DEFENCE LEGISLATION AMENDMENT BILL (NO. 1) 2009

i Defence Legislation Amendment Bill (No. 1) 2009 No. , 2009

Contents

Short title ............................................................................................ 1

Commencement .................................................................................. 1

Schedule(s) ......................................................................................... 2

Schedule 1--Tactical payme nt sche me

Defence Act 1903

Schedule 2--Defence Home Owne rship Assistance Scheme Act

2008

Part 1--Rejoining members

Part 2--Subsidy certificates and service credits

Part 3--Subsidy lump sums

Part 4--Shared liability

Part 5--Delegations

Defence Legislation Amendment Bill (No. 1) 2009 No. , 2009 1

A Bill for an Act to amend legislation relating to

defence, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Defence Legislation Amendment Act

(No. 1) 2009.

2 Commence ment

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Defence Legislation Amendment Bill (No. 1) 2009 No. , 2009

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day on which this Act receives the

Royal Assent.

2. Schedule 1

The earlier o f:

(a) the 28th day after the day on which this

Act receives the Royal Assent; and

(b) 1 July 2009.

3. Schedule 2

The 28th day after the day on which this Act

receives the Royal Assent.

Note:

This table relates only to the provisions of this Act as originally

passed by both Houses of the Parliament and assented to. It will not be

expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

edited in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Tactical pay ment scheme Schedule 1

Defence Legislation Amendment Bill (No. 1) 2009 No. , 2009 3

Schedule 1

Tactical payment scheme

Defence Act 1903

1 At the end of Part X

Add:

123H Tactical payment sche me for activities of the Defence Force

outside Australia

(1) The Minister may authorise the making of one or more payments

to a person (even though the payments would not otherwise be

authorised by law or required to meet a legal liability) if:

(a) the person suffers loss, damage or injury outside Australia

because of an incident that occurs in the course of an activity

of the Defence Force outside Australia; and

(b) the person is not an Australian citizen; and

payments.

(2) A payment cannot be made to the person more than 12 months

after the relevant incident.

(3) The total amount of the payments to the person must not be more

than the amount specified in regulations in force for the purposes

of subparagraph 65(2)(a)(ia) of the Financial Management and

Accountability Act 1997.

(4) This section does not limit, and is not limited by, section 33 of the

Financial Management and Accountability Act 1997.

Note:

Payments under this section must be made from money appropriated

by the Parliament.

123J Delegations in relation to the tactical payme nt sche me

(1) The Minister may, in writing, delegate his or her powers under

section 123H to any of the following persons:

(a) the Secretary;

(b) the Chief of the Defence Force;

Defence Ho me Ownership Assistance Scheme Act 2008 Schedule 2

Rejoining members Part 1

Defence Legislation Amendment Bill (No. 1) 2009 No. , 2009 5

Schedule 2

Defence Home Ownership

Assistance Scheme Act 2008

Part 1

Rejoining members

1 Section 3 (definition of effective service)

Omit "the person in accordance with the regulations", substitute:

the person that:

(a) if the person has, at any time before, on or after the

commencing day, stopped being a member of the Defence

Force, and, more than 5 years later, again become a member

of the Defence Force--does not include service before the

person again became a member of the Defence Force; and

(b) in any case--is recognised as effective service in accordance

with the regulations.

2 At the end of section 8 (after the note)

Add:

(3) A person is not eligible as a serving member at a particular time if

the person is eligible as a rejoining incapacitated member (see

section 10) or as a rejoining member (see section 11) at that time.

Note:

If a member of the Defence Force has had a break in service of more

than 5 years before rejoining the Defence Force, the member's service

before rejoining the Defence Force no longer counts as effective

service (see the definition of effective service in section 3).

3 Paragraphs 10(1)(b) and 11(c)

Omit "on or after 1 July 2008,", substitute "before, on or after the

commencing day,".

