New South Wales Bills New South Wales Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
State Debt Recovery Bill 2018
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Definitions 2
4 Public authority--meaning 3
Part 2 Chief Commissioner authorised to recover State debts
5 Chief Commissioner may take action to recover State debts 5
6 State debt--meaning 5
7 Referable debt--meaning 5
8 Tax debt--meaning 5
9 Grant debt--meaning 5
10 Summary of debt recovery procedures 5
11 Debt recovery action cannot be taken against minors 6
12 Debt recovery guidelines 6
Part 3 Referable debts and initiation of debt recovery
Division 1 Debt notices
13 Responsible authority may serve debt notice for State debt 8
14 What is a debt notice 8
State Debt Recovery Bill 2018 [NSW]
Contents
Page
15 Revocation of debt notice 8
Division 2 Referral of debt to Chief Commissioner
16 Referral of debt to Chief Commissioner 8
17 How referral is made 9
18 Information to be provided on referral 9
19 Revocation of referral 9
Division 3 Administrative arrangements relating to referable debts
20 Debt recovery agreements 10
21 Functions of responsible authority are limited after referral 10
22 Interest ceases to accrue on referral 10
23 Chief Commissioner may exercise functions of responsible authority 11
Division 4 Internal reviews
24 Responsible authority may conduct review 11
25 Debts for which internal review is available 11
26 Application for internal review 11
27 Circumstances in which review is to be conducted 12
28 Request for additional information 12
29 Mandatory suspension of debt recovery action for timely review
application 12
30 Discretionary suspension of debt recovery action in other cases 13
31 Actions to be taken after review 13
32 Change of payment arrangements 14
33 Notice of outcome of application 14
34 Chief Commissioner exercising functions of responsible authority 14
Part 4 Debt recovery orders
Division 1 Debt recovery orders
35 What is a debt recovery order 15
36 When order can be made--referable debts 15
37 When order can be made--tax debts and grant debts 15
Division 2 Form and notice of debt recovery order
38 Content of debt recovery order 15
39 Service on debtor of notice of order 16
40 What notice must say 16
41 Final date for payment in notices 16
42 Extension of final date if notice takes more than 7 days 16
43 Amendment of debt recovery order 17
Part 5 Election to have matter dealt with by court--referable debts
44 Election to have referable debt dealt with by court 18
45 Deadline for court election 18
46 Internal review to be conducted 18
47 Debt recovery order to be revoked 19
48 Chief Commissioner may obtain judgment for referable debt 19
Page 2
State Debt Recovery Bill 2018 [NSW]
Contents
Page
49 Chief Commissioner entitled to costs if judgment for debt is obtained
from a court 19
Part 6 Debt recovery actions
Division 1 General
50 When debt recovery action is authorised 20
51 Debt recovery action--meaning 20
52 More than one type of debt recovery action can be taken 20
53 Debt recovery guidelines 20
Division 2 Principal debt recovery actions
54 Property seizure order 20
55 Garnishee order 21
56 Registration of debt recovery order as charge on land 21
Division 3 Ancillary functions
57 Power to require information, records and attendance 22
58 Power of entry to execute property seizure order 23
59 Power of person executing order or warrant to demand name and
address 23
Part 7 Time to pay and hardship
Division 1 Time to pay
60 Time to pay order 25
61 Amendment of time to pay order 25
62 Revocation of time to pay order 26
63 Time to pay order taken to be refused 26
Division 2 Powers of Chief Commissioner in hardship cases
64 Power to revoke debt recovery order (referable debts) 26
65 Garnishee order refunds in case of hardship 26
66 Functions of Hardship Review Board not affected 26
Division 3 Hardship Review Board
67 Hardship Review Board 26
68 Functions of Hardship Review Board 27
69 Applications for review 27
70 Review procedure 27
71 Suspension of debt recovery action 27
72 Powers of Hardship Review Board following review 27
73 Disclosure of information by Hardship Review Board 28
74 Refunds to be given if required by Board 28
Part 8 Suspension and cancellation of debt recovery action
Division 1 Preliminary
75 Review--meaning 29
Page 3
State Debt Recovery Bill 2018 [NSW]
Contents
Page
Division 2 Suspension of debt recovery action
76 Circumstances in which debt recovery action must be suspended 29
77 How debt recovery action is suspended 29
78 Circumstances in which debt recovery action may be resumed 30
79 How debt recovery action is resumed 30
Division 3 Cancellation of debt recovery action
80 Power to revoke debt recovery order 30
81 Circumstances in which power may be exercised 30
82 Consequences of revocation 31
83 How Chief Commissioner cancels debt recovery action 31
84 Debt recovery action taken to be cancelled in certain circumstances 31
Part 9 Interest and debt recovery costs
Division 1 Interest
85 Interest may be charged 32
86 Interest forms part of State debt 32
Division 2 Debt recovery costs
87 Debt recovery costs to be paid 32
88 Prescribed debt recovery costs 32
89 Sheriff's additional costs 33
90 Debt recovery costs form part of State debt 33
Part 10 Payment, allocation of payments and refunds
91 Disposition of money paid by or recovered from debtors 34
92 Payment of tax debts and grant debts 34
93 Payment of referable debts 34
94 Amounts recovered to be applied towards debt recovery costs first 34
95 Allocation of recovered amounts between State debts 34
96 Entitlement to refund 35
97 Payment of refunds 35
Part 11 Administration
98 Chief Commissioner to administer debt recovery action 36
99 Use of name "State Debt Recovery" 36
100 Employees 36
101 Delegation 36
102 Personal liability 36
103 Registration of debt recovery orders 37
Part 12 Access to and disclosure of information
104 Disclosure of identifying information 38
105 Access to information held by police, NSW government agencies and
State owned corporations 38
106 Access to information held by employers 38
107 Access to and use of information held by credit reporting bodies 39
108 Disclosure of information 39
Page 4
State Debt Recovery Bill 2018 [NSW]
Contents
Page
Part 13 Miscellaneous
109 Joint and several liability 41
110 Functions of responsible authority 41
111 Act binds Crown 41
112 Form of notices 41
113 Requirement for notices to be in writing 41
114 Electronic transmission of documents to Sheriff 41
115 Service of notices 42
116 Nature of proceedings for offences 42
117 Regulations 42
Schedule 1 Referable debts 44
Schedule 2 Savings, transitional and other provisions 45
Schedule 3 Consequential amendments 46
Page 5
I certify that this public bill, which originated in the Legislative Assembly, has finally passed
the Legislative Council and the Legislative Assembly of New South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, ,
New South Wales
State Debt Recovery Bill 2018
Act No , 2018
An Act to make provision for the recovery of State debts; and for other purposes.
I have examined this bill and find it to correspond in all respects with the bill as finally
passed by both Houses.
Assistant Speaker of the Legislative Assembly.
State Debt Recovery Bill 2018 [NSW]
Part 1 Preliminary
The Legislature of New South Wales enacts:
Part 1 Preliminary
1 Name of Act
This Act is the State Debt Recovery Act 2018.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Definitions
(1) In this Act:
authorised officer means a person employed in the Public Service to assist the Chief
Commissioner in the exercise of functions under this Act who is authorised to
exercise the function in relation to which the expression is used.
Chief Commissioner means the Chief Commissioner of State Revenue under the
Taxation Administration Act 1996.
debt notice means:
(a) in relation to a tax debt--a debt notice under the Taxation Administration Act
1996, or
(b) in relation to a grant debt--a debt notice under the First Home Owner Grant
(New Homes) Act 2000, the Payroll Tax Rebate Scheme (Jobs Action Plan) Act
2011 or the Small Business Grants (Employment Incentive) Act 2015, or
(c) in relation to a referable debt--a debt notice within the meaning of section 14.
debt recovery action--see section 51.
debt recovery agreement--see section 20.
debt recovery costs means the debt recovery costs payable under a debt recovery
order, being:
(a) the prescribed debt recovery costs, and
(b) the Sheriff's additional costs (if any).
Note. See Part 9.
debt recovery guidelines--see section 12.
debt recovery order means an order under section 35.
debtor means a person who:
(a) is liable to pay a tax debt, a grant debt or a referable debt under a debt notice, or
(b) is or may be liable to pay a State debt.
garnishee order means an order under section 55.
grant debt--see section 9.
hardship review--see section 68.
Hardship Review Board means the Hardship Review Board constituted under Part 7.
identifying information--see section 104.
internal review means a review under Division 4 of Part 3.
pay a debt or amount means to pay the debt or amount in full by its due date and, if
payment by instalments is permitted under this Act, includes to pay each instalment
in full by its due date.
Page 2
State Debt Recovery Bill 2018 [NSW]
Part 1 Preliminary
personal information means personal information under the Privacy and Personal
Information Protection Act 1998 or personal information that is health information
under the Health Records and Information Privacy Act 2002.
prescribed debt recovery costs means the debt recovery costs prescribed under
section 88.
property seizure order means an order under section 54.
public authority--see section 4.
referable debt--see section 7.
referral date in relation to a referable debt means the date on which the referable debt
is referred by the responsible authority to the Chief Commissioner for the making of
a debt recovery order under this Act.
referring officer means:
(a) in relation to a referable debt referred to in Schedule 1, the person specified in
Column 2 of that Schedule opposite the referable debt concerned or a delegate
of that person, or
(b) in relation to any other referable debt, any person authorised under a debt
recovery agreement relating to the referable debt to exercise the functions of a
referring officer under this Act.
responsible authority for a referable debt means the public authority to which the
referable debt is payable.
Sheriff's additional costs means the costs payable in respect of the Sheriff under
section 89.
State debt--see section 6.
statutory internal review means any review or other procedure that is declared by
another Act to be a statutory internal review for the purposes of this Act.
tax debt--see section 8.
the State means the Crown within the meaning of the Crown Proceedings Act 1988
and includes the Chief Commissioner.
time to pay order means an order under section 60.
unpaid debt includes a debt that has not been paid in full.
vulnerable person means a person who has a mental illness, has an intellectual
disability or cognitive impairment, is homeless, is experiencing acute economic
hardship or has a serious addiction to drugs, alcohol or volatile substances.
Note. The Interpretation Act 1987 contains definitions and other provisions that affect the
interpretation and application of this Act.
(2) Notes included in this Act do not form part of this Act.
4 Public authority--meaning
(1) In this Act, a public authority means any public or local authority constituted by or
under an Act, a Public Service agency or a NSW Government agency.
(2) A public authority includes:
(a) a body constituted or established by or under an Act of New South Wales,
whether or not it represents the Crown, and
(b) a person exercising functions on behalf of a public authority, and
(c) a wholly-owned subsidiary (within the meaning of the Corporations Act 2001
of the Commonwealth) of one or more public authorities, and
(d) any person or body declared by the regulations to be a public authority for the
purposes of this Act.
Page 3
State Debt Recovery Bill 2018 [NSW]
Part 1 Preliminary
(3) A public authority does not include a State owned corporation, unless it is declared
by the regulations to be a public authority for the purposes of this Act.
(4) A public authority does not include any person or body excluded by the regulations.
(5) In this Act, a reference to a fee, charge or other amount payable to a public authority
includes a reference to a fee, charge or other amount that is charged or administered
by the public authority and which, on recovery or payment, is payable to the
Consolidated Fund.
Page 4
State Debt Recovery Bill 2018 [NSW]
Part 2 Chief Commissioner authorised to recover State debts
Part 2 Chief Commissioner authorised to recover State debts
5 Chief Commissioner may take action to recover State debts
The Chief Commissioner may take debt recovery action as authorised by this Act for
the purpose of recovering a State debt.
6 State debt--meaning
A State debt is any of the following:
(a) a referable debt,
(b) a tax debt,
(c) a grant debt.
7 Referable debt--meaning
(1) A referable debt means:
(a) a fee, charge or other amount payable that is specified in Schedule 1, or
(b) a fee, charge or other amount that is declared to be a referable debt by order
under subsection (2).
(2) The Chief Commissioner may, by order published on the NSW legislation website,
declare any specified kind of fee, charge or other amount payable to the State or a
specified public authority to be a referable debt.
(3) Sections 40 and 41 of the Interpretation Act 1987 apply in relation to an order under
subsection (2) in the same way as they apply to a statutory rule.
(4) A referable debt does not include:
(a) a fine (within the meaning of the Fines Act 1996), or
(b) an amount of a kind excluded by the regulations.
8 Tax debt--meaning
A tax debt means a tax debt under the Taxation Administration Act 1996.
9 Grant debt--meaning
A grant debt means:
(a) a grant debt under the First Home Owner Grant (New Homes) Act 2000, or
(b) a rebate debt under the Payroll Tax Rebate Scheme (Jobs Action Plan) Act
2011, or
(c) a grant debt under the Small Business Grants (Employment Incentive) Act
2015.
10 Summary of debt recovery procedures
(1) Generally, the procedure for recovery of a referable debt is as follows:
(a) the responsible authority for the referable debt may serve a debt notice for the
referable debt on the debtor (see Part 3),
(b) if the referable debt is not paid within 7 days of the due date specified in the
debt notice, the responsible authority for the referable debt may refer the debt
to the Chief Commissioner for the making of a debt recovery order under this
Act,
(c) the Chief Commissioner may then make a debt recovery order against the
debtor (see Part 4),
Page 5
State Debt Recovery Bill 2018 [NSW]
Part 2 Chief Commissioner authorised to recover State debts
(d) if the referable debt is not paid within 7 days of the due date specified in the
notice of debt recovery order, the Chief Commissioner is authorised to take
debt recovery action in respect of the debt under Part 6,
(e) the types of debt recovery action that can be taken are specified in Part 6.
(2) Generally, the procedure for recovery of a tax debt or grant debt is as follows:
(a) the Chief Commissioner may serve a debt notice for the tax debt or grant debt
on the debtor under the legislation under which the debt is incurred,
(b) if the debt is not paid within 7 days of the due date specified in the debt notice,
the Chief Commissioner may then make a debt recovery order under this Act
(see Part 4),
(c) if the debt is not paid within 7 days of the due date specified in the notice of
debt recovery order, the Chief Commissioner is authorised to take debt
recovery action in respect of the debt under Part 6,
(d) the types of debt recovery action that can be taken are specified in Part 6.
(3) For referable debts, at various stages of the debt recovery process the debtor is given
an opportunity:
(a) to obtain an internal review of the decision to recover the debt (see Part 3), or
(b) to elect to have the matter dealt with by a court (see Part 5), or
(c) to apply for hardship relief (see Part 7).
(4) For tax debts and grant debts, an objection or review procedure is available under the
legislation under which those debts are incurred. Those Acts also make provision for
hardship relief.
(5) For all State debts, the debtor may apply for a time to pay order (see Part 7).
(6) This section is a summary of debt recovery procedures and does not affect the
provisions of this or any other Act that it summarises.
11 Debt recovery action cannot be taken against minors
(1) Despite any other provision of this Act, the taking of debt recovery action in respect
of a State debt is not authorised if:
(a) the debtor is a minor, or
(b) the State debt was incurred when the debtor was a minor.
(2) If the Chief Commissioner ascertains that a debtor in relation to a State debt is a
minor, the Chief Commissioner must revoke any debt recovery order made in
relation to that State debt.
