Explanatory Memorandum
(Circulated by authority of the Minister for Family and Community Services, Senator the Hon Amanda Vanstone)Schedule 2 - amendments of the family assistance law relating to nominees
A New Tax System (Family Assistance) (Administration) Act 1999
Item 1 repeals subsection 23(4) as a consequence of the insertion of new Part 8B dealing with nominees.
Item 2 repeals subsection 23(6) and inserts a new subsection 23(6) that makes the section subject to Part 4, Division 3 of Part 8B and sections 225 and 226.
Item 3 repeals subsection 24(2) as a consequence of the insertion of new Part 8B dealing with nominees.
Item 4 repeals subsection 24(4) and inserts a new subsection 23(6) that makes the section subject to Part 4, Division 3 of Part 8B and sections 225 and 226.
Item 5 repeals section 35 and substitutes a new section 35 that deals with the payment of family tax benefit advance as a consequence of the insertion of new Part 8B dealing with nominees.
Item 6 makes a technical consequential amendment to subsection 47(1).
Item 7 repeals subsections 47(2) and (4) and substitutes a new subsection 47(2) that makes the section subject to Part 4, Division 3 of Part 8B and sections 225 and 226.
Item 8 repeals subsection 56(2) as a consequence of the insertion of Part 8B dealing with nominees.
Item 9 repeals subsection 56(4) and substitutes a new subsection 56(4) that makes the section subject to Part 4 and Division 3 of Part 8B.
Item 10 repeals subsection 56A(2) as a consequence of the insertion of Part 8B dealing with nominees.
Item 11 repeals subsection 56A(4) and substitutes a new subsection 56A(4) that makes the section subject to Part 4 and Division 3 of Part 8B.
Item 12 inserts new Part 8B that deals with nominees after Part 8A.
Proposed Division 1 - Preliminary
Proposed section 219TA - Definitions
Section 219TA introduces and defines five new terms for the purposes of this Part:
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- correspondence nominee;
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- nominee;
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- payment nominee;
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- principal; and
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- relevant benefit.
Division 2 - Appointment of nominees
Proposed section 219TB - Appointment of nominees
Section 219TB provides for the Secretary to be able to appoint a person to be the payment nominee of another person under the family assistance law and direct that the whole or part of the payment be paid to the payment nominee.
Proposed section 219TC - Appointment of correspondence nominee
Section 219TC provides for the Secretary to be able to appoint a person to be the correspondence nominee of another person for the purposes of the family assistance law.
Proposed section 219TD - Provisions relating to appointments
This section deals with the administrative procedures that relate to appointment. Subsection 219TD(1) provides that a person may be both the payment nominee and the correspondence nominee of the same person.
Proposed section 219TE -Suspension and cancellation of nominee appointments
Subsection (1) provides that if a person withdraws their consent to be a nominee under section 219K or 219L, the Secretary must revoke the person's appointment as nominee as soon as practicable.
Subsection (2) provides the Secretary the power to suspend or cancel an appointment where the nominee notifies an event or a change of circumstances under paragraph 123K(1)(b).
Subsection (3) provides that the Secretary may suspend or cancel appointments in writing if the Secretary gives the nominee a notice under section 219TJ or 219TK and the nominee does not comply with the notice.
Subsection (4) provides that while an appointment is suspended the appointment has no effect for the purposes of the family assistance law.
Subsection (5) provides that the Secretary may at any time cancel a suspension of an appointment under subsection (2) or (3).
Subsection (6) provides that any suspensions or cancellations of nominee appointments must be made by the Secretary in writing.
Subsection (7) provides that the cancellation of an appointment has effect on and from the day specified in the cancellation.
Proposed Division 3 - Payments to payment nominee
Proposed section 219TF - Payments of amounts to payment nominee
Subsection (1) provides that if a person has a payment nominee an amount payable to the person under the family assistance law is to be paid to the payment nominee.
Subsection (2) provides that the amount paid to the payment nominee of a person is paid on behalf of the person and is deemed to have been paid to the person when it is paid to the payment nominee.
Subsection (3) provides that an amount 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.
Subsection (4) provides that the Secretary may direct that an amount paid to a payment nominee may be paid to the payment nominee other than to the credit of a bank account maintained by the nominee.
Proposed Division 4 - Function and responsibilities of nominees
Proposed section 219TG - Actions of correspondence nominee on behalf of principal
Subsection (1) provides that any act (other than one under Division 2 or 3) that may be done by a person may be done by that person's correspondence nominee for the purposes of the family assistance law. Subsection (1) is subject to subsection (4) and section 219TR.
Subsection (2) provides that an application or claim that may be made under the family assistance law by a person may be made by the person's payment nominee on behalf of that person.
Subsection (3) provides that the actions of a person's correspondence nominee under the section are those of the person for the purposes of the family assistance law.
Subsection (4) provides that subsection (1) does not extend to an act where the Secretary gives a notice to a person who has a correspondence nominee requiring the person to do the act.
