Defence Service Homes Amendment Act 1988 (Cth)
Section
1. Short title etc.
2. Commencement
3. Long title
4. Interpretation
5. Regular Serviceman
6. Eligible person and spouse may be treated together as eligible person
7. Repeal of section 4b and substitution of new sections:
4b. Approval of agreement etc.
4c. Compensation for acquisition of property
8. Delegation by Secretary
9. Insertion of new sections:
6b. Transfer of portfolio assets to the Bank
6c. Dealings relating to vested portfolio assets
6d. Transfer of certain other assets to Commonwealth
10. Repeal of Parts III, IV, V and VI and substitution of new Parts:
PART III—NOTICES OF ELIGIBILITY AND CERTIFICATES OF ENTITLEMENT
15. Applications for notices and certificates
16. Notice of eligibility
17. Certificate of entitlement: advances
18. Criteria for issue of certificate of entitlement: advances other than widows’ advances and advances for essential repairs
19. Certificate of entitlement not to be issued in certain other cases
20. Criteria for issue of certificate of entitlement: widows’ advances
21. Criteria for issue of certificate of entitlement: advances made for essential repairs
22. Certificate of entitlement: transfer of property subject to specified portfolio asset or advance
23. Certificate of entitlement: instalment relief
TABLE OF PROVISIONS—continued
Section PART IV—SUBSIDY ON ADVANCES ETC.
24. Subsidy payable by Commonwealth
25. Maximum amounts for which subsidy is payable
26. Cancellation of subsidy
27. Cancellation of subsidy where subclause 11.16 of the agreement applies
28. Deferral of subsidy by Minister
29. Recovery of subsidy
30. etc.
PART V—RATES OF INTEREST, MAXIMUM TERMS, AND CONVERSIONS
31. Rate of interest on initial advances
32. Rate of interest on widows’ advances
33. Rate of interest on additional advances
34. Rate of interest on further advances
35. Rate of interest on advances for essential repairs
36. Maximum terms of advances
37. Conversion of contract of sale into mortgage
PART VI—DEFENCE SERVICE HOMES INSURANCE SCHEME
38. Defence Service Homes Insurance Scheme
38a. Powers of Commonwealth to be exercised by the Secretary
38b. Transfer of assets and liabilities
38c. Insurance of dwelling-houses etc.
38d. Insurance of dwelling-house etc. in which Corporation has an interest
38e. Termination of insurance
38f. Reinsurance
38g. Payments for fire brigade services
38h. Limitation of liability of Commonwealth
11. Insertion of new section:
41. Appropriation
12. Repeal of sections 43, 44 and 45 and substitution of new sections:
43. Internal review of reviewable decisions
44. Review of decisions by Administrative Appeals Tribunal
45. Certain provisions of agreement not to be revoked or amended
45a. Bankruptcy of purchaser or borrower
45b. Exchange of information
13. Repeal of section 47 and substitution of new section:
47. Dwelling-houses for incapacitated soldiers
14. Repeal of section 50b and substitution of new section:
50b. Annual report
15. Repeal of provisions relating to Corporation and finance
16. Schedule
17. Saving: contracts of sale, Corporation advances etc.
18. Other savings provisions
19. Transitional
20. Further amendments
SCHEDULE 1
NEW SCHEDULE 1 TO BE INSERTED IN PRINCIPAL ACT
SCHEDULE 2
NEW SCHEDULE 2 TO BE INSERTED IN PRINCIPAL ACT
SCHEDULE 3
FURTHER AMENDMENTS OF THE DEFENCE SERVICE HOMES ACT 1918
BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:
(a) by omitting “Corporation” from paragraphs (c) and (d) of the definition of “Australian Soldier” in subsection (1) and substituting “Secretary”;
(b) by omitting “, for not less than 3 years immediately before his death” from the definition of “Widow” in subsection (1);
(c) by omitting from subsection (1) the definitions of “Advance”, “Amount of advance”, “Borrower”, “Contract of Sale” and “Purchaser”;
(d) by inserting in subsection (1) the following definitions:“ ‘additional advance’ means a subsidised advance to a purchaser or borrower for a purpose referred to in subsection 18 (3);
‘advance for essential repairs’ means a subsidised advance to a person referred to in section 21 for the purpose referred to in that section;
‘agreement’ means the agreement made between the Commonwealth and the Bank on 9 November 1988, a copy of which is set out in Schedule 1, as in force from time to time;
‘amending Act’ means the
Defence Service Homes Amendment Act 1988 ;‘borrower’ means a person who is liable to pay the outstanding amount:
(a) of a subsidised advance in respect of which subsidy is payable; or
(b) secured by a specified portfolio asset (other than a contract of sale) which vests in the Bank under section 6b and in respect of which subsidy is payable;
‘certificate of entitlement’ means a certificate of entitlement issued under this Act;
‘commencing day’ means the day on which section 10 of the amending Act commences;
‘contract of sale’ means a contract for the sale of a dwelling-house and land under Part IV of this Act as in force before the commencing day;
‘Corporation advance’ has the same meaning as in the agreement;
‘further advance’ means a subsidised advance to a person who has been a purchaser or borrower but is not a purchaser or borrower immediately before the advance is made;
‘initial advance’ means a subsidised advance for a purpose referred to in subsection 18 (2) to a person referred to in subsection 18 (1) who is not, and has not previously been, a purchaser or a borrower;
‘instalment relief has the same meaning as in the agreement;
‘notice of eligibility’ means a notice of eligibility issued under this Act;
‘portfolio asset’ has the same meaning as in the agreement;
‘purchaser’ means a person who is liable to pay the outstanding balance of the purchase money in respect of the purchase of land and a dwelling-house under a contract of sale in respect of which subsidy is payable;
‘reviewable decision’ means a decision of the Secretary:
(a) refusing to issue a notice of eligibility or a certificate of entitlement;
(b) determining an amount under section 25;
(c) cancelling subsidy under section 26;
(d) giving the Bank a notice of the intended cancellation of subsidy under section 27;
(e) requiring a person to pay an amount under section 29;
(f) determining a maximum term under section 36;
(g) refusing to extend the period for making an application for review under section 43; or
(h) giving, or refusing to give, an approval under section 45a;
‘specified portfolio asset’ has the same meaning as in the agreement;
‘subsidised advance’ has the same meaning as in the agreement;
‘subsidy’ means a subsidy payable under Part IV by the Commonwealth to the Bank, being an amount calculated and payable in the manner provided in the agreement;
‘the Bank’ means Westpac Banking Corporation and, as the context requires and subject to the agreement, any body to which it assigns all or any of its rights or obligations under the agreement, the portfolio assets or subsidised advances or any security for those advances, as provided by the agreement;
‘transferee’ means a person to whom a certificate of entitlement has been issued under section 22;
‘vesting date’, in relation to the portfolio assets in a State or Territory, means the date determined by the Minister under section 6b in relation to those assets;
‘widower’, in relation to an eligible person who died after the commencement of paragraph 4 (d) of the amending Act, includes a man who lived with the eligible person as her husband on a permanent and
bona fide domestic basis, although not legally married to her;‘widow’s advance’ means a subsidised advance to a person referred to in section 20 for a purpose referred to in that section;
‘winding-up day’ means the day on which section 15 of the amending Act commences.”;
(e) by omitting from subsection (2d) “Corporation” (wherever occurring) and substituting “Secretary”;
(f) by omitting from subsection (3a) all the words after “that woman”;
(g) by omitting from subsection (3b) all the words after “that man”;
(h) by omitting from subsection (3c) “Corporation” and substituting “Secretary”;
(j) by omitting from paragraph (4) (b) “Corporation” and substituting “Secretary”;
(k) by omitting from paragraph (5) (b) “Corporation” and substituting “Secretary”.
6. Section 4a of the Principal Act is amended:
(a) by omitting from subsection (1) “Corporation may, in its” and substituting “Secretary may, in his or her”;
(b) by omitting from subsection (1) all the words from and including “a husband and wife” and substituting “a wife or husband of that eligible person who is so treated.”;
(c) by omitting subsection (2);
(d) by omitting from subsection (3) “Corporation” and substituting “Secretary”;
(e) by omitting subsection (5).
“4b. The agreement, as executed on 9 November 1988, and its execution on behalf of the Commonwealth, are approved.