(3) This section does not prevent the taking of debt recovery action against a person who
is jointly and severally liable with a minor for a State debt.
Note. Section 21 (1) of the Interpretation Act 1987 defines a minor as an individual who is
under the age of 18 years.
12 Debt recovery guidelines
(1) The Minister may, by order, make guidelines (debt recovery guidelines) with respect
to the following:
(a) the exercise by the Chief Commissioner of the Chief Commissioner's
functions under this Act, including the following:
(i) the making of debt recovery orders, and the taking of debt recovery
action, in relation to vulnerable persons,
(ii) payment allocation between multiple State debts,
Page 6
State Debt Recovery Bill 2018 [NSW]
Part 2 Chief Commissioner authorised to recover State debts
(b) the exercise, by the Commissioner of Fines Administration under the Fines
Act 1996, of the Commissioner's functions under that Act with respect to State
debts.
(2) The Minister is to consult with the Attorney General about the debt recovery
guidelines.
(3) The Minister is required to make the debt recovery guidelines public.
(4) The Chief Commissioner, and the Commissioner of Fines Administration under the
Fines Act 1996, are required to comply with the debt recovery guidelines.
(5) The debt recovery guidelines must not be inconsistent with this Act or the
regulations.
Page 7
State Debt Recovery Bill 2018 [NSW]
Part 3 Referable debts and initiation of debt recovery
Part 3 Referable debts and initiation of debt recovery
Note. This Part applies only to referable debts. It sets out the steps that are preliminary to the making of a
debt recovery order under Part 4. This includes provisions which require the responsible authority for the
referable debt to serve on a debtor a debt notice for the referable debt before referring it to the Chief
Commissioner for debt recovery action. For tax debts and grant debts, debt notices are issued by the Chief
Commissioner under the legislation under which those debts are incurred.
Division 1 Debt notices
13 Responsible authority may serve debt notice for State debt
A responsible authority for any referable debt that is unpaid may serve a debt notice
on the person by whom the referable debt is payable.
14 What is a debt notice
(1) A debt notice is a notice to the effect that the person to whom it is directed is required
to pay a specified referable debt by a date specified in the notice.
(2) The date must be a date that is at least 21 days after the debt notice is served on the
person.
(3) A debt notice must specify particulars of the referable debt, including any particulars
required to be included in the debt notice by any other Act.
(4) The debt notice must advise the person to whom it is directed:
(a) that, if the person does not pay the debt in full by the date specified for
payment, the matter may be referred to the Chief Commissioner to take debt
recovery action under this Act and debt recovery costs may become payable
by the person, and
(b) of the review options that are available in relation to the decision to recover
the referable debt, and
(c) if the person can seek a time to pay order in respect of the referable debt, how
an application for a time to pay order should be made.
(5) A debt notice may include any other information that the responsible authority
considers it appropriate to include.
(6) A notice in relation to a referable debt is taken to be a debt notice if another Act
declares that notice to be a debt notice for the purposes of this Act.
15 Revocation of debt notice
(1) The responsible authority for a referable debt may revoke a debt notice.
(2) The responsible authority must not revoke a debt notice after the matter has been
referred to the Chief Commissioner for the making of a debt recovery order, unless
the referral is first revoked.
Division 2 Referral of debt to Chief Commissioner
16 Referral of debt to Chief Commissioner
(1) A responsible authority for a referable debt may refer the referable debt to the Chief
Commissioner for the making of a debt recovery order if:
(a) the responsible authority has served a debt notice for the referable debt on the
person by whom the referable debt is payable, and
(b) the referable debt has not been paid at the end of 7 days after the date for
payment specified in the debt notice, and
Page 8
State Debt Recovery Bill 2018 [NSW]
Part 3 Referable debts and initiation of debt recovery
(c) the referable debt remains unpaid.
(2) A responsible authority for a referable debt may also refer the referable debt to the
Chief Commissioner for the making of a debt recovery order if:
(a) the responsible authority receives an application for time to pay in relation to
the referable debt, and
(b) the debt recovery agreement between the Chief Commissioner and the
responsible authority permits the responsible authority to refer time to pay
matters to the Chief Commissioner.
(3) A responsible authority is not to refer a referable debt to the Chief Commissioner if
the responsible authority is conducting an internal review of the referable debt and
the review is not complete.
17 How referral is made
(1) A referral is to be made by a referring officer acting on behalf of the responsible
authority.
(2) The referring officer may refer a referable debt to the Chief Commissioner for the
making of a debt recovery order by giving the Chief Commissioner notice in writing
of the referral.
(3) The referral is to be made in accordance with any debt recovery agreement relating
to the referable debt.
(4) Subject to subsection (2), the referral may be made by post, document exchange,
facsimile transmission or other electronic transmission.
18 Information to be provided on referral
(1) A referring officer must, for the purpose of enabling the taking of debt recovery
action under this Act, provide the following information to the Chief Commissioner
in relation to any referable debt that is referred to the Chief Commissioner:
(a) identifying information about the person by whom the debt is payable,
(b) particulars of the debt, including any particulars required to be provided under
a debt recovery agreement,
(c) whether an internal review has been conducted in relation to the referable debt,
(d) any other information the referring officer is required to provide under any
other Act or law,
(e) any other information of a kind prescribed by the regulations.
(2) A requirement to provide identifying information is a requirement to provide so
much of that identifying information as is known to the referring officer.
19 Revocation of referral
(1) A referring officer may at any time, by notice in writing to the Chief Commissioner,
revoke the referral of a referable debt.
(2) The Chief Commissioner is not to make a debt recovery order in relation to a
referable debt if, before an order is made, the referring officer revokes the referral.
Note. The Chief Commissioner must revoke a debt recovery order made in relation to a
referable debt if the referral is revoked.
Page 9
State Debt Recovery Bill 2018 [NSW]
Part 3 Referable debts and initiation of debt recovery
Division 3 Administrative arrangements relating to referable debts
20 Debt recovery agreements
(1) The Chief Commissioner may enter into an agreement with a public authority (a debt
recovery agreement) about the taking of debt recovery action under this Act in
respect of fees, charges or other amounts payable to the public authority.
(2) A debt recovery agreement may make provision for any or all of the following:
(a) the referral of fees, charges or other amounts to the Chief Commissioner for
the taking of debt recovery action under this Act,
(b) the exercise by the Chief Commissioner of any of the public authority's
functions in respect of the collection and recovery of fees, charges or other
amounts payable to the public authority (including functions of the public
authority under this Act),
(c) the payment of amounts recovered to the public authority, including provision
for recovery of overpayments,
(d) the fees to be charged by the Chief Commissioner for the taking of debt
recovery action under this Act, and the deduction of those fees from amounts
recovered,
(e) other ancillary or related matters.
(3) A debt recovery agreement must not be inconsistent with this Act.
(4) A debt recovery agreement is subject to the debt recovery guidelines.
(5) The Chief Commissioner may decline to take debt recovery action in respect of any
referable debt that is not the subject of a debt recovery agreement.
21 Functions of responsible authority are limited after referral
(1) A responsible authority cannot do any of the following in respect of a referable debt
after the referable debt is referred to the Chief Commissioner for debt recovery action
under this Act:
(a) take or maintain proceedings to recover the referable debt,
(b) accept an amount in or towards payment of the referable debt,
(c) enter into any agreement with a person regarding payment of the referable
debt,
(d) write off, waive payment of or reduce the referable debt or any accrued
interest.
(2) Subsection (1) applies on and from the referral date.
(3) Subsection (1) does not affect the validity of anything done by the responsible
authority before the referral date.
(4) Subsection (1) ceases to apply if the responsible authority revokes the referral of the
referable debt to the Chief Commissioner.
(5) This section is subject to the provisions of any debt recovery agreement between the
responsible authority and the Chief Commissioner.
(6) This section does not limit any function of the Chief Commissioner in respect of the
referable debt (whether under this Act or under a debt recovery agreement).
22 Interest ceases to accrue on referral
(1) A responsible authority is not entitled to charge interest on a referable debt on or after
the referral date for the referable debt.
Page 10
State Debt Recovery Bill 2018 [NSW]
Part 3 Referable debts and initiation of debt recovery
(2) Subsection (1) ceases to apply if the referral is revoked. However, the responsible
authority cannot charge interest for the period between the referral date and the date
the referral is revoked.
(3) This section applies despite the provisions of any Act or law or agreement under
which the responsible authority charges interest on a referable debt.
(4) This section does not affect the charging of interest on a referable debt for which
judgment has been given by a court.
(5) This section does not affect Part 9.
Note. A referable debt, after it is referred to the Chief Commissioner, accrues interest under
Part 9 if the debt is not paid by the due date for payment specified in a notice of debt recovery
order. Judgment debts are charged with interest as provided for by the Civil Procedure Act
2005.
23 Chief Commissioner may exercise functions of responsible authority
(1) The Chief Commissioner may, if authorised to do so by a debt recovery agreement,
exercise on behalf of a responsible authority any of the functions of the responsible
authority under this Act.
(2) A reference in this Act to the Chief Commissioner acting on behalf of a responsible
authority is a reference to the Chief Commissioner exercising functions on behalf of
the responsible authority as authorised by a debt recovery agreement.
Division 4 Internal reviews
Note. For grant debts, an objection and review procedure is available under the Act under which that debt is
incurred.
For tax debts, an objection and review procedure is available under Part 10 of the Taxation Administration
Act 1996.
24 Responsible authority may conduct review
(1) The responsible authority for a referable debt may conduct a review of the referable
debt.
(2) A responsible authority may conduct a review under this Division:
(a) if an application for a review is made by or on behalf of the person served with
a debt notice for the referable debt, or
(b) on the initiative of the responsible authority.
(3) A review under this Division is an internal review.
25 Debts for which internal review is available
(1) An internal review is available in respect of any referable debt for which a debt notice
has been served, other than an excluded debt.
(2) Each of the following debts is an excluded debt:
(a) a referable debt for which there is a statutory internal review,
(b) any other referable debt that is declared by an Act to be an excluded debt for
the purposes of this Division.
Note. For ambulance fees, a statutory internal review is available under Part 6 of Chapter 5A
of the Health Services Act 1997.
26 Application for internal review
(1) An application for an internal review may be made by or on behalf of a person if the
person is served with a debt notice for a referable debt.
Page 11
State Debt Recovery Bill 2018 [NSW]
Part 3 Referable debts and initiation of debt recovery
(2) An application for an internal review:
(a) is to be made in writing to the responsible authority for the referable debt, and
(b) is to include the mailing address of the applicant and the grounds on which the
review is sought (including supporting information or evidence).
(3) An application for an internal review may be made even if:
(a) a debt recovery order has been made against the person in relation to the
referable debt, or
(b) the whole or part of the referable debt has been paid.
(4) An application for an internal review may be made to the Chief Commissioner if a
debt recovery order has been made for the referable debt or if the Chief
Commissioner served the debt notice on behalf of the responsible authority.
(5) The Chief Commissioner is to refer the application to the responsible authority,
unless the Chief Commissioner is conducting the review on behalf of the responsible
authority.
(6) An application for an internal review may be made no later than the date specified
for payment in a debt recovery order relating to that referable debt.
(7) For the purposes of this Act, a person duly applies for an internal review if the person
applies for the internal review in accordance with this section.
(8) The regulations may make provision for or with respect to applications for internal
reviews.
27 Circumstances in which review is to be conducted
(1) If a person duly applies for an internal review, the responsible authority must review
the decision to recover the referable debt.
(2) A responsible authority is not required to conduct an internal review:
(a) if an internal review has already been conducted in relation to the referable
debt under this Division, or
(b) if the applicant has failed to provide sufficient supporting information or
evidence to conduct the review, or
(c) in such other circumstances as may be prescribed by the regulations.
(3) The responsible authority may determine the procedure for an internal review.
28 Request for additional information
(1) Before or during the conduct of an internal review, the responsible authority may, by
notice in writing served on an applicant, request additional information from the
applicant.
(2) The additional information must be provided by the applicant to the responsible
authority within 28 days of service of the request.
(3) If the information is not provided within the time specified, the responsible authority:
(a) may refuse to conduct, or may terminate, an internal review, or
(b) may conduct the internal review without that information.
29 Mandatory suspension of debt recovery action for timely review application
(1) If an application for an internal review is made before the earliest referral date for the
referable debt, the following applies during the review period:
Page 12
State Debt Recovery Bill 2018 [NSW]
Part 3 Referable debts and initiation of debt recovery
(a) the responsible authority must not refer the referable debt to the Chief
Commissioner for the making of a debt recovery order,
(b) the requirement to pay the referable debt under the debt notice is suspended.
(2) The earliest referral date is the date that is 7 days after the due date for payment of
the referable debt specified in the debt notice for the referable debt.
(3) The review period is the period starting on (and including) the day on which the
application is received by the responsible authority and ending on (and including) the
day on which notice of the outcome of the review application is served on the person
who sought the review.
Note. Notice served by post is taken to be served on the person 7 days after it is sent, unless
the person establishes otherwise.
(4) After conducting the review or deciding not to conduct the review, the responsible
authority must extend the time to pay the referable debt by setting a new due date that
is at least 7 days after the end of the review period.
(5) Subsection (4) does not apply if:
(a) the responsible authority decides to withdraw the debt notice for the referable
debt, or
(b) the due date for the referable debt falls more than 7 days after the end of the
review period.
30 Discretionary suspension of debt recovery action in other cases
A responsible authority that conducts an internal review on an application made after
a referable debt has been referred to the Chief Commissioner for the making of a debt
recovery order may, at its discretion, request the Chief Commissioner to suspend
debt recovery action in respect of the referable debt.
31 Actions to be taken after review
(1) After conducting an internal review, the responsible authority may:
(a) confirm the debt notice, with or without changing the payment arrangements
for the referable debt, or
(b) revoke the debt notice.
(2) The responsible authority must change the payment arrangements for a referable debt
by reducing the amount payable if the amount of the debt was overstated on the debt
notice.
(3) The responsible authority must change the payment arrangements for a referable debt
in any other circumstances required by this Act or the regulations.
(4) The responsible authority must revoke the debt notice:
(a) if the applicant is not liable for the referable debt (including if the issue of the
debt notice involved a mistake of identity), or
(b) in any circumstances prescribed by the regulations.
(5) If the responsible authority revokes a debt notice, the responsible authority must, if
the matter has already been referred to the Chief Commissioner for the making of a
debt recovery order, revoke the referral.
(6) If a debt notice is revoked because of a mistake of identity, the responsible authority
may serve a new debt notice for the referable debt on a person who is liable for
payment of the debt.
(7) The regulations may provide for other circumstances in which a new debt notice can
be served.
Page 13
State Debt Recovery Bill 2018 [NSW]
Part 3 Referable debts and initiation of debt recovery
32 Change of payment arrangements
(1) The responsible authority may, after conducting a review under this Division, change
the payment arrangements for a referable debt by:
(a) reducing the amount payable, or
(b) extending the time to pay, or
(c) permitting the debt to be paid by instalments or reducing instalments.
(2) The responsible authority must change the payment arrangements if required to do
so by this Division.
(3) Otherwise, a decision to change the payment arrangements is at the discretion of the
responsible authority.
(4) The responsible authority changes the payment arrangements for a referable debt by
serving notice in writing of the change on the person who has been served with a debt
notice for the referable debt.
