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Business Services Wage Assessment Tool Payment Scheme Bill 2014

Part 5 Administration

Division 1 Introduction

67   Simplified outline of this Part

The Secretary may require an applicant for the BSWAT payment scheme, or any other person, to give information for the purposes of determining an application or for any other purposes in relation to this Act.

Information can be obtained, recorded, used and disclosed for the purposes of this Act and for certain other limited purposes. There are criminal offences for misuse of information obtained for the purposes of this Act.

In certain cases where an amount is wrongly paid to a person, the amount becomes a debt to the Commonwealth that can be recovered through the courts, or through a payment arrangement the Commonwealth might enter into with the person.

Division 2 Information gathering

68   Further information from applicant

             (1)  The Secretary may, by written notice given to a person who has made an application for the BSWAT payment scheme, request the person to give further information to the Department if the Secretary considers that the information would assist in determining the application.

             (2)  The notice:

                     (a)  may be given personally or by post or in any other manner approved by the Secretary; and

                     (b)  must specify:

                              (i)  the nature of the information that is requested; and

                             (ii)  how the person is to give the information; and

                            (iii)  the period within which the person is to give the information; and

                            (iv)  the officer or class of officer (if any) to whom the information is to be given; and

                             (v)  that the notice is given under this section.

             (3)  A notice is not invalid merely because it does not comply with subparagraph (2)(b)(ii) or (v).

             (4)  The period specified under subparagraph (2)(b)(iii) must not end earlier than 14 days after the notice is given.

             (5)  The application need not be determined until the further information is provided.

69   General power to obtain information

             (1)  The Secretary may, in accordance with section 72, require a person to give information, or produce a document that is in the person’s custody or under the person’s control, to the Department if the Secretary considers that the information or document may be relevant to one or more of the following matters:

                     (a)  the determination of another person’s application for the BSWAT payment scheme;

                     (b)  before the person lodges an effective acceptance—whether there is an alternative amount for the person;

                     (c)  whether a debt arises under Division 4 in relation to a payment made to a person.

             (2)  If the requirement is made in relation to the matter referred to in paragraph (1)(a), the application need not be determined until the further information is provided.

70   Power to obtain information from a person who owes a debt to the Commonwealth

                   The Secretary may, in accordance with section 72, require a person who owes a debt to the Commonwealth under section 84:

                     (a)  either to:

                              (i)  give to the Department information that is relevant to the person’s financial situation; or

                             (ii)  produce to the Department a document that is in the person’s custody or under the person’s control and is relevant to the person’s financial situation; and

                     (b)  if the person’s address changes—to inform the Department of the new address within 14 days after the change.

71   Obtaining information about a person who owes a debt to the Commonwealth

                   If the Secretary believes that a person may have information or a document:

                     (a)  that would help the Secretary locate another person (the debtor ) who owes a debt to the Commonwealth under section 84; or

                     (b)  that is relevant to the debtor’s financial situation;

the Secretary may, in accordance with section 72, require the person to give the information, or produce the document, to the Secretary.

72   Written notice

             (1)  A requirement under section 69, 70 or 71 must be made by written notice given to the person of whom the requirement is made.

             (2)  The notice:

                     (a)  may be given personally or by post or in any other manner approved by the Secretary; and

                     (b)  must specify:

                              (i)  how the person is to give the information or produce the document to which the requirement relates; and

                             (ii)  the period within which the person is to give the information or produce the document to the Department; and

                            (iii)  the officer or class of officer (if any) to whom the information is to be given or the document is to be produced; and

                            (iv)  that the notice is given under this section.

             (3)  A notice is not invalid merely because it does not comply with subparagraph (2)(b)(i) or (iv).

             (4)  The period specified under subparagraph (2)(b)(ii) must not end earlier than 14 days after the notice is given.

73   Offence

             (1)  A person commits an offence if:

                     (a)  the person is required under section 69, 70 or 71 to give information or produce a document; and

                     (b)  the person refuses or fails to comply with the requirement.

Penalty:  30 penalty units.

             (2)  Subsection (1) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code ).

