Student Assistance Amendment Act (No. 2) 1989 (Cth)
Section
1. Short title etc.
2. Commencement
3. Title
4. Repeal of sections 3 and 4
5. Interpretation
6. Insertion of new section:
8. Act to bind Crown
7. Insertion of new Part:
PART IVa—PAYMENT, SUSPENSION AND TERMINATION OF BENEFITS
16. Payment of benefits
16a. Advances on account of benefits
16b. Suspension and termination of benefits
8. Insertion of new Part:
PART Va—OVERPAYMENTS UNDER THIS ACT AND UNDER CERTAIN OTHER ACTS AND ADMINISTRATIVE SCHEMES
30b. Recovery of certain overpayments by offsetting
30c. Late payment charge for student assistance overpayments and special educational assistance scheme overpayments
30d. Late payment interest on student assistance overpayments and special educational assistance scheme overpayments
30e. Determination that late payment interest not to be payable in relation to particular periods
30f. Recovery of certain overpayments from third parties etc.
30g. Write off and waiver of certain overpayments etc.
30h. Ministerial guidelines
TABLE OF PROVISIONS
Section
9. Repeal of sections 31, 31a, 31b and 31c
10. Power to obtain information etc.
11. Insertion of new section:
31FA.Obligation to notify happening of certain events
12. Offences
13. Repeal of section 31h
14. Repeal of section 31k and substitution of new section:
31k Evidentiary certificates
15. Repeal of sections 32 and 33
16. Repeal of section 34a and substitution of new section
34a. Delegation
17. Renumbering and re-lettering of Student Assistance Act
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BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:
(2) In this Act, “Principal Act” means theStudent Assistance Act 1973 1 .
2. (1) Subject to this section, this Act commences on the later of the following days:(a) the day on which this Act receives the Royal Assent;
(b) the first day after all the provisions of the
Student Assistance Amendment Act 1989 have commenced.
(2) Sections 1 and 2 commence on the day on which this Act receives the Royal Assent.
(3) Section 17 commences on the first day after all the other provisions of this Act have commenced.
(a) by omitting from subsection (1) the definition of “overpayment”;
(b) by inserting in subsection (1) the following definitions:
“
‘current special educational assistance scheme’ means:(a) the Assistance for Isolated Children Scheme; or
(b) the ABSTUDY Scheme (also known as the Aboriginal Study Assistance Scheme); or
(c) the Aboriginal Overseas Study Assistance Scheme;
‘former special educational assistance scheme’ means:(a) the former Aboriginal Secondary Assistance Scheme; or
(b) the former Adult Secondary Education Assistance Scheme; or
(c) the former Secondary Allowances Scheme;
‘late payment charge’ means an amount payable to theCommonwealth under any of the following provisions:
(a) section 30c;
(b) subsection 246 (3), or any other prescribed provision, of the
Social Security Act 1947 ;(c) subsection 205 (5), or any other prescribed provision, of the
Veterans' Entitlements Act 1986 ;(d) subsection 55a (5), or any other prescribed provision, of the
Seamen’s War Pensions and Allowances Act 1940 ;‘
prescribed educational scheme overpayment’ means an amount paid under a prescribed education scheme that should not have been paid;
‘Social Security or Veterans’ legislation overpayment’ means:(a) an amount paid under the
Social Security Act 1947 :(i) that should not have been paid; or
(ii) that was paid solely because of a decision under subsection 136 (2a) of that Act; or
(b) an amount paid under the
Veterans’ Entitlements Act 1986 or theSeamen’s War Pensions and Allowances Act 1940 that should not have been paid;
‘special educational assistance scheme overpayment’ means an amount paid under a current special educational assistance scheme, or a former special educational assistance scheme, that should not have been paid;
‘student assistance overpayment’ means an amount paid under this Act that should not have been paid;”.
6. After section 7 of the Principal Act the following section is inserted in Part I:
“8. (1) This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory, of the Northern Territory and of Norfolk Island.
“(2) Nothing in this Act permits the Crown to be prosecuted for an offence.”.
7. After Part IV of the Principal Act the following Part is inserted:
“16. (1) Benefit payable under student assistance is to be paid out of money appropriated by the Parliament for the purpose.
“(2) The Minister may, in writing, determine:
(a) the times at which; and
(b) the manner in which; and
(c) the persons to whom;
benefit payable under student assistance is to be paid.
“(3) In this section:
‘ benefit’ includes an advance under section 16a on account of benefit that is expected to become payable under student assistance.
