Applied Laws (Implementation) Amendment Ordinance 2008 (No. 1) (CKI)

Administered by Attorney-General's Department

Legislation au F2008L02045 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Issued by the Authority of the Minister for Home Affairs

Christmas Island Act 1958

Cocos (Keeling) Islands Act 1955

Applied Laws (Implementation) Amendment Ordinance 2008 (No. 1) (CI)

Applied Laws (Implementation) Amendment Ordinance 2008 (No. 1) (CKI)

 

Subsection 9(1) of the Christmas Island Act 1958 (CI Act) and subsection 12(1) of the Cocos (Keeling) Islands Act 1955 (CKI Act) provide that the Governor-General may make Ordinances for the peace, order and good government of those Territories.

 

Subsections 8A(1) of both Acts provide that Western Australian laws are in force in the Territories.  Subsections 8A(2) of both Acts provide that Western Australian laws in force can be amended or repealed by an Ordinance.

 

Section 3 of Applied Laws (Implementation) Ordinance 1992 (CI) & (CKI) provides that the applied laws in Schedule 1 are amended as set out in that Schedule.  Section 6 provides that the applied laws in Schedule 4 are repealed.

 

The First Home Owners Grant (FHOG) scheme was introduced to compensate first home buyers for the increased cost of homes as a result of the introduction of the Goods and Services Tax (GST).  It is Australian Government policy that GST is not charged in Christmas Island and the Cocos (Keeling) Islands.  As the FHOG is intended to offset the GST, it is also Australian Government policy that the FHOG is not available to Christmas Island and Cocos (Keeling) Islands residents.

 

However, the FHOG scheme is based on state-level legislation.  The applied Western Australian Acts, the First Home Owner Grant Act 2000 (WA)(CI) & (CKI) (FHOG Acts), allow Christmas Island and Cocos (Keeling) Islands residents to claim the FHOG even though this conflicts with Australian Government policy.  If Christmas Island and Cocos (Keeling) Islands residents applied for the FHOG their application would be refused on the basis that it is Australian Government policy that the FHOG is not available to them.  The Ordinances repeal the First Home Owner Grant Act 2000 (WA)(CI) & (CKI) to align the territory legislation with the Australian Government policy.

 

In Western Australia, first home buyers can also access concessional rates of stamp duty under the Duties Act 2008 (WA).  Christmas Island and Cocos (Keeling) Islands residents cannot access the concessional rates of stamp duty for first home buyers, because the eligibility requirements in the Duties Act 2008 (WA)(CI) & (CKI) are linked to receiving a FHOG and, as outlined above, residents cannot receive a FHOG.  However, the concessional rates of stamp duty are not linked to the GST and it is intended that eligible Christmas Island and Cocos (Keeling) Islands residents should be able to access them.  Schedule 1 of the Ordinances amend the Duties Act 2008 (WA)(CI) & (CKI) by substituting the eligibility criteria for the concessional rates of stamp duty with eligibility criteria that Christmas Island and Cocos (Keeling) Islands residents can satisfy.  The new eligibility criterion is that a FHOG would have been payable if the FHOG Act had applied to the applicant.

 

The Ordinances will remove any possible confusion about whether the FHOG scheme applies to Christmas Island and the Cocos (Keeling) Islands.  Access to the concessional rates of stamp duty will provide significant assistance to Christmas Island and Cocos (Keeling) Islands residents purchasing their first home.

 

No consultation has been undertaken in relation to the Ordinances as Christmas Island and Cocos (Keeling) Island residents are aware that the FHOG is not available to them and the Ordinances are merely aligning the legislation with Australian Government policy.

 

The Ordinances are legislative instruments for the purposes of the Legislative Instruments Act 2003.

 

The Ordinances will commence on 1 July 2008.

 

Details of the Christmas Island Ordinance is set out in Attachment A and details of the Cocos (Keeling) Islands Ordinance is set out in Attachment B.

ATTACHMENT A

 

Details of the Applied Laws (Implementation) Amendment Ordinance 2008 (No. 1)

 

Section 1 – Name of Ordinance

 

Section 1 provides that the name of the Ordinance is the Applied Laws (Implementation) Amendment Ordinance 2008 (No. 1).

 

Section 2 – Commencement

 

Section 2 provides that the Ordinance will commence on 1 July 2008.

 

Section 3 – Amendment of Applied Laws (Implementation) Ordinance 1992

 

Section 3 provides that Schedule 1 to the Ordinance amend the Applied Laws (Implementation) Ordinance 1992.

 

Schedule 1

 

Item [1] – Schedule 1, after Part 10

Item 1 inserts Part 10A into Schedule 1 to the Applied Laws (Implementation) Ordinance 1992.  This has the effect of amending the Duties Act 2008 (WA)(CI) by omitting subparagraphs 142(1)(a)(i) and (ii) and paragraph 142(2)(a) and substituting new provisions in their place. 

 

Item [2] – Schedule 4

Item 2 inserts the First Home Owner Grant Act 2000 (WA)(CI) into Schedule 4 to the Applied Laws (Implementation) Ordinance 1992 (CI).  This has the effect of repealing the First Home Owner Grant Act 2000 (WA)(CI). 