74   Obligations not affected by State or Territory laws

                   Nothing in a law of a State or Territory operates to prevent a person from complying with a requirement made under this Act to provide information or a document to the Department.

Division 3 Privacy

75   Protection of information

             (1)  A person may obtain protected information for the purposes of this Act.

             (2)  A person may:

                     (a)  make a record of protected information; or

                     (b)  disclose such information to any person; or

                     (c)  otherwise use such information;

if the person is doing so:

                     (d)  for the purposes of this Act; or

                     (e)  for the purpose for which the information was disclosed to the person under section 81; or

                      (f)  with the express or implied consent of the person to whom the information relates.

76   Offence—unauthorised access to protected information

                   A person commits an offence if:

                     (a)  the person obtains information; and

                     (b)  the person is not authorised or required by or under this Act to obtain the information; and

                     (c)  the information is protected information.

Penalty:  Imprisonment for 2 years or 120 penalty units, or both.

77   Offence—unauthorised use or disclosure of protected information

                   A person commits an offence if:

                     (a)  the person:

                              (i)  makes a record of information; or

                             (ii)  discloses information to any other person; or

                            (iii)  otherwise makes use of information; and

                     (b)  the person is not authorised or required by or under this Act to make the record, disclosure or use of the information that is made by the person; and

                     (c)  the information is protected information.

Penalty:  Imprisonment for 2 years or 120 penalty units, or both.

78   Offence—soliciting disclosure of protected information

                   A person (the first person ) commits an offence if:

                     (a)  the first person solicits the disclosure of information from an officer or another person, whether or not any protected information is actually disclosed; and

                     (b)  the disclosure would be in contravention of this Division; and

                     (c)  the information is protected information.

Penalty:  Imprisonment for 2 years or 120 penalty units, or both.

79   Offence—offering to supply protected information

             (1)  A person commits an offence if:

                     (a)  the person offers to supply (whether to a particular person or otherwise) information about another person; and

                     (b)  the person knows the information is protected information.

Penalty:  Imprisonment for 2 years or 120 penalty units, or both.

             (2)  A person commits an offence if:

                     (a)  the person holds himself or herself out as being able to supply (whether to a particular person or otherwise) information about another person; and

                     (b)  the person knows the information is protected information.

Penalty:  Imprisonment for 2 years or 120 penalty units, or both.

             (3)  Subsections (1) and (2) do not apply to an officer acting in the performance or exercise of his or her duties, functions or powers under this Act.

80   Protection of certain documents etc. from production to court etc.

                   A person must not, except for the purposes of this Act, be required:

                     (a)  to produce any document in his or her possession because of the performance of his or her functions or duties or the exercise of his or her powers under this Act; or

                     (b)  to disclose any matter or thing of which he or she had notice because of the performance of such functions or duties or the exercise of such powers;

to a court, tribunal, authority or person that has power to require the production of documents or the answering of questions.

81   Disclosure of information by Secretary

             (1)  Despite sections 77 and 80, the Secretary may:

                     (a)  if the Secretary certifies that it is necessary in the public interest to do so in a particular case or class of cases—disclose information acquired by a person in the performance of his or her functions or duties or in the exercise of his or her powers under this Act to such persons and for such purposes as the Secretary determines; or

                     (b)  disclose any such information:

                              (i)  to the Secretary of a Department of State of the Commonwealth, or to the head of an authority of the Commonwealth, for the purposes of that Department or authority; or

                             (ii)  to a person who has the express or implied consent of the person to whom the information relates to collect it; or

                            (iii)  to the Chief Executive Centrelink for the purposes of a centrelink program; or

                            (iv)  to the Chief Executive Medicare for the purposes of a medicare program.

             (2)  In certifying for the purposes of paragraph (1)(a) or disclosing information for the purposes of subparagraph (1)(b)(i), the Secretary must act in accordance with any rules made for the purposes of section 82.

             (3)  Despite any other provision of this Division, the Secretary may disclose protected information to a participant’s nominee if the protected information:

                     (a)  relates to the participant; and

                     (b)  is or was held in the records of the Department.

