Commonwealth Numbered Acts

STUDENT ASSISTANCE AMENDMENT ACT (No. 2) 1989 No. 171, 1989 - SECT 8

8. After Part V of the Principal Act the following Part is inserted:

"PART VA - OVERPAYMENTS UNDER THIS ACT AND UNDER CERTAIN OTHER ACTS AND
ADMINISTRATIVE SCHEMES

Recovery of certain overpayments by offsetting

"30B. (1) In this section:
'benefit payable under student assistance' includes an advance under section
16A on account of benefit that is expected to become payable under student
assistance.

"(2) Where:

   (a)  whether before or after the commencement of this Part, an amount (in
        this section called the 'overpayment amount' ) that is:

        (i)    a student assistance overpayment; or

        (ii)   a special educational assistance scheme overpayment; or

        (iii)  a prescribed educational scheme overpayment; or

        (iv)   a Social Security or Veterans' legislation overpayment; has
               been paid to or in relation to a person; and

   (b)  there is an unsatisfied liability to the Commonwealth in relation to
        the overpayment amount; and

   (c)  the person to or in relation to whom the overpayment amount was paid
        is receiving, or entitled to receive, benefit payable under student
        assistance (whether the benefit is being paid, or to be paid, to the
        person or is, under a determination under subsection 16 (2), being
        paid, or to be paid, to another person); each payment of the benefit
        is to be reduced by such proportion or amount (if any) as is
        determined by a prescribed officer until the liability is satisfied.

"(3) If a payment of the benefit is reduced under subsection (2), the payment
of the benefit is to be taken to have been made in full and the amount of the
reduction is to be taken to have been paid to the Commonwealth in satisfaction
or partial satisfaction, as the case requires, of the liability.

"(4) If there are 2 or more unsatisfied liabilities to the Commonwealth of or
in relation to a person in relation to an amount or amounts of a kind
mentioned in paragraph (2) (a), a prescribed officer may:

   (a)  for the purposes of subsection (2), treat the liabilities as if they
        were a single liability; and

   (b)  for the purposes of subsection (3), apportion the amount of each
        reduction under that subsection between the liabilities in such
        proportions as the prescribed officer considers appropriate.

"(5) A determination or apportionment made by a prescribed officer under this
section must be made in writing.

"(6) In this section, a reference to a liability to the Commonwealth in
relation to an amount of a kind mentioned in paragraph (2) (a) includes a
reference to a liability to the Commonwealth that consists of an amount
payable as late payment charge or interest in relation to an amount of a kind
mentioned in that paragraph.

Late payment charge for student assistance overpayments and special
educational assistance scheme overpayments

"30C. (1) Where:

   (a)  whether before or after the commencement of this Part, a person has
        been paid an amount (in this section called the 'recoverable amount' )
        under:

        (i)    this Act; or

        (ii)   a current special educational assistance scheme; or

        (iii)  a former special educational assistance scheme; and

   (b)  the amount would not have been paid but for:

        (i)    a false or misleading statement or representation; or

        (ii)   a contravention of this Act or the regulations;
(whether the statement or representation was made by, or the contravention was
committed by, the person or another person); and

   (c)  the recoverable amount exceeds $50; and

   (d)  the whole or a part of the recoverable amount is still due to the
        Commonwealth; a prescribed officer may give the person a written
        notice that specifies however much of the recoverable amount as is
        still due and draws the person's attention to the terms of subsection
        (2).

"(2) If the whole or a part of the recoverable amount is still due to the
Commonwealth at the end of 3 months after the notice is given to the person,
the person is liable to pay to the Commonwealth an additional amount (not
exceeding $515) calculated by adding $15 and 10% of however much of the
recoverable amount is still due to the Commonwealth at the end of that period.
"(3) Any amount paid to the Commonwealth by or under the authority of the
person in relation to the recoverable amount is to be taken first to reduce
any additional amount payable under subsection (2) in relation to the
recoverable amount.

"(4) A prescribed officer may, for the purposes of this section, treat 2 or
more amounts of a kind referred to in paragraph (1) (a) as if the amounts were
a single amount.

"(5) A prescribed officer must not give a notice under subsection (1) that may
have the effect of making a person liable under subsection (2) to pay an
additional amount in relation to an amount of a kind referred to in paragraph
(1) (a) (in this subsection called the 'overpayment amount' ) if the person
has previously become liable under subsection (2), or subsection 31A (4) of
this Act as in force before the commencement of this Part, to pay an
additional amount (in this subsection called the 'late payment charge' ) in
relation to the overpayment amount and either:

   (a)  the liability to pay the late payment charge has been satisfied; or

   (b)  the person is still liable to pay the whole or a part of the late
        payment charge. Late payment interest on student assistance
        overpayments and special educational assistance scheme overpayments

"30D. (1) Where:

   (a)  whether before or after the commencement of this Part, a person has
        been paid an amount (in this section called the 'recoverable amount' )
        that is a student assistance overpayment or a special educational
        assistance scheme overpayment; and

   (b)  the whole or a part of the recoverable amount is still due to the
        Commonwealth; a prescribed officer may give the person a written
        notice that specifies however much of the recoverable amount as is
        still due and draws the person's attention to the terms of subsection
        (2).