4 Application

rejoining members amendments

The amendments made by this Part apply in relation to:

(a) a decision in respect of the giving of a subsidy certificate

under section 16 of the Defence Home Ownership Assistance

Scheme Act 2008, if the decision is made on or after the day

the amendments commence; and

Schedule 2 Defence Ho me Ownership Assistance Scheme Act 2008

Part 1 Rejo ining members

6 Defence Legislation Amendment Bill (No. 1) 2009 No. , 2009

(b) the payment of subsidy to a person under that Act during an

entitlement period, if the subsidy certificate to which the

entitlement period relates was given to the person on or after

the day the amendments commence.

Note:

The amendments commence 28 days after the day this Act receives the Royal Assent.

Defence Ho me Ownership Assistance Scheme Act 2008 Schedule 2

Subsidy certificates and service credits Part 2

Defence Legislation Amendment Bill (No. 1) 2009 No. , 2009 7

Part 2

Subsidy certificates and service credits

5 Subsection 16(2)

Omit "if section 17, 18, 19 or 20 applies", substitute:

if:

(a) section 17, 18, 19 or 20 applies; and

(b) either:

(i) the applicant has a service credit (see section 46); or

(ii) for a case in which section 18 (surviving partners)

applies--the applicant has a service credit, or would, if

the subsidy certificate were in force, have a service

credit (because of the operation of section 63).

Note:

As soon as a subsidy certificate given under section 18 (surviving

partners) comes into force, the surviving partner has the service credit

the deceased partner would have had, if he or she had not died (see

sections 63 and 64).

6 After subparagraph 22(b)(i)

Insert:

(ia) if the person who holds the subsidy certificate is not a

member of the Defence Force (or has stopped being a

member of the Defence Force)--as soon as the person

no longer has a service credit (see section 46);

7 Application

subsidy certificates and service credits

amendments

(1)

The amendment made by item 5 applies in relation to a decision in

respect of the giving of a subsidy certificate under section 16 of the

Defence Home Ownership Assistance Scheme Act 2008, if the decision

is made on or after the day the amendments commence.

(2)

The amendment made by item 6 applies in relation to a subsidy

certificate given to a person under section 16 of the Defence Home

Ownership Assistance Scheme Act 2008 on or after the day the

amendments commence.

Note:

The amendments commence 28 days after the day this Act receives the Royal Assent.

Schedule 2 Defence Ho me Ownership Assistance Scheme Act 2008

Part 3 Subsidy lu mp sums

8 Defence Legislation Amendment Bill (No. 1) 2009 No. , 2009

Part 3

Subsidy lump sums

8 Section 26

Repeal the section, substitute:

26 Entitle ment--form of subsidy

Subsidy is only payable to a person in the form of:

(a) monthly subsidy worked out under section 49; or

(b) both of the following:

(i) monthly subsidy worked out under section 49;

(ii) a subsidy lump sum worked out under section 54.

Note:

A subsidy lump sum is only payable to a member of the Defence

Force, and is only payable in relation to the first residential property

bought while the person is a member of the Defence Force (see

section 34).

9 Paragraph 34(1)(f)

Repeal the paragraph, substitute:

(f) the Secretary must be satisfied that there is a reasonable

expectation that monthly subsidy will be payable to the

subsidised borrower during an entitlement period of:

(i) if the subsidised borrower is, at the time, a member of

the Permanent Forces--at least one month; or

(ii) if the subsidised borrower is, at the time, a member of

the Reserves--at least the number of months remaining

in the service year;

(g) subsection (2) (previous home ownership etc.) must not

apply.

10 Subsection 34(2)

Repeal the subsection, substitute:

Previous home ownership etc.

(2) This subsection applies if all of the following conditions are met:

(a) the subsidised borrower has, at a time when the subsidised

borrower was a member of the Defence Force, bought an

interest in land in Australia;

Defence Ho me Ownership Assistance Scheme Act 2008 Schedule 2

Subsidy lump sums Part 3

Defence Legislation Amendment Bill (No. 1) 2009 No. , 2009 9

(b) the purchase results in the borrower, or the borrower and his

or her partner together, holding a 50% or greater interest in

the land:

(i) no matter whether the interest is held individually, as

joint tenants or tenants in common; and

(ii) no matter whether the interest is legal or equitable;

(i) there is a house on the land; and

(ii) the house is occupied by the borrower or another person

as a home, or could be occupied by the borrower or

another person as a home;

(d) either:

(i) the interest in land is not the interest in relation to which

the request for lump sum subsidy is made; or

(ii) if the interest in land is the interest in relation to which

the request for lump sum subsidy is made--the interest

was bought before the Secretary gave the borrower the

subsidy certificate on the basis of which the lump sum

subsidy is requested.

