Family and Community Services Legislation Amendment (Budget Initiatives and Other Measures) Act 2002 (95 of 2002)

Schedule 2   Amendment of the family assistance law relating to nominees

A New Tax System (Family Assistance) (Administration) Act 1999

12   After Part 8A

Insert:

Part 8B - Nominees

Division 1 - Preliminary

219TA Definitions

In this Part:

correspondence nominee means a person who, by virtue of an appointment in force under section 219TC, is the correspondence nominee of another person.

nominee means a correspondence nominee or a payment nominee.

payment nominee means a person who, by virtue of an appointment in force under section 219TB, is the payment nominee of another person.

principal , in relation to a nominee, means the person in relation to whom the nominee was appointed.

relevant benefit means:

(a) family tax benefit by instalment; or

(b) family tax benefit for a past period; or

(c) family tax benefit by single payment/in substitution because of the death of another individual; or

(d) maternity allowance; or

(e) maternity immunisation allowance; or

(f) child care benefit by fee reduction; or

(g) child care benefit for a past period; or

(h) child care benefit by single payment/in substitution.

Division 2 - Appointment of nominees

219TB Appointment of payment nominee

Subject to section 219TD, the Secretary may, in writing:

(a) appoint a person (including a body corporate) to be the payment nominee of another person for the purposes of the family assistance law; and

(b) direct that the whole or a specified part of a specified relevant benefit payable to the nominee's principal be paid to the nominee.

219TC Appointment of correspondence nominee

Subject to section 219TD, the Secretary may, in writing, appoint a person (including a body corporate) to be the correspondence nominee of another person for the purposes of the family assistance law.

219TD Provisions relating to appointments

(1) A person may be appointed as the payment nominee and the correspondence nominee of the same person.

(2) The Secretary must not appoint a nominee for a person (the proposed principal ) under section 219TB or 219TC except:

(a) with the written consent of the person to be appointed; and

(b) after taking into consideration the wishes (if any) of the proposed principal regarding the making of such an appointment.

(3) The Secretary must cause a copy of an appointment under section 219TB or 219TC to be given to:

(a) the nominee; and

(b) the principal.

(4) The Secretary must not appoint a payment nominee or correspondence nominee for an approved child care service or for the operator of such a service.

219TE Suspension and cancellation of nominee appointments

(1) If a person who is a nominee by virtue of an appointment under section 219TB or 219TC 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.

(2) If:

(a) the Secretary gives a person who is a nominee a notice under section 219TJ; and

(b) the person informs the Department that:

(i) an event or change of circumstances has occurred or is likely to occur; and

(ii) the event or change of circumstances is likely to have an effect referred to in paragraph 219TJ(1)(b);

the Secretary may suspend or cancel the appointment by virtue of which the person is a nominee.

(3) If:

(a) the Secretary gives a person who is a nominee a notice under section 219TJ or 219TK; and

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

the Secretary may suspend or cancel the appointment, or each appointment, by virtue of which the person is a nominee.

(4) While an appointment is suspended, the appointment has no effect for the purposes of the family assistance law.

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

(6) The suspension or cancellation of an appointment, and the cancellation of such a suspension, must be in writing.

(7) The cancellation of an appointment has effect on and from such day, being later than the day of the cancellation, as is specified in the cancellation.

(8) The Secretary must cause a copy of:

(a) a suspension of an appointment; or

(b) a cancellation of an appointment; or

(c) a cancellation of a suspension of an appointment;

to be given to:

(d) the nominee; and

(e) the principal.

Division 3 - Payments to payment nominee

219TF Payment of amounts to payment nominee

(1) If:

(a) a person has a payment nominee; and

(b) the whole or a part of a relevant benefit is payable to the person; and

(c) the Secretary has given a direction in relation to the relevant benefit under section 219TB;

the relevant benefit is to be paid in accordance with the direction.

(2) An amount paid to the payment nominee of a person:

(a) is paid to the payment nominee on behalf of the person; and

(b) is taken, for the purposes of the family assistance law (other than this Part), to have been paid to the person and to have been so paid when it was paid to the nominee.