“4c. (1) If, apart from this section, the operation of this Act would result in the acquisition of property from a person otherwise than on just terms, there is payable to the person by the Commonwealth such reasonable amount of compensation as is agreed between the person and the Commonwealth or, failing agreement, as is determined by the Federal Court.
“(2) In this section, ‘acquisition of property’ and ‘just terms’ have the same respective meanings as in paragraph 51 (xxxi) of the Constitution.”.
“6b. (1) Where a date in relation to the portfolio assets in a State or Territory has been notified in writing by the Bank to the Corporation and the Commonwealth in accordance with the agreement, the Minister shall determine the vesting date in relation to the portfolio assets in that State or Territory.
“(2) The Minister may determine a vesting date in relation to the portfolio assets in a State or Territory that is different from the date notified by the Bank but shall not determine a vesting date that is earlier than 3 days before the date notified by the Bank or later than 3 days after that date.
“(3) Where the Minister determines a vesting date, the Minister shall forthwith notify the Bank in writing of the determination.
“(4) A notice to the Bank shall not be taken, for any purpose, to be the making of the determination to which it relates.
“(5) The Minister may refuse to determine a vesting date, or may revoke any such determination, in accordance with the agreement.
“(6) Subject to this section, where the Minister determines a vesting date in relation to the portfolio assets in a State or Territory, then, unless that determination is revoked before that date:
(a) all rights, title and interest of the Corporation in the portfolio assets in that State or Territory as in force immediately before that date
vest, by force of this section but not otherwise, in the Bank on that date;
(b) the Bank is on and after that date, by force of this section, liable to pay and discharge all debts, liabilities and obligations of the Corporation that existed immediately before that date under the portfolio assets in that State or Territory;
(c) in spite of any other provision of this Act, any contract in force immediately before that date, being a contract comprising a portfolio asset in that State or Territory, has effect on and after that date as if:
(i) the Bank were a party to the contract instead of the Corporation; and
(ii) any reference in the contract to the Corporation were (except in relation to matters that happened before that date) a reference to the Bank; and
(d) the Commonwealth is, by force of this section, substituted for the Corporation as a party to any proceedings pending in any court immediately before that date (being proceedings to which the Corporation was a party and that relate to a portfolio asset in that State or Territory) and has the same rights in the proceedings as the Corporation had.
“(7) The Bank is not liable to pay or discharge any liability or obligation arising out of proceedings to which the Commonwealth is substituted as a party under paragraph (6) (d).
“(8) Where a portfolio asset vests in the Bank under this section, the bank is bound by the terms and conditions of that asset and shall abide by and duly perform those terms and conditions and any obligations of the Corporation under that asset.
“(9) The provisions of this Act and the Defence Service Homes Regulations specified in Schedule 2, as those provisions were in force immediately before the commencing day, shall be taken to be terms and conditions of portfolio assets which vest in the Bank under this section and, for that purpose, those provisions shall be read as if:
(a) references to the Corporation (other than in section 30 and subsections 35 (2a) and 36a(1) of this Act as then in force) were references to the Bank;
(b) expressions used in those provisions that are defined in this Act as then in force had the same respective meanings as provided in those definitions; and
(c) they were further modified as specified in Schedule 2.
“(10) A provision of a portfolio asset requiring or permitting a person to make payments under the asset at any office or to any person, other than the Corporation, shall cease to have effect when the portfolio asset vests in the Bank.
“(11) An undertaking given by a person in relation to a portfolio asset under paragraph 35 (2) (b) of this Act, as in force before the commencing day, shall, to the extent to which it has not been discharged before the day on which that asset vests in the Bank under this section, continue to have effect on and after that day as if it had been given by that person under paragraph 22 (2) (b) of this Act.
“6c. (1) Where the Corporation, or any of its predecessors, is registered in a State or Territory as the owner of an interest in a portfolio asset which vests in the Bank under section 6b, the Bank may, subject to the agreement, execute any receipt, discharge or other instrument in relation to that interest in its own name, or in the name of the Corporation or the Corporation’s predecessor, as the case may be, and the Registrar-General, Registrar of Titles, or other appropriate officer, of that State or Territory may make such entries in his or her registers, and do such other things, as are necessary to give effect to that receipt, discharge or other instrument.
“(2) The Bank may execute a transfer of land and a dwelling-house to the purchaser of that land and dwelling-house under a contract of sale which vests in the Bank under section 6b and any transfer so executed shall be taken to have been made pursuant to and in conformity with the contract of sale.
“(3) A transfer referred
to in subsection (2) is not liable to any
“6d. (1) On the winding-up day:
(a) all prescribed rights that, immediately before that day were vested in the Corporation vest on that day, by force of this subsection, in the Commonwealth; and
(b) the Commonwealth becomes, by force of this subsection, liable to pay or discharge any prescribed debts of the Corporation that existed immediately before that day.
“(2) Any prescribed contract to which the Corporation was a party immediately before the winding-up day has effect on and after that day as if:
(a) the Commonwealth were substituted for the Corporation as a party to the contract; and
(b) any reference in the contract to the Corporation were (except in relation to things that happened before that day) a reference to the Commonwealth.
“(3) If, immediately before the winding-up day, prescribed proceedings to which the Corporation was a party were pending in any court, the Commonwealth is, on that day, by force of this subsection, substituted for
the Corporation as a party to the proceedings and has the same rights in the proceedings as the Corporation had.
“(4) Where any interest in land situated in a State or Territory vests in the Commonwealth under this section, the Secretary may lodge with the Registrar-General, Registrar of Titles or other appropriate officer of that State or Territory a notice signed by the Secretary, or by a person authorised by the Secretary for the purpose, stating that that interest is vested in the Commonwealth by this section, and the person with whom the notice is so lodged may make such entries in his or her registers, and do such other things, as are necessary to reflect the vesting of that interest in the Commonwealth.
“(5) In this section:
‘prescribed contract’ means a contract other than a contract referred to in section 6b or an insurance contract within the meaning of section 38b;
‘prescribed debt’ means any debt, liability or obligation other than a debt, liability or obligation referred to in section 6b or an insurance debt within the meaning of section 38b;
‘prescribed proceedings’ means proceedings other than proceedings referred to in section 6b or insurance proceedings within the meaning of section 38b;
‘prescribed right’ means any right, property or assets other than a right, title or interest referred to in section 6b or an insurance right within the meaning of section 38b.”.
“15. (1) A person may apply to the Secretary for any of the following:
(a) a notice of eligibility;
(b) a certificate of entitlement in relation to subsidy on a subsidised advance that the person may seek from the Bank;
(c) a certificate of entitlement in relation to consent that the person may seek from the Bank to a transfer;
(d) a certificate of entitlement in relation to instalment relief that the person may seek from the Bank.
“(2) An application shall be in writing in accordance with the appropriate form approved by the Secretary for the purposes of this section and shall be made in accordance with the agreement.
“16. (1) Where, on application by a person for a notice of eligibility, the Secretary is satisfied that the applicant is an eligible person, the Secretary shall issue to the applicant a notice of eligibility.
“(2) A notice of eligibility shall state that the person named in the notice is, on the date of the notice, an eligible person.
“17. (1) Subject to this Act, the Secretary shall, on application by a person for a certificate of entitlement in relation to subsidy on a subsidised advance that the person may seek from the Bank, issue to the applicant a certificate of entitlement certifying that subsidy is payable by the Commonwealth to the Bank if, in accordance with the agreement, the Bank makes that advance to the applicant.
“(2) A certificate of entitlement issued under this section remains in force until:
(a) it lapses as provided in the agreement; or
(b) subsidy in respect of the relevant advance ceases to be payable under this Act;
whichever happens first.
“(3) A certificate of entitlement issued under this section shall:
(a) specify the maximum amount in respect of which subsidy is payable, being an amount determined under section 25;
(b) specify the maximum term of the advance;
(c) specify the purpose of the advance;
(d) specify the rate of interest payable on the advance; and
(e) contain particulars of such other matters as are specified in the agreement.