(5) Any debt notice served on the person before notice of the change is taken to be
amended in accordance with the changed payment arrangements.
(6) If the responsible authority permits payment of a referable debt by instalments and
an instalment of the referable debt is not paid by a due date for payment of the
instalment, the remaining instalments immediately become payable.
(7) The responsible authority must not change payment arrangements for a referable
debt after the referable debt has been referred to the Chief Commissioner for the
making of a debt recovery order, unless the referral is first revoked.
Note. The Chief Commissioner must withdraw a debt recovery order made in relation to a
referable debt if the referral is revoked.
33 Notice of outcome of application
(1) The responsible authority is to give an applicant for an internal review notice in
writing of the outcome of the application as soon as practicable after the review is
completed.
(2) A reference in this Act to the outcome of an application includes a reference to a
decision not to conduct a review on an application.
34 Chief Commissioner exercising functions of responsible authority
(1) A reference in this Division to the responsible authority includes a reference to the
Chief Commissioner acting on behalf of the responsible authority.
(2) If the Chief Commissioner conducts an internal review on behalf of a responsible
authority, a requirement to revoke a referral of a referable debt to the Chief
Commissioner is satisfied if the Chief Commissioner revokes the debt recovery order
made as a result of that referral.
Page 14
State Debt Recovery Bill 2018 [NSW]
Part 4 Debt recovery orders
Part 4 Debt recovery orders
Note. A debt recovery order is the pre-cursor to the taking of debt recovery action under Part 6.
Division 1 Debt recovery orders
35 What is a debt recovery order
(1) The Chief Commissioner may make an order for the recovery of a State debt (a debt
recovery order).
(2) A single order may be made for the recovery of 2 or more State debts payable by a
person.
(3) A debt recovery order may be made in the absence of, and without notice to, the
debtor.
(4) The Chief Commissioner may make, but is not required to make, a debt recovery
order if a State debt to which it is to apply has previously been the subject of a debt
recovery order in respect of which any debt recovery action has been taken.
36 When order can be made--referable debts
(1) The Chief Commissioner may make a debt recovery order in respect of a referable
debt if the responsible authority for the referable debt refers the referable debt to the
Chief Commissioner for the making of a debt recovery order.
(2) The Chief Commissioner is not required to inquire into whether this Act authorises
a matter to be referred to the Chief Commissioner for the making of a debt recovery
order.
(3) If the Chief Commissioner serves a debt notice in relation to a referable debt on
behalf of a responsible authority, it is not necessary for the debt to be referred to the
Chief Commissioner for the making of a debt recovery order.
(4) However, the Chief Commissioner is not to make a debt recovery order unless the
matter could have been referred to the Chief Commissioner if the responsible
authority had served the debt notice.
37 When order can be made--tax debts and grant debts
The Chief Commissioner may make a debt recovery order in respect of a tax debt or
grant debt if:
(a) the person by whom the debt is payable has been served with a debt notice for
the State debt, and
(b) the debtor does not pay the State debt within 7 days of the time for payment
specified in the notice, and
(c) the State debt remains unpaid.
Division 2 Form and notice of debt recovery order
38 Content of debt recovery order
A debt recovery order must specify the following matters:
(a) the debtor's name and address,
(b) the debtor's date of birth (if known),
(c) a description of the matter in respect of which the State debt is payable,
(d) the date or dates on which the State debt became payable under the debt notice,
Page 15
State Debt Recovery Bill 2018 [NSW]
Part 4 Debt recovery orders
(e) the amount required to be paid, being the amount of the State debt that remains
to be paid, together with specified debt recovery costs.
39 Service on debtor of notice of order
As soon as practicable after a debt recovery order is made, the Chief Commissioner
is to serve notice of the order on the debtor.
40 What notice must say
(1) The notice of a debt recovery order must inform the debtor of the following:
(a) that the order has been made,
(b) that the debtor has until the final date specified in the notice to pay the State
debt and debt recovery costs specified in the notice,
(c) that, if the payment is not made by that final date, debt recovery action will be
taken against the debtor to recover the State debt in accordance with this Act,
(d) that, if the payment is not made by that final date, further debt recovery costs
will be payable (indicating, except as provided by subsection (2), the amount
of those costs and the circumstances in which they are payable),
(e) of the interest that is payable or that may become payable on the State debt if
it is not paid by that final date,
(f) of the types of debt recovery actions that can be taken under this Act,
(g) of the review options that are available relating to the debt recovery order,
including time to pay and hardship,
(h) of any special arrangements for vulnerable persons,
(i) that, if the State debt is a referable debt, the person can elect to have the matter
dealt with by a court,
(j) that, if the person elects to have the matter dealt with by a court and the
judgment of the court is favourable to the Chief Commissioner, the person
may be required to pay the State's costs in the proceedings.
(2) The notice of a debt recovery order may (but need not) contain information relating
to the Sheriff's additional costs.
(3) The inclusion in the notice of additional information and directions for the assistance
or guidance of the person on whom it is served does not affect the validity of the
notice.
41 Final date for payment in notices
(1) The final date for payment in a notice of a debt recovery order must be at least
21 days after it is served on the person.
(2) Accordingly, a notice that is posted may specify a date that is at least 28 days after
the notice of the debt recovery order is posted as the final date for making the
payment concerned.
42 Extension of final date if notice takes more than 7 days
(1) If a notice is served on a person more than 7 days after it was posted, the notice is not
invalid merely because it specifies as the final date a date that is less than 21 days
after it was served on the person.
(2) In such a case, however, the final date is extended to a date that is 21 days after the
notice was served and the notice is taken to specify that date as the final date.
Page 16
State Debt Recovery Bill 2018 [NSW]
Part 4 Debt recovery orders
43 Amendment of debt recovery order
(1) The Chief Commissioner may, on the application of the person liable to pay a State
debt or on the Chief Commissioner's own initiative, amend a debt recovery order to
correct an error.
(2) An amendment is to be made by notice in writing served on the debtor in the same
way as the notice of the debt recovery order.
(3) An amendment cannot increase the amount payable under the order.
(4) The Chief Commissioner must give the debtor written notice of the amendment as
soon as practicable after amending the debt recovery order.
(5) An amendment made to a debt recovery order does not affect the validity of anything
done before that amendment in relation to the State debt.
Page 17
State Debt Recovery Bill 2018 [NSW]
Part 5 Election to have matter dealt with by court--referable debts
Part 5 Election to have matter dealt with by court--referable
debts
44 Election to have referable debt dealt with by court
(1) A debtor who is served with notice of a debt recovery order for a referable debt may,
by notice in writing to the Chief Commissioner, elect to have the referable debt dealt
with by a court.
(2) A person cannot make that election if judgment for the debt has already been
obtained from a court.
45 Deadline for court election
(1) An election to have a referable debt dealt with by a court is to be made before the
deadline for a court election.
(2) For the purposes of this Act, the deadline for a court election is:
(a) the date for payment of the referable debt specified in a debt recovery order, or
(b) the date that is 28 days after the date notice of the outcome of an internal
review or a statutory internal review in relation to the referable debt is served
on the person,
whichever is the later.
(3) The Chief Commissioner may, by notice in writing to a debtor, accept an election
made after the deadline for a court election if:
(a) the Chief Commissioner has not yet commenced debt recovery action in
respect of the referable debt, or
(b) the Chief Commissioner is satisfied that the debtor was not aware that a debt
recovery order had been made, but only if the election is made within a
reasonable time after service of the debt recovery order, or
(c) the Chief Commissioner is satisfied that the debtor was hindered by accident,
illness, misadventure or other cause from taking action in relation to the debt
recovery order, but only if the election is made within a reasonable time after
the person ceased being so hindered.
(4) For the purposes of this Act, a debtor duly elects to have a referable debt dealt with
by a court if:
(a) the debtor makes an election to have the referable debt dealt with by a court on
or before the deadline for a court election, or
(b) the debtor makes an election to have the referable debt dealt with by a court
after the deadline for a court election and the Chief Commissioner accepts the
election under this section.
(5) An election is made when notice of the election is served on the Chief Commissioner.
46 Internal review to be conducted
(1) If a debtor duly elects to have a referable debt dealt with by a court, and an internal
review has not been conducted in relation to the referable debt, the Chief
Commissioner is to arrange for an internal review to be conducted.
(2) The Chief Commissioner must not take proceedings in a court for the recovery of the
referable debt unless the debt notice for the referable debt is confirmed following that
review.
(3) This section applies only if an internal review is available in respect of the referable
debt.
Page 18
State Debt Recovery Bill 2018 [NSW]
Part 5 Election to have matter dealt with by court--referable debts
47 Debt recovery order to be revoked
(1) If a debtor duly elects to have a referable debt dealt with by a court, the Chief
Commissioner must revoke the debt recovery order relating to that referable debt to
the extent that it relates to that referable debt.
(2) This section does not prevent the Chief Commissioner from making a further debt
recovery order if the Chief Commissioner obtains judgment against the person for
payment of the debt, or any part of the debt, from a court of competent jurisdiction.
48 Chief Commissioner may obtain judgment for referable debt
(1) The Chief Commissioner may take proceedings in a court of competent jurisdiction
to recover a referable debt that has been referred to the Chief Commissioner as a debt
owed to the Chief Commissioner.
(2) If the Chief Commissioner obtains judgment for the debt, the Chief Commissioner
may:
(a) make a debt recovery order for the amount for which judgment was obtained
(including any costs payable under the judgment), and
(b) take debt recovery action under that order in respect of the amount in the
circumstances authorised by this Act.
(3) If the Chief Commissioner makes a debt recovery order in respect of the debt, the
Chief Commissioner cannot take action for the enforcement of the judgment under
Part 8 of the Civil Procedure Act 2005 unless the debt recovery order is revoked.
(4) Subsection (3) does not limit the Chief Commissioner's functions under Part 6.
49 Chief Commissioner entitled to costs if judgment for debt is obtained from a court
(1) If a debtor duly elects to have a referable debt dealt with by a court, and the Chief
Commissioner obtains a judgment from a court in the matter that is favourable to the
Chief Commissioner, the court is to award the Chief Commissioner costs in respect
of the claim unless it appears to the court that some other order should be made as to
the whole or part of the costs.
(2) An order or judgment is favourable to the Chief Commissioner if it requires the
debtor to pay to the Chief Commissioner the whole of the amount specified in the
debt notice or such part of that amount that has not yet been paid (disregarding any
amount awarded by the court for interest or costs).
(3) This section does not apply to a debt notice that is revoked.
Page 19
State Debt Recovery Bill 2018 [NSW]
Part 6 Debt recovery actions
Part 6 Debt recovery actions
Division 1 General
50 When debt recovery action is authorised
The Chief Commissioner is authorised to take debt recovery action in respect of a
State debt only if:
(a) the Chief Commissioner makes a debt recovery order in relation to the State
debt and serves notice of the order on the debtor, and
(b) the debtor does not pay the State debt as required by the notice, and
(c) the State debt remains unpaid 7 days after the due date specified in the notice.
51 Debt recovery action--meaning
The Chief Commissioner takes debt recovery action by exercising any of the
functions conferred on the Chief Commissioner by this Part.
52 More than one type of debt recovery action can be taken
The Chief Commissioner may take any or all, or any combination, of debt recovery
actions, subject to this Act.
53 Debt recovery guidelines
The Chief Commissioner's functions under this Part are subject to the debt recovery
guidelines.
Division 2 Principal debt recovery actions
54 Property seizure order
(1) The Chief Commissioner may make an order (a property seizure order) for the
seizure of the property of a debtor for the purpose of recovering the State debt
payable by the debtor.
Note. The Interpretation Act 1987 defines property to include land as well as personal
property.
(2) A property seizure order is to be directed to the Sheriff and provided to the Sheriff
by the Chief Commissioner for execution.
(3) A property seizure order operates as a writ for the levy of property issued by the
Local Court under Part 8 of the Civil Procedure Act 2005 and, for that purpose, the
Chief Commissioner is taken to be the judgment creditor.
(4) If the Sheriff is required to execute a property seizure order and a writ of execution
issued by a court, or to execute more than one property seizure order, priority to their
execution is to be given in the order in which they are received by the Sheriff, subject
to subsection (5).
(5) The Chief Commissioner may direct the Sheriff to give priority to a property seizure
order over another property seizure order, regardless of the order in which they are
received by the Sheriff.
(6) A property seizure order under the Fines Act 1996 takes priority over a property
seizure order under this Act.
(7) The Sheriff is to return a property seizure order to the Chief Commissioner if the
order has not been executed within 12 months after it was made or if the Sheriff is
satisfied that the order is not capable of execution. The Chief Commissioner is to
Page 20
State Debt Recovery Bill 2018 [NSW]
Part 6 Debt recovery actions
cancel an order so returned, but nothing in this subsection prevents the making of a
further order in the matter.
(8) The Sheriff or other person executing a property seizure order is to cease executing
the order if the order is revoked by the Chief Commissioner.
(9) A property seizure order remains in force until revoked under this Act.
55 Garnishee order
(1) The Chief Commissioner may make an order (a garnishee order) that all debts due
and accruing to a debtor from any person specified in the order are attached for the
purposes of satisfying the State debt payable by the debtor (including an order
expressed to be for the continuous attachment of the wage or salary of the debtor).
(2) A garnishee order operates as a garnishee order made by the Local Court under Part 8
of the Civil Procedure Act 2005 and, for that purpose:
(a) the Chief Commissioner is taken to be the judgment creditor, and
(b) an instalment order under section 107 of that Act includes an order under this
Act by the Chief Commissioner for the payment of a State debt by instalments.
(3) A garnishee order is sufficiently served on a corporation if the order is transmitted
electronically to the corporation and received through an information system
designated by or on behalf of the corporation as the system to be used for the purpose
of receiving the order.
(4) An order served electronically pursuant to subsection (3):
(a) if served after 5 pm on any day--is taken (subject to paragraph (b)) to have
been served on the next day, and
(b) if served on a Saturday, Sunday or public holiday--is taken to have been
served on the next day that is not a Saturday, Sunday or public holiday.
(5) A garnishee order remains in force until revoked under this Act.
56 Registration of debt recovery order as charge on land
(1) The Chief Commissioner may apply to the Registrar-General for registration of a
debt recovery order in relation to any land owned by the debtor (including any land
owned jointly with another person).
(2) An application may not be made under this section unless the amount payable under
the order (or the total amount payable under the orders) to which the application
relates exceeds $1,000 or such other amount as is prescribed by the regulations.
(3) An application under this section must define the land to which it relates.
(4) The Registrar-General must, on application under this section and lodgment of a
copy of the debt recovery order, register the order in relation to the land in such
manner as the Registrar-General thinks fit.
(5) There is created by force of this section, on the registration of the order, a charge on
the land in relation to which the order is registered to secure the payment to the Chief
Commissioner of the amount payable under the order.
(6) Such a charge ceases to have effect in relation to the land:
(a) when the Registrar-General registers the cancellation of the charge on the
application of the Chief Commissioner, or
(b) on the sale or other disposition of the property with the consent of the Chief
Commissioner, or
Page 21
State Debt Recovery Bill 2018 [NSW]
Part 6 Debt recovery actions
(c) on the sale of the land to a purchaser in good faith for value who, at the time
of the sale, has no notice of the charge,
whichever first occurs.