(3) 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.

(4) The Secretary may direct that the whole or a part of an amount that is to be paid to a payment nominee be paid to the payment nominee in a different way from that provided for by subsection (3). If the Secretary gives such a direction, an amount to which the direction relates is to be paid in accordance with the direction.

Division 4 - Functions and responsibilities of nominees

219TG Actions of correspondence nominee on behalf of principal

(1) Subject to section 219TR and subsection (4), any act that may be done by a person under, or for the purposes of, the family assistance law (other than an act for the purposes of Division 2 or 3) may be done by the person's correspondence nominee.

(2) Without limiting subsection (1), an application or claim that may be made under the family assistance law by a person may be made by the person's correspondence nominee on behalf of the person, and an application or claim so made is taken to be made by the person.

(3) An act done by a person's correspondence nominee under this section has effect, for the purposes of the family assistance law (other than this Part), as if it had been done by the person.

(4) If, under a provision of the family assistance law, the Secretary gives a notice to a person who has a correspondence nominee, subsection (1) does not extend to an act that is required by the notice to be done by the person.

219TH Giving of notices to correspondence nominee

(1) Any notice that the Secretary is authorised or required by the family assistance law to give to a person may be given by the Secretary to the person's correspondence 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 person; and

(b) may be given to the correspondence nominee personally or by post or in any other manner approved by the Secretary.

(3) If:

(a) under subsection (1), the Secretary gives a notice (the nominee notice ) to a person's correspondence nominee; and

(b) the Secretary afterwards gives the person a notice that:

(i) is expressed to be given under the same provision of the family assistance law as the nominee notice; and

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

section 219TI ceases to have effect in relation to the nominee notice.

(4) If:

(a) under subsection (1), the Secretary gives a notice (the nominee notice ) to a person's correspondence nominee; and

(b) the Secretary has already given to the person a notice that:

(i) is expressed to be given under the same provision of the family assistance law as the nominee notice; and

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

section 219TI does not have effect in relation to the nominee notice.

219TI Compliance by correspondence nominee

(1) In this section:

requirement means a requirement, made by the Secretary under this Act, to:

(a) inform the Secretary of a matter; or

(b) give information, or produce a document, to an officer; or

(c) give a statement to the Secretary.

(2) If, under section 219TH, a notice making a requirement of a person is given to the person's correspondence nominee, the following paragraphs have effect:

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

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

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

(b) any requirement made of the person may be satisfied by the correspondence nominee;

(c) any act done by the correspondence nominee for the purpose of satisfying a requirement of the notice has effect, for the purposes of the family assistance law (other than Division 3 of Part 6 of this Act), as if it had been done by the person;

(d) if the correspondence nominee fails to satisfy a requirement of the notice, the person is taken, for the purposes of the family assistance law, to have failed to comply with the requirement.

(3) In order to avoid doubt, it is declared as follows:

(a) if the requirement imposes an obligation on the person to inform the Secretary of a matter, or give the Secretary a statement, within a specified period and the correspondence nominee informs the Secretary of the matter, or gives the Secretary the statement, as the case may be, within that period, the person is taken, for the purposes of the family assistance law, to have complied with the requirement set out in the notice;

(b) if the requirement imposes an obligation on the person to give information, or produce a document, to an officer within a specified period and the correspondence nominee gives the information, or produces the document, as the case may be, to the officer within that period, the person is taken, for the purposes of the family assistance law, to have complied with the requirement set out in the notice;

(c) if the requirement imposes on the person an obligation to inform the Secretary of a matter, or give the Secretary a statement, within a specified period and the correspondence nominee does not inform the Secretary of the matter, or give the Secretary the statement, as the case may be, within that period, the person is taken, for the purposes of the family assistance law, to have failed to comply with the requirement set out in the notice;

(d) if the requirement imposes an obligation on the person to give information, or produce a document, to an officer within a specified period and the correspondence nominee does not give the information, or produce the document, as the case may be, to the officer within that period, the person is taken, for the purposes of the family assistance law, to have failed to comply with the requirement set out in the notice.