82   Rules for exercise of Secretary’s disclosure powers

                   The rules may make provision for and in relation to the exercise of either or both of the following:

                     (a)  the Secretary’s power to certify for the purposes of paragraph 81(1)(a);

                     (b)  the Secretary’s power under subparagraph 81(1)(b)(i) to disclose information to a person.

83   Part does not affect the operation of the Freedom of Information Act 1982

                   The provisions of this Part that relate to the disclosure of information do not affect the operation of the Freedom of Information Act 1982 .

Division 4 Debt recovery

84   Debts due to the Commonwealth

             (1)  If a payment amount has been paid in respect of a person, the amount (or an amount equivalent to the amount) is a debt due to the Commonwealth only to the extent expressly provided for by this section.

             (2)  If an amount is paid to a person (the recipient ) but was not payable because:

                     (a)  the amount was paid to the wrong person; or

                     (b)  there is no determination of a payment amount, or no effective acceptance, that relates to the payment; or

                     (c)  the amount exceeds the payment amount determined for a person;

the amount paid (or an amount equivalent to that amount), or the amount of the excess, is a debt due to the Commonwealth by the recipient.

             (3)  If:

                     (a)  a payment amount is paid to a person (the recipient ) under this Act; and

                     (b)  the amount was paid wholly or partly because of a false or misleading statement, or a misrepresentation, by the recipient or another person;

then an amount equal to so much of the payment amount as is attributable to the false or misleading statement, or the misrepresentation, is a debt due to the Commonwealth by the recipient.

Note:          See also section 85 (joint and several liability for debts arising because of false and misleading statements).

             (4)  A debt due by a person under this section in respect of an amount arises at the time the amount is paid to the person.

85   Joint and several liability for debts arising because of false and misleading statements

                   A person (the recipient ) and another person are jointly and severally liable to pay a debt if:

                     (a)  the recipient is liable under this Division to repay an amount (the unauthorised amount ) paid to the recipient (or an amount equal to such an amount); and

                     (b)  the unauthorised amount was paid because the recipient contravened Part 7.4 of the Criminal Code (which deals with false and misleading statements); and

                     (c)  the other person is convicted of an offence:

                              (i)  that is taken to have been committed in relation to that contravention because of section 11.2 or 11.2A of the Criminal Code (which deal with complicity, common purpose and joint commission); or

                             (ii)  in relation to that contravention against section 11.4 or 11.5 of the Criminal Code (which deal with incitement and conspiracy).

86   Legal proceedings

                   A debt due to the Commonwealth under this Act is recoverable by the Commonwealth in a court of competent jurisdiction.

87   Arrangement for payment of debt

             (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 under this Act, or the outstanding amount of such a debt, in a way set out in the arrangement.

             (2)  The arrangement has effect from the day specified in the arrangement, which may be earlier than the day on which the arrangement is entered into.

             (3)  If the arrangement 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 vary or terminate the arrangement:

                     (a)  at the debtor’s request; or

                     (b)  after giving 28 days’ notice to the debtor of the proposed variation or termination; or

                     (c)  if the Secretary is satisfied that the person has failed to disclose material information about his or her true capacity to repay the debt—without notice.

88   Recovery of amounts from financial institutions

             (1)  If:

                     (a)  an amount is paid under this Act to a financial institution for the credit of an account kept with the institution; and

                     (b)  the Secretary is satisfied that the payment was intended to be made 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 reasonable period stated in the notice, the lesser of the following amounts:

                     (c)  an amount specified in the notice that is equal to the amount that was paid as mentioned in paragraph (a);

                     (d)  the amount standing to the credit of the account when the notice is received by the institution.

             (2)  A financial institution must comply with a notice given to it under subsection (1).

Penalty:  300 penalty units.

             (3)  It is a defence to a prosecution of a financial institution for failing to comply with a notice given to it under subsection (1) if the financial institution proves that it was incapable of complying with the notice.

             (4)  If a notice is given to a financial institution under subsection (1) in respect of an amount paid under this Act, any amount recovered by the Commonwealth from the institution in respect of the payment reduces any debt owed to the Commonwealth by any other person in respect of the amount.

             (5)  In this Act:

financial institution means a corporation that is an ADI for the purposes of the Banking Act 1959 .