“18. (1) Subject to this section, the Secretary shall not issue a certificate of entitlement in relation to subsidy on an advance that a person may seek from the Bank unless satisfied that:
(a) the person is an eligible person, or the husband or wife of an eligible person who is temporarily or permanently insane;
(b) the person is not the owner of any dwelling-house other than that in respect of which the advance is payable;
(c) the person is not liable to repay any amount received by way of assistance under an agreement of the kind known as a War Service Land Settlement Agreement;
(d) the person has not received money from the Commonwealth after 9 December 1987 by way of:
(i) a payment of a cash grant instead of an advance under this Act as in force on or before that day; or
(ii) a payment instead of such a cash grant;
(e) if the person has a husband or wife (other than a husband or wife from whom he or she is permanently separated)—the husband or wife is not the owner of any dwelling-house other than that in respect of which the advance is payable;
(f) except in the case of an advance to a person included in paragraph (b) or (d) of the definition of ‘Australian Soldier’ in section 4 in relation to a house or building used or to be used as a hospital, sanatorium or nursing-home—the dwelling-house in respect of which the advance is payable is intended to be used by the person as a home for the person and any dependants of the person; and
(g) except as provided by the agreement, such advance will be secured by a first mortgage over the relevant holding of the person.
“(2) The Secretary shall not issue a certificate of entitlement in relation to subsidy on an advance, other than an additional advance, that a person may seek from the Bank unless satisfied that the advance is for the purpose of enabling the person:
(a) to build a dwelling-house on a holding of the person;
(b) to purchase land and build a dwelling-house on the land;
(c) to purchase a dwelling-house together with the land on which it is built;
(d) to complete a partially built dwelling-house owned by the person;
(e) to enlarge a dwelling-house owned by the person; or
(f) to discharge any mortgage, charge or encumbrance already existing on a holding of the person.
“(3) The Secretary shall not issue a certificate of entitlement in relation to subsidy on an additional advance that a person may seek from the Bank unless satisfied that the advance is for the purpose of enabling the person:
(a) to enlarge a dwelling-house owned by the person to the extent necessary to provide essential extra sleeping accommodation or to instal essential utility services;
(b) to meet the cost of roadmaking if the person is liable to meet that cost but is otherwise unable to do so;
(c) if the person is a widow or widower who is the registered owner of a motor vehicle and is unable to meet the cost of building a garage for the motor vehicle—to build a garage for the motor vehicle;
(d) to raise a dwelling-house owned by the person above the level of periodic flooding; or
(e) to discharge any mortgage, charge or encumbrance already existing on a holding of the person.
“(4) The Secretary shall not issue a certificate of entitlement in relation to subsidy on an initial advance, an additional advance or a further advance
that a person may seek from the Bank for the purposes referred to in paragraph (2) (f) or (3) (e) if the mortgage concerned was raised with the consent of the Corporation under section 32 of this Act, as in force before the commencing day, or, in any other case, unless satisfied that:
(a) the mortgage, charge or encumbrance concerned was raised by the person with the consent or approval of the Corporation or the Secretary, as the case may be;
(b) the mortgage, charge or encumbrance is over land and the person intends to use the advance partly to discharge the mortgage, charge or encumbrance and partly to build a dwelling-house on that land;
(c) the terms of the mortgage, charge or encumbrance are onerous and, having regard to the person’s income, compliance with those terms is causing the person serious financial hardship; or
(d) the person is suffering serious financial hardship for other reasons beyond the control of the person.
“(5) Subsection (4) does
not apply where the person concerned is an eligible person who is receiving, or
is eligible to receive, a pension under Part II of the
“(6) In this section:
‘advance’ means a subsidised advance other than a widow’s advance or an advance for essential repairs.
“19. (1) Except with the approval of the Minister, the Secretary shall not issue a certificate of entitlement in relation to subsidy on a subsidised advance (other than an additional advance, a widow’s advance or an advance for essential repairs) that a person may seek from the Bank if the person is, or was at any time, a purchaser or a prescribed borrower or a person to whom an initial advance is taken to have been made under section 37.
“(2) In this section:
‘prescribed borrower’ means a borrower other than a borrower in relation to an initial advance or a further advance, or a Corporation advance granted after 9 December 1987 for a term of 25 years or less.
“20. (1) The Secretary shall not issue a certificate of entitlement in relation to subsidy on a widow’s advance that a person may seek from the Bank unless satisfied that:
(a) the person is the widow, or widowed mother, of an eligible person, or the wife of an eligible person who is temporarily or permanently insane;
(b) the person is a purchaser or a borrower in relation to land or land and a dwelling-house; and
(c) the widow’s advance relates to that land or land and dwelling-house.
“(2) The Secretary shall not issue a certificate of entitlement in relation to a subsidy on a widow’s advance that a person may seek from the Bank unless satisfied that:
(a) the advance is for the purpose of keeping the buildings, fences, fixtures and other improvements on the relevant land in good order and repair and it would cause financial hardship to the person if she were to bear the cost of keeping them in good order and repair; or
(b) the advance is for the purpose of paying rates, taxes, charges or other outgoings in relation to the relevant land or land and dwelling-house and it would cause financial hardship to the person if she were to pay those rates, taxes, charges or other outgoings.
“21. The Secretary shall not issue a certificate of entitlement in relation to subsidy on an advance for essential repairs that a person may seek from the Bank unless satisfied that:
(a) the person is an eligible person who is a purchaser or a borrower in relation to land or land and a dwelling-house;
(b) the advance relates to that land or land and dwelling-house;
(c) the advance is for the purpose of enabling the person to effect repairs essential to keep the buildings, fences, fixtures and other improvements on that land in good order and repair; and
(d) it would cause serious financial hardship to the person if he or she were to bear the cost of keeping them in good order and repair.
“22. (1) While any land, or land and dwelling-house, is subject to a specified portfolio asset which vests in the Bank under section 6b or a mortgage securing a subsidised advance, a transfer of the estate or interest of the purchaser or borrower in that land, or land and dwelling-house, being a transfer subject to that specified portfolio asset or mortgage, has no effect unless the Secretary has issued a certificate of entitlement to the proposed transferee in relation to the transfer.
“(2) The Secretary:
(a) shall not issue a certificate of entitlement in relation to consent that the person may seek from the Bank to a transfer unless satisfied that, in all the circumstances, it is reasonable to do so; and
(b) may, before issuing the certificate, require a person to take such action (including the giving of an undertaking by the proposed transferee) as the Secretary considers reasonable in the circumstances.
“(3) A certificate of entitlement under this section may be issued to a proposed transferee who is not an eligible person.
“(4) A certificate of entitlement under this section remains in force until the subsidy to which it relates ceases to be payable under this Act.
“(5) A certificate of entitlement under this section shall:
(a) contain a statement to the effect that the Secretary consents to the transfer to the proposed transferee and that the Commonwealth will continue to pay subsidy in relation to the specified portfolio asset or subsidised advance if the transfer to the proposed transferee is carried out;
(b) specify the maximum amount in respect of which subsidy is payable;
(c) specify the maximum term during which subsidy will be paid;
(d) specify the relevant rate of interest payable on the specified portfolio asset or subsidised advance; and
(e) contain particulars of such other matters (if any) as are specified in the agreement.
“(6) Subject to this section but in spite of any other provision of this Act, where land, or land and a dwelling-house, is transferred to a transferee who is not an eligible person, section 45a does not apply to the transferee’s interest in the land, or land and dwelling-house.
“(7) This section does not apply to:
(a) a transfer of land, or land and a dwelling-house, to the Bank as a result of the exercise by the Bank of its powers under the relevant mortgage or other security; or
(b) where the purchaser or owner of land, or land and a dwelling-house, dies—a transmission of the land, or land and dwelling-house, to the executor or administrator of the estate of the purchaser or owner.
“23. (1) Where, on application by a person for a certificate of entitlement in relation to instalment relief that the person may seek from the Bank, the Secretary is satisfied that:
(a) the applicant is the widow or widowed mother of an eligible person, or the wife of an eligible person who is temporarily or permanently insane, and is a purchaser or a borrower; or
(b) the applicant is not a person referred to in paragraph (a) but is a purchaser or a borrower who is an eligible person and the amounts of the instalments payable under the relevant contract of sale, mortgage or other security include an amount of interest calculated at a rate of more than 3.75% per year;
and that it would cause financial hardship to the applicant if the applicant were to pay in full the amounts of the instalments, the Secretary shall
determine the amount by which the amounts of the instalments should be reduced and the period during which that reduction should apply.
“(2) Where the Secretary makes a determination, the Secretary shall issue to the applicant a certificate of entitlement specifying:
(a) the amount by which the amounts of the instalments should be reduced and the period during which that reduction should apply; and
(b) particulars of such other matters (if any) as are required by the agreement.
