Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) This section applies where:
(a) in consequence of a false statement or representation, or of a failure or omission to comply with this Act, the regulations or any other legislative instrument made under this Act, an amount has been paid by way of pension, allowance or other pecuniary benefit under this Act that would not have been paid but for the false statement or representation or but for the failure or omission; or
(b) an amount has been paid to a person under a prescribed educational scheme that was not lawfully so payable; or
(c) an amount has purported to have been paid by way of pension, allowance or other pecuniary benefit under this Act, the Social Security Act, the Social Security Act 1947 or the Seamen's War Pensions and Allowances Act 1940 that was not lawfully so payable; or
(ca) an amount has been paid by way of family assistance under the family assistance law that was not lawfully so payable; or
(cb) an amount has purported to have been paid by way of parental leave pay that was not lawfully so payable; or
(cd) an amount of compensation (within the meaning of the MRCA) has been paid under the MRCA that should not have been paid; or
(d) an amount has been paid, whether before or after the commencement of section 32 of the Veterans' Affairs Legislation Amendment Act 1988 , by way of pension, allowance or other pecuniary benefit under this Act, the Social Security Act, the Social Security Act 1947 or the Seamen's War Pensions and Allowances Act 1940 , and the payment of that amount has since become an unauthorised payment; or
(e) a person has incurred a debt under another Act (whether before or after the commencement of this paragraph) for failing to repay part or all of an amount that has been paid as described in paragraph (b); or
(f) a person has incurred a debt under the Social Security Act 1991 (whether before or after the commencement of this paragraph) for failing to repay part or all of an amount that has been paid as described in paragraph (c) or (d); or
(fa) a person has incurred a debt under subsection 204(2); or
(g) a person has received an advance payment of pension under Part II, III or IV or of income support supplement.
(1AB) If:
(a) a person has received an advance payment of a pension under Part II, III or IV or of an income support supplement; and
(b) the pension or income support supplement ceases to be payable to the person; and
(c) at the time when the pension or income support supplement ceases to be payable the person has not repaid the whole of the advance payment;
the amount that has not been repaid is a debt due to the Commonwealth.
(1A) Where this section applies, the recoverable amount shall, subject to section 205AA and unless the Commission takes action under paragraph 206(1)(a) or (b) in respect of that amount, be recovered in any one or more of the ways provided by subsections (1B), (1C) and (1D) and section 205A.
(1B) A recoverable amount may be recovered by deductions under subsection (2).
(1C) A recoverable amount, other than an excluded amount, may be recovered:
(a) by proceedings in a court of competent jurisdiction from the person to whom, or on whose account, the amount was paid, or from the estate of that person, as a debt due to the Commonwealth; or
(b) partly by proceedings referred to in paragraph (a) and partly by deductions under subsection (2).
(1D) A recoverable amount may be recovered by instalments in accordance with a determination made under paragraph 206(1)(c).
(2) If:
(a) an amount ( overpayment ) has been paid as described in paragraph (1)(a), (b), (c), (ca), (cb), (cd) or (d) to a person; or
(b) a person has incurred a debt as described in paragraph (1)(e), (f) or (fa) or subsection (1AB);
an amount not exceeding the amount of the overpayment or debt may (whether or not proceedings have been instituted in a court to recover the overpayment or debt) be recovered by deductions:
(c) from a pension, allowance or pecuniary benefit payable to that person under this Act; or
(d) from any amount that, because of the person's death is to be dealt with in accordance with sections 123A to 123E (inclusive); or
(e) with the consent of another person, from any pension, allowance or other pecuniary benefit payable to that other person under this Act;
but the total amount recovered, whether by deduction or by proceedings in a court or both, is not to exceed the amount of the overpayment or debt.
(3) Where deductions have commenced to be made under subsection (2) to recover an amount (in this subsection referred to as the overpayment ) but the whole of the overpayment has not been recovered at the end of the period applicable under subsection 206(2), to the institution of proceedings to recover the overpayment, deductions may continue to be made under subsection (2) of this section until the balance of the overpayment has been recovered, notwithstanding that the period during which proceedings may be instituted to recover the balance of the overpayment has expired.
(7) The payment of an amount paid by way of pension, allowance or other pecuniary benefit becomes an unauthorised payment if:
(a) the decision pursuant to which the payment was made is:
(i) set aside; or
(ii) varied, so that a lesser amount, or no amount, is payable by way of pension, allowance or other pecuniary benefit;
by any person, body, tribunal or court; and
(b) the setting aside or variation has effect from the date, or from a date earlier than the date, of the payment.
(8) In this section:
"excluded amount" means:
(a) a recoverable amount arising by virtue of the payment of an amount as mentioned in paragraph (1)(b); or
(b) a recoverable amount arising by virtue of the payment of an amount as mentioned in paragraph (1)(c) or (d) under the Social Security Act or the Social Security Act 1947 ; or
(ba) a recoverable amount arising by virtue of the payment of an amount as mentioned in paragraph (1)(ca), (cb) or (cd); or
(c) a recoverable amount arising because of a debt incurred as mentioned in paragraph (1)(e), (f) or (fa) or subsection (1AB).
"family assistance" has the same meaning as in the A New Tax System (Family Assistance) Act 1999 .
"family assistance law" has the same meaning as in the A New Tax System (Family Assistance) (Administration) Act 1999 .
"prescribed educational scheme" means:
(a) the Aboriginal Overseas Study Assistance Scheme; or
(b) the ABSTUDY Scheme; or
(c) the Assistance for Isolated Children Scheme; or
(e) the English as a Second Language Allowance Scheme; or
(f) the Post - graduate Awards Scheme; or
(g) the scheme to provide an allowance known as the Adult Migrant Education Program Living Allowance; or
(h) the scheme to provide an allowance known as the Maintenance Allowance for Refugees; or
(j) a scheme prescribed for the purposes of this definition.
"recoverable amount" means:
(a) where an amount has been paid as mentioned in paragraph (1)(a), (b), (c), (ca), (cb) or (cd)--an amount equal to that amount; or
(b) where an amount has been paid as mentioned in paragraph (1)(d) pursuant to a decision that is set aside as mentioned in subsection (7)--an amount equal to that amount; or
(c) where an amount has been paid as mentioned in paragraph (1)(d) pursuant to a decision that is varied as mentioned in subsection (7)--an amount equal to the amount by which the amount paid exceeded the amount payable under the decision as varied; or
(d) if a debt of a kind referred to in paragraph (1)(e), (f) or (fa) or subsection (1AB) has been incurred by a person--an amount equal to the amount of the debt.