"(2) If the whole or a part of the recoverable amount is still due to the
Commonwealth at the end of 3 months after the notice is given to the person,
the person is liable to pay interest to the Commonwealth, at the rate
ascertained under the regulations, on however much of the recoverable amount
remains due from time to time after the end of that period.

"(3) If:

   (a)  judgment is given by, or entered in, a court for the payment of:

        (i)    the whole or a part of the recoverable amount; or

        (ii)   an amount that consists of the whole or a part of the
               recoverable amount (which whole or part is in this subsection
               called the 'recoverable portion' ) and also another amount; and

   (b)  the judgment debt carries interest; then:

   (c)  the recoverable amount, or the part of the recoverable amount, as the
        case may be, does not, for the purposes of subsection (2), stop being
        due solely because of the giving or entering of the judgment; and

   (d)  the interest that would, but for this subsection, be payable under
        this section in relation to the recoverable amount is reduced by:

        (i)    if subparagraph (a) (i) applies - the amount of the interest on
               the judgment debt; or

        (ii)   if subparagraph (a) (ii) applies - the amount worked out using
               the following formula:

interest on judgment debt X recoverable portion
judgment debt

"(4) Subject to subsection 30C (3), any amount paid to the Commonwealth by or
under the authority of the person in relation to the recoverable amount is to
be taken first to reduce any interest payable under this section in relation
to the recoverable amount.

"(5) Interest is not payable under this section in relation to the recoverable
amount in relation to any period during which an instrument under paragraph
30G (2)(c) is in force in relation to the recoverable amount unless the
instrument provides that interest is to be so payable or an instalment is not
paid in accordance with the instrument.

"(6) If a person has unsatisfied liabilities to the Commonwealth in relation t
more than one student assistance overpayment or special educational assistance
scheme overpayment, a prescribed officer may, for the purposes of subsection
(1), treat the overpayments as if they were a single amount. Determination
that late payment interest not to be payable in relation to particular periods

"30E. (1) The Minister or a prescribed officer may, in writing, determine that
interest that would otherwise be payable by a person under section 30D in
relation to a period is not payable.

"(2) The determination may relate to a period before, or period that includes
period before, the making of the determination.

"(3) The determination may be expressed to be subject to the person complying
with specified conditions.

"(4) The Minister or the prescribed officer must give a copy of the
determination to the person as soon as practicable after making the
determination.

"(5) Contravention of subsection (4) does not invalidate the determination.

"(6) If:

   (a)  the determination is expressed to be subject to the person complying
        with specified conditions; and

   (b)  the person contravenes a condition; the determination ceases to have
        effect.

"(7) The determination may, at any time, be cancelled or varied by the Ministe
or a prescribed officer by written notice given to the person. Recovery of
certain overpayments from third parties etc.

"30F. (1) In this section:
'recoverable amount' means an amount of any of the following kinds (whether
the amount was paid, or became payable, before or after the commencement of
this Part):

   (a)  a student assistance overpayment;

   (b)  a special educational assistance scheme overpayment;

   (c)  an amount payable to the Commonwealth in relation to an amount of a
        kind referred to in paragraph (a) or (b) (including an amount payable
        as late payment charge under section 30C or interest under section
        30D).

"(2) This section applies where:

   (a)  the liability of a person (in this section called the 'debtor' ) to
        the Commonwealth in relation to a recoverable amount has not been
        fully satisfied; and

   (b)  there is another person (in this section called the 'third party' ):

        (i)    by whom any money is due, or may become due, to the debtor; or

        (ii)   who holds, or may subsequently hold, money for the debtor; or

        (iii)  who holds, or may subsequently hold, money for some other
               person for payment to the debtor; or

        (iv)   who has authority from some other person to pay money to the
               debtor.

"(3) A prescribed officer may, by written notice given to the third party,
require the third party to pay to the Commonwealth:

   (a)  a specified amount, not being an amount more than:

        (i)    the amount then due to the Commonwealth in relation to the
               recoverable amount; or

        (ii)   the amount of the money referred to in whichever of the
               subparagraphs of paragraph (2) (b) is applicable; or

   (b)  a specified amount out of each payment that the third party becomes
        liable from time to time to make to the debtor until the total of the
        amounts paid to the Commonwealth under the notice equals the amount
        then due to the Commonwealth in relation to the recoverable amount.