“(3) The Secretary shall cause a copy of each certificate of entitlement under this section to be given to the Bank.
“(4) On the issue of a certificate of entitlement under this section, the amounts of instalments payable under the contract of sale, mortgage or other security to which the certificate relates are, if the Bank grants instalment relief to the applicant, reduced by the amount specified in the certificate during the period specified in the certificate.
“24. (1) Subject to this Part, subsidy is payable by the Commonwealth to the Bank on a subsidised advance to a person.
“(2) Subject to this Part, subsidy is payable by the Commonwealth to the Bank in relation to a specified portfolio asset which vests in the Bank under section 6b, or a subsidised advance, where the land, or land and dwelling-house, to which the specified portfolio asset or advance relates has been transferred to a person to whom a certificate under section 22 has been issued in relation to that transfer.
“(3) Subject to this Part, subsidy is payable by the Commonwealth to the Bank on:
(a) all specified portfolio assets which vest in the Bank under section 6b; and
(b) all advances that the Bank is taken to have made under section 37.
“25. (1) Subject to this section, the amount that shall be specified under paragraph 17 (3) (a) in a certificate of entitlement issued to a person in relation to a subsidised advance that the person may seek from the Bank is:
(a) in the case of an initial advance—such amount as the Secretary determines is necessary to give effect to the purpose for which the advance is made, being an amount that is not more than $25,000;
(b) in the case of an additional advance—such amount as the Secretary determines is necessary to give effect to the purpose for which the advance is made, being an amount that is not more than the amount
by which $25,000 exceeds the sum of the amounts of the contract of sale, Corporation advance, initial advance or further advance and any previous additional advance made to the person;
(c) in the case of a widow’s advance or an advance for essential repairs—such amount as the Secretary determines is necessary to give effect to the purpose for which the advance is made; and
(d) in the case of a further advance—an amount equal to:
(i) if the Minister’s approval in relation to the further advance was required under section 19—the sum of:
(a) the amount of the outstanding balance of the previous contract of sale or Corporation advance, and of any previous additional advance, immediately before the person ceased to be a purchaser or borrower in relation to that contract of sale or advance; and
(b) any additional amount that the Secretary determines is necessary to give effect to the purpose for which the further advance is made;
or $25,000 whichever is less; and
(ii) in any other case—the amount of the outstanding balance of the previous Corporation advance or subsidised advance immediately before the person ceased to be a borrower in relation to that advance.
“(2) Where an initial advance is made to 2 or more persons jointly (being persons included in paragraph (b) or (d) of the definition of ‘Australian Soldier’ in section 4) in relation to a house or building used or to be used as a hospital, sanatorium or nursing-home, the Secretary may determine a maximum amount under paragraph (1) (a) that is more than $25,000 but shall not determine a maximum amount that is more than the sum of the maximum amounts that could have been determined if the advance had been made to each of those persons separately.
“(3) Where subsidy is payable for a specified portfolio asset which vests in the Bank under section 6b, the maximum amount in respect of which subsidy is payable is an amount equal to the amount of the outstanding balance under the specified portfolio asset as at the relevant vesting date.
“(4) Where the outstanding balance of a specified portfolio asset which vests in the Bank under section 6b, or of a subsidised advance, increases as a result of a grant of instalment relief to the purchaser or borrower, the maximum amount in respect of which subsidy is payable for that specified portfolio asset or subsidised advance shall be taken to have been increased by an amount equal to the amount of the increase of that outstanding balance.
“26. (1) Where the Commonwealth is paying subsidy on a subsidised advance to a person and the Secretary is satisfied that:
(a) a certificate of entitlement in relation to that advance was issued to the person as a result of a false statement made by the person;
(b) the person was not, when a certificate of entitlement in relation to the advance was issued to the person, entitled to the certificate;
(c) the person used the advance for a purpose other than that for which it was made; or
(d) where the person is a transferee—the person has, without reasonable excuse, failed to comply with an undertaking given by the person to the Secretary under subsection 22 (2);
the Secretary may, by notice of cancellation given to the person, cancel the subsidy on the date specified in the notice, being a date not earlier than the date of the notice.
“(2) Where:
(a) the Commonwealth is paying subsidy on a specified portfolio asset which vests in the Bank under section 6b or a subsidised advance; and
(b) the Secretary is satisfied that the person in respect of whom the subsidy is being paid has agreed or arranged to transfer the relevant land, or land and dwelling-house, by a transfer that is subject to that specified portfolio asset or the mortgage securing that advance, as the case may be, to a person who is not a transferee;
the Secretary may, by notice of cancellation given to the first-mentioned person, cancel the subsidy on the date specified in the notice, being a date not earlier than the date of the notice.
“(3) Where the Commonwealth is paying subsidy on a specified portfolio asset or a subsidised advance and the Bank takes action to enforce the asset or the mortgage securing the advance but does not, within 3 months after starting that action, recover the outstanding balance secured under the asset, or the outstanding balance of the advance, as the case may be, the Secretary may, by notice of cancellation given to the relevant borrower, purchaser or transferee, cancel the subsidy on the date specified in the notice, being a date not earlier than the date of the notice.
“(4) Where the Commonwealth is paying subsidy in respect of 2 persons and one of those persons becomes the husband or wife of the other person, the Secretary may, by notice of cancellation given to one of those persons, cancel the subsidy in respect of that person on the date specified in the notice, being a date not earlier than the date of the notice.
“(5) The Secretary shall cause a copy of a notice of cancellation to be given to the Bank.
“(6) Where the Secretary cancels subsidy under this section, that subsidy ceases to be payable on the date specified in the notice of cancellation.
“27. (1) Where the Commonwealth is paying subsidy in relation to a specified portfolio asset entered into by a person and the Secretary is satisfied that:
(a) the person obtained the benefit of any advance or assistance secured by that asset as a result of a false statement made by the person;
(b) the person was not, when he or she received that benefit, entitled to do so;
(c) the person used the amount secured by the asset for a purpose other than that for which it was made; or
(d) the person has, without reasonable excuse, failed to comply with an undertaking given, or taken to have been given, by the person to the Secretary under subsection 22 (2);
and the Secretary decides that the subsidy should be cancelled, the Secretary shall, under subclause 11.16 of the agreement, give the Bank one month’s notice of the intended cancellation of the subsidy.
“(2) Where the Secretary gives the Bank a notice under subsection (1), the subsidy to which the notice relates shall be taken to have been cancelled, and ceases to be payable, at the end of any period during which the Commonwealth is required to continue paying subsidy under subclause 11.16 of the agreement.
“(3) The Secretary shall cause a copy of a notice under subsection (1) to be given to the relevant purchaser, borrower or transferee.
“(4) Where subsidy ceases to become payable under this section the Secretary shall notify the relevant purchaser, borrower or transferee accordingly.
“28. The Minister may, by notice in writing given to the Bank, defer payments of subsidy to the Bank in accordance with clause 12 of the agreement.
“29. (1) Where subsidy in relation to a person ceases to be payable under section 26 or 27 for a reason referred to in paragraph 26 (1) (a), (b) or (c) or subsection 26 (2), or paragraph 27 (1) (a), (b) or (c), the Secretary may, by notice in writing given to the person, require the person to pay to the Commonwealth the amount specified in the notice in the manner, and within the period, specified in the notice.
“(2) The Secretary may specify in a notice an amount equal to:
(a) where paragraph 26 (1) (a) or (b) or paragraph 27 (1) (a) or (b) applied—the whole of the amount of subsidy paid in respect of the person;
(b) where paragraph 26 (1) (c) or 27 (1) (c) applied—the whole of the amount of subsidy paid in respect of the person since the day when the use referred to in that paragraph happened; or
(c) where subsection 26 (2) applied—the whole of the amount of subsidy paid in respect of the person since the day when the person agreed or arranged to transfer the relevant land, or land and dwelling-house;
or such part of that amount of subsidy as the Secretary determines to be reasonable.
“(3) The Secretary shall cause a copy of a notice under this section to be given to the Bank.
“(4) Subject to this section, where a person fails to comply with a notice, the amount specified in the notice may be recovered from the person in a court of competent jurisdiction as a debt due to the Commonwealth.
“(5) Where:
(a) the Bank sells any property of a person by way of enforcing a specified portfolio asset or a mortgage securing a subsidised advance; and
(b) the Secretary has given the person a notice under this section;
the Bank shall pay to the Commonwealth an amount equal to:
(c) the part of the proceeds of the sale that, but for this subsection, would have been payable by the Bank to the person; or
(d) such part of the amount specified in the notice as remains unpaid; whichever is less.