(7) Such a charge is subject to every charge or encumbrance to which the land was
subject immediately before the order was registered and, in the case of land under the
provisions of the Real Property Act 1900, is subject to every prior mortgage, lease or
other interest recorded in the Register kept under that Act.
(8) Such a charge is not affected by any change of ownership of the land, except as
provided by subsection (6).
(9) A person who purchases or otherwise acquires land after the registration of the
charge is, for the purposes of subsection (6), taken to have notice of the charge if:
(a) the provisions of any law of the State provide for the registration of title to, or
charges over, land of the kind to which the charge applies, and
(b) the charge is registered in accordance with that law.
(10) If such a charge relates to land under the provisions of the Real Property Act 1900,
the charge has no effect until it is registered under that Act.
Division 3 Ancillary functions
57 Power to require information, records and attendance
(1) The Chief Commissioner may, by notice served on a person, require the person to do
any one or more of the following:
(a) provide to the Chief Commissioner (either orally or in writing) information
that is described in the notice,
(b) produce to the Chief Commissioner a record in the person's custody or control
that is described in the notice,
(c) attend and give evidence before the Chief Commissioner or an authorised
officer at a place and time that is reasonable in the circumstances.
(2) Information, records or evidence may be required under this section for the following
purposes only:
(a) enabling debt recovery action to be taken under this Act,
(b) ascertaining the debtor's financial circumstances, including the debtor's
property and other means of satisfying a State debt.
(3) A notice may be directed:
(a) if the debtor is a natural person--to the debtor, or
(b) if the debtor is a corporation--to an officer or former officer of the
corporation.
(4) The Chief Commissioner may require information or evidence that is not given orally
to be provided in the form of, or verified by, a statutory declaration.
(5) The Chief Commissioner may require evidence that is given orally to be given on
oath or by affirmation and for that purpose the Chief Commissioner or an authorised
officer may administer an oath or affirmation.
(6) The Chief Commissioner may make a recording, by such means as the Chief
Commissioner determines, of the evidence given orally by a person.
(7) A person is not bound to produce any document or other thing that is not specified or
sufficiently described in the notice or that the person would not be bound to produce
on a subpoena for production in the Supreme Court.
Page 22
State Debt Recovery Bill 2018 [NSW]
Part 6 Debt recovery actions
(8) A notice must not require the attendance of a person if the person has previously
attended before the Chief Commissioner or an authorised officer in accordance with
a requirement under this section in connection with the matter within the previous
3 months.
(9) A person who, without reasonable excuse, fails to comply with a notice under this
section within such period as is specified in the notice or any extended period as the
Chief Commissioner may allow is guilty of an offence.
Maximum penalty (subsection (9)): 100 penalty units in the case of a corporation or
10 penalty units in any other case.
58 Power of entry to execute property seizure order
(1) The person executing a property seizure order may, at any reasonable time of the day
or night, enter any premises for the purposes of executing the order.
(2) Subsection (1) does not authorise any such person to enter any part of premises used
only for residential purposes without the permission of the occupier of the premises
or the authority of a search warrant under this section.
(3) Any such person may apply to an authorised officer for the issue of a search warrant
if the person believes on reasonable grounds that there may be property liable to
seizure under the property seizure order in any premises.
(4) An authorised officer to whom any such application is made may, if satisfied that
there are reasonable grounds for doing so, issue a search warrant authorising any
person who is executing the property seizure order to enter the premises and seize
property in the premises in accordance with that or any other property seizure order.
(5) Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002
applies to a search warrant issued under this section.
(6) Without affecting the generality of section 71 of the Law Enforcement (Powers and
Responsibilities) Act 2002, a police officer:
(a) may accompany a person executing a search warrant, and
(b) may take all reasonable steps to assist the person in the exercise of the person's
functions under this section.
(7) This section does not authorise a person to seize property under any warrant of
execution or order (other than a property seizure order) while the person is in
premises in pursuance only of the authority conferred by this section.
(8) In this section:
authorised officer has the same meaning as it has in the Law Enforcement (Powers
and Responsibilities) Act 2002.
premises includes any structure, building, aircraft, vehicle, vessel or place (whether
built upon or not).
59 Power of person executing order or warrant to demand name and address
(1) The Sheriff or other person executing an order or warrant under this Part may require
a person whom the Sheriff or other person suspects on reasonable grounds to be the
debtor to state the person's full name and residential address and to produce evidence
of the person's identity.
(2) A person is not required to comply with such a requirement unless the person was
warned on that occasion that a failure to comply is an offence.
Page 23
State Debt Recovery Bill 2018 [NSW]
Part 6 Debt recovery actions
(3) A person who, without reasonable excuse, fails to comply with such a requirement is
guilty of an offence.
Maximum penalty: 10 penalty units.
Page 24
State Debt Recovery Bill 2018 [NSW]
Part 7 Time to pay and hardship
Part 7 Time to pay and hardship
Division 1 Time to pay
60 Time to pay order
(1) The Chief Commissioner may, on application by or with the consent of a debtor,
make an order (a time to pay order) allowing further time to pay a State debt.
(2) A time to pay order may be made:
(a) after a debt recovery order is made, or
(b) in conjunction with the making of a debt recovery order.
Note. Section 16 enables a responsible authority to refer a referable debt to the Chief
Commissioner for the making of a debt recovery order if the debtor has applied to the
responsible authority for the referable debt for time to pay.
(3) A time to pay order may:
(a) extend the time for payment of the whole State debt, or
(b) allow the State debt to be paid by instalments of such amounts, and at such
times, as are specified in the order.
(4) In particular, a time to pay order may allow a person to pay the State debt in
instalments, as a regular direct debit, if the Chief Commissioner:
(a) is satisfied that adequate arrangements are in place for such a regular payment
to be made, and
(b) agrees to the State debt being paid in this manner.
(5) If an instalment of a State debt is not paid by the due date, the remaining instalments
then become due and payable unless the Chief Commissioner otherwise orders.
(6) A time to pay order may be made in relation to more than one State debt and may
provide for a combined payment arrangement (meaning an arrangement for the
payment of a State debt in conjunction with payment of another State debt for which
a debt recovery order has been made).
61 Amendment of time to pay order
(1) The Chief Commissioner may amend a time to pay order by a further order made on
the application of the person liable to pay the State debt or on the Chief
Commissioner's own initiative.
(2) Without limiting subsection (1), the Chief Commissioner may, on the Chief
Commissioner's own initiative, amend a time to pay order by extending the
arrangements under the order to payment of another State debt for which a debt
recovery order has been made against the debtor.
(3) The Chief Commissioner must give the debtor written notice of the amendment as
soon as practicable after amending the time to pay order.
(4) On being given notice by the debtor that the debtor does not agree to an amendment
made under subsection (2), the Chief Commissioner must amend the time to pay
order to remove the extension to the other State debt.
(5) An amendment made to a time to pay order does not affect the validity of anything
done before that amendment in relation to the State debt or any other State debt.
Page 25
State Debt Recovery Bill 2018 [NSW]
Part 7 Time to pay and hardship
62 Revocation of time to pay order
(1) The Chief Commissioner may revoke a time to pay order by a further order made on
the application of the person liable to pay the State debt or on the Chief
Commissioner's own initiative.
(2) The Chief Commissioner must give the debtor written notice of the revocation as
soon as practicable after the order is made.
63 Time to pay order taken to be refused
The Chief Commissioner is taken to have refused to make a time to pay order if an
application for the order is duly made to the Chief Commissioner and the Chief
Commissioner does not determine the application within 30 days of it having been
made to the Chief Commissioner.
Division 2 Powers of Chief Commissioner in hardship cases
64 Power to revoke debt recovery order (referable debts)
The Chief Commissioner may, on application by a debtor, revoke a debt recovery
order in respect of the whole or part of an unpaid referable debt if satisfied that, due
to any financial, medical or personal circumstances of the debtor:
(a) the debtor does not have sufficient means to pay the State debt and is not likely
to have sufficient means to pay the State debt, and
(b) debt recovery action has not been or is unlikely to be successful in satisfying
the State debt.
Note. Part 8 provides for the cancellation of debt recovery action following the revocation of a
debt recovery order.
65 Garnishee order refunds in case of hardship
(1) The Chief Commissioner may, on the Chief Commissioner's own initiative or on the
application of a debtor, refund all or part of an amount paid to the Chief
Commissioner under a garnishee order if the Chief Commissioner thinks it
appropriate to do so on the ground of hardship experienced by the debtor or a
dependant of the debtor because of payments under the garnishee order.
(2) A refund does not affect the liability of the debtor for any debt that is the subject of
the garnishee order, including for any amount refunded to the debtor.
66 Functions of Hardship Review Board not affected
This Part does not limit the functions of the Hardship Review Board in respect of a
State debt under this or any other Act.
Division 3 Hardship Review Board
67 Hardship Review Board
(1) There is to be a Hardship Review Board consisting of:
(a) the Secretary of the Department of Finance, Services and Innovation, and
(b) the Secretary of the Treasury, and
(c) the Secretary of the Department of Justice.
(2) A member of the Hardship Review Board may appoint a person to act in the place of
the member at meetings of the Board.
(3) An acting member, while so acting, has the functions of, and is taken to be, a member
of the Hardship Review Board.
Page 26
State Debt Recovery Bill 2018 [NSW]
Part 7 Time to pay and hardship
68 Functions of Hardship Review Board
(1) The Hardship Review Board may conduct a review (a hardship review) in relation
to any of the following decisions:
(a) a decision by the Chief Commissioner to make or refuse to make a time to pay
order,
(b) a decision by the Chief Commissioner to refuse to revoke a debt recovery
order in respect of the whole or part of a referable debt under Division 2.
(2) The Hardship Review Board has any other functions that are conferred on it by this
or any other Act.
(3) The Hardship Review Board may exercise its functions under this Act in conjunction
with any functions that the Board may exercise under the Taxation Administration
Act 1996 or the Fines Act 1996.
Note. For tax debts, the Taxation Administration Act 1996 enables the Hardship Review Board
to waive the payment of all or part of a tax debt payable by a person in hardship cases, if
authorised by a taxation law (within the meaning of that Act).
For grant debts, the Chief Commissioner has power to write off or remit a liability for payment
of the debt in hardship cases under the Acts under which those debts are incurred.
69 Applications for review
(1) The Hardship Review Board may conduct a hardship review if an application is made
by or on behalf of the debtor for the review.
(2) The debtor must be a natural person.
(3) A debtor may not make more than one application under this section in relation to the
same State debt, unless the Hardship Review Board is satisfied that new material
facts or circumstances have been disclosed to the Board that:
(a) were not previously disclosed, and
(b) could not, by the exercise of reasonable diligence, have been previously
disclosed.
70 Review procedure
(1) The Hardship Review Board may determine the procedure for a hardship review.
(2) A hardship review may be conducted in the absence of the parties.
71 Suspension of debt recovery action
(1) The Hardship Review Board may direct that debt recovery action under this Act
against a debtor be suspended pending its review if it thinks it appropriate in the
circumstances.
(2) The Hardship Review Board may revoke that direction at any time.
(3) The Chief Commissioner may suspend debt recovery action against a debtor who
makes an application under this section but is not required to do so unless given a
direction under this section.
72 Powers of Hardship Review Board following review
(1) The Hardship Review Board may:
(a) affirm a decision of the Chief Commissioner that the Board has power to
review, or
(b) direct the Chief Commissioner to change any decision that the Board has
power to review, or
Page 27
State Debt Recovery Bill 2018 [NSW]
Part 7 Time to pay and hardship
(c) exercise any other functions it is authorised to exercise under any other Act
that confers functions on the Hardship Review Board.
(2) The Hardship Review Board may give a direction under this section if it thinks it is
appropriate to do so having regard to the circumstances of the debtor.
(3) The Chief Commissioner must give effect to any direction of the Hardship Review
Board.
(4) A decision that is made by the Chief Commissioner in accordance with the direction
of the Hardship Review Board is not subject to review by the Hardship Review
Board.
73 Disclosure of information by Hardship Review Board
The Hardship Review Board, a member of the Board, or a person otherwise engaged
in the administration of this Part or any other statutory provisions that confer
functions on the Hardship Review Board, may disclose to the Chief Commissioner
or any other person engaged in the administration of this Act or any other Act that
confers functions on the Hardship Review Board, information obtained in connection
with the exercise of the Board's functions.
74 Refunds to be given if required by Board
The Chief Commissioner is to refund any money already paid or recovered to the
extent necessary to give effect to a decision of the Hardship Review Board under this
Part.
Page 28
State Debt Recovery Bill 2018 [NSW]
Part 8 Suspension and cancellation of debt recovery action
Part 8 Suspension and cancellation of debt recovery action
Division 1 Preliminary
75 Review--meaning
In this Part:
review means:
(a) in relation to a tax debt--an objection under the Taxation Administration Act
1996 to the Chief Commissioner's decision to require the person to pay the tax
debt or a review by the Civil and Administrative Tribunal of that decision, or
(b) in relation to a grant debt--an objection under the Act under which the grant
debt is incurred to the Chief Commissioner's decision to require the person to
pay the grant debt or a review by the Civil and Administrative Tribunal of that
decision, or
(c) in relation to a referable debt--an internal review or a statutory internal
review.
Division 2 Suspension of debt recovery action
76 Circumstances in which debt recovery action must be suspended
The Chief Commissioner is to suspend debt recovery action if:
(a) the Chief Commissioner makes a time to pay order in respect of the relevant
State debt and the debt is being paid in accordance with that order, or
(b) the Chief Commissioner is satisfied that the debtor has duly applied for a
review of the State debt and that review has not been finalised, or
(c) the Chief Commissioner is directed to do so by the Hardship Review Board, or
(d) in the case of a referable debt, the referring officer or responsible authority
requests the suspension of debt recovery action.
77 How debt recovery action is suspended
(1) The Chief Commissioner suspends debt recovery action by:
(a) revoking any property seizure order that is in force in relation to the State debt
and has not been executed, and
(b) revoking any garnishee order that is in force in relation to the State debt.
(2) If the Chief Commissioner suspends debt recovery action, any property obtained as
a result of debt recovery action is not required to be returned, and a charge on land
created under this Act need not be cancelled, unless the relevant debt recovery order
is revoked or the relevant State debt is paid.
(3) Interest on an unpaid State debt is not to be charged in respect of any days occurring
while the suspension has effect.
(4) The Chief Commissioner must give notice in writing of the suspension of debt
recovery action:
(a) to the Sheriff, if a property seizure order has already been made in relation to
the State debt, and
(b) to any person on whom a garnishee order that is revoked as a result of the
suspension is required to be served.
Page 29
State Debt Recovery Bill 2018 [NSW]
Part 8 Suspension and cancellation of debt recovery action
78 Circumstances in which debt recovery action may be resumed
(1) If debt recovery action is suspended because of the making of a time to pay order, the
Chief Commissioner may resume debt recovery action if the time to pay order is
revoked.
(2) If debt recovery action is suspended because of review, the Chief Commissioner may
resume debt recovery action if the review is finalised (unless resumption of the debt
recovery action is inconsistent with the outcome of the review).
