.

66   Protection of nominee against criminal liability

                   A nominee of a participant is not subject to any criminal liability under this Act in relation to:

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

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