“(6) A payment by the Bank to the Commonwealth under subsection (5) is, to the extent of the payment, a discharge of the liability of the person referred to in that subsection to the Commonwealth and of any liability of the Bank to the person under the specified portfolio asset or mortgage.
“30. (1) The Secretary may, on behalf of the Commonwealth, by instrument in writing:
(a) write off an amount that a person has been required to pay to the Commonwealth under section 29;
(b) waive the right of the Commonwealth to recover from a person the whole or part of an amount that the person has been required to pay to the Commonwealth under that section; or
(c) allow a person who has been required to pay an amount to the Commonwealth under section 29 to pay that amount by such instalments as are specified in the instrument.
“(2) A decision under subsection (1) takes effect:
(a) on the day specified in the notice, being the day on which the decision is made or any day before or after that day; or
(b) if no day is so specified—on the day on which the decision is made.
“31. The rate of interest that shall be specified under paragraph 17 (3) (d) in a certificate of entitlement in relation to an initial advance that a person may seek from the Bank is 6.85% per year.
“32. The rate of interest that shall be specified under paragraph 17 (3) (d) in a certificate of entitlement in relation to a widow’s advance that a person may seek from the Bank is 3.75% per year.
“33. The rate of interest that shall be specified under paragraph 17 (3) (d) in a certificate of entitlement in relation to an additional advance that a person may seek from the Bank is 10% per year.
“34. (1) The rate of interest that shall be specified under paragraph 17 (3) (d) in a certificate of entitlement in relation to a further advance that a person may seek from the Bank is:
(a) if the amount of the further advance is equal to or less than the outstanding balance under the previous contract of sale, subsidised advance or Corporation advance immediately before the day on which the person ceased to be a purchaser or borrower in relation to that contract of sale or advance—the rate of interest payable on that balance immediately before that day; or
(b) in any other case:
(i) the rate of interest specified in paragraph (a) on so much of the further advance as equals the amount of the balance referred to in that paragraph; and
(ii) 10% per year on the remainder of the further advance.
“(2) Where different rates of interest were payable on different parts of the balance referred to in paragraph (1) (a), subsection (1) applies as if:
(a) paragraph (1) (a) provided that, in the circumstances referred to in that paragraph, the amount of the further advance is to be taken to be divided into parts equivalent to the different parts of the balance and the rate of interest payable on each of those parts of the further advance is the same as the rate of interest payable on the equivalent part of the balance immediately before that day; and
(b) subparagraph (1) (b) (i) referred to the rate of interest payable under paragraph (1) (a) on each of the parts of so much of the further advance as is equal to the amount of the balance.
“35. The rate of interest that shall be specified under paragraph 17 (3) (d) in a certificate of entitlement in relation to an advance for essential repairs that a person may seek from the Bank is 10% per year.
“36. (1) Subject to section 37, the maximum term to be specified under paragraph 17 (3) (b) in a certificate of entitlement in relation to a subsidised advance that a person may seek from the Bank is:
(a) in the case of an initial advance—25 years;
(b) in the case of an additional advance, a widow’s advance or an advance for essential repairs:
(i) a term equal to the unexpired part of the term of the borrower’s initial advance, further advance or Corporation advance, or of the purchaser’s contract of sale, as the case may be; or
(ii) if the Secretary determines that a longer maximum term would be appropriate, having regard to the circumstances of the case—such longer term as the Secretary determines;
(c) in the case of a further advance in respect of which the Minister’s approval under section 19 is required:
(i) a term equal to the time by which 25 years exceeds the prescribed period; or
(ii) if the Secretary is satisfied that the application of subparagraph (i) would cause financial hardship to the borrower—such other term, being a term not longer than 25 years, as the Secretary determines;
(d) in the case of a further advance to which paragraph (c) does not apply—a term equal to the time by which 25 years exceeds the prescribed period; and
(e) in the case of an advance or a specified portfolio asset transferred to a transferee—a term equal to the unexpired part of the advance or asset so transferred.
“(2) Subject to section 37, the maximum term of a specified portfolio asset which vests in the Bank under section 6b is a term equal to the remainder of the term of that specified portfolio asset as at the relevant vesting date.
“(3) Where the term of a specified portfolio asset which vests in the Bank under section 6b, or of a subsidised advance increases as a result of a grant of instalment relief to the purchaser or borrower, the maximum term of that specified portfolio asset or advance shall be taken to have been
increased by a period equal to the period by which the term of that asset or advance was so increased.
“(4) In this section:
‘prescribed period’ means:
(a) the period starting on the day on which the initial advance or Corporation advance, or the contract of sale (being the advance or contract of sale that preceded the further advance) was granted to or entered into by the relevant person and ending on the day on which that person ceased to be a borrower or purchaser in relation to that advance or contract of sale, as the case may be; and
(b) if there was more than one such preceding advance or contract of sale—the period equal to the sum of the periods worked under paragraph (a) in relation to each such advance or contract of sale.
“37. Where a purchaser executes a mortgage in favour of the Bank for the balance of the purchase money and interest, and all other money, payable under a contract of sale, the Bank shall be taken to have made, on the date of the mortgage, an initial advance to the purchaser under the agreement of an amount equal to the sum of the balance of the purchase money and all other money (including interest) payable under the contract as at that date, being an advance that is subject to the prescribed conditions and on which subsidy is payable by the Commonwealth.
“38. For the purposes of this Act, there shall be a Commonwealth insurance scheme, to be known as the ‘Defence Service Homes Insurance Scheme’, for the insurance of dwelling-houses, land, building materials and improvements of the kind referred to in section 38c.
“38a. (1) The powers and functions of the Commonwealth under this Part shall be exercised by the Secretary on behalf of the Commonwealth.
“(2) The Secretary shall, in exercising the powers of the Commonwealth under section 38c, comply with the Statement of Conditions, or the Statement of Conditions as varied under this section, and, for that purpose:
(a) any references in the Statement to the Corporation shall be treated as references to the Commonwealth; and
(b) any references in the Statement to insurance undertaken by or with the Corporation shall be treated as references to insurance undertaken by or with the Commonwealth under this Part.
“(3) The Minister may, by notice in writing given to the Secretary, vary the Statement of Conditions in relation to all or any of the following matters:
(a) the risks against which the Commonwealth will undertake insurance;
(b) other terms and conditions relating to insurance undertaken by the Commonwealth.
“(4) The Minister shall not vary the Statement of Conditions so as to remove the right of a person to receive a payment to which the person had become entitled before the variation.
“(5) The Minister shall cause copies of any variation of the Statement of Conditions to be laid before each House of the Parliament within 15 sitting days of that House after the variation is made.
“(6) In this section:
‘Statement of Conditions’ means the Statement of Conditions in force immediately before the commencing day under section 38 of this Act as then in force.
“38b. (1) On the commencing day:
(a) all insurance rights that immediately before that day were vested in the Corporation, vest in the Commonwealth by force of this subsection; and
(b) the Commonwealth becomes, by force of this subsection, liable to pay or discharge any insurance debts of the Corporation that existed immediately before that day.
“(2) Any insurance contract to which the Corporation was a party immediately before the commencing day has effect on and after that day as if:
(a) the Commonwealth were substituted for the Corporation as a party to the contract; and
(b) any reference in the contract to the Corporation were (except in relation to things that happened before that day) a reference to the Commonwealth.
“(3) If, immediately before the commencing day, insurance proceedings to which the Corporation was a party were pending in any court, the Commonwealth is, on that day, by force of this subsection, substituted for the Corporation as a party to the proceedings and has the same rights in the proceedings as the Corporation had.
“(4) In this section:
‘Corporation insurance’ means an insurance undertaken by the Corporation, or that the Corporation is to be taken to have undertaken, under this Act as in force at any time before the commencing day;
‘insurance contract’ means:
(a) a contract relating to any Corporation insurance;
(b) a concessions agreement of the kind referred to in subsection 38 (4c) or 38 (4d) of this Act as in force at any time before the commencing day; or
(c) a contract or arrangement of the kind referred to in section 38a of this Act as then in force;
‘insurance debts’ means any debts, liabilities or obligations arising out of, or relating to, any Corporation insurance;
‘insurance proceedings’ means any proceedings relating to any Corporation insurance;
‘insurance rights’ means any rights, property or assets arising out of, or relating to, any Corporation insurance or insurance contract.