Proposed section 219TH - Giving of notices to correspondence nominee
Subsection (1) provides that any notice given by the Secretary to a person under the family assistance law may be given to that person's correspondence nominee.
Subsection (2) provides that the notice must be in the same form as if it were being given to the person and it may be given either personally, sent by post to the correspondence nominee.
Subsections (3) and (4) deal with the giving of notices to both the assistance recipient and the correspondence nominee.
Proposed section 219TI - Compliance by correspondence nominee
This section details what a correspondence nominee must do to comply with a notice that has been given to them under section 219TI and the consequences of the correspondence nominee complying or failing to comply with the notice.
Proposed section 219TJ - Notification by nominee of matters affecting ability to act as nominee
Subsection (1) provides that the Secretary may give a nominee of a person, a notice requiring the nominee to inform the Department of the occurrence of an event or a change in circumstances or if the nominee becomes aware of these as well as if the event or circumstances is likely to affect either the nominee's ability to act as a nominee or the Secretary's ability to give notices to the nominee or the nominee's ability to comply with notices given to the nominee by the Secretary.
Subsection (2) is subject to subsection (3) and deals with what form a notice under subsection (1) should take. It must be in writing and be given personally or by post or such other means determined by the Secretary and specify how the nominee is to give information to the department and the period within which to do so.
Subsection (3) provides that a notice under subsection (1) is not ineffective because it fails to comply with paragraph (2)(c).
Subsection (4) is subject to subsections (5) and provides that the period under paragraph (2)(d) must not end earlier than 14 days after either the day on which the event or change of circumstances occurs or the day on which the nominee becomes aware that the event or change of circumstances is likely to occur.
Subsection (5) provides that subsection (4) does not apply if a notice requires the nominee to inform the Department of any proposal by the principal to leave Australia.
Subsection (6) provides that the section extends extraterritorially.
Proposed section 219TK - Statement by payment nominee regarding disposal of money
Subsection (1) provides that the Secretary may give the payment nominee a notice requiring the nominee to give the Department a written statement about a matter relating to the disposal by the nominee of money paid to the nominee on behalf of the principal under the family assistance law.
Subsection (2) is subject to subsection (3) and deals with the requirements of notices given under subsection (1).
Subsection (3) provides that a notice under subsection (1) is not ineffective because it fails to inform the nominee how to give the required information to the Department.
Subsection (4) provides that a person must be given at least 14 days after either the day on which the event or change of circumstances occurs or the day on which the nominee becomes aware that the event or change of circumstances is likely to occur, to notify the Department.
Subsection (5) provides that the statement given in response to the notice must be in writing and in accordance with a form approved by the Secretary.
Subsection (6) creates an offence in relation to the nominee who refuses or fails to comply with a notice under subsection (1). The penalty for a contravention of subsection (6) is 60 penalty units.
Subsections (7) and (8) set out defences for the purposes of subsection (6).
Subsection (9) provides that the offence of refusing or failing to comply with a notice is an offence of strict liability like similar offences in the A New Tax System (Family Assistance) (Administration) Act 1999 .
Subsection (10) provides that the section extends extraterritorially.
Proposed section 219TL - Protection of person against liability for actions of nominee
Section 219TL provides that a person is not guilty of an offence under this Division for the acts or omissions of the person's correspondence nominee.
Proposed section 219TM - Protection of nominee against criminal liability
Subsection (1) provides that the nominee is not subject to any criminal liability under the family assistance law for any act or omission of the person or anything done in good faith by the nominee in his or her capacity as nominee.
Subsection (2) provides that it is subject to section 219TK.
Proposed section 219TN - Duty of nominee to principal
Section 219TN establishes a duty upon the payment or correspondence nominee to act at all times in what he or she believes in good faith to be the best interests of the principal.
Proposed section 219TO - Saving of Secretary' powers of revocation of appointments
This section makes it clear that the power of revocation is that contained in subsection 33(3) of the Acts Interpretation Act 1901 .
Proposed section 219TP - Saving of Secretary's powers to give notices to principal
This section makes it clear that the nothing in Part 8B is intended to limit the power of the Secretary to give notices to a person who has a nominee. There are some things under the social security law that must be done by the benefit recipient, such as attending a medical examination.
Proposed section 219TQ - Notification of nominee where notice given to principal
This section provides the if the Secretary gives a notice to a person who has a correspondence nominee then the Secretary may inform the correspondence nominee of the giving of the notice.
Proposed section 219TR - Right of nominee to attend with principal
This provision deals with the situation where the Secretary gives a notice to a person who has a correspondence nominee because the Secretary requires the person to do something personally. The correspondence nominee is given the right to attend or accompany the person if the person wishes this to occur.
Item 13 inserts a new subsection 168(4) to allow the disclosure of information to a correspondence nominee.
Item 14 is a transitional provision that provides for the continuation of existing payment directions.