Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) In this Act, unless the contrary intention appears:
"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.
"amending Act" means the Defence Service Homes Amendment Act 1988 .
"approved" means approved by the Minister in writing for the purposes of this Act.
"Approved welfare organization" means an organization approved by an appropriate authority of the Defence Force to provide welfare services (including assistance in the care of the sick or wounded) for members of the Defence Force.
"assigned advance" means a subsidised advance to an assignee, in accordance with a certificate of assignment issued under section 23A.
"assignee" means an assignee referred to in section 23A.
"assignor" means an assignor referred to in section 23A.
"Australian Soldier" means a person who, during the First World War or the Second World War or during the warlike operations in or in connection with Korea after 26 June 1950 or the warlike operations in or in connection with Malaya after 28 June 1950:
(a) is or was a member of the Naval, Military or Air Forces of Australia enlisted or appointed for or employed on active service outside Australia or on a ship of war; or
(b) is or was a member of any nursing service maintained by the Commonwealth in connexion with the Defence Force of the Commonwealth or any part thereof accepted or appointed for service outside Australia; or
(c) served in the Naval, Military or Air Forces of any part of the King's Dominions, other than the Commonwealth, and who proves to the satisfaction of the Secretary that he had, before his enlistment or appointment for service, resided in Australia or a Territory; or
(d) was a member of any nursing service maintained by the Government of any part of the King's Dominions other than the Commonwealth, in connexion with the Naval, Military or Air Forces of that part, and who proves to the satisfaction of the Secretary that she had, before her appointment to that service, resided in Australia or a Territory;
and who, in the case of a person included in paragraph (a) or (b) in relation to service in connection with the Second World War:
(e) was so enlisted, accepted, appointed or employed before 3rd September, 1945; or
(f) was so enlisted, accepted, appointed or employed on or after that date and before 1 July 1951, and who has been discharged or who has ceased to be engaged on war service as defined in section 4 of the Defence Act 1903 - 1945 ;
(g) a person who, as a member of the Defence Force, rendered continuous full - time service outside Australia:
(i) as a member of a unit of the Defence Force that was allotted for duty, within the meaning of the Veterans' Entitlements Act 1986 as provided in subsection 5B(2) of that Act; or
(ii) as a person who was allotted for duty, within the meaning of the Veterans' Entitlements Act 1986 as provided in subsection 5B(2) of that Act;
in an operational area described in item 3A, 3B, 4, 5, 6, 7 or 8 in Schedule 2 to the Veterans' Entitlements Act 1986 during the period specified in that item:
(ga) a person who, as a member of the Defence Force or as a member of a unit of the Defence Force, was allotted for duty within the meaning of subsection 5B(2) of the Veterans' Entitlements Act 1986 in the operational area described in item 9 of Schedule 2 to that Act during the period specified in that item;
(gb) a person who, as a member of the Defence Force or as a member of a unit of the Defence Force, was allotted for duty within the meaning of subsection 5B(2) of the Veterans' Entitlements Act 1986 in an operational area described in item 10, 11, 12, 13, 14 or 15 of Schedule 2 to that Act during the period specified in that item and whose first service in the Defence Force began on or before 14 May 1985;
(gc) a member of the Defence Force who is taken, because of section 6D of the Veterans' Entitlements Act 1986 , to have rendered operational service (within the meaning of that Act);
(gd) a member of the Defence Force:
(i) whose first service in the Defence Force began on or before 14 May 1985; and
(ii) who is taken, because of section 6DB or 6E of the Veterans' Entitlements Act 1986 , to have rendered operational service (within the meaning of that Act);
(ge) a member of the Defence Force:
(i) whose first service in the Defence Force began on or before 14 May 1985; and
(ii) who has rendered warlike service;
(h) a national serviceman;
(i) a regular serviceman; and
(i) was appointed for service outside Australia as a representative of an approved welfare organization with a body, contingent or detachment of the Defence Force;
(ii) as such, served outside Australia on or after the third day of September, 1939, with that body, contingent or detachment; and
(iii) would, if during that service he had been a member of the Defence Force allotted for duty with that body, contingent or detachment, be, by reason of that service, an Australian soldier as defined by a provision of this definition other than paragraph (h) or (i) or this paragraph.
"balance" has the same meaning as in the agreement.
"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 and includes an assignee in relation to a subsidised advance.
"certificate of assignment" means a certificate of assignment issued under section 23A.
"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.
"company title" , in relation to land, means a right of occupancy of the land, or of a dwelling - house or part of a dwelling - house erected on the land, arising from the holding of shares in a corporation that has an interest in the land or dwelling - house.
"Consumer Credit Codes commencing day" means the earliest day on which any of the Consumer Credit Codes of the States or Territories comes into force.
"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" means the Defence Service Homes Corporation.
"Corporation advance" has the same meaning as in the Bank agreement.
"court" means a court of summary jurisdiction.
(a) the Bank; or
(b) any other credit provider (within the meaning of the Privacy Act 1988 ) that is the party to an agreement (within the meaning of this Act).
"de facto partner" of a person has the meaning given by the Acts Interpretation Act 1901 .
"Defence Department" has the meaning given by the Military Rehabilitation and Compensation Act 2004 .