“38c. (1) The Commonwealth may undertake insurance of, or in relation to:
(a) a dwelling-house in which the Corporation has an interest;
(b) a dwelling-house in respect of which a subsidised advance has been made;
(c) a dwelling-house in respect of which the Corporation proposes to make a Corporation advance, being a dwelling-house in which the applicant for that advance has an interest;
(d) a dwelling-house in respect of which a person has applied for a certificate of entitlement, being a dwelling-house in which that person has an interest;
(e) a dwelling-house that is the subject of a contract of sale, mortgage or other security which vests in the Bank under section 6b, being a dwelling-house owned by:
(i) a person who is a borrower or purchaser in respect of that dwelling-house;
(ii) the widow or widower of such a person; or
(iii) the personal representative of such a person, widow or widower;
(f) a dwelling-house that has been (whether before or after the commencing day), but has ceased to be, the subject of:
(i) a contract of sale or mortgage entered into under this Act before the commencing day; or
(ii) a mortgage securing a subsidised advance or a Corporation advance granted after the commencing day;
being a dwelling-house owned by:
(iii) a person who was a borrower or purchaser in respect of that dwelling-house;
(iv) the widow or widower of such a person; or
(v) the personal representative of such a person, widow or widower;
(g) a dwelling-house on land in which the Corporation has had an interest (whether before or after the commencing day), being a dwelling-house owned by:
(i) a person who was a borrower or purchaser in respect of another dwelling-house on that land;
(ii) the widow or widower of such a person; or
(iii) the personal representative of such a person, widow or widower;
(h) building materials on the site of a dwelling-house:
(i) in which the Corporation has or will have an interest; or
(ii) in respect of which a subsidised advance has been made or a person has applied for a certificate of entitlement;
being materials used in the building of, or otherwise in relation to, the dwelling-house; or
(j) any permanent domestic improvement of a structural kind that has been made to a dwelling-house referred to in paragraph (a), (b), (c), (d), (e), (f) or (g), or on the land on which such a dwelling-house is built, and any building materials on the site of, and used in the building of, or in relation to, such an improvement.
“(2) The Commonwealth may undertake insurance against risks related to the land on which a dwelling-house referred to in paragraph (1) (a), (b), (c), (d), (e), (f) or (g) is built or on which a dwelling-house referred to in paragraph (1) (h) is being, or is to be, built.
“(3) The Commonwealth may do all things necessary or convenient to be done for the purpose of undertaking insurance under this Part and, without limiting the generality of its powers under this subsection, may enter into an agreement of a kind known as a concessions agreement with a person who is, or is likely to be, the mortgagee of property insured with the Commonwealth.
“38d. (1) While the Corporation has an interest in a dwelling-house, or in any building materials on the site of a dwelling-house, because of a Corporation advance or a sale by the Corporation, the person liable to repay the advance, or to pay the balance of the purchase money, shall keep the dwelling-house or building materials insured:
(a) with the Commonwealth; or
(b) under a contract of insurance with an approved person for such amount and against such risks as the Secretary reasonably requires, having regard to the Corporation’s interest.
“(2) If property, being a dwelling-house or building materials referred to in subsection (1), is at any time not insured as required by that subsection,
the property shall be taken to be insured with the Commonwealth and the person required by that subsection to keep it insured is liable to the Commonwealth for premiums due to the Commonwealth in respect of the insurance of the property that the Commonwealth is to be taken to have undertaken.
“(3) In this section:
‘approved person’ means a person authorised under the
Insurance Act 1973 to carry on insurance business and who has entered into an agreement of the kind known as a concessions agreement with the Commonwealth in respect of all dwelling-houses insured with that person in which the Corporation has interests.
“38e. (1) This section applies where:
(a) the Commonwealth has undertaken insurance in relation to a dwelling-house only because the Corporation proposed to make a Corporation advance, or a person has applied for a certificate of entitlement, in relation to that dwelling-house; and
(b) the applicant for the advance or certificate dies or any of the following things happen otherwise than because the applicant has disposed of his or her interest in the dwelling-house:
(i) the Corporation no longer proposes to make the Corporation advance;
(ii) the Secretary refuses to issue the certificate of entitlement to the applicant;
(iii) the Bank refuses to make a subsidised advance to the applicant in relation to the dwelling-house;
(iv) the certificate of entitlement issued to the applicant ceases to have effect under the agreement.
“(2) Where this section applies:
(a) the insurance undertaken in relation to the dwelling-house does not cease to have effect because of the death of the applicant or the happening of any of the things referred to in subparagraph (1) (b) (i), (ii), (iii) or (iv); and
(b) unless the insurance has already ceased to have effect for some other reason, the Secretary shall give reasonable notice in writing to each person having an interest in the dwelling-house that the insurance will cease to have effect on a day specified in the notice.
“(3) Where the Secretary gives a notice under paragraph (2) (b), the insurance ceases to have effect on the day specified in the notice unless it has already ceased to have effect.
“(4) Where this section applies because of the death of the applicant and the applicant is survived by a widow or widower, the Secretary shall not give a notice under paragraph (2) (b) in relation to the dwelling-house
unless the Secretary is satisfied that a Corporation advance or a subsidised advance will not be, or is unlikely to be, made to the widow or widower in respect of that dwelling-house.
“38f. The Commonwealth may enter into a contract or arrangement with an insurer to ensure that money will be available to assist in meeting its liabilities under insurances undertaken by it under section 38c.
“38g. (1) Where under a law of a State, a person carrying on in that State the business of insuring against the risk of fire is liable to make payments to the State, or to an authority of the State, to assist in meeting the cost of the fire brigade services in the State, the Commonwealth may make payments to the State, or authority, for that purpose.
“(2) The amount of a payment under this section shall not be more than the amount that the Commonwealth would be liable to pay under the law of the State if the law applied to the Commonwealth.
“38h. (1) The amount of the total liability of the Commonwealth to pay money to persons under this Part in relation to contracts of insurance to which it is a party, or that have effect as if the Commonwealth were a party, shall not at any time be more than the total amount of the insurance assets of the Commonwealth at that time.
“(2) In this section:
‘insurance assets’ means rights, property and assets vested in the Commonwealth under section 38b or acquired by the Commonwealth as a result of the exercise of its powers under this Part.”.
“41. The following payments by the Commonwealth to the Bank shall be made out of the Consolidated Revenue Fund, which is appropriated accordingly:
(a) payments of subsidy;
(b) payments under subclause 4.7 of the agreement.”.
“43. (1) The Secretary shall, as soon as practicable after making a reviewable decision, cause a notice in writing to be given to the person whose interests are affected by the decision containing:
(a) the terms of the decision;
(b) the reasons for the decision; and
(c) a statement setting out particulars of the person’s right to have the decision reviewed under this section.
“(2) A person whose interests are affected by a reviewable decision may apply in writing to the Secretary for a review of the decision.
“(3) An application for a review shall be made within 30 days after the day on which the decision first came to the notice of the applicant, or within such further period (if any) as the Secretary, either before or after the end of that period, allows.
“(4) Subject to subsection (5), the Secretary shall, on receiving an application, review the decision, or cause it to be reviewed by a person to whom the Secretary’s power under this section is delegated, being a person other than the person who made, or was involved in the making of, the decision and occupying a position senior to that occupied by the last-mentioned person.
“(5) Where a reviewable decision is made by the Secretary personally, the Secretary shall refer an application for review of the decision to the Minister and the Minister shall review the decision.
“(6) A person who reviews a reviewable decision may make a decision affirming, varying or revoking the reviewable decision and, where the person revokes the decision, may make such other decision as the person thinks appropriate.
“(7) A reference in this section to a person whose interests are affected by a reviewable decision is a reference to such a person other than the Bank.
“44. (1) Where:
(a) a person makes a decision under subsection 43 (6) affirming or varying a reviewable decision; or
(b) the Minister makes a decision refusing to give an approval under section 19;
the person or the Minister, as the case may be, shall cause a notice in writing to be given to the person whose interests are affected by the decision (other than the Bank) containing:
(c) the terms of the decision;
(d) the reasons for the decision; and
(e) a statement to the effect that, subject to the
Administrative Appeals Tribunal Act 1975 ,application may be made to the Administrative Appeals Tribunal for review of the decision to which the notice relates.