(3) If debt recovery action is suspended at the direction of the Hardship Review Board,
the Chief Commissioner may resume debt recovery action if the direction is revoked.
(4) If debt recovery action is suspended at the request of the referring officer or
responsible authority, the Chief Commissioner may resume debt recovery action if
the referring officer or responsible authority requests the resumption of debt recovery
action.
79 How debt recovery action is resumed
The Chief Commissioner resumes debt recovery action by taking or continuing any
debt recovery action that the Chief Commissioner was authorised to take before the
suspension.
Division 3 Cancellation of debt recovery action
80 Power to revoke debt recovery order
(1) The Chief Commissioner may, on application or on the Chief Commissioner's own
initiative, revoke a debt recovery order.
(2) A debt recovery order may be revoked completely or only to the extent of some of
the amount or amounts to which it applies.
(3) The Chief Commissioner must give the responsible authority notice in writing of a
decision to revoke a debt recovery order in respect of a referable debt, unless notice
is not required under a debt recovery agreement that applies to the debt.
81 Circumstances in which power may be exercised
(1) The Chief Commissioner may revoke a debt recovery order if satisfied that:
(a) the State debt is not payable by the debtor, or
(b) the State debt is not recoverable by debt recovery action.
(2) The Chief Commissioner must revoke a debt recovery order:
(a) if the State debt is a referable debt and the referring officer revokes the referral
of the referable debt to the Chief Commissioner, or
(b) if the State debt is a referable debt and debtor duly elects to have the referable
debt dealt with by a court, or
(c) if the State debt is a referable debt and the Chief Commissioner decides to
revoke the debt recovery order under Part 7, or is directed to do so by the
Hardship Review Board under Part 7, but only to the extent necessary to give
effect to the decision or direction (as the case requires), or
(d) if the State debt is a tax debt and the revocation is necessary to give effect to a
decision of the Hardship Review Board under the Taxation Administration Act
1996, or a decision of the Chief Commissioner exercising the functions of the
Hardship Review Board under that Act, to waive payment of the debt in whole
or in part, but only to the extent necessary to give effect to the decision, or
Page 30
State Debt Recovery Bill 2018 [NSW]
Part 8 Suspension and cancellation of debt recovery action
(e) if the State debt is a grant debt and the Chief Commissioner decides to write
off or remit the whole or part of the liability for the debt under the Act under
which the grant debt is incurred, but only to the extent necessary to give effect
to the decision, or
(f) if the revocation is required to give effect to the outcome of a review.
82 Consequences of revocation
(1) If a debt recovery order is revoked completely:
(a) the order then ceases to have effect, and
(b) any debt recovery action is to be cancelled, and
(c) any debt recovery action already taken is to be reversed, unless the same debt
recovery action is authorised under another debt recovery order, and
(d) debt recovery costs are not payable under the order and, if paid, are repayable.
(2) If a debt recovery order is revoked only to the extent of some of the amount or
amounts to which it applies:
(a) the order continues to have effect in respect of the remaining amount or
amounts to which it applies, and
(b) any debt recovery action under the order is to be limited to that remaining
amount or amounts, and
(c) any amount that has been paid under the order is to be applied to payment of
the remaining amount or amounts to which it applies and any debt recovery
costs payable under the order.
(3) The revocation of a debt recovery order does not prevent the making of a further debt
recovery order in respect of the State debt.
83 How Chief Commissioner cancels debt recovery action
(1) The Chief Commissioner cancels debt recovery action in respect of a State debt:
(a) by revoking any property seizure order or garnishee order in respect of the
State debt, and
(b) if the debt recovery order has been registered as a charge on land, by applying
to the Registrar-General for a cancellation of that registration.
(2) The Chief Commissioner must give notice in writing of the cancellation of debt
recovery action:
(a) to the Sheriff, if a property seizure order has already been made in relation to
the State debt, and
(b) to any person on whom a garnishee order that is revoked as a result of the
cancellation is required to be served.
(3) The Registrar-General must, on application of the Chief Commissioner under this
section, cancel the registration of a debt recovery order as a charge on land.
(4) The cancellation of a charge on land does not take effect until the Registrar-General
registers the cancellation of the charge.
84 Debt recovery action taken to be cancelled in certain circumstances
(1) Debt recovery action in respect of a State debt is taken to be cancelled on payment in
full of the State debt.
(2) The cancellation of a charge on land does not take effect until the Registrar-General
registers the cancellation of the charge.
Page 31
State Debt Recovery Bill 2018 [NSW]
Part 9 Interest and debt recovery costs
Part 9 Interest and debt recovery costs
Division 1 Interest
85 Interest may be charged
(1) Interest is payable on the amount of any State debt that is unpaid after the due date
specified for payment in the notice of a debt recovery order served on a debtor, unless
the Chief Commissioner otherwise directs.
(2) Interest is also payable in respect of any debt recovery costs that are unpaid after that
due date.
(3) Interest is to be calculated on a daily basis from the day after the day that is the due
date for payment until the day it is paid.
(4) The interest rate payable is the prescribed rate under section 101 of the Civil
Procedure Act 2005.
(5) This section does not apply to the following:
(a) a tax debt,
(b) any State debt for which a judgment has been given by a court.
(6) In the case of a tax debt, interest is payable as provided for by the Taxation
Administration Act 1996.
(7) In the case of a State debt for which judgment has been given by a court, interest is
payable as provided for by the Civil Procedure Act 2005 or any other Act or as
otherwise directed by the court.
86 Interest forms part of State debt
(1) The State debt to which a debt recovery order applies is taken to include any interest
that becomes payable on the State debt after the order is made.
(2) Accordingly, a reference in this Act to a State debt includes a reference to any interest
payable on the State debt.
(3) Interest is not payable on the interest component of a State debt.
(4) This section extends to any interest and penalty tax payable under the Taxation
Administration Act 1996 or payable in respect of a State debt for which judgment has
been given by a court.
Division 2 Debt recovery costs
87 Debt recovery costs to be paid
(1) Debt recovery costs are payable under a debt recovery order, unless the Chief
Commissioner otherwise directs.
(2) The following amounts are the only amounts payable as debt recovery costs under a
debt recovery order:
(a) the prescribed debt recovery costs,
(b) the Sheriff's additional costs (if any).
88 Prescribed debt recovery costs
(1) The regulations may prescribe the debt recovery costs payable under a debt recovery
order.
Page 32
State Debt Recovery Bill 2018 [NSW]
Part 9 Interest and debt recovery costs
(2) The regulations may:
(a) prescribe an amount as the debt recovery costs payable to the Chief
Commissioner on the making of the order, and
(b) prescribe an amount as the debt recovery costs payable into the Consolidated
Fund for any action taken by the Sheriff or other official under this Act before
payment is made under the order.
89 Sheriff's additional costs
(1) The Chief Commissioner may approve any costs and expenses reasonably incurred
by the Sheriff in taking action to recover a debt under this Act as debt recovery costs
payable by the debtor under the debt recovery order.
(2) The amount of those costs and expenses is to be determined in accordance with the
scale applicable to the enforcement of judgment debts under the Civil Procedure Act
2005, but is to be reduced by the prescribed debt recovery costs payable to the
Consolidated Fund for any action taken by the Sheriff or other official under this Act.
(3) For the purposes of this section, the Chief Commissioner has the functions of the
registrar of the relevant court with respect to the approval of those costs and
expenses.
(4) Debt recovery costs recoverable under this section are payable to the Sheriff and not
to the Consolidated Fund.
(5) The power of the Local Court to review a decision of a registrar of the Court in
respect of any such debt recovery costs applies to a decision of the Chief
Commissioner under this section.
90 Debt recovery costs form part of State debt
(1) The State debt to which a debt recovery order applies is taken to include the debt
recovery costs payable under the debt recovery order.
(2) Accordingly, a reference in this Act to a State debt includes a reference to any debt
recovery costs payable under the debt recovery order.
Page 33
State Debt Recovery Bill 2018 [NSW]
Part 10 Payment, allocation of payments and refunds
Part 10 Payment, allocation of payments and refunds
91 Disposition of money paid by or recovered from debtors
(1) After the making of a debt recovery order in respect of a State debt, the State debt is
payable to the Chief Commissioner.
(2) However, with the approval of the Chief Commissioner, the State debt may be paid
to another person or body and directly credited to the Consolidated Fund or another
account, or retained, in accordance with this or any other Act or law.
92 Payment of tax debts and grant debts
(1) A tax debt or grant debt, including any interest or penalty tax payable on the debt, is,
when recovered, to be paid into the Consolidated Fund.
(2) This section is subject to the requirements of this Act with respect to the payment of
debt recovery costs.
93 Payment of referable debts
(1) A referable debt, including any interest payable on the debt, is, when recovered under
this Act, to be paid to the responsible authority, subject to this Act.
(2) Payment is to be made in accordance with any debt recovery agreement relating to
the referable debt.
(3) The Chief Commissioner may, in accordance with a debt recovery agreement, deduct
or retain from any amount paid or to be paid to a responsible authority under this
section the Chief Commissioner's fee or payment for exercising functions under this
Act in relation to the amount concerned.
(4) This section is subject to the requirements of this Act with respect to the payment of
debt recovery costs.
94 Amounts recovered to be applied towards debt recovery costs first
Any amount recovered under a debt recovery order is to be applied as follows:
(a) firstly, towards payment of the debt recovery costs payable under the debt
recovery order,
(b) secondly, towards payment of the remainder of the State debt.
95 Allocation of recovered amounts between State debts
(1) If more than one State debt is payable under a debt recovery order, and the amount
recovered is insufficient to satisfy all of the State debts:
(a) tax debts have priority over all other State debts, and
(b) tax debts and grant debts have priority over referable debts.
(2) Accordingly, the amount recovered is to be applied as follows:
(a) firstly, towards payment of tax debts,
(b) secondly, towards payment of grant debts,
(c) thirdly, towards payment of referable debts.
(3) If there is more than one tax debt, and the amount recovered is insufficient to satisfy
all of them, the amount recovered is to be allocated pro rata between those tax debts.
(4) If there is more than one grant debt, and the amount recovered is insufficient, after
payment of any tax debts, to satisfy all of the grant debts, the amount recovered is to
be allocated pro rata between those grant debts.
Page 34
State Debt Recovery Bill 2018 [NSW]
Part 10 Payment, allocation of payments and refunds
(5) If there is more than one referable debt, priority between those debts is determined
on the basis of the referral date, with an earlier referral date taking priority over a later
referral date.
(6) Accordingly, the amount recovered is to be applied firstly towards payment of the
referable debt with the oldest referral date, next towards payment of the referable
debt with the next oldest referral date, and so on.
(7) The Chief Commissioner may, at his or her discretion, apply any amount recovered
under a debt recovery order otherwise than as provided for by this section having
regard to any of the following:
(a) the wishes of the debtor,
(b) the nature of the debt,
(c) the consequences of non-payment of the debt,
(d) the date on which the debt became payable.
(8) The Chief Commissioner is to exercise that discretion in accordance with the debt
recovery guidelines.
96 Entitlement to refund
(1) If the Chief Commissioner recovers from a debtor an amount that exceeds the State
debt payable by the debtor, the Chief Commissioner must refund the difference to the
debtor, subject to this section.
(2) Instead of making a refund to a debtor, the Chief Commissioner may apply the
amount that would otherwise be refunded to meet any of the following:
(a) a referable debt for which a debt recovery order has been made against the
debtor,
(b) a tax debt or grant debt (whether or not a debt recovery order has been made
against the debtor).
97 Payment of refunds
If the Chief Commissioner is authorised or required to refund an amount under this
Act, the amount is to be paid from the Consolidated Fund or as otherwise authorised
by a debt recovery agreement.
Page 35
State Debt Recovery Bill 2018 [NSW]
Part 11 Administration
Part 11 Administration
98 Chief Commissioner to administer debt recovery action
(1) The Chief Commissioner has the function of administering the following:
(a) the making of debt recovery orders,
(b) the taking of debt recovery action under this Act,
(c) the receipt and collection of State debts.
(2) The Chief Commissioner has any other functions that are conferred or imposed on
the Chief Commissioner by or under this Act.
99 Use of name "State Debt Recovery"
A person must not take proceedings or carry on any other activity under the name
"State Debt Recovery" unless authorised to do so by the Chief Commissioner or by
or under any other Act.
Maximum penalty: 10 penalty units.
100 Employees
(1) Persons may be employed in the Public Service to assist the Chief Commissioner in
the exercise of his or her functions under this Act.
(2) The Chief Commissioner may engage consultants or contractors to assist the Chief
Commissioner in the exercise of his or her functions under this Act.
101 Delegation
(1) The Chief Commissioner may delegate to any person a function of the Chief
Commissioner under this Act, other than this power of delegation, a principal debt
recovery function or an information gathering function.
(2) The Chief Commissioner may delegate a principal debt recovery function or
information gathering function to any person employed in the Public Service.
(3) The Chief Commissioner and any person to whom a principal debt recovery function
is delegated has, in the exercise of principal debt recovery functions, the same
protection and immunities as an officer of a court.
(4) In this section:
information gathering function means a function of the Chief Commissioner under
this Act that enables the Chief Commissioner to obtain personal information about a
person.
principal debt recovery function means a function of the Chief Commissioner of:
(a) making, amending or revoking an order under this Act, or
(b) suspending or cancelling debt recovery action under this Act.
102 Personal liability
(1) A matter or thing done or omitted by the Chief Commissioner, a Public Service
delegate or any other person engaged in the administration or execution of this Act
does not, if the matter or thing was done or omitted in good faith for the purpose of
administering or executing this Act, subject the Chief Commissioner, delegate or
other person so acting personally to any action, liability, claim or demand.
(2) Any liability that would, but for subsection (1), attach to a person, attaches instead to
the State.
Page 36
State Debt Recovery Bill 2018 [NSW]
Part 11 Administration
(3) In this section:
Public Service delegate means a person employed in the Public Service to whom a
function of the Chief Commissioner under this Act is delegated.
103 Registration of debt recovery orders
The Chief Commissioner is to register each debt recovery order made and to record
details of payment of a State debt and the taking of debt recovery action.
Page 37
State Debt Recovery Bill 2018 [NSW]
Part 12 Access to and disclosure of information
Part 12 Access to and disclosure of information
104 Disclosure of identifying information
(1) If a provision of this Act or another Act authorises or requires identifying
information about a person to be provided to the Chief Commissioner for the
purposes of enabling the Chief Commissioner to exercise functions under this Act,
that provision authorises or requires the following information about the person
(which is identifying information for the purposes of this Act) to be provided:
(a) name,
(b) ACN (if applicable),
(c) if the person is an individual--the following information:
(i) date of birth,
(ii) driver licence number,
(d) residential or business address,
(e) email address,
(f) contact telephone details,
(g) information declared to be identifying information by the regulations.
(2) A regulation under this section is to be made only with the concurrence of the
Attorney General.
(3) The Minister administering this Act is not to recommend the making of a regulation
under this section unless the Minister certifies that:
(a) the Attorney General has concurred in the making of the regulation, and
(b) the Privacy Commissioner was consulted about the proposed regulation.