ATTACHMENT B

 

Details of the Applied Laws (Implementation) Amendment Ordinance 2008 (No. 1)

 

Section 1 – Name of Ordinance

 

Section 1 provides that the name of the Ordinance is the Applied Laws (Implementation) Amendment Ordinance 2008 (No. 1).

 

Section 2 – Commencement

 

Section 2 provides that the Ordinance will commence on 1 July 2008.

 

Section 3 – Amendment of Applied Laws (Implementation) Ordinance 1992

 

Section 3 provides that Schedule 1 to the Ordinance amend the Applied Laws (Implementation) Ordinance 1992.

 

Schedule 1

 

Item [1] – Schedule 1, after Part 10

Item 1 inserts Part 10A into Schedule 1 to the Applied Laws (Implementation) Ordinance 1992.  This has the effect of amending the Duties Act 2008 (WA)(CKI) by omitting subparagraphs 142(1)(a)(i) and (ii) and paragraph 142(2)(a) and substituting new provisions in their place. 

 

Item [2] – Schedule 4

Item 2 inserts the First Home Owner Grant Act 2000 (WA)(CKI) into Schedule 4 to the Applied Laws (Implementation) Ordinance 1992.  This has the effect of repealing the First Home Owner Grant Act 2000 (WA)(CKI). 

 

Overview

The Applied Laws (Implementation) Amendment Ordinance 2008 (No. 1) for Christmas Island and the Cocos (Keeling) Islands was enacted to address the legislative discrepancies regarding the applicability of the First Home Owners Grant (FHOG) and concessional stamp duty rates for residents of these territories. This Ordinance was introduced by the relevant legislature to amend existing laws to align with Australian Government policy, which does not permit the FHOG for residents of these islands. Furthermore, it rectifies the inconsistency in access to concessional stamp duty rates by modifying the eligibility criteria in the Duties Act 2008 (WA) to ensure that eligible residents can benefit from these rates. The policy objective is to ensure that the laws governing these territories are consistent with the broader policy framework and to avoid potential confusion or misapplication of benefits. The Ordinances, which came into effect on 1 July 2008, repeal the First Home Owner Grant Act 2000 (WA) for both territories, thus preventing residents from claiming the FHOG, which is in line with government policy that the FHOG is not available to them. Simultaneously, the Ordinances amend the eligibility criteria for concessional stamp duty rates to allow eligible residents to access these benefits, despite the inapplicability of the FHOG. This legislative action was deemed necessary to ensure the alignment of territory legislation with national policy and to provide clear guidance to residents regarding their entitlements.

Scope and Application

The Applied Laws (Implementation) Amendment Ordinance 2008 (No. 1) applies to the territories of Christmas Island and the Cocos (Keeling) Islands, and seeks to amend the existing legal framework governing these territories by aligning it with Australian Government policy. Specifically, the Ordinance repeals the First Home Owner Grant Act 2000 (WA) as it applies to these territories, which had allowed residents to claim the First Home Owners Grant (FHOG) despite Australian Government policy that the FHOG is not available to them. Additionally, the Ordinance amends the Duties Act 2008 (WA) to modify the eligibility criteria for concessional rates of stamp duty, ensuring that eligible residents of these territories can access these benefits. The Ordinance is a legislative instrument under the Legislative Instruments Act 2003 and will commence on 1 July 2008. It is important to note that no consultation has been undertaken in relation to the Ordinances, as residents of these territories are already aware that the FHOG is not available to them and the changes are simply aligning the legislation with existing Australian Government policy.

Key Provisions

The Applied Laws (Implementation) Amendment Ordinance 2008 (No. 1) for both Christmas Island and the Cocos (Keeling) Islands contains several key provisions aimed at aligning the territory legislation with Australian Government policy. Section 3 of the Ordinances amends the Applied Laws (Implementation) Ordinance 1992 by inserting Part 10A into Schedule 1, which modifies the Duties Act 2008 (WA)(CI) and (CKI) to adjust the eligibility criteria for concessional rates of stamp duty. This amendment ensures that eligible residents of these territories can access the concessional rates of stamp duty, which are not linked to the Goods and Services Tax (GST) and thus remain available to them. Simultaneously, the Ordinances repeal the First Home Owner Grant Act 2000 (WA)(CI) and (CKI) as stated in Section 6, aligning the territory legislation with the Australian Government policy that the First Home Owners Grant (FHOG) is not available to residents of Christmas Island and the Cocos (Keeling) Islands. These Ordinances impose specific obligations on the relevant authorities and residents of the territories. For authorities, this includes ensuring the application of the amended Duties Act 2008 (WA)(CI) and (CKI) and the repeal of the FHOG Act. For residents, it means understanding that while the FHOG is not available to them, they can still access concessional rates of stamp duty under the revised eligibility criteria. Furthermore, these Ordinances mandate that any applications for the FHOG by residents of Christmas Island or the Cocos (Keeling) Islands be refused, in line with the established policy. Breach of the provisions contained within these Ordinances could result in legal consequences. Although the Explanatory Statement does not explicitly detail specific penalties for non-compliance, general legal principles would apply. For instance, if a resident were to unlawfully claim the FHOG, they could face penalties under the applicable Australian legislation, potentially including fines or other legal repercussions. Similarly, authorities failing to enforce the repeal of the FHOG Act could also face administrative or legal consequences. It is important to note that while the maximum penalties are not specified within the text, they would align with the relevant jurisdictional laws governing administrative and statutory compliance.

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