“(2) Failure to include in a notice under subsection (1) a statement of the kind referred to in paragraph (1) (e) does not affect the validity of the decision to which the notice relates.
“(3) Subject to the
“(4) In this section:
‘decision’ has the same meaning as in the
Administrative Appeals Tribunal Act 1975.
“45. An agreement between the Commonwealth and the Bank that revokes, amends or otherwise affects the operation of subclause 8.1, 8.3, 11.2, 11.3, 11.5, 11.7.6, 11.9, 11.10, 11.11, 11.12 or 11.13 of the agreement, as executed on 9 November 1988, has no effect.
“45a. (1) Except with the approval of the Secretary, the estate or interest of a purchaser or borrower in any land or land and dwelling-house that is the subject of a contract of sale, or of a mortgage or other security securing a Corporation advance or a subsidised advance:
(a) shall not be taken from the purchaser or borrower under the
Bankruptcy Act 1966 ; and(b) shall not be sold in satisfaction of a judgment debt, otherwise than by the Bank or another mortgagee in the exercise of powers under a contract of sale, or a mortgage or other security.
“(2) Where a husband and wife are joint purchasers or borrowers in relation to land or land and a dwelling-house, the Secretary may give an approval under subsection (1) in relation to the estate or interest of both of them if either of them becomes bankrupt or incurs a judgment debt.
“45b. (1) The Commonwealth shall give the Bank, as provided by the agreement, any information in the possession of the Commonwealth that is required to be disclosed or provided to the Bank under the agreement.
“(2) The Bank shall give the Commonwealth, as provided by the agreement, any information in the possession of the Bank that is required to be disclosed or provided to the Commonwealth under the agreement.”.
“47. The Secretary may
provide a dwelling-house for the use of a person who is receiving, or is
eligible to receive, a pension under Part II of the
“50b. (1) The Secretary shall as soon as practicable after the last day of June first occurring after the commencing day, prepare and give to the Minister a report on the administration and operation of this Act (including the operations of the Corporation) during the period beginning on 1 July 1988 and ending on that last day of June.
“(2) The report referred to in subsection (1) shall be accompanied by:
(a) financial statements, in such form as the Minister for Finance approves, in respect of the operations of the Corporation (other than under section 38 of this Act as in force before the commencing day) during the period beginning on 1 July 1988 and ending on the winding-up day; and
(b) financial statements, in such form as the Minister for Finance approves, in respect of the operations of the Corporation under section 38 of this Act, as in force before the commencing day, and the administration of Part VI of this Act, as in force on and after that day, during the period to which the report relates.
“(3) The Secretary shall, as soon as practicable after each subsequent 30 June prepare and give to the Minister a report on the administration and operation of this Act during the year that ended on that day.
“(4) A report referred to in subsection (3) shall be accompanied by financial statements, in such form as the Minister for Finance approves, relating to the administration of Part VI of this Act during the year to which the report relates.
“(5) Before giving financial statements to the Minister, the Secretary shall submit them to the Auditor-General, who shall report to the Minister:
(a) whether the statements are based on proper accounts and financial records;
(b) whether the statements are in agreement with those accounts and financial records; and
(c) as to such other matters arising out of the statements as the Auditor-General thinks should be reported to the Minister.
“(6) The Minister shall cause a copy of each report and its accompanying financial statements, together with the Auditor-General’s report on those statements, to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the report.”.
(a) a Corporation advance, or a contract of sale entered into under the Principal Act at any time before that day;
(b) the granting of an additional advance or additional assistance under section 20, 29aa, 29ab or 31 of the Principal Act as in force immediately before that day to a person who is a purchaser or borrower within the meaning of that Act;
(c) any additional advance or additional assistance of the kind referred to in paragraph (b) granted under the Principal Act as in force immediately before that day; and
(d) the performance or exercise by the Corporation of any functions or powers under the Principal Act as in force immediately before that day in connection with any such contract of sale, Corporation advance, additional advance or additional assistance;
until the contract of sale, or mortgage or other security securing the advance or assistance, vests in the Bank under section 6b of the Principal Act as amended by this Act.
“commencing day” means the day on which section 10 of this Act commences.
“commencing day” means the day on which section 10 of this Act commences.
NEW SCHEDULE 1 TO BE INSERTED IN PRINCIPAL ACT
AGREEMENT BETWEEN THE COMMONWEALTH OF AUSTRALIA AND WESTPAC BANKING CORPORATION
Date of Agreement
Recitals
Clause
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
1.2 Interpretation
2. AGREEMENT
2.1 Commonwealth to vest Portfolio Assets
2.2 Assumption of obligations by Bank
2.3 Payment of Subsidy
2.4 Bank to act in accordance with Subsidy Scheme
2.5 Provision of Subsidised Advances
2.6 Provision of Instalment Relief and effecting Transfer of Land Subsidy
2.7 Payment of deposits
2.8 Exclusive right of Bank to receipt of Subsidy
3. CONSIDERATION AND PAYMENT
3.1 Calculation of Consideration
3.2 Payment of Schedule
3.3 Manner of Payment
3.4 Delay in Proclamation of Amending Act
3.5 Notice of Face Value
3.6 Bank audit of Face Value
3.7 Resolution of dispute as to amount of Face Value
3.8 Vesting Date falling after Interest Commencement Date
3.9 Bank audit of Final Face Value
3.10 Resolution of Dispute as to Final Face Value
4. VESTING OF PORTFOLIO ASSETS AND PAYMENT OF SUMS DEPOSITED BY BORROWERS
4.1 Vesting
4.2 Bank bound by Portfolio Assets
4.3 Bank to perform the terms and conditions of Portfolio Assets
4.4 Nomination of Vesting Dates
4.5 Ministerial Determination of Vesting Dates
4.6 Earliest Dates to be specified
4.7 Existing Sums Deposited by Borrowers
5. TRANSITION PROVISIONS
5.1 Incomplete Applications for an Advance under the Act
5.2 Incomplete Applications for Benefits under the Act
5.3 Court orders
5.4 Instalments
5.5 Fees and Charges
5.6 Documentation provided by Commonwealth
5.7 Discount of Fees
6. AMENDING ACT
6.1 Amending Act being passed by Parliament
6.2 Amendments to draft Bill
6.3 Effect of Amendments
6.4 No Notice by Bank
6.5 Form of draft Bill
Clause
6.6 Effect of Termination
6.7 Agreement approved by Amending Act
6.8 Amending Act Provisions
6.9 Date of Proclamation after 30 June 1989
7. APPLICATION/REVIEW—GENERAL
7.1 Applications
7.2 Certificate of Entitlement
7.3 Obligations of Bank upon receipt of Certificate of Entitlement
7.4 Nominated Payee
7.5 Application of Lending Criteria
7.6 Alteration of Lending Criteria
7.7 Failure to meeting Lending Criteria
7.8 Factors to be excluded by Bank
7.9 Reasons for Bank’s decision
7.10 Commonwealth determination
7.11 Non-discrimination
7.12 Treatment of Arrears
7.13 Review of Commonwealth determination
8. ADVANCES/INSTALMENT RELIEF/TRANSFER OF LAND AND SUBSIDY
8.1 Repayment of Subsidised Advance
8.2 Initial Advances—description
8.3 Security
8.4 Instalment Relief
8.5 Transfer of land and Subsidy
8.6 Fees
8.7 Failure to meet lending criteria
8.8 Further loans/instalment relief
9. EXCESS CREDITS
9.1 Provision of Excess Credit Arrangement
9.2 Form of Excess Credit Arrangement
9.3 Election by Borrower
9.4 Loan Interest Offset Arrangement
9.5 Banking Account
9.6 Obligations of Bank
9.7 Prepayments
9.8 Effect of prepayment
9.9 Prepayment on a loan
10. PROVISION OF INFORMATION
10.1 Obligations of Bank to notify the Commonwealth
10.2 Variation of Bank’s Obligations under Sub-clause 10.1
10.3 Action taken by Bank to enforce security
10.4 Form of Notification
10.5 Schedule D Information
10.6 Provision of report by Bank’s External Auditor
10.7 Discussion of audit procedures between External Auditors
10.8 Bank to provide External Auditors Report with Subsidy Invoice