105 Access to information held by police, NSW government agencies and State owned
corporations
(1) The Chief Commissioner is authorised to request a police officer, a member of the
NSW Police Force, a public authority or a State owned corporation to provide any of
the following information held about a debtor for the purpose of enabling the Chief
Commissioner to take debt recovery action against the debtor or to ascertain the
financial circumstances of a debtor against whom a debt recovery order has been
made:
(a) identifying information about the debtor,
(b) bank account details,
(c) information about property of the debtor,
(d) information that identifies the debtor's employer.
(2) Police officers, members of the NSW Police Force, public authorities and State
owned corporations are authorised and required to provide the Chief Commissioner
with any available information held by them that is requested by the Chief
Commissioner under subsection (1).
106 Access to information held by employers
(1) The Chief Commissioner is authorised to obtain from any employer or previous
employer of a debtor information about the address, employment details and bank
account details of the debtor for the purposes of taking debt recovery action under
this Act.
Page 38
State Debt Recovery Bill 2018 [NSW]
Part 12 Access to and disclosure of information
(2) Any such employer or previous employer is authorised to disclose to the Chief
Commissioner the name, address, employer (and any previous address or employer)
and bank account details of a debtor if the Chief Commissioner makes a request in
writing for that information.
107 Access to and use of information held by credit reporting bodies
(1) A credit reporting body is authorised to disclose to the Chief Commissioner, on
written request, relevant information about a debtor for the purposes of the Chief
Commissioner taking debt recovery action against the debtor.
(2) In this section:
credit reporting body and identification information have the same meanings as in
the Privacy Act 1988 of the Commonwealth.
relevant information about a debtor means any of the following information:
(a) identification information,
(b) the name of an authorised deposit-taking institution of which the debtor is a
customer and details of any account of the debtor with the institution.
Note. Identification information under the Privacy Act 1988 of the Commonwealth consists of
the following information:
(a) full name (including any known aliases), sex and date of birth,
(b) a maximum of 3 addresses consisting of a current or last known address and
2 immediately previous addresses,
(c) name of current or last known employer,
(d) driver licence number.
108 Disclosure of information
(1) The Chief Commissioner, or any other person engaged in the administration or
execution of this Act, may disclose personal information obtained in relation to a
person in the administration or execution of this Act:
(a) in connection with the administration or execution of this Act (including for
the purpose of the recovery of a State debt), or
(b) to a referring officer, or a delegate of a referring officer, for the purposes of the
administration or execution of this Act, or
(c) with the consent of the person to whom the information relates or at the request
of a person acting on behalf of the person to whom the information relates, or
(d) to the Commissioner of Fines Administration under the Fines Act 1996, in
connection with the exercise of the functions of the Commissioner of Fines
Administration under that Act with respect to State debts and the debt recovery
guidelines, or
(e) to a tax officer, in connection with the administration or execution of a taxation
law, or
(f) to the Hardship Review Board, or
(g) as authorised or required by or under this Act or any other Act or law.
(2) Without limiting subsection (1) (a), personal information may be disclosed to an
employer or past employer of a debtor for the purposes of the administration,
enforcement or execution of a garnishee order.
(3) A person engaged in the administration or execution of this Act must not disclose any
personal information obtained in relation to any person in the administration or
Page 39
State Debt Recovery Bill 2018 [NSW]
Part 12 Access to and disclosure of information
execution of this Act except as authorised or required by this Act or any other Act or
law.
Maximum penalty: 100 penalty units.
(4) A person to whom any personal information about a person is disclosed by the Chief
Commissioner or by a person engaged in the administration or execution of this Act
in accordance with this section must not disclose that personal information to another
person unless the disclosure is made:
(a) with the consent of the Chief Commissioner, or
(b) so as to enable the person to exercise a function conferred on the person by
law, or
(c) as authorised or required by or under this Act or any other Act or law.
Maximum penalty: 100 penalty units.
Page 40
State Debt Recovery Bill 2018 [NSW]
Part 13 Miscellaneous
Part 13 Miscellaneous
109 Joint and several liability
(1) If 2 or more persons are jointly and severally liable for the payment of a State debt:
(a) a debt notice may be served on any of those persons, and
(b) a debt recovery order may be made against any of the persons on whom the
debt notice was served, and
(c) any person against whom an order is made is liable to pay any debt recovery
costs payable under the order made against him or her.
(2) Accordingly, more than one debt recovery order may be made in respect of the
amount payable.
(3) The total amount that may be recovered under the debt recovery orders is not to
exceed the total State debt (excluding interest and debt recovery costs).
(4) If 2 or more persons are jointly and severally liable for payment of a State debt, and
the State debt or part of the State debt is recovered from any one of them, the person
from whom it is recovered has such rights of contribution or indemnity from the other
person or persons as are just.
110 Functions of responsible authority
The functions of a responsible authority under this Act may be exercised by any
person, or member of a class of persons, who is authorised in writing by the chief
executive officer of the responsible authority to exercise those functions.
111 Act binds Crown
This Act binds the Crown in right of New South Wales and, in so far as the legislative
power of Parliament permits, the Crown in all its other capacities.
112 Form of notices
Any notice given by the Chief Commissioner to a referring officer under this Act
may be given by post, by means of document exchange or by electronic transmission.
113 Requirement for notices to be in writing
(1) A provision of this Act that requires or permits the Chief Commissioner or an
authorised officer to give a notice in writing may be met by the Chief Commissioner
or authorised officer giving the notice by electronic transmission.
(2) Subsection (1) does not affect the requirements of this Act relating to the
circumstances in which notices may be served by electronic transmission.
(3) In this section:
notice includes a document.
114 Electronic transmission of documents to Sheriff
(1) The following directions and orders under this Act may be transmitted electronically
to the persons to whom they are given or directed:
(a) a property seizure order directed to the Sheriff,
(b) a garnishee order, or a summons requiring a garnishee under such a garnishee
order to show cause, given to the Sheriff for service,
(c) an order for examination given to the Sheriff for service.
Page 41
State Debt Recovery Bill 2018 [NSW]
Part 13 Miscellaneous
(2) For the purpose of executing any such order, the Sheriff or other officer to whom the
order is so transmitted is to cause a copy of the order to be converted into written
form and to be endorsed with the following words:
This document has been transmitted electronically by the Chief Commissioner of
State Revenue in accordance with section 114 of the State Debt Recovery Act 2018.
115 Service of notices
(1) A notice that is required by this Act to be served by the Chief Commissioner or a
responsible authority on a person may be served on the person:
(a) personally, or
(b) by post, or
(c) by electronic transmission, or
(d) by any other manner prescribed by the regulations.
(2) The address for service by post of any such notice includes, subject to this section:
(a) the address supplied by the person in connection with the matter for which the
State debt is payable, and
(b) in the case of a notice served by the Chief Commissioner--the address
obtained for the person by the Chief Commissioner under this Act, if the Chief
Commissioner is satisfied that it is the most recent address available for the
person.
(3) A notice may be served on a person by electronic transmission only if:
(a) the person has consented to receiving communications by electronic
transmission in connection with the matter for which the State debt is payable,
or
(b) the person has consented to receiving notices or other documents in
connection with the State debt by electronic transmission.
(4) If subsection (3) permits the service of the order by electronic transmission, the
address for service by electronic transmission is the address provided by the person.
(5) Despite any other provision of this Act:
(a) notice served by post is taken to be served on a person 7 days after it is posted,
unless the person establishes that it was not served within that period, and
(b) notice served by electronic transmission is taken to be served on a person the
next working day after the electronic transmission is sent, unless the person
establishes that it was not served within that period.
(6) In this section:
notice includes a document.
serve includes give or send.
116 Nature of proceedings for offences
Proceedings for an offence under this Act or the regulations are to be dealt with
summarily before the Local Court.
117 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for or with
respect to any matter that by this Act is required or permitted to be prescribed or that
is necessary or convenient to be prescribed for carrying out or giving effect to this
Act.
Page 42
State Debt Recovery Bill 2018 [NSW]
Part 13 Miscellaneous
(2) The regulations may create offences punishable by a penalty not exceeding
50 penalty units.
(3) The regulations may make provision for or with respect to the waiver, remittance,
postponement or refund of any interest, costs or fees payable under this Act.
Page 43
State Debt Recovery Bill 2018 [NSW]
Schedule 1 Referable debts
Schedule 1 Referable debts
(Sections 3 (1) and 7)
Column 1 Column 2
Referable debt Referring officer
Ambulance fee under Chapter 5A of the Health Health Secretary under the Health Services Act
Services Act 1997 1997
Rates, charges, fees and other amounts under General Manager of the council to which the rates,
Chapter 15 of the Local Government Act 1993 charges, fees or other amounts are payable
Page 44
State Debt Recovery Bill 2018 [NSW]
Schedule 2 Savings, transitional and other provisions
Schedule 2 Savings, transitional and other provisions
Part 1 General
1 Regulations
(1) The regulations may contain provisions of a savings or transitional nature consequent
on the enactment of this Act or any Act that amends this Act.
(2) Any such provision may, if the regulations so provide, take effect from the date of
assent to the Act concerned or a later date.
(3) To the extent to which any such provision takes effect from a date that is earlier than
the date of its publication on the NSW legislation website, the provision does not
operate so as:
(a) to affect, in a manner prejudicial to any person (other than the State or an
authority of the State), the rights of that person existing before the date of its
publication, or
(b) to impose liabilities on any person (other than the State or an authority of the
State) in respect of anything done or omitted to be done before the date of its
publication.
Part 2 Provisions consequent on enactment of this Act
2 Application to existing debts
(1) This Act, and the amendments made by this Act, extend to an amount that became
payable, or a debt that was incurred, before the commencement of this Act.
(2) Accordingly, a debt recovery order may be made in relation to the amount or debt in
accordance with this Act.
(3) This clause is subject to the Limitation Act 1969.
(4) This clause is subject to any specific provision to the contrary in the Health Services
Act 1997.
Page 45
State Debt Recovery Bill 2018 [NSW]
Schedule 3 Consequential amendments
Schedule 3 Consequential amendments
3.1 Duties Act 1997 No 123
[1] Section 290 Special procedures for electronic registry instruments
Omit "the Office of State Revenue" from section 290 (5). Insert instead "Revenue NSW".
[2] Section 310
Omit the section. Insert instead:
310 Functions of Hardship Review Board
The Hardship Review Board constituted under the State Debt Recovery Act
2018 may exercise its functions under that Act and the Taxation
Administration Act 1996 in relation to duty payable under this Act.
3.2 Fines Act 1996 No 99
[1] Section 3 Definitions
Omit the definition of Hardship Review Board from section 3 (1). Insert instead:
Hardship Review Board means the Hardship Review Board constituted under
the State Debt Recovery Act 2018.
[2] Section 19A Official caution may be given instead of penalty notice
Omit "the Office of State Revenue" from the definition of guidelines in section 19A (3).
Insert instead "Revenue NSW".
[3] Section 22 Persons who may deal with penalty notices (appropriate officers)
Omit "the Office of State Revenue" from section 22 (2) (b) (i).
Insert instead "Revenue NSW".
[4] Section 23A Person may elect to have matter dealt with by court
Omit the note to section 23A (2B).
[5] Section 23A (2BA)
Insert after section 23A (2B):
(2BA) If a person elects to have a matter dealt with by a court while a review under
Division 2A is in progress, court proceedings must not be taken unless,
following the review, the reviewing agency confirms the decision to issue the
penalty notice.
[6] Section 24I Review terminated if matter dealt with by court
Omit the section.
[7] Section 72 Order to seize property of fine defaulter
Insert "or if the Sheriff is satisfied that the order is not capable of execution" after "was
made" in section 72 (8).
[8] Section 77A Garnishee order refunds in case of hardship
Insert "all or part of" after "refund" in section 77A (1).
Page 46
State Debt Recovery Bill 2018 [NSW]
Schedule 3 Consequential amendments
[9] Section 99K
Insert after section 99J:
99K Orders may extend to State debt
(1) The Commissioner may make or vary a work and development order so that it
extends to all or part of an unpaid State debt that is payable by the person, in
addition to a fine, if:
(a) the Commissioner has power to make, or has made, a work and
development order with respect to the person in relation to the fine, and
(b) the person requests or agrees to the extension of the order to that State
debt, and
(c) the approved person agrees to the extension of the order to that State
debt, and
(d) a debt recovery order has been made with respect to the person in
relation to the State debt.
(2) A request may be made in anticipation of a debt recovery order being made
with respect to the person in relation to the State debt.
(3) If the Commissioner makes a work and development order that applies to both
a fine and State debt, this Subdivision (except section 99E) applies in relation
to the State debt as if it were a fine.
(4) If a person subject to a work and development order that extends to a State debt
or part of a State debt:
(a) complies with the order--the State debt, or the part of the State debt, to
which the order relates is taken to be satisfied, or
(b) pays both the fine and the State debt (or the unsatisfied balance of the
fine and the State debt having regard to the activities already undertaken
under the order)--the order is taken to be satisfied.
(5) If a person subject to a work and development order complies with some but
not all of the activities required by the order, the State debt is taken to be
satisfied to the value of the activities that have been undertaken at the rate or
rates set out in the order.
(6) However, an activity that is undertaken is to be counted towards satisfaction
of a State debt only if the fine to which the order relates has been satisfied.
(7) No debt recovery action is to be taken against a person under the State Debt
Recovery Act 2018 in respect of a State debt to which a work and development
order relates while the order is in force.
(8) The Commissioner is required, in the exercise of the Commissioner's
functions under this section, to comply with the debt recovery guidelines
under the State Debt Recovery Act 2018.
(9) In this section:
debt recovery order means a debt recovery order under the State Debt
Recovery Act 2018.
State debt has the same meaning as it has in the State Debt Recovery Act 2018.
[10] Section 100 Time to pay
Omit "if satisfied the application is genuine and it appears expedient to do so" from
section 100 (2).
Page 47
State Debt Recovery Bill 2018 [NSW]
Schedule 3 Consequential amendments
[11] Section 101A Hardship Review Board
Omit the section.
[12] Section 101B Reviews by Hardship Review Board
Insert after section 101B (1):
(1A) The fine defaulter must be a natural person.
[13] Section 101B (8)
Insert after section 101B (7):
(8) The Hardship Review Board may exercise its functions under this Act in
conjunction with any functions that the Board may exercise under the State
Debt Recovery Act 2018 or the Taxation Administration Act 1996.
[14] Section 115 Use of name "State Debt Recovery"
Omit the section.
[15] Section 117A Disclosure of information by Commissioner
Insert after section 117A (1) (a2):
(a3) to the Chief Commissioner under the State Debt Recovery Act 2018 in
connection with the administration or execution of the debt recovery
guidelines under that Act, or
[16] Schedule 3 Savings, transitional and other provisions
Insert at the end of the Schedule, with appropriate Part and clause numbering:
Part Provision consequent on enactment of State Debt
Recovery Act 2018
Use of name "State Debt Recovery"
The Commissioner is taken to be authorised under the State Debt Recovery Act
2018 to use the name "State Debt Recovery" in the exercise of any functions
under this Act, unless the Chief Commissioner under the State Debt Recovery
Act 2018 revokes that authorisation.
3.3 First Home Owner Grant (New Homes) Act 2000 No 21
[1] Section 3 Definitions
Insert in alphabetical order in section 3 (1):
grant debt--see section 46.