89   Overseas application of debts

                   The operation of a provision creating a debt under this Part 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 5 Non-recovery of debts

90   Secretary may write off debt

             (1)  Subject to subsection (2), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.

             (2)  The Secretary may decide to write off a debt under subsection (1) if, and only if:

                     (a)  the debt is irrecoverable at law; or

                     (b)  the debtor has no capacity to repay the debt; or

                     (c)  the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or

                     (d)  it is not cost effective for the Commonwealth to take action to recover the debt.

             (3)  For the purposes of paragraph (2)(a), a debt is irrecoverable at law if, and only if:

                     (a)  the debt cannot be recovered by means of legal proceedings because the period during which such proceedings may be brought has ended; or

                     (b)  there is no proof of the debt capable of sustaining legal proceedings for its recovery; or

                     (c)  the debtor is discharged from bankruptcy and the debt was incurred before the debtor became bankrupt and was not incurred by fraud; or

                     (d)  the debtor has died leaving no estate or insufficient funds in the debtor’s estate to repay the debt.

             (4)  A decision made under subsection (1) takes effect:

                     (a)  if no day is specified in the decision—on the day the decision is made; or

                     (b)  if a day is specified in the decision—on the day so specified (whether that day is before, on or after the day the decision is made).

             (5)  Nothing in this section prevents anything being done at any time to recover a debt that has been written off under this section.

91   Power to waive Commonwealth’s right to recover debt

             (1)  On behalf of the Commonwealth, the Secretary may waive the Commonwealth’s right to recover the whole or a part of a debt from a debtor only in the circumstances described in section 92, 93, 94 or 95.

             (2)  A waiver takes effect:

                     (a)  on the day specified in the waiver (whether that day is before, on or after the day the decision to waive is made); or

                     (b)  if the waiver does not specify when it takes effect—on the day the decision to waive is made.

Note:          If the Secretary waives the Commonwealth’s right to recover all or part of a debt, this is a permanent bar to recovery of the debt or part of the debt and the debt or part of the debt effectively ceases to exist.

92   Waiver of debt arising from error

                   The Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if:

                     (a)  the debtor received the payment that gave rise to that proportion of the debt in good faith; and

                     (b)  the debt is not raised within 8 weeks from the payment.

Note:          This section does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors.

93   Waiver of small debt

                   The Secretary may waive the right to recover a debt if:

                     (a)  the debt is, or is likely to be, less than $200; and

                     (b)  it is not cost effective for the Commonwealth to take action to recover the debt.

94   Waiver in relation to settlements

             (1)  If the Commonwealth has agreed to settle a civil action against a debtor for recovery of a debt for less than the full amount of the debt, the Secretary must waive the right to recover the difference between the debt and the amount that is the subject of the settlement.

             (2)  If:

                     (a)  the Commonwealth has recovered at least 80% of the original value of a debt from a debtor; and

                     (b)  the Commonwealth and the debtor agree that the recovery is in full satisfaction for the whole of the debt; and

                     (c)  the debtor cannot repay a greater proportion of the debt;

the Secretary must waive the remaining 20% or less of the value of the original debt.

             (3)  If the Secretary and a debtor agree that the debtor’s debt will be fully satisfied if the debtor pays the Commonwealth an agreed amount that is less than the amount of the debt outstanding at the time of the agreement (the unpaid amount ), the Secretary must waive the right to recover the difference between the unpaid amount and the agreed amount.

             (4)  The Secretary must not make an agreement described in subsection (3) 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.

             (5)  For the purposes of subsection (4), the present value of the unpaid amount is the amount worked out in accordance with the method prescribed by the rules.

95   Waiver in special circumstances

                   The Secretary may waive the right to recover a debt if:

                     (a)  the debt did not arise in whole or part as a result of:

                              (i)  a contravention of this Act or the rules; or

                             (ii)  a false or misleading statement or a misrepresentation; and

                     (b)  there are special circumstances (other than financial hardship or the disability of the debtor) that the Secretary is satisfied make waiver appropriate; and

                     (c)  the Secretary is satisfied that waiver is more appropriate than writing off the debt.