Recovery of amounts from financial institutions
42A Recovery of amounts from financial institutions
If:
an amount or amounts of student assistance benefit are paid to a financial institution for the credit of an account kept with the institution; and
the Secretary is satisfied that the amount or the amounts were intended to be paid for the benefit of someone who was not the person or one of the persons in whose name or names the account was kept;
the Secretary may give a written notice to the institution setting out the matters mentioned in paragraphs (a) and (b) and requiring the institution to pay to the Commonwealth, within a period (being a reasonable period) stated in the notice, the lesser of the following amounts:
an amount specified in the notice, being the amount, or the sum of the amounts, of the student assistance benefit;
the amount standing to the credit of the account when the notice is received by the institution.
If:
an amount or amounts of student assistance benefit that are intended for the benefit of a person are paid to a financial institution for the credit of an account that was kept with the institution by the person or by the person and one or more other persons; and
the person died before the amount or amounts were paid;
the Secretary may give a written notice to the institution setting out the matters mentioned in paragraphs (a) and (b) and requiring the institution to pay to the Commonwealth, within a period (being a reasonable period) stated in the notice, the lesser of the following amounts:
an amount specified in the notice, being the amount, or the sum of the amounts, of the student assistance benefit;
the amount standing to the credit of the account when the notice is received by the institution.
As soon as possible after issuing a notice under subsection (2), the Secretary must inform the deceased estate in writing of:
the amount sought to be recovered from the deceased person’s account; and
the reasons for the recovery action.
A financial institution must comply with a notice given to it under subsection (1) or (2).
Penalty: 300 penalty units.
It is a defence to a prosecution of a financial institution for failing to comply with a notice given to it under subsection (1) or (2) if the financial institution proves that it was incapable of complying with the notice.
The defendant bears a legal burden in relation to the matter in subsection (5). See section 13.4 of the Criminal Code.
If a notice is given to a financial institution under:
subsection (1) (amount paid to wrong account) in respect of an amount or amounts of student assistance benefit; or
subsection (2) (death of person in whose name the account was kept) in respect of an amount or amounts of student assistance benefit;
any amount recovered by the Commonwealth from the institution in respect of the debt reduces any debt owed to the Commonwealth by any other person in respect of the amount or amounts of student assistance benefit.
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