‘
benefit payable under student assistance’ includes an advance under section 16a on account of benefit that is expected to become payable under student assistance.“(2) Where:
(a) whether before or after the commencement of this Part, an amount (in this section called the
‘overpayment amount’ ) that is:(i) a student assistance overpayment; or
(ii) a special educational assistance scheme overpayment; or
(iii) a prescribed educational scheme overpayment; or
(iv) a Social Security or Veterans’ legislation overpayment;
has been paid to or in relation to a person; and
(b) there is an unsatisfied liability to the Commonwealth in relation to the overpayment amount; and
(c) the person to or in relation to whom the overpayment amount was paid is receiving, or entitled to receive, benefit payable under student assistance (whether the benefit is being paid, or to be paid, to the person or is, under a determination under subsection 16 (2), being paid, or to be paid, to another person);
each payment of the benefit is to be reduced by such proportion or amount (if any) as is determined by a prescribed officer until the liability is satisfied.
“(3) If a payment of the benefit is reduced under subsection (2), the payment of the benefit is to be taken to have been made in full and the amount of the reduction is to be taken to have been paid to the Commonwealth in satisfaction or partial satisfaction, as the case requires, of the liability.
“(4) If there are 2 or more unsatisfied liabilities to the Commonwealth of or in relation to a person in relation to an amount or amounts of a kind mentioned in paragraph (2) (a), a prescribed officer may:
(a) for the purposes of subsection (2), treat the liabilities as if they were a single liability; and
(b) for the purposes of subsection (3), apportion the amount of each reduction under that subsection between the liabilities in such proportions as the prescribed officer considers appropriate.
“(5) A determination or apportionment made by a prescribed officer under this section must be made in writing.
“(6) In this section, a reference to a liability to the Commonwealth in relation to an amount of a kind mentioned in paragraph (2) (a) includes a reference to a liability to the Commonwealth that consists of an amount payable as late payment charge or interest in relation to an amount of a kind mentioned in that paragraph.
“30C.(1) Where:
(a) whether before or after the commencement of this Part, a person has been paid an amount (in this section called the
‘recoverable amount’ ) under:(i) this Act; or
(ii) a current special educational assistance scheme; or
(iii) a former special educational assistance scheme; and
(b) the amount would not have been paid but for:
(i) a false or misleading statement or representation; or
(ii) a contravention of this Act or the regulations;
(whether the statement or representation was made by, or the contravention was committed by, the person or another person); and
(c) the recoverable amount exceeds $50; and
(d) the whole or a part of the recoverable amount is still due to the Commonwealth;
a prescribed officer may give the person a written notice that specifies however much of the recoverable amount as is still due and draws the person’s attention to the terms of subsection (2).
“(2) If the whole or a part of the recoverable amount is still due to the Commonwealth at the end of 3 months after the notice is given to the person, the person is liable to pay to the Commonwealth an additional amount (not exceeding $515) calculated by adding $15 and 10% of however much of the recoverable amount is still due to the Commonwealth at the end of that period.
“(3) Any amount paid to the Commonwealth by or under the authority of the person in relation to the recoverable amount is to be taken first to reduce any additional amount payable under subsection (2) in relation to the recoverable amount.
“(4) A prescribed officer may, for the purposes of this section, treat 2 or more amounts of a kind referred to in paragraph (1) (a) as if the amounts were a single amount.
“(5) A prescribed officer must not give a notice under subsection (1) that may have the effect of making a person liable under subsection (2) to pay an additional amount in relation to an amount of a kind referred to in paragraph (1) (a) (in this subsection called the
(a) the liability to pay the late payment charge has been satisfied; or
(b) the person is still liable to pay the whole or a part of the late payment charge.
“30d
. (1) Where:(a) whether before or after the commencement of this Part, a person has been paid an amount (in this section called the
‘recoverable amount’ ) that is a student assistance overpayment or a special educational assistance scheme overpayment; and(b) the whole or a part of the recoverable amount is still due to the Commonwealth;
a prescribed officer may give the person a written notice that specifies however much of the recoverable amount as is still due and draws the person’s attention to the terms of subsection (2).
“(2) If the whole or a part of the recoverable amount is still due to the Commonwealth at the end of 3 months after the notice is given to the person, the person is liable to pay interest to the Commonwealth, at the rate ascertained under the regulations, on however much of the recoverable amount remains due from time to time after the end of that period.
