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Contents (2018 - 11)
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State Debt Recovery Act 2018 No 11
Current version for 28 August 2018 to date (accessed 20 April 2019 at 00:45)
Part 3
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
(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.
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.
(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.
(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:
(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.
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.