[2] Section 25 Objections
Omit section 25 (1A).
[3] Section 46 Power to recover certain amounts
Omit section 46 (3)-(3B).
Page 48
State Debt Recovery Bill 2018 [NSW]
Schedule 3 Consequential amendments
[4] Section 46 (5) and (6)
Omit section 46 (5)-(8). Insert instead:
(5) An amount payable by a person under this section is a debt payable to the
Crown.
(6) A debt payable to the Crown under this section is a grant debt under this Act.
[5] Sections 46A and 46B
Omit section 46A. Insert instead:
46A Recovery of grant debts
(1) The Chief Commissioner may, by notice served on a person by whom a grant
debt is payable (a debt notice), require the person to pay to the Chief
Commissioner that grant debt or any part of it that is unpaid.
(2) The notice must specify the amount payable and the due date for payment.
(3) The due date specified must not be less than 28 days after the notice is served
on the person.
(4) The amount is payable by that due date or by a later date specified by the Chief
Commissioner.
(5) A debt notice must inform the person that, if the amount payable is not paid by
the due date:
(a) debt recovery action may be taken under the State Debt Recovery Act
2018, and
(b) that, if that action is taken, additional debt recovery costs may become
payable under that Act.
46B Payment arrangements and writing off
(1) The Chief Commissioner may enter into an arrangement (which may include
provision for the payment of interest) for payment of an outstanding grant debt
by instalments.
(2) The Chief Commissioner may write off the whole or part of a liability for a
grant debt if satisfied that action, or further action, to recover the amount
outstanding is impracticable or unwarranted.
(3) Without limiting subsection (2), the Chief Commissioner may write off the
whole or part of the liability for a grant debt if satisfied that:
(a) the person liable to pay it is in such circumstances that the exaction of
the full amount of grant debt would result in serious hardship for the
person or the person's dependants, or
(b) the person liable to pay it has died and that person's dependants are in
such circumstances that the exaction of the full amount of grant debt
would result in serious hardship for them.
(4) The Chief Commissioner must not enter into an arrangement for payment of a
grant debt, or write off any liability for a grant debt, under this section if a debt
recovery order has been made in respect of the amount under the State Debt
Recovery Act 2018.
(5) Subsection (4) ceases to apply if the debt recovery order is revoked in respect
of that amount.
Page 49
State Debt Recovery Bill 2018 [NSW]
Schedule 3 Consequential amendments
(6) This section does not limit any of the Chief Commissioner's functions under
the State Debt Recovery Act 2018.
Note. The State Debt Recovery Act 2018 makes separate provision for time to pay
arrangements.
[6] Section 48A
Insert after section 48:
48A Service of notices
Section 116 of the Taxation Administration Act 1996 applies to the service of
notices by the Chief Commissioner under this Act in the same way as it applies
to the service of documents under a taxation law.
[7] Schedule 1 Savings, transitional and other provisions
Insert at the end of the Schedule, with appropriate Part and clause numbering:
Part Provisions consequent on enactment of State Debt
Recovery Act 2018
Recovery of grant debts
(1) The amendments made to this Act by the State Debt Recovery Act 2018 extend
to amounts that became payable under section 46 before the commencement
of those amendments.
(2) Accordingly, those amounts can be recovered under the State Debt Recovery
Act 2018.
(3) Section 46, as in force immediately before its amendment by the State Debt
Recovery Act 2018, continues to apply to any charge created under that section
before that amendment.
(4) Section 46A, as in force immediately before its substitution by the State Debt
Recovery Act 2018, continues to apply to any requirement made under that
section before that substitution.
3.4 Gaming Machine Tax Act 2001 No 72
Section 18
Omit the section. Insert instead:
18 Functions of Hardship Review Board
The Hardship Review Board constituted under the State Debt Recovery Act
2018 may exercise its functions under that Act and the Taxation
Administration Act 1996 in relation to tax payable under this Act.
3.5 Government Information (Public Access) Regulation 2009
[1] Schedule 3 Agencies declared to be part of other agencies
Omit the matter relating to the Hardship Review Board constituted under the Fines Act
1996.
Page 50
State Debt Recovery Bill 2018 [NSW]
Schedule 3 Consequential amendments
[2] Schedule 3
Omit "Hardship Review Board constituted under the Taxation Administration Act 1996".
Insert instead "Hardship Review Board constituted under the State Debt Recovery Act
2018".
3.6 Health Services Act 1997 No 154
[1] Section 67AA Definitions
Omit the definitions of Commissioner, debt notice and fee recovery order.
Insert in alphabetical order:
Chief Commissioner has the same meaning as in the State Debt Recovery Act
2018.
debt notice--see section 67Q.
debt recovery order has the same meaning as in the State Debt Recovery Act
2018.
[2] Section 67Q Debt notice may be issued if fee not paid
Omit "the fee to the Commissioner for the taking of fee recovery action under Schedule 9"
from section 67Q (2) (c) (i).
Insert instead "the matter to the Chief Commissioner for the taking of debt recovery action
under the State Debt Recovery Act 2018".
[3] Section 67Q (2) (c) (ii)
Omit the subparagraph. Insert instead:
(ii) debt recovery costs may be payable by the person if debt recovery
action is taken under that Act, and
[4] Section 67Q (6)
Insert after section 67Q (5):
(6) A debt notice under this Act is declared to be a debt notice for the purposes of
the State Debt Recovery Act 2018.
[5] Section 67T Change of payment arrangements
Omit "the ambulance fee has been referred to the Commissioner for the making of a fee
recovery order" from section 67T (5).
Insert instead "the matter has been referred to the Chief Commissioner for the making of a
debt recovery order".
[6] Section 67T, note
Omit "Commissioner must withdraw a fee recovery order".
Insert instead "Chief Commissioner must withdraw a debt recovery order".
[7] Section 67U
Omit the section. Insert instead:
67U Ambulance fee is debt payable to Health Secretary
(1) An ambulance fee specified in a debt notice served on a person is a debt
payable by the person to the Health Secretary.
Page 51
State Debt Recovery Bill 2018 [NSW]
Schedule 3 Consequential amendments
(2) The Health Secretary may recover the debt from the person in proceedings in
a court of competent jurisdiction.
(3) Subsection (2) ceases to apply if the matter is referred to the Chief
Commissioner for the making of a debt recovery order under the State Debt
Recovery Act 2018, unless the referral is revoked.
[8] Section 67V Referral of fee to Commissioner for fee recovery action
Omit the section.
[9] Section 67W
Omit the section. Insert instead:
67W Information to be provided if debt is referred to Chief Commissioner
(1) If the Health Secretary refers a matter to the Chief Commissioner for debt
recovery action under the State Debt Recovery Act 2018, the Health Secretary
must provide to the Chief Commissioner the following information for the
purposes of enabling the Chief Commissioner to exercise functions under that
Act:
(a) identifying information about the person who was provided with the
ambulance services and, if that person was a child, about any parent or
guardian of the child,
(b) the date the ambulance services were provided,
(c) the time the ambulance services were provided,
(d) the location or pick up address at which ambulance services were
provided,
(e) the destination to which the person was taken after pick up,
(f) the distance travelled as part of the ambulance services,
(g) the unique identifying number allocated to the ambulance services by
the Health Secretary,
(h) any other information of a kind prescribed by the regulations.
(2) A requirement to provide information is a requirement to provide so much of
that information as is known to the Health Secretary.
(3) This section applies in addition to any requirement to provide information
under the State Debt Recovery Act 2018.
(4) In this section:
identifying information has the meaning given by the State Debt Recovery Act
2018.
[10] Section 67X
Omit the section. Insert instead:
67X Suspension of debt recovery action
The Health Secretary may, at any time, by notice in writing to the Chief
Commissioner:
(a) request the Chief Commissioner to suspend debt recovery action in
relation to an ambulance fee that has been referred to the Chief
Commissioner, or
Page 52
State Debt Recovery Bill 2018 [NSW]
Schedule 3 Consequential amendments
(b) request the Chief Commissioner to revoke the suspension of debt
recovery action in relation to an ambulance fee referred to the Chief
Commissioner.
Note. Under Part 8 of the State Debt Recovery Act 2018, the Chief Commissioner is
required to suspend debt recovery action if a request for suspension is made.
[11] Section 67Z Review by Health Secretary
Insert after section 67Z (3):
(4) A review under this Part is a statutory internal review for the purposes of the
State Debt Recovery Act 2018.
[12] Section 67ZA Extension of time to pay--on-time review application
Omit "fee to the Commissioner for the making of a fee recovery order" from
section 67ZA (1) (a).
Insert instead "matter to the Chief Commissioner for the making of a debt recovery order".
[13] Section 67ZA, note
Omit "Commissioner to suspend fee recovery action".
Insert instead "Chief Commissioner to suspend debt recovery action".
[14] Section 67ZC Actions to be taken after review
Omit "Commissioner for the making of a fee recovery order" from section 67ZC (5) (b).
Insert instead "Chief Commissioner for the making of a debt recovery order".
[15] Section 67ZE Unpaid fees may be written off
Omit section 67ZE (2). Insert instead:
(2) If the ambulance fee has already been referred to the Chief Commissioner for
the making of a debt recovery order under the State Debt Recovery Act 2018,
the Health Secretary must not write off the unpaid ambulance fee unless the
referral has been revoked or debt recovery action has been suspended or
cancelled.
[16] Section 67ZG Form of notices given to Chief Commissioner
Omit "Commissioner". Insert instead "Chief Commissioner".
[17] Schedule 7 Savings, transitional and other provisions
Insert at the end of the Schedule, with appropriate Part and clause numbering:
Part Provisions consequent on enactment of State Debt
Recovery Act 2018
Changes to fee recovery
(1) This Act, the regulations under this Act, and the Fines Act 1996, as in force
immediately before the repeal of Schedule 9 by the State Debt Recovery Act
2018, continue to apply in respect of any fee recovery order made under this
Act before that repeal, as if the State Debt Recovery Act 2018 had not been
enacted.
(2) The State Debt Recovery Act 2018 extends to any ambulance fee that became
payable, or is incurred for a service that was provided, before the
Page 53
State Debt Recovery Bill 2018 [NSW]
Schedule 3 Consequential amendments
commencement of that Act. Accordingly, that fee may be referred to the Chief
Commissioner of State Revenue for debt recovery action under that Act.
(3) However, a fee cannot be referred to the Chief Commissioner for debt
recovery action under the State Debt Recovery Act 2018 if the fee is the subject
of fee recovery action under Schedule 9, unless the fee recovery order is
withdrawn.
[18] Schedule 9 Recovery of ambulance fees
Omit the Schedule.
3.7 Health Services Regulation 2013
Clause 26B Ambulance fee recovery costs
Omit the clause.
3.8 Land Tax Management Act 1956 No 26
Section 50
Omit the section. Insert instead:
50 Functions of Hardship Review Board
The Hardship Review Board constituted under the State Debt Recovery Act
2018 may exercise its functions under that Act and the Taxation
Administration Act 1996 in relation to land tax payable under this Act.
3.9 Law Enforcement (Powers and Responsibilities) Act 2002 No 103
Schedule 2 Search warrants under other Acts
Omit "Health Services Act 1997, clause 19 of Schedule 9".
Insert in alphabetical order "State Debt Recovery Act 2018, section 58".
3.10 Local Government Act 1993 No 30
[1] Section 566 Accrual of interest on overdue rates and charges
Insert after section 566 (5):
(6) If an unpaid rate or charge is referred to the Chief Commissioner of State
Revenue for debt recovery action in accordance with the State Debt Recovery
Act 2018, interest ceases to accrue on the unpaid amount under this section on
and from the referral date. However, interest may be charged under that Act.
(7) If the council revokes the referral of the amount under the State Debt Recovery
Act 2018:
(a) interest starts to accrue again under this section on and from the date the
referral is revoked, unless the council otherwise directs, and
(b) any interest or debt recovery costs charged by the Chief Commissioner
under that Act are not recoverable by the council.
(8) In this section:
referral date means the date on which the unpaid amount is referred by the
council to the Chief Commissioner of State Revenue for the making of a debt
recovery order under the State Debt Recovery Act 2018.
Page 54
State Debt Recovery Bill 2018 [NSW]
Schedule 3 Consequential amendments
[2] Section 603 Certificate as to rates and charges
Insert after section 603 (5):
(6) If an unpaid rate, charge or other amount is referred to the Chief Commissioner
of State Revenue for debt recovery action under the State Debt Recovery Act
2018:
(a) a reference in this section to the rates, charges or other amounts due or
payable to the council includes a reference to an amount payable to the
Chief Commissioner under that Act as a consequence of the making of
a debt recovery order in respect of the rates, charges or other amounts,
and
(b) the Chief Commissioner must, on request by a council, provide the
council with any information about the amount payable to the Chief
Commissioner that the council requires to issue a certificate under this
section.
[3] Section 695A
Insert after section 695:
695A Referral of unpaid amounts for debt recovery action
(1) Despite anything to the contrary in this Act, a council cannot exercise the
following functions in respect of an unpaid rate, charge, fee or other amount
(an unpaid amount), if the unpaid amount is referred to the Chief
Commissioner of State Revenue for debt recovery action in accordance with
the State Debt Recovery Act 2018:
(a) take proceedings to recover the unpaid amount,
(b) accept an amount or a transfer of land in or towards payment of the
unpaid amount,
(c) enter into any agreement with a ratepayer regarding payment of the
unpaid amount,
(d) write off, waive payment of or reduce the unpaid amount or any accrued
interest,
(e) serve on an occupier of land a notice under section 569 in respect of the
unpaid amount.
(2) Subsection (1) applies on and from the referral date (within the meaning of the
State Debt Recovery Act 2018).
(3) Subsection (1) does not affect the validity of anything done by the council
before the referral date.
(4) Subsection (1) ceases to apply if the council revokes the referral of the unpaid
amount to the Chief Commissioner of State Revenue under the State Debt
Recovery Act 2018.
(5) This section is subject to the provisions of any debt recovery agreement
(within the meaning of the State Debt Recovery Act 2018) between the council
and the Chief Commissioner of State Revenue.
Note. Under the State Debt Recovery Act 2018 the Chief Commissioner of State
Revenue assumes responsibility for the recovery of the debt and can take debt
recovery action as authorised under that Act. Applications for time to pay, and hardship
applications, can be made under that Act.
Page 55
State Debt Recovery Bill 2018 [NSW]
Schedule 3 Consequential amendments
3.11 Payroll Tax Act 2007 No 21
Schedule 2 NSW specific provisions
Omit clause 22. Insert instead:
22 Functions of Hardship Review Board
The Hardship Review Board constituted under the State Debt Recovery Act
2018 may exercise its functions under that Act and the Taxation
Administration Act 1996 in relation to payroll tax payable under this Act.
3.12 Payroll Tax Rebate Scheme (Jobs Action Plan) Act 2011 No 19
[1] Section 4 Definitions
Omit the definition of relevant third party from section 4 (1).
Insert in alphabetical order:
rebate debt--see sections 29 and 30.
[2] Section 26 Use of rebate to offset liability
Omit "claimant for payroll tax or any other tax of the State." from section 26 (1).