11 Application

subsidy lump sum amendments

The amendments made by this Part apply in relation to a request for the

payment of a subsidy lump sum made under paragraph 34(1)(a) of the

Defence Home Ownership Assistance Scheme Act 2008, if the request is

made on or after the day the amendments commence.

Note:

The amendments commence 28 days after the day this Act receives the Royal Assent.

Schedule 2 Defence Ho me Ownership Assistance Scheme Act 2008

Part 4 Shared liability

10 Defence Legislation Amendment Bill (No. 1) 2009 No. , 2009

Part 4

Shared liability

12 Section 3

Insert:

loan limit has the meaning given by section 51 (monthly subsidy--

loan capital), as affected by sections 51A and 51B (liability for

subsidised loans shared between partners).

13 Paragraph 28(4)(c)

Repeal the paragraph, substitute:

relation to the same loan.

Note:

Special rules may apply for working out the amount of loan capital

(which affects the amount of subsidy) if a subsidised borrower and

another person are liable in respect of the same subsidised loan (see

sections 51A, 51B and 51C).

14 Subsection 51(1)

After "payable", insert "to a subsidised borrower".

15 Paragraph 51(1)(a)

After "owing", insert "by the subsidised borrower".

16 Paragraph 51(1)(b)

Repeal the paragraph, substitute:

(b) the amount of the subsidised borrower's loan limit (see

subsection (2)), as applicable from time to time during the

entitlement period.

17 At the end of subsection 51(1)

Add:

Note:

Special rules may apply for working out the amount of loan capital if a

subsidised borrower and another person are liable in respect of the

same subsidised loan (see sections 51A, 51B and 51C).

18 Subsection 51(2)

Defence Ho me Ownership Assistance Scheme Act 2008 Schedule 2

Shared liability Part 4

Defence Legislation Amendment Bill (No. 1) 2009 No. , 2009 11

Omit "The loan limit at a particular time (the loan limit time) for a

subsidised loan to a subsidised borrower", substitute "The loan limit at

a particular time (the loan limit time) for a subsidised borrower".

19 Subsections 51(4) and (5)

Repeal the subsections (including the heading to subsection (4) and the

note to subsection (5)).

20 After section 51

Insert:

51A Monthly subsidy--shared liability between partners for

subsidised loans

Scope

(1) This section applies to a subsidised borrower if the borrower and

his or her partner are parties to a single subsidised loan, whether

they are liable jointly and severally, or individually.

Loan capital rules

(2) The following table has effect for the purposes of section 51:

Shared liability between partners

Item

If...

the capital amount

owing by the

subsidised borrower

on the subsidised loan

on the first

authorisation day for

the entitlement period

is taken to be...

the amount of the

subsidised borrower's

loan limit at a

particular time is...

both of the parties to

the loan are subsidised

borrowers

50% of the total capital

amount owing on the

subsidised loan at that

time

the average of the

amounts of the loan

limits that would apply

in relation to each of

the subsidised

borrowers at that time

if he o r she were the

sole party to the loan.

Schedule 2 Defence Ho me Ownership Assistance Scheme Act 2008

Part 4 Shared liability

12 Defence Legislation Amendment Bill (No. 1) 2009 No. , 2009

Shared liability between partners

Item

If...

the capital amount

owing by the

subsidised borrower

on the subsidised loan

on the first

authorisation day for

the entitlement period

is taken to be...

the amount of the

subsidised borrower's

loan limit at a

particular time is...

only one of the parties

to the loan is a

subsidised borrower

100% o f the total

capital amount owing

on the subsidised loan

at that time

the loan limit that

applies under

subsection 51(2) at that

time.

51B Monthly subsidy--shared liability between partners for

subsidised loans if partner dies etc.

