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Part 4-2—Nominees

Part 4-2 Nominees

Division 1 Simplified outline of this Part

80   Simplified outline of this Part

If a person makes an application, or proposes to make an application, for redress under the scheme, the Operator may appoint someone else to be the person’s nominee. If a nominee is appointed, then the nominee can act on behalf of the person for the purposes of the scheme.

There are 2 types of nominees:

       (a)     assistance nominees; and

      (b)     legal nominees.

While both types of nominees may act on behalf of the person for the purposes of the scheme (for example, communicate with the Operator), there are some matters for which only the legal nominee (and not the assistance nominee) may act on behalf of the person. Those matters are set out in sections 84 and 85. Importantly, the assistance nominee may not make the application for redress, or accept or decline an offer of redress, on behalf of the person (but the legal nominee may do that on behalf of the person).

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

Division 2 Appointment of nominees

81   Appointment of nominees

             (1)  If a person (the applicant ) makes an application for redress under the scheme, or proposes to make such an application, the Operator may, in writing, appoint another person to be:

                     (a)  the assistance nominee of the applicant; or

                     (b)  the legal nominee of the applicant.

Note:          The assistance nominee and legal nominee may be a body corporate.

             (2)  The Operator must not appoint a person to be the assistance nominee of the applicant unless both the person and the applicant give written consent to the appointment.

             (3)  The Operator must not appoint a person to be the legal nominee of the applicant unless:

                     (a)  under a law of the Commonwealth, a State or a Territory the person has power to make decisions for the applicant in all matters that are relevant to the duties of a legal nominee; and

                     (b)  the person gives written consent to the appointment; and

                     (c)  the Operator has taken into account any wishes of the applicant regarding the making of such an appointment.

Note:          A person who may be eligible to be the legal nominee of the applicant is a person who, under a guardianship order or power of attorney, has power to make decisions for the applicant in all relevant matters.

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

                     (a)  the nominee; and

                     (b)  the applicant.

82   Suspension and revocation of nominee appointments

             (1)  If:

                     (a)  an assistance nominee or a legal nominee appointed under section 81 requests the Operator, in writing, to revoke the appointment; or

                     (b)  the applicant requests the Operator, in writing, to revoke the appointment of the applicant’s assistance nominee;

then the Operator must revoke the appointment as soon as practicable.

             (2)  If:

                     (a)  the Operator gives a nominee a notice under section 87; 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 87(1)(b);

then the Operator may suspend or revoke the nominee’s appointment.

             (3)  If:

                     (a)  the Operator gives a nominee a notice under section 87; and

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

then the Operator may suspend or revoke the nominee’s appointment.

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

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

             (6)  The suspension or revocation of an appointment, and the revocation 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)  The Operator must give the nominee and the applicant a copy of:

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

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

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

Division 3 Duties, functions and responsibilities of nominees

83   Duty of nominee

             (1)  It is the duty of an assistance nominee or a legal 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.

84   Actions of assistance nominee

             (1)  If a person has an assistance nominee, then any act that may be done by the person under, or for the purposes of, this Act may be done by that assistance nominee.

             (2)  However, subsection (1) does not authorise a person’s assistance nominee to do any of the following on behalf of the person:

                     (a)  make an application for redress under section 19;

                     (b)  accept an offer of redress under section 42;

                     (c)  decline an offer of redress under section 45;

                     (d)  do an act for the purposes of Division 2;

                     (e)  do an act prescribed by the rules.

             (3)  If under a provision of this Act the Operator gives a notice to a person who has an assistance nominee, subsection (1) does not extend to an act that is required by the notice to be done by the person.

             (4)  Any act done by a person’s assistance 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.

85   Actions of legal nominee

             (1)  If a person has a legal nominee, then any act that may be done by the person under, or for the purposes of, this Act may be done by that legal nominee.

             (2)  Without limiting subsection (1):

                     (a)  an application that may be made by the person under this Act may be made by that legal nominee on behalf of the person; and

                     (b)  an application so made is taken to be made by the person; and

                     (c)  an offer of redress that may be accepted under section 42 or declined under section 45 by the person may be accepted or declined in accordance with the relevant provision by that legal nominee on behalf of the person; and

                     (d)  an offer so accepted or declined is taken to have been done so by the person.

             (3)  Any act done by a person’s legal 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.

86   Giving notices to assistance nominee or legal nominee

             (1)  If a person has an assistance nominee or a legal nominee, then 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 nominee.

             (2)  A notice given under subsection (1) must, in every respect, be in the same form, and in the same terms, as if it were being given to the person.

87   Nominee to inform the 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 assistance nominee or legal 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)  must specify how, and the period within which, the nominee is to inform the Operator.

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

             (4)  The period specified under paragraph (2)(b) 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.

Division 4 Other matters relating to nominees

88   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.

89   Protection of nominee against criminal liability

                   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.

90   Informing nominee if 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 nominee, the Operator may inform the nominee of the giving of the notice and of the terms of the notice.