Insert instead:
claimant:
(a) for payroll tax or any other tax of the State, or
(b) for any State debt (within the meaning of the State Debt Recovery Act
2018) for which a debt recovery order has been made under that Act.
[3] Section 29 Power to require payment from claimant
Omit section 29 (5)-(7). Insert instead:
(5) An amount payable by a person under this section is a debt payable to the
Crown.
(6) A debt payable to the Crown under this section is a rebate debt under this Act.
[4] Section 30 Power to require payment from non-claimant
Omit section 30 (3)-(5). Insert instead:
(3) An amount payable by a person under this section is a debt payable to the
Crown.
(4) A debt payable to the Crown under this section is a rebate debt under this Act.
[5] Section 31
Omit the section. Insert instead:
31 Recovery of rebate debts
(1) The Chief Commissioner may, by notice served on a person by whom a rebate
debt is payable (a debt notice), require the person to pay to the Chief
Commissioner that rebate debt or any part of it that is unpaid.
(2) The notice must specify the amount payable and the due date for payment.
(3) The due date specified must not be less than 28 days after the notice is served
on the person.
Page 56
State Debt Recovery Bill 2018 [NSW]
Schedule 3 Consequential amendments
(4) The amount is payable by that due date or by a later date specified by the Chief
Commissioner.
(5) A debt notice must inform the person that, if the amount payable is not paid by
the due date:
(a) debt recovery action may be taken under the State Debt Recovery Act
2018, and
(b) that, if that action is taken, additional debt recovery costs may become
payable under that Act.
[6] Sections 34A and 34B
Insert after section 34:
34A Hardship
Without limiting the Chief Commissioner's functions under this Part, the
Chief Commissioner may write off or remit the whole or part of the liability of
a person for a rebate debt if the person is a natural person and the Chief
Commissioner is satisfied that:
(a) the person is in such circumstances that the exaction of the full amount
of the rebate debt would result in serious hardship for the person or the
person's dependants, or
(b) the person has died and that person's dependants are in such
circumstances that the exaction of the full amount of rebate debt would
result in serious hardship for them.
34B Relationship with State Debt Recovery Act 2018
(1) The Chief Commissioner must not enter into an arrangement for payment of a
rebate debt under this Part, or write off or remit the whole or part of a person's
liability for payment of a rebate debt under this Part, if a debt recovery order
has been made in respect of the amount payable under the State Debt Recovery
Act 2018.
(2) Subsection (1) ceases to apply if the debt recovery order is revoked in respect
of that amount.
(3) This section does not limit the Chief Commissioner's functions under the State
Debt Recovery Act 2018.
Note. The State Debt Recovery Act 2018 makes separate provision for time to pay
arrangements.
[7] Section 35 Objections
Omit section 35 (3).
[8] Section 58A
Insert after section 58:
58A Service of notices
Section 116 of the Taxation Administration Act 1996 applies to the service of
notices by the Chief Commissioner under this Act in the same way as it applies
to the service of documents under a taxation law.
Page 57
State Debt Recovery Bill 2018 [NSW]
Schedule 3 Consequential amendments
[9] Schedule 1 Savings, transitional and other provisions
Insert at the end of the Schedule, with appropriate Part and clause numbering:
Part Provisions consequent on enactment of State Debt
Recovery Act 2018
Recovery of rebate debts
(1) The amendments made to this Act by the State Debt Recovery Act 2018 extend
to amounts that became payable under section 29 or 30 before the
commencement of those amendments.
(2) Accordingly, those amounts can be recovered under the State Debt Recovery
Act 2018.
(3) Section 31, as in force immediately before its substitution by the State Debt
Recovery Act 2018, continues to apply to any requirement made under that
section before that substitution.
3.13 Small Business Grants (Employment Incentive) Act 2015 No 14
[1] Section 4 Definitions
Omit the definition of relevant third party from section 4 (1).
Insert in alphabetical order:
grant debt--see sections 31 and 32.
[2] Section 28A
Insert after section 28:
28A Use of grant to offset other liability
(1) The Chief Commissioner may, instead of paying a grant, apply the amount of
the grant, or part of the grant, towards a liability of the claimant:
(a) for payroll tax or any other tax of the State, or
(b) for any State debt (within the meaning of the State Debt Recovery Act
2018) for which a debt recovery order has been made under that Act.
(2) Consent of the claimant is not required.
(3) An amount so applied is taken to be an amount paid by way of grant for the
purposes of this Act.
[3] Section 31 Power to require payment from claimant
Omit section 31 (5)-(7). Insert instead:
(5) An amount payable by a person under this section is a debt payable to the
Crown.
(6) A debt payable to the Crown under this section is a grant debt under this Act.
[4] Section 32 Power to require payment from non-claimant
Omit section 32 (3)-(5). Insert instead:
(3) An amount payable by a person under this section is a debt payable to the
Crown.
(4) A debt payable to the Crown under this section is a grant debt under this Act.
Page 58
State Debt Recovery Bill 2018 [NSW]
Schedule 3 Consequential amendments
[5] Section 33
Omit the section. Insert instead:
33 Recovery of grant debts
(1) The Chief Commissioner may, by notice served on a person by whom a grant
debt is payable (a debt notice), require the person to pay to the Chief
Commissioner that grant debt or any part of it that is unpaid.
(2) The notice must specify the amount payable and the due date for payment.
(3) The due date specified must not be less than 28 days after the notice is served
on the person.
(4) The amount is payable by that due date or by a later date specified by the Chief
Commissioner.
(5) A debt notice must inform the person that, if the amount payable is not paid by
the due date:
(a) debt recovery action may be taken under the State Debt Recovery Act
2018, and
(b) that, if that action is taken, additional debt recovery costs may become
payable under that Act.
[6] Sections 36A and 36B
Insert after section 36:
36A Hardship
Without limiting the Chief Commissioner's functions under this Part, the
Chief Commissioner may write off or remit the whole or part of the liability of
a person for a grant debt if the person is a natural person and the Chief
Commissioner is satisfied that:
(a) the person is in such circumstances that the exaction of the full amount
of the grant debt would result in serious hardship for the person or the
person's dependants, or
(b) the person has died and that person's dependants are in such
circumstances that the exaction of the full amount of grant debt would
result in serious hardship for them.
36B Relationship with State Debt Recovery Act 2018
(1) The Chief Commissioner must not enter into an arrangement for payment of a
grant debt under this Part, or write off or remit the whole or part of a person's
liability for payment of a grant debt under this Part, if a debt recovery order
has been made in respect of the amount payable under the State Debt Recovery
Act 2018.
(2) Subsection (1) ceases to apply if the debt recovery order is revoked in respect
of that amount.
(3) This section does not limit the Chief Commissioner's functions under the State
Debt Recovery Act 2018.
Note. The State Debt Recovery Act 2018 makes separate provision for time to pay
arrangements.
[7] Section 37 Objections
Omit section 37 (3).
Page 59
State Debt Recovery Bill 2018 [NSW]
Schedule 3 Consequential amendments
[8] Section 60A
Insert after section 60:
60A Service of notices
Section 116 of the Taxation Administration Act 1996 applies to the service of
notices by the Chief Commissioner under this Act in the same way as it applies
to the service of documents under a taxation law.
[9] Schedule 1 Savings, transitional and other provisions
Insert at the end of the Schedule, with appropriate Part and clause numbering:
Part Provisions consequent on enactment of State Debt
Recovery Act 2018
Recovery of grant debts
(1) The amendments made to this Act by the State Debt Recovery Act 2018 extend
to amounts that became payable under section 31 or 32 before the
commencement of those amendments.
(2) Accordingly, those amounts can be recovered under the State Debt Recovery
Act 2018.
(3) Section 33, as in force immediately before its substitution by the State Debt
Recovery Act 2018, continues to apply to any requirement made under that
section before that substitution.
3.14 Taxation Administration Act 1996 No 97
[1] Section 3 Definitions
Insert in alphabetical order in section 3 (1):
Hardship Review Board means the Hardship Review Board constituted under
the State Debt Recovery Act 2018.
tax debt--see section 44.
[2] Section 19 Offset of refund against other liability
Omit section 19 (1). Insert instead:
(1) Instead of making a refund to a taxpayer, the Chief Commissioner may apply
the amount that would otherwise be refunded to meet any of the following:
(a) a tax debt or any other amount payable by the taxpayer under a taxation
law,
(b) a grant debt (within the meaning of the State Debt Recovery Act 2018)
payable by the taxpayer, whether or not a debt recovery order has been
made under that Act against the taxpayer for the debt,
(c) a referable debt (within the meaning of the State Debt Recovery Act
2018) payable by the taxpayer, but only if a debt recovery order has
been made against the taxpayer for the debt.
Page 60
State Debt Recovery Bill 2018 [NSW]
Schedule 3 Consequential amendments
[3] Section 44
Omit the section. Insert instead:
44 Unpaid tax is debt payable to Chief Commissioner
(1) If the whole or part of tax payable by a taxpayer is not paid to the Chief
Commissioner as required by a notice of assessment, the amount unpaid is a
debt payable to the Chief Commissioner by the taxpayer.
(2) A debt payable by a taxpayer to the Chief Commissioner under this Act is a
tax debt under this Act.
[4] Section 45 Joint and several liability
Omit section 45 (1). Insert instead:
(1) If 2 or more persons are jointly and severally liable to pay an amount under a
taxation law, the amount that is unpaid is a tax debt payable to the Chief
Commissioner by each of them.
[5] Sections 46 and 46A
Omit section 46. Insert instead:
46 Debt payable as required by debt notice
(1) The Chief Commissioner may, if a person fails to pay an amount of tax that
the person is required to pay under a notice of assessment served on the person,
serve a debt notice on the person by whom any tax is payable.
(2) A debt notice is a notice to the effect that the person to whom it is directed is
required to pay a specified amount of tax to the Chief Commissioner by a date
specified in the notice.
(3) The due date specified must not be less than 28 days after the notice is served
on the person.
(4) The notice must inform the person that, if the amount payable is not paid by
the due date:
(a) debt recovery action may be taken under the State Debt Recovery Act
2018, and
(b) that, if that action is taken, additional debt recovery costs may become
payable under that Act.
46A Recovery of tax debt
(1) If the whole or part of tax payable by a taxpayer is not paid to the Chief
Commissioner as required by a debt notice served on the taxpayer, the Chief
Commissioner may recover the tax debt, in a court of competent jurisdiction,
as a debt to the Chief Commissioner.
(2) However, the Chief Commissioner cannot take proceedings under subsection
(1) to recover the tax debt if the Chief Commissioner makes a debt recovery
order against the person under the State Debt Recovery Act 2018 in respect of
that tax debt, unless that order is revoked.
(3) This section does not limit the Chief Commissioner's functions under the State
Debt Recovery Act 2018.
Page 61
State Debt Recovery Bill 2018 [NSW]
Schedule 3 Consequential amendments
[6] Section 47 Arrangements for payment of tax
Insert after section 47 (3):
(4) This section ceases to apply if a debt recovery order under the State Debt
Recovery Act 2018 is made against the taxpayer in respect of the amount
payable.
(5) Subsection (4) does not limit the functions of the Chief Commissioner under
the State Debt Recovery Act 2018.
[7] Section 47B Liability of directors and former directors of corporation for failure to
pay corporate tax liability
Omit "Board of Review" from section 47B (3) (c). Insert instead "Hardship Review Board".
[8] Section 60 The Chief Commissioner
Omit "Executive Director, Office of State Revenue" from section 60 (2).
Insert instead "Deputy Secretary, Revenue NSW in the Department of Finance, Services
and Innovation".
[9] Section 64 The Commissioner
Omit "Director, Technical and Advisory Services, Office of State Revenue" from
section 64 (2).
Insert instead "Executive Director, Technical and Advisory Services, Revenue NSW in the
Department of Finance, Services and Innovation".
[10] Section 82 Permitted disclosures--to particular persons
Insert after section 82 (b) (v):
(va) the State Debt Recovery Act 2018,
[11] Section 82 (k) (x)
Omit "Division 5 of Part 10". Insert instead "the State Debt Recovery Act 2018".
[12] Section 106A
Omit the section. Insert instead:
106A Functions of Hardship Review Board
(1) The Hardship Review Board may exercise its functions under this Division in
relation to a tax only on the application of the taxpayer.
(2) Division 3 of Part 7 of the State Debt Recovery Act 2018 applies to reviews
under this Act in the same way as it applies to hardship reviews under that Act.
(3) The Hardship Review Board may exercise its functions under this Act in
conjunction with any functions that the Board may exercise under the State
Debt Recovery Act 2018 or the Fines Act 1996.
[13] Section 106B Waiver of tax
Insert after section 106B (3):
(4) This section applies only to tax payable by a natural person.
Page 62
State Debt Recovery Bill 2018 [NSW]
Schedule 3 Consequential amendments
[14] Section 106C Deferral and writing off of tax
Insert at the end of the section:
(2) The Hardship Review Board may exercise its functions under this section only
in respect of tax payable by a natural person.
(3) The Hardship Review Board cannot exercise its functions under this section if
the Chief Commissioner has made a debt recovery order in respect of the tax
under the State Debt Recovery Act 2018.
(4) This section does not limit the functions of the Hardship Review Board under
that Act.
[15] Section 106CA Actions to be taken by Chief Commissioner
Insert at the end of the section:
(2) If the Chief Commissioner has made a debt recovery order in respect of the tax
amount under the State Debt Recovery Act 2018, the Chief Commissioner
must revoke the debt recovery order to the extent necessary to give effect to a
decision of the Hardship Review Board, or of the Chief Commissioner
exercising the functions of the Hardship Review Board, to waive the payment
of tax.
[16] Section 106D Disclosure of information
Omit the section.
[17] Schedule 1 Savings, transitional and other provisions
Insert at the end of the Schedule, with appropriate Part and clause numbering:
Part Provisions arising from enactment of State Debt
Recovery Act 2018
Application to existing tax debts
(1) An amendment made to this Act by the State Debt Recovery Act 2018 extends
to a tax amount that became payable before the commencement of the
amendment.
(2) Accordingly, a notice of assessment may be served on a person, in relation to
the tax amount, in accordance with section 46 (as substituted by that Act) and
that notice constitutes a debt notice for the purposes of the State Debt Recovery
Act 2018.
(3) This clause is subject to the other provisions of this Part.
Continuation of Hardship Review Board's functions
The functions of the Hardship Review Board in relation to any matter that was
being dealt with by the Hardship Review Board as constituted under
section 106A, before the substitution of that section by the State Debt
Recovery Act 2018, may continue to be exercised by the Hardship Review
Board as constituted under that section.
Substitution of section 46
(1) Section 46, as in force immediately before its substitution by the State Debt
Recovery Act 2018, continues to apply in relation to any requirement made by
Page 63
State Debt Recovery Bill 2018 [NSW]
Schedule 3 Consequential amendments
the Chief Commissioner that was made under that section, by notice in writing
served on a taxpayer, before the substitution of that section by that Act.
(2) This clause does not prevent the Chief Commissioner exercising the Chief
Commissioner's functions under section 46, as substituted by the State Debt
Recovery Act 2018, in respect of the unpaid tax amount.
Page 64
[Index] [Search] [Download] [Related Items] [Help]