"(4) A payment required to be made by the notice is to be made within the time
specified in the notice, not being a time earlier than:

   (a)  the money concerned becomes due or is held; or

   (b)  14 days after the notice is given.

"(5) The third party must not, without reasonable excuse, contravene the
notice.
Penalty: Imprisonment for 1 year.

"(6) The prescribed officer must give a copy of the notice to the debtor.

"(7) Contravention of subsection (6) does not invalidate the notice.

"(8) If the third party makes a payment to the Commonwealth under the notice,
the payment is to be taken to have been made with the authority of the debtor
and of any other person concerned.

"(9) If the whole or a part of the recoverable amount stops being due to the
Commonwealth otherwise than because of a payment made by the third party, the
following provisions have effect:

   (a)  a prescribed officer must notify the third party of the amount that
        has stopped being due;

   (b)  if paragraph (3) (a) applies to the notice - the amount specified in
        the notice is to be taken to be reduced, or further reduced, as the
        case requires, by the amount that has stopped being due;

   (c)  if paragraph (3) (b) applies to the notice - the reference in that
        paragraph to the total of the amounts paid to the Commonwealth under
        the notice is to be taken to be a reference to that total as
        increased, or further increased, as the case requires, by the amount
        that has stopped being due.

"(10) If the third party, without reasonable excuse, contravenes the notice, a
amount equal to:

   (a)  so much (if any) of the amount required by the notice to be paid by
        the third party as the third party was able to pay to the Commonwealth
        but did not pay; or

   (b)  so much of the recoverable amount as remains due to the Commonwealth
        from time to time; whichever is the lesser, is a debt due by the third
        party to the Commonwealth.

"(11) If:

   (a)  the third party is indebted to the Commonwealth under subsection (10);
        and

   (b)  the Commonwealth recovers the whole or a part of the third party's
        debt; the debtor's liability to the Commonwealth in relation to the
        recoverable amount is reduced or further reduced, as the case
        requires, by the amount recovered from the third party.

"(12) If, apart from this section, money is not due or payable on demand by th
third party unless a condition is fulfilled, the money is to be taken, for the
purposes of this section, to be due or payable on demand, whether or not the
condition has been fulfilled.

"(13) If a person has unsatisfied liabilities to the Commonwealth in relation
to more than one recoverable amount, a prescribed officer may:

   (a)  for the purposes of this section, treat the amounts as if they were a
        single amount; and

   (b)  apportion any amount recovered under this section in relation to the
        amounts between them in such proportions as the prescribed officer
        considers appropriate.

"(14) An apportionment made by a prescribed officer under subsection (13) must
be made in writing.

Write off and waiver of certain overpayments etc.

"30G. (1) In this section:
'recoverable amount' means an amount of any of the following kinds (whether
the amount was paid, or became payable, before or after the commencement of
this Part):

   (a)  a student assistance overpayment;

   (b)  a special educational assistance scheme overpayment;

   (c)  an amount payable to the Commonwealth in relation to an amount of a
        kind referred to in paragraph (a) or (b) (including an amount payable
        as late payment charge under section 30C or interest under section
        30D).

"(2) The Minister or a prescribed officer may, on behalf of the Commonwealth,
in writing:

   (a)  write off the whole or a part of a recoverable amount; or

   (b)  waive the right of the Commonwealth to recover the whole or a part of
        a recoverable amount; or

   (c)  allow a recoverable amount to be repaid or paid in instalments.

"(3) A decision under subsection (2) takes effect:

   (a)  on the day specified in the instrument concerned; or

   (b)  if no day is specified - on the day on which the decision is made.

"(4) Subject to subsection (5), proceedings for the recovery from a person of
recoverable amount must be started within 6 years after the day on which the
amount became due to the Commonwealth by the person.

"(5) If the liability of a person to the Commonwealth in relation to a
recoverable amount arose because the person:

   (a)  made a false or misleading statement or representation; or

   (b)  contravened this Act or the regulations; proceedings for the recovery
        of the amount may be started within 6 years of an officer or employee
        of the Department becoming aware:

   (c)  that the statement or representation was false or misleading; or

   (d)  of the contravention; as the case may be.

"(6) Subsections (5) and (6) are not to be taken to prevent action being taken
under this Part at any time in relation to a recoverable amount. Ministerial
guidelines

"30H. (1) The Minister may, in writing, determine guidelines to be complied
with by the Minister and other persons in the exercise of powers under this
Part.

"(2) A determination under subsection (1) is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act 1901 .".