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Part 4-5—Debt recovery

Part 4-5 Debt recovery

Division 1 Simplified outline of this Part

105   Simplified outline of this Part

Certain amounts paid under the scheme may become a debt due to the Commonwealth. For example, if a redress payment is paid to the wrong person, that payment is a debt due to the Commonwealth and may be recovered under this Part.

Division 2 Debt recovery

106   Debts due to the Commonwealth

             (1)  If an amount has been paid to a person (the recipient ) under this Act, the amount is a debt due to the Commonwealth only to the extent expressly provided for by this section.

             (2)  If the amount paid to the recipient was not payable because:

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

                     (b)  the amount exceeds the amount payable to the recipient;

then the amount paid, or the amount of the excess, is a debt due to the Commonwealth by the recipient.

             (3)  If the amount paid to the recipient 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 amount paid as is attributable to the false or misleading statement, or the misrepresentation, is a debt due to the Commonwealth by the recipient.

             (4)  A debt due by the recipient under this section in relation to an amount arises at the time the amount was paid to the recipient.

107   Legal proceedings

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

108   Arrangement for payment of debt

             (1)  The Operator may 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)  An arrangement entered into under subsection (1) has effect, or is taken to have had effect, on and after the day specified in the arrangement as the day the arrangement commences (whether that day is the day the arrangement is entered into or an earlier or later day).

             (3)  If an arrangement entered into under subsection (1) does not specify a day as mentioned in subsection (2), it has effect on and after the day on which it is entered into.

             (4)  The Operator may terminate or alter an arrangement entered into under subsection (1):

                     (a)  at the person’s request; or

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

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

109   Recovery of amounts from financial institutions

Payment into wrong account

             (1)  This section applies 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 Operator 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.

Notice to financial institution requiring repayment

             (2)  The Operator may give a written notice to the financial institution setting out the relevant matters referred to in paragraphs (1)(a) and (b) and requiring the institution to pay to the Commonwealth, within a period (being a reasonable period) stated in the notice, the lesser of the following amounts:

                     (a)  the amount of the payment, as stated in the notice;

                     (b)  the amount standing to the credit of the account when the notice is given to the institution.

Offence for contravening notice

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

Penalty:  300 penalty units.

             (4)  It is a defence to a prosecution of a financial institution for failing to comply with a notice given to it under subsection (2) if the financial institution proves that it was incapable of complying with the notice.

Note:          A defendant bears a legal burden in relation to the matter in subsection (4). See section 13.4 of the Criminal Code .

Amount recovered reduces debt

             (5)  Any amount recovered by the Commonwealth from a financial institution under this section reduces the amount of a debt referred to in subsection 106(1) (as it relates to paragraph 106(2)(a)).