5.1.4 Impact & treatment of redress payments on other entitlements

Summary

Legislative protections are in place to ensure that persons who receive a redress payment through the National Redress Scheme are not unreasonably exposed to additional liabilities because of receiving a payment. These protections are to ensure that a person who receives a redress payment is not made worse off as a result of their sudden change in financial circumstances. Additionally, for the purposes of the Social Security Act 1991 and the Veterans' Entitlements Act 1986 and the income tax assessment test, a redress payment is not considered income.

Any Commonwealth, state or territory legislation that would take into consideration payments of compensation or damages in order for a person to access or receive a product or service (including payments), cannot consider redress payments. This includes the Social Security Act, and the Veterans' Entitlements Act.

However, redress payments may be considered as savings, a financial resource or an asset. For example, a redress payment could be considered as part of the assets test when determining a social security payment.

Liability insurance contracts are also able to treat redress payments are being payments of compensation and damages (for example, to allow participating institutions to use such contracts for their redress liabilities).

Inalienability of redress payments

Any redress payment received, and the entitlement to receive the redress payment, rests solely with the person found eligible to receive redress and nobody else. This inalienability is protected under legislation. This means that no Commonwealth, state or territory legislation can transfer or deprive from an eligible person their redress payment or entitlement to that payment, either by engaging in or because of any of the following mechanisms:

• sale
• assignment
• charge
• execution
• bankruptcy
• any other mechanism not otherwise described above.

The only exemption to this applies in the event that debt recovery provisions within the Scheme legislation apply to the person who received the redress payment because of any of the following:

• the amount was paid to the wrong person
• the amount exceeds the amount that was supposed to be paid to the person
• the redress payment was received by the person as a consequence of a fraudulent act.

Deductions of redress payments

Commonwealth, state or territory legislation cannot require an amount be deducted from a redress payment received by a person. The redress payment is protected under legislation.

Garnishee orders on an account

Where a redress payment is paid into an account and a court ordered garnishee order comes into force for that account, for the purposes of the NRSAct the court order does not apply to any saved amount in the account. The saved amount is determined by:

• working out the amount of the redress payment that has been paid to the credit of the account in the year immediately before the court order came into force, and
• subtract from the amount of the redress payment the total amount withdrawn from the account during that year. The result is the saved amount.

The saved amount cannot be garnisheed through the court order.

To ensure these protections are applied, applicants are advised to keep their redress payment separate to their other funds and to identify redress payments when transferring across their accounts.