“(3) If:
(a) Judgment is given by, or entered in, a court for the payment of:
(i) the whole or a part of the recoverable amount; or
(ii) an amount that consists of the whole or a part of the recoverable amount (which whole or part is in this subsection called the
‘recoverable portion’ ) and also another amount; and
(b) the judgment debt carries interest;
then:
(c) the recoverable amount, or the part of the recoverable amount, as the case may be, does not, for the purposes of subsection (2), stop being due solely because of the giving or entering of the judgment; and
(d) the interest that would, but for this subsection, be payable under this section in relation to the recoverable amount is reduced by:
(i) if subparagraph (a) (i) applies—the amount of the interest on the judgment debt; or
(ii) if subparagraph (a) (ii) applies—the amount worked out using the following formula:
“(4) Subject to subsection 30c (3), any amount paid to the Commonwealth by or under the authority of the person in relation to the recoverable amount is to be taken first to reduce any interest payable under this section in relation to the recoverable amount.
“(5) Interest is not payable under this section in relation to the recoverable amount in relation to any period during which an instrument under paragraph 30g (2) (c) is in force in relation to the recoverable amount unless the instrument provides that interest is to be so payable or an instalment is not paid in accordance with the instrument.
“(6) If a person has unsatisfied liabilities to the Commonwealth in relation to more than one student assistance overpayment or special educational assistance scheme overpayment, a prescribed officer may, for the purposes of subsection (1), treat the overpayments as if they were a single amount.
“(2) The determination may relate to a period before, or period that includes a period before, the making of the determination.
“(3) The determination may be expressed to be subject to the person complying with specified conditions.
“(4) The Minister or the prescribed officer must give a copy of the determination to the person as soon as practicable after making the determination.
“(5) Contravention of subsection (4) does not invalidate the determination.
“(6) If:
(a) the determination is expressed to be subject to the person complying with specified conditions; and
(b) the person contravenes a condition;
the determination ceases to have effect.
“(7) The determination may, at any time, be cancelled or varied by the Minister or a prescribed officer by written notice given to the person.
“30f. (1) In this section:
‘recoverable amount’ means an amount of any of the following kinds (whether the amount was paid, or became payable, before or after the commencement of this Part):(a) a student assistance overpayment;
(b) a special educational assistance scheme overpayment;
(c) an amount payable to the Commonwealth in relation to an amount of a kind referred to in paragraph (a) or (b) (including an amount payable as late payment charge under section 30c or interest under section 30d
). “(2) This section applies where:
(a) the liability of a person (in this section called the ‘debtor’) to the Commonwealth in relation to a recoverable amount has not been fully satisfied; and
(b) there is another person (in this section called the ‘third party’):
(i) by whom any money is due, or may become due, to the debtor; or
(ii) who holds, or may subsequently hold, money for the debtor; or
(ii) who holds, or may subsequently hold, money for some other person for payment to the debtor; or
(iii) who has authority from some other person to pay money to the debtor.
“(3) A prescribed officer may, by written notice given to the third party, require the third party to pay to the Commonwealth:
(a) a specified amount, not being an amount more than:
(i) the amount then due to the Commonwealth in relation to the recoverable amount; or
(ii) the amount of the money referred to in whichever of the subparagraphs of paragraph (2) (b) is applicable; or
(b) a specified amount out of each payment that the third party becomes liable from time to time to make to the debtor until the total of the amounts paid to the Commonwealth under the notice equals the amount then due to the Commonwealth in relation to the recoverable amount.
“(4) A payment required to be made by the notice is to be made within the time specified in the notice, not being a time earlier than:
(a) the money concerned becomes due or is held; or
(b) 14 days after the notice is given.
“(5) The third party must not, without reasonable excuse, contravene the notice.
Penalty: Imprisonment for 1 year.
“(6) The prescribed officer must give a copy of the notice to the debtor.
“(7) Contravention of subsection (6) does not invalidate the notice.
“(8) If the third party makes a payment to the Commonwealth under the notice, the payment is to be taken to have been made with the authority of the debtor and of any other person concerned.
“(9) If the whole or a part of the recoverable amount stops being due to the Commonwealth otherwise than because of a payment made by the third party, the following provisions have effect:
(a) a prescribed officer must notify the third party of the amount that has stopped being due;
(b) if paragraph (3) (a) applies to the notice—the amount specified in the notice is to be taken to be reduced, or further reduced, as the case requires, by the amount that has stopped being due;
(c) if paragraph (3) (b) applies to the notice—the reference in that paragraph to the total of the amounts paid to the Commonwealth under the notice is to be taken to be a reference to that total as increased, or further increased, as the case requires, by the amount that has stopped being due.
