23Recovery of costs of rehabilitation programs borne by the Commonwealth

#### 23 Recovery of costs of rehabilitation programs borne by the Commonwealth (1) In this section: > compensation, in relation to a person who has undertaken, or is undertaking, a rehabilitation program, means any payment by way of compensation or damages, or that is, in the opinion of the Secretary, in the nature of compensation or damages, in respect of the disability by reason of which the rehabilitation program has been or is being provided, but does not include a payment for which the person has made contributions or a payment made under a law, or a provision of a law, of the Commonwealth, or a State or Territory, being a law or provision prescribed for the purposes of this definition. > cost, in relation to a person’s rehabilitation program, means the cost, as determined by the Secretary, of and incidental to the program, and includes any allowances paid to the person under section 24 but does not include any part of the cost that is not borne by the Commonwealth. (2) Where: (a) a person who is undertaking, or has undertaken, a rehabilitation program recovers or receives compensation from another person; or (b) the Secretary, by notice in writing served on a person who is undertaking, or has undertaken, a rehabilitation program, notifies the person that the person is, in the opinion of the Secretary, entitled to recover or receive compensation from another person; the person who is undertaking, or has undertaken, the rehabilitation program is, subject to subsection (3) and notwithstanding section 22, liable to pay to the Commonwealth an amount equal to the cost of the rehabilitation program. (3) Where the Secretary is satisfied that special circumstances exist by reason of which a person liable under subsection (2) to pay an amount to the Commonwealth should be released in whole or in part from that liability, the Secretary may release the person accordingly. (4) Where the Secretary is satisfied that special circumstances exist by reason of which the whole or a part of an amount paid to, or recovered by, the Commonwealth under this section by or from a person who is undertaking, or has undertaken, a rehabilitation program should be refunded to the person, the Secretary may make a refund accordingly. (5) The Secretary may, by notice in writing served on a person (in this section referred to as the person liable to pay compensation) liable to pay compensation to or on behalf of another person (in this section referred to as the person entitled to receive compensation) who is undertaking, or has undertaken, a rehabilitation program, inform the person liable to pay compensation that the Secretary proposes to recover from the person liable to pay compensation the cost of the rehabilitation program. (5A) The Secretary may issue a notice under subsection (5): (a) whether or not a court or tribunal has made a determination about the entitlement to compensation of the person entitled to receive compensation; and (b) whether or not a person liable to pay compensation has made a payment (with or without admission of liability) in settlement of a claim for damages. (6) The Secretary may, in the same notice or in a subsequent notice in writing served on the person liable to pay compensation, specify: (a) the cost of the rehabilitation program provided, or being provided, to the person entitled to receive compensation; and (b) an amount (not exceeding the amount of that cost) payment of which is claimed by the Secretary; and thereupon the person liable to pay compensation is liable to pay to the Commonwealth: (c) the amount so specified; or (d) the amount of the compensation (less any amounts paid, in accordance with an approval given under subsection (7), to the person entitled to receive compensation by the person liable to pay compensation); whichever is the lesser amount. (7) After the service on a person of a notice under subsection (5), the person shall not, except with the approval of the Secretary and in accordance with that approval, pay an amount of compensation to or on behalf of the person entitled to receive compensation until: (a) the Secretary has specified under subsection (6) the amount that the person liable to pay compensation is liable to pay to the Commonwealth; and (b) the person liable to pay compensation has paid that amount to the Commonwealth. (8) Payment of an amount to the Commonwealth under subsection (6) shall, to the extent of the payment, operate as a discharge to the person liable to pay compensation against the person entitled to receive compensation. (9) Where the Secretary is satisfied that special circumstances exist by reason of which the whole or a part of an amount paid to, or recovered by, the Commonwealth by or from the person liable to pay compensation should be paid to the person entitled to receive compensation, the Secretary may make a payment accordingly. (10) This section binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory. (11) This section has effect, in relation to the Commonwealth or an authority of the Commonwealth, notwithstanding the provisions of any other Act. (12) Any amount that a person is liable to pay to the Commonwealth under this section may be recovered in a court of competent jurisdiction as a debt due to the Commonwealth, but the Commonwealth is not entitled to recover the cost of a rehabilitation program that is being undertaken, or has been undertaken, by a person from both: (a) the person who is undertaking, or has undertaken, the rehabilitation program; and (b) a person liable to pay compensation to or on behalf of the person who is undertaking, or has undertaken, the rehabilitation program. (13) A reference in subsection (5), (5A) or (12) to a person liable to pay compensation includes a reference to an insurer who, under a contract of insurance, is liable to indemnify the person liable to pay the compensation against such liability.