219TJ Notification by n ominee of matters affecting ability to act as nominee

(1) The Secretary may give a nominee of a person a notice that requires the nominee to inform the Department if:

(a) either:

(i) an event or change of circumstances occurs; or

(ii) the nominee becomes aware that an event or change of circumstances is likely to occur; and

(b) the event or change of circumstances is likely to affect:

(i) the ability of the nominee to act as the payment nominee or correspondence nominee of the person, as the case may be; 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) Subject to subsection (3), a notice under subsection (1):

(a) must be in writing; and

(b) may be given personally or by post or by any other means approved by the Secretary; and

(c) must specify how the nominee is to give the information to the Department; and

(d) must specify the period within which the nominee is to give the information to the Department.

(3) A notice under subsection (1) is not ineffective merely because it fails to comply with paragraph (2)(c).

(4) Subject to subsection (5), the period specified under paragraph (2)(d) must not end earlier than 14 days after:

(a) the day on which the event or change of circumstances occurs; or

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

(5) If a notice requires the nominee to inform the Department of any proposal by the nominee to leave Australia, subsection (4) does not apply to that requirement.

(6) 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.

219TK Statement by payment nominee regarding disposal of money

(1) The Secretary may give the payment nominee of a person a notice that requires the nominee to give the Department a statement about a matter relating to the disposal by the nominee of an amount paid to the nominee on behalf of the person.

(2) Subject to subsection (3), a notice under subsection (1):

(a) must be in writing; and

(b) may be given personally or by post or by any other means approved by the Secretary; and

(c) must specify how the nominee is to give the statement to the Department; and

(d) must specify the period within which the nominee is to give the statement to the Department.

(3) A notice under subsection (1) is not ineffective merely because it fails to comply with paragraph (2)(c).

(4) The period specified under paragraph (2)(d) must not end earlier than 14 days after the day on which the notice is given.

(5) A statement given in response to a notice under subsection (1) must be in writing and in accordance with a form approved by the Secretary.

(6) A nominee must not refuse or fail to comply with a notice under subsection (1).

Penalty: 60 penalty units.

(7) Subsection (6) applies only to the extent to which the person is capable of complying with the notice.

(8) Subsection (6) does not apply if the person has a reasonable excuse.

(9) An offence against subsection (6) is an offence of strict liability.

(10) 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 5 - Other matters

219TL Protection of person against liability for actions of nominee

Nothing in this Part has the effect of rendering a person guilty of an offence against this Act in respect of any act or omission of the person's correspondence nominee.

219TM Protection of nominee against criminal liability

(1) A nominee of a person is not subject to any criminal liability under the family assistance law in respect of:

(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.

(2) This section has effect subject to section 219TK.

219TN Duty of nominee to principal

(1) It is the duty of a person who is the payment or correspondence nominee of another person at all times to act in the best interests of the principal.

(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, there are reasonable grounds for believing that it is in the best interests of the principal 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, there are reasonable grounds for believing that it is in the best interests of the principal that the act be not done.

219TO Saving of Secretary's powers of revocation

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

219TP Saving of Secretary's powers to give notices to principal

Nothing in this Part is intended in any way to limit or affect the Secretary's powers under other provisions of the family assistance law to give notices to, or make requirements of, a person who has a nominee.

219TQ Notification of nominee where notice given to principal

If, under a provision of the family assistance law (other than a provision of this Part), the Secretary gives a notice to a person who has a correspondence nominee, the Secretary may inform the correspondence nominee of the giving of the notice and of the terms of the notice.

219TR Right of nominee to attend with principal

(1) If:

(a) under a provision of the family assistance law (other than a provision of this Part), the Secretary gives a notice to a person who has a correspondence nominee; and

(b) the notice requires the person:

(i) to attend the Department; or

(ii) to attend a particular place; and

(c) the Secretary informs the person's correspondence nominee of the giving of the notice;

the correspondence nominee may attend the Department or place, as the case may be, with the person if the person so wishes.

(2) If a person's correspondence nominee is a body corporate, the last reference in subsection (1) to the correspondence nominee is to be read as a reference to an officer or employee of the correspondence nominee.