“(10) If the third party, without reasonable excuse, contravenes the notice, an amount equal to:
(a) so much (if any) of the amount required by the notice to be paid by the third party as the third party was able to pay to the Commonwealth but did not pay; or
(b) so much of the recoverable amount as remains due to the Commonwealth from time to time;
whichever is the lesser, is a debt due by the third party to the Commonwealth.
“(11) If:
(a) the third party is indebted to the Commonwealth under subsection (10); and
(b) the Commonwealth recovers the whole or a part of the third party’s debt;
the debtor’s liability to the Commonwealth in relation to the recoverable amount is reduced or further reduced, as the case requires, by the amount recovered from the third party.
“(12) If, apart from this section, money is not due or payable on demand by the third party unless a condition is fulfilled, the money is to be taken, for the purposes of this section, to be due or payable on demand, whether or not the condition has been fulfilled.
“(13) If a person has unsatisfied liabilities to the Commonwealth in relation to more than one recoverable amount, a prescribed officer may:
(a) for the purposes of this section, treat the amounts as if they were a single amount; and
(b) apportion any amount recovered under this section in relation to the amounts between them in such proportions as the prescribed officer considers appropriate.
“(14) An apportionment made by a prescribed officer under subsection (13) must be made in writing.
“30g
‘recoverable amount’ means an amount of any of the following kinds (whether the amount was paid, or became payable, before or after the commencement of this Part):(a) a student assistance overpayment;
(b) a special educational assistance scheme overpayment;
(c) an amount payable to the Commonwealth in relation to an amount of a kind referred to in paragraph or (b) (including an amount payable as late payment charge under section 30c or interest under section 30d).
“(2) The Minister or a prescribed officer may, on behalf of the Commonwealth, in writing:
(a) write off the whole or a part of a recoverable amount; or
(b) waive the right of the Commonwealth to recover the whole or a part of a recoverable amount; or
(c) allow a recoverable amount to be repaid or paid in instalments.
“(3) A decision under subsection (2) takes effect:
(a) on the day specified in the instrument concerned; or
(b) if no day is specified—on the day on which the decision is made.
“(4) Subject to subsection (5), proceedings for the recovery from a person of a recoverable amount must be started within 6 years after the day on which the amount became due to the Commonwealth by the person.
“(5) If the liability of a person to the Commonwealth in relation to a recoverable amount arose because the person:
(a) made a false or misleading statement or representation; or
(b) contravened this Act or the regulations;
proceedings for the recovery of the amount may be started within 6 years of an officer or employee of the Department becoming aware:
(c) that the statement or representation was false or misleading; or
(d) of the contravention;
as the case may be.
“(6) Subsections (5) and (6) are not to be taken to prevent action being taken under this Part at any time in relation to a recoverable amount.
“30h. (1) The Minister may, in writing, determine guidelines to be complied with by the Minister and other persons in the exercise of powers under this Part.
“(2) A determination under subsection (1) is a disallowable instrument for the purposes of section 46a of the
(
(3) If, immediately before the commencement, a determination under subsection 31a (1) of the previous Act was in force in relation to an amount, the following provisions have effect for so long as the determination remains in force:
(a) subsections 31a (1), (2) and (3) of the previous Act continue to apply in relation to the amount despite the repeal of section 31a of the previous Act;
(b) section 30b of the amended Act does not apply in relation to the amount.
(4) If, immediately before the commencement, a notice under subsection 31a (4) of the previous Act was in force in relation to an amount, that subsection continues to apply in relation to the amount despite the repeal of section 31a of the previous Act for so long as the notice remains in force.
(5) A reference in the amended Act, or in any other law of the Commonwealth, to section 30c, or to an amount payable under section 30c, of the amended Act includes a reference to subsection 31a (4), or to an amount payable under subsection 31a (4), as the case requires, of the previous Act as it continues to apply because of subsection (4) of this section.
(6) If, immediately before the commencement, a notice under subsection 31b (1) of the previous Act was in force in relation to an amount, the following provisions have effect for so long as the notice remains in force:
(a) sections 31b and 31h of the previous Act continue to apply in relation to the amount despite the repeal of those sections;
(b) section 30f of the amended Act does not apply in relation to the amount.
(7) An instrument under subsection 31c (1) of the previous Act that was in force immediately before the commencement has effect after the
commencement as if it were an instrument under paragraph 30G (2) (a), (b) or (c), as the case requires, of the amended Act.
(
8 ) In this section:
“amen ded Act ” means the Principal Act as amended by this Act;“
commencement ” means the commencement of this section;“
previ ous Act” means the Principal Act as in force immediately before the commencement.