10.9 Bank to supply information to enable verification
10.10 Documentation to be provided by the Bank
10.11 Charge to Commonwealth by Bank
11. SUBSIDY SCHEME
11.1 Agreement to pay Subsidy
11.2 Commencement of obligation to pay Subsidy
11.3 Subsidy payable monthly
11.4 Subsidy Invoice
11.5 Verification and Payment of Subsidy
11.6 Manner of Payment of Subsidy
11.7 Dispute as to Subsidy Claim
Clause
11.8 Adjustment of Subsidy Invoice
11.9 Calculation of Subsidy
11.10 Calculation of Benchmark Rate
11.11 Bank Providers of Housing Finance
11.12 Fall in Benchmark Rate
11.13 Deduction from Subsidy Payments
11.14 Where Benchmark rate falls below 6.85 per centum
11.15 Termination/Suspension of Subsidy Payments and Recovery of Subsidy from Borrower
11.16 Notice of termination of Subsidy payments to Bank
11.17 Entitlement of Bank to charge applicable interest rate
12. DEFAULT PROVISION
12.1 Persistent Failure by Bank to provide Subsidised Advances
12.2 Failure by Bank to comply with any other term of the Agreement
12.3 Commonwealth Remedies
12.4 Employees actions resulting in Subsidy overpayment
12.5 Recovery of Subsidy
12.6 Default in payment of Consideration
12.7 Breach of this Agreement—Interest payable
12.8 Exercise of Remedies
12.9 Termination
12.10 Appointment of Receiver/Receiver and Manager/Liquidation/Official Management of the Bank
13. GRANT OF FRANCHISE
13.1 Exclusive Right
13.2 Notification of Bank’s Exclusive Right
14. PROVISION FOR REFUND OF PART OF ONE HUNDRED MILLION DOLLARS REFERRED TO IN SUB-CLAUSE 3.1.1 (a)
15. WARRANTIES
15.1 Bank
15.2 Commonwealth
16. INDEMNITIES
16.1 Obligations of Bank
16.2 Obligations of Commonwealth
16.3 Obligation of Commonwealth
17. DEALINGS WITH SOUTH AFRICA AND NAMIBIA
18. NON-MERGING ON SETTLEMENT AND SEVERABILITY
19. STAMP DUTY ADMINISTRATIVE ARRANGEMENTS AND STATE/ TERRITORY GOVERNMENT FEES
19.1 Stamp Duty
19.2 Assessment
19.3 Commonwealth to facilitate Transfer
19.4 Fees or charges necessary to give effect to the transfer of Portfolio Assets shall be borne by the Commonwealth
20. LEGAL AND ACCOUNTING COSTS
21. APPLICABLE LAW
22. NOTICES
23. WAIVER
24. ENTIRE AGREEMENT
25. AMENDMENTS OR VARIATION
26. ARBITRATION
26.1 Notice of dispute, question or difference
(vii) in the case of a dwelling-house shown as a unit or lot on a plan registered or deposited under a law of a State or Territory relating to strata titles, stratum titles, unit titles or building units titles—the provisions of that law relating to payments by the borrower to the body corporate incorporated under that law in consequence of the registration or deposit of that plan;
(d) for discharging, wholly or partly, the outstanding liability of the Borrower under the relevant Corporation Advance, Subsidised Advance or Portfolio Contract of Sale;
(e) for paying any fees or charges payable by the Borrower to the Bank or to the Commonwealth in relation to any application under the Defence Service Homes Act or this Agreement;
(f) for transferring money from one form of Excess Credit arrangement to another.
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NEW SCHEDULE 2 TO BE INSERTED IN PRINCIPAL ACT
PROVISIONS OF DEFENCE SERVICE HOMES ACT AND REGULATIONS APPLYING AS TERMS AND CONDITIONS OF VESTED PORTFOLIO ASSETS
(b) Omit “an eligible person”, substitute “a”.
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Omit
“The cost so allotted”, substitute “The cost allotted to a dwelling-house by the Corporation
under subsection 18a (1) of the | |
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(a) Omit subsections (1), (1a), (2), (3) and (4). | |
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Omit
“this Act”, substitute “the
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Omit “this Act or the Regulations thereunder”, substitute “the mortgage, contract of sale or other security”. | |
Omit
“A reduction under the last
preceding subsection in the amount of the instalment”, substitute “A
reduction, approved by the Minister under subsection 29aa (2) of the | |
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After
“section 36” insert “as that provision applies as a term or condition of a
portfolio asset which vests in the Bank under section 6b of the |
Omit
“The reduction under subsection
(2) in the amount of the instalment”,
substitute “A reduction,
approved by the Minister under subsection 29ab
(2) of the | |
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Omit from paragraph (a) “this Act or the regulations, or”. | |
Omit “this Act”, substitute “the mortgage, contract of sale or other security”. | |
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Omit
from subsection (2) “section 4a”, substitute “section 4a of the | |
Omit “or 33”. | |
Omit paragraph (1) (b). | |
Omit “in pursuance of paragraph (b) of the last preceding subsection, to a person who is not an eligible person,”, substitute “without the consent of the Bank”. | |
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After
“section 36” insert “as that provision applies as a term or condition of a
portfolio asset which vests in the Bank under section 6b of the | |
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Omit “to the Commonwealth for payment by the Commonwealth to the persons appearing to the Minister to be entitled to receive it”, substitute “to the person legally entitled to receive it”. |
Omit “or advance under this Act”, substitute “, mortgage or other security”. | |
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Omit “Notwithstanding any other provision of this Act, where”, substitute “Where”. | |
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Omit “Subject to section 17b of the Act, each”, substitute “Each”. | |
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After
“of the Act” insert “, as that provision applies as a term or condition of a
portfolio asset which vests in the Bank under section 6b of the | |
(a) Omit “it is proved to the satisfaction of the Corporation that”, | |
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(c) Omit paragraph (c). | |
After
“of the Act” insert “, as that provision applies as a term or condition of a
portfolio asset which vests in the Bank under section 6b of the | |
After
“of the Act” insert “, as that provision applies as a term or condition of a
portfolio asset which vests in the Bank under section 6b of the | |
After
“of the Act” insert “, as that provision applies as a term or condition of a
portfolio asset which vests in the Bank under section 6b of the | |
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(b) Omit “in accordance with Form B”. | |
After “of
the Act” insert “, as that provision applies as a term
or condition of a portfolio asset which vests in the Bank under section 6b of the | |
Omit “under this Part”, substitute “of determination of tenancy”. | |
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(b) Omit “, in accordance with Form CA,”. |
FURTHER AMENDMENTS OF THE DEFENCE SERVICE HOMES ACT 1918
Omit “subsection (1a) of section 19 or of subsection (2) of section 20”, substitute “paragraph 18 (1) (f)’’.
(a) Omit “Corporation”, substitute “Commonwealth”.
(b) Omit “38a”, substitute “38f”.
Omit “Corporation”, substitute “Commonwealth”.
Omit “38a”, substitute “38f”.
Omit “38b”, substitute “38g”.
Omit “Corporation shall”, substitute “Secretary may”.
Repeal the section.
Repeal the section.
Repeal the section.
Repeal the section.
Repeal the sections.
Repeal the section.
Repeal the section.
Omit “Corporation” (first occurring), substitute “Secretary”.
Omit all the words after “in relation to,”, substitute “the undertaking of insurance by the Commonwealth under Part VI.”.
1. No. 43, 1918, as amended. For previous amendments, see No. 28, 1919; No. 35, 1920; No. 18, 1923; No. 26, 1925; No. 47, 1926; No. 17, 1927; No. 13, 1929; Nos. 6 and 68, 1932; No. 63, 1934; No. 54, 1935; No. 25, 1937; No. 1, 1941; No. 8, 1946; Nos. 1, 38 and 71, 1947; No. 67, 1948; No. 24, 1949; No. 74, 1951; No. 69, 1954; No. 69, 1955; No. 100, 1956; No. 73, 1961; Nos. 2 and 93, 1962; Nos. 65 and 93, 1966; No. 3, 1967; No. 99, 1968; No. 120, 1971; Nos. 31 and 216, 1973; No. 125, 1974; No. 25, 1975; Nos. 37 and 185, 1976; No. 79, 1977; Nos. 36 and 137, 1978; Nos. 4 and 128, 1980; No. 80, 1982; No. 70, 1983; No. 72, 1984; and Nos. 28 and 29, 1986.
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House of Representatives on 10 November 1988
Senate on 25 November 1988
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