Scope

(1) This section applies to a subsidised borrower (the surviving

borrower) if:

(a) the borrower's partner (the deceased borrower) has died; and

(b) at the time of death, item 1 of the table in subsection 51A(2)

applied to the surviving borrower and the deceased borrower

because:

(i) they were parties to a single subsidised loan; and

(ii) each of them was a subsidised borrower in his or her

own right; and

deceased borrower to the payment of subsidy in relation to

the subsidised loan is transferred to the surviving borrower

under section 60 (joint interest in land) or 61 (inherited

interest in land).

Loan capital rules

(2) At and after the time of death:

(a) item 1 of the table in subsection 51A(2) continues to apply to

the surviving borrower, in his or her own right, in relation to

the subsidised loan; and

Defence Ho me Ownership Assistance Scheme Act 2008 Schedule 2

Shared liability Part 4

Defence Legislation Amendment Bill (No. 1) 2009 No. , 2009 13

(b) for the purposes of that application, the amount of the

surviving borrower's loan limit at a particular time (the loan

limit time) is the average of the amounts of the loan limits

that would apply in relation to the surviving borrower and the

deceased borrower at the loan limit time if:

(i) the deceased borrower were still alive, and had the loan

limit (under subsection 51(2)) that would have applied

to him or her at the time of death if he or she were the

sole party to the loan; and

(ii) the surviving borrower had the loan limit (under

subsection 51(2)) that would apply to him or her at the

loan limit time if he or she were the sole party to the

loan.

Note:

This section applies only to the surviving borrower's entitlement to

subsidy in his or her own right, and not to the entitlement transferred

from the deceased borrower (as mentioned in paragraph (1)(c)). For

how the transferred entitlement applies to the surviving borrower, see

sections 64 and 65.

51C Monthly subsidy--joint and several liability for subsidised

loans between non-partners

Scope

(1) This section applies to a subsidised borrower if:

(a) the borrower is jointly and severally liable with another

person in respect of the subsidised loan; and

(b) the other person is not the borrower's partner.

Loan capital rules

(2) For the purposes of section 51:

(a) the capital amount owing by the subsidised borrower on the

subsidised loan on the first authorisation day for the

entitlement period is taken to be 50% of the total capital

amount owing on the subsidised loan at that time; and

(b) at any particular time, the subsidised borrower has the loan

limit that applies under subsection 51(2).

Note 1:

If liability for the subsidised loan is shared between the subsidised

borrower and his or her partner, see sections 51A and 51B.

Note 2:

If the subsidised borrower and another person (other than the

borrower's partner) are liable individually in respect of the subsidised

Schedule 2 Defence Ho me Ownership Assistance Scheme Act 2008

Part 4 Shared liability

14 Defence Legislation Amendment Bill (No. 1) 2009 No. , 2009

loan, section 51 applies in relation to the actual capital amount owing

by the borrower on the subsidised loan.

21 Application

shared liability amendments

The amendments made by this Part apply in relation to the payment of

subsidy under the Defence Home Ownership Assistance Scheme Act

2008 to a person during an entitlement period that starts on or after the

day the amendments commence.

Note:

The amendments commence 28 days after the day this Act receives the Royal Assent.

Defence Ho me Ownership Assistance Scheme Act 2008 Schedule 2

Delegations Part 5

Defence Legislation Amendment Bill (No. 1) 2009 No. , 2009 15

Part 5

Delegations

22 Paragraph 81(2)(a)

Omit "73,".

23 Transitional

delegations amendment

Application

(1)

The amendment made by this Part applies to a delegation given under

subsection 81(2) of the Defence Home Ownership Assistance Scheme

Act 2008 on or after the day the amendment commences.

Saving

(2)

A delegation in force under subsection 81(2) of the Defence Home

Ownership Assistance Scheme Act 2008 immediately before the day the

amendment made by this Part commences continues to have effect, on

and after that day, as if it were a delegation under that subsection as

amended by this Part.

Note:

The amendment commences 28 days after the day this Act receives the Royal Assent.

Commonwealth of Australia Bills

DEFENCE LEGISLATION AMENDMENT BILL (NO. 1) 2009