10 . Section 31d of the Principal Act is amended:(
a ) by omitting from paragraphs (2) (a) and (b) “a person to whom an overpayment has been made” and substituting “a person who has an unsatisfied liability to the Commonwealth in relation to a student assistance overpayment or a special educational assistance scheme overpayment”;(
b ) by adding at the foot of subsection (5) the following penalty:“Penalty: Imprisonment for 1 year.”;
(
c ) by omitting subsection (6);(
d ) by adding at the end the following subsection:“(8) For the avoidance of doubt, it is declared that a reference in this section to a student assistance overpayment, or a special educational assistance scheme overpayment, includes a reference to such an overpayment whenever paid or made, including before the commencement of this subsection.”.
“31fa. If a prescribed event happens in relation to a person who is receiving, or entitled to receive, an amount under this Act or a current special educational assistance scheme, the person must notify the Department, in accordance with the regulations, of the happening of the event within 7 days.”.
(a) by omitting paragraphs (1) (b) and (c) and substituting the following word and paragraphs:
“or (b) knowingly obtain payment of an amount under this Act, or a current special educational assistance scheme, that is not payable (whether in whole or part); or
(c) obtain payment of an amount under this Act, or a current educational assistance scheme, by means of a false or misleading statement that is knowingly or recklessly made or by means of impersonation or fraud; or”
(
b ) by adding at the end of subsection (1) the following word and paragraph:“: or (e) without reasonable excuse, contravene section 31fa.”;
(c) by adding at the foot of subsection (1) the following penalty:“Penalty: Imprisonment for 1 year.”;
(
b ) by omitting from subsections (2) and (3) “by way of a benefit under this Act” and substituting under this Act, or a current special educational assistance scheme,”.
1
“31k. A certificate by a prescribed officer stating:
(a) that specified amounts have been paid, as a specified kind of payment, to or in relation to a specified person under this Act, a current special educational assistance scheme, or a former special educational assistance scheme, in relation to a specified period; or
(b) that, on a specified day, a notice, to a specified effect, under subsection 30c (1) or 30d(1) was given to a specified person by a prescribed officer;
is
(2) A determination under subsection 32 (1) of the previous Act that was in force immediately before the commencement has effect after the commencement as if it were a determination under subsection 16 (2) of the amended Act.
(3) In this section:
“
“
“
“34a. (1) The Minister may, by signed writing, delegate all or any of the Minister’s powers under subsections 16 (2) and 34(2) to
(a) the Secretary; or
(b) a person holding or performing the duties of a Senior Executive Service office (within the meaning of the
Public Service Act 1922 ) in the Department.
“amended Act” means theStudent Assistance Act 1973 as amended by this Act (other than this section);
“provision” means a Part, a Division, a Schedule, a section, a subsection, a paragraph of a section, of a subsection or of a definition or a subparagraph or sub-subparagraph of a paragraph.
(2) The several Parts of the amended Act are renumbered so that they bear consecutive arabic numerals starting with “1”.
(3) The several Divisions of each Part of the amended Act are renumbered so that they bear consecutive arabic numerals starting with “1”.
(4) The several sections of the amended Act are renumbered in a single series so that they bear consecutive arabic numerals starting with “1”.
(5) The several subsections of each section of the amended Act are renumbered so that they bear consecutive arabic numerals enclosed in brackets starting with “(1)”.
(6) The several paragraphs of each section, of each subsection, or of each definition, of the amended Act are re-lettered so that they bear lower case letters in alphabetical order enclosed in brackets starting with “(a)” but omitting “(i)” and “(l)”.
(7) The several subparagraphs of each paragraph of each section, of each paragraph of each subsection, or of each paragraph of each definition, of the amended Act are renumbered so that they bear consecutive lower case roman numerals enclosed in brackets starting with “(i)”.
(8) Each provision of the amended Act that refers to a provision of that Act that has been renumbered or re-lettered under this section is further amended by omitting the reference and substituting a reference to the last-mentioned provision as so renumbered or re-lettered.
(9) A reference in a provision of a law of the Commonwealth or of a Territory enacted before the commencement of this section (whether or not that provision has come into operation), or in an instrument or document, to a provision of the
1. No. 155, 1973, as amended. For previous amendments, see No. 37, 1976; No. 26, 1982; Nos. 63, 72 and 120, 1984; No. 137, 1985; No. 114, 1986; Nos. 125, 130 and 141, 1987; No. 35, 1988; and No. 76, 1989.
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House of Representatives on 2 November 1989
Senate on 13 December 1989
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