"dependent parent" means a parent of a person mentioned in paragraphs (a) to (g) of the definition of Eligible person if:
(ii) at the time of death, was not legally married and did not have a de facto partner; and
(b) one of the following subparagraphs applies:
(i) the parent is a widow or widower and was dependent on the person before the person became an eligible person;
(ii) the parent's spouse or de facto partner is so incapacitated as to be unable to contribute materially to that parent's support.
(a) a house or building used or to be used by a person, who is included in paragraph (b) or (d) of the definition of Australian Soldier , as a hospital, sanatorium or nursing home; and
(b) the appurtenances, outbuildings, fences, and permanent provision for lighting, water supply, drainage and sewerage provided in connexion with a dwelling - house;
but does not include any land.
"Eligible person" means a person who:
(b) is a munition worker;
(c) is a war worker;
(d) is a member of the Young Men's Christian Association who, during the First World War, was accepted for service with and served abroad with the Naval or Military Forces of Australia as a representative of that Association;
(e) has been awarded, in respect of his employment during the First World War, the Australian Mercantile Marine War Zone Badge, or the British Mercantile Marine Medal; and was during such employment domiciled in Australia or a Territory;
(f) after the commencement of the Second World War, and before the commencement of the War Service Homes Act 1946 , was employed under agreement as master, officer or seaman, or under indenture as apprentice, in sea - going service:
(i) on a ship engaged in trading between a port of a State or Territory and any other port, whether a port of a State or Territory or not; or
(ii) on a ship being a troop transport or hospital ship;
and was, during that employment, domiciled in Australia or a Territory; or
(g) not being a person to whom the last preceding paragraph applies, was, after the commencement of the Second World War, and before the commencement of the War Service Homes Act 1946 , employed, otherwise than as a member of the Defence Force, in sea - going service on a ship being a ship of war, troop transport or hospital ship, and was, during that employment, domiciled in Australia or a Territory;
and includes a widow, widower or dependent parent of a person specified in any of the paragraphs (a) to (g) of this definition.
"eligible recipient" means a person who is:
(a) a member of the Defence Force or a former member of the Defence Force; or
(b) a member of a Peacekeeping Force or a former member of a Peacekeeping Force; or
(c) a widow or widower of a person covered by paragraph (a) or (b).
(a) a person covered by paragraph (a) of the definition of veteran in subsection 5C(1) of the Veterans' Entitlements Act 1986 ; or
(b) a member of the Forces (within the meaning of subsection 68(1) of that Act); or
(c) a member of a Peacekeeping Force (within the meaning of subsection 68(1) of that Act); or
(d) a widow or widower (within the meaning of subsection 5E(1) of that Act) of a person covered by paragraph (a), (b) or (c) of this definition.
"Finance Minister" means the Minister administering the Public Governance, Performance and Accountability Act 2013 .
"further advance" means a subsidised advance (other than a widow or widower advance, an advance for essential repairs or a home support advance) to a person who:
(a) has been a purchaser or borrower as defined in this section (as in force before, on or after the commencing day), otherwise than:
(i) merely because the person is or was the personal representative of a deceased purchaser or borrower as so defined; or
(ii) merely because the person is or was a joint purchaser or borrower as so defined with the person's spouse or de facto partner and became such a purchaser or borrower on the basis that the person's spouse or de facto partner was an eligible person; and
(b) is not such a purchaser or borrower immediately before the advance is made.
"Government authority" means a public authority (including a local governing body) established by or under a law of the Commonwealth, of a State or of a Territory.
"granny flat" means any form of residence:
(a) that is the principal home of an eligible person; and
(b) that is not owned, wholly or partly, by the eligible person; and
(c) that is, or is a part of, a private residence; and
(d) in respect of which the eligible person has a right of accommodation for an indefinite period.
"guarantee" includes indemnity (other than one arising under a contract of insurance).
"guarantor" means a person who has given or gives a guarantee to a credit provider in relation to a subsidised advance.
"Holding" , in relation to an applicant or borrower, means:
(a) land of which he or she is the beneficial owner in fee simple; or
(b) land of which he or she is the lessee under a Crown lease in perpetuity from a State; or
(c) land of which he or she is the lessee under a lease granted for a term of not less than 99 years from a State or from a local governing body; or
(d) land in a Territory of which he or she is the lessee under a lease from Australia or from the Administration of the Territory, being:
(i) a lease in perpetuity;
(ii) a lease granted for a term of not less than 99 years; or
(iii) in the case of Norfolk Island--a lease granted for a term of not less than 28 years; or
(e) a suburban holding held by him or her under the Crown Lands Consolidation Act, 1913 of New South Wales or under that Act as amended at any time or under an Act enacted in substitution for that Act, being a suburban holding an application for which has been confirmed in accordance with the law of that State; or
(f) a unit defined in a units plan registered in accordance with a law of the Australian Capital Territory relating to unit titles, being a unit of which he or she is the lessee under a lease from Australia; or
(g) land which he or she holds by way of a company title; or
(h) land of which he or she is the lessee under a lease that a credit provider considers is adequate security for a subsidised advance to be made to him or her.
Note: An interest in a holding may be a joint interest in accordance with section 4AB.
"Home Loans Assistance Act" means the Defence Force (Home Loans Assistance) Act 1990 .
"home support advance" means a subsidised advance to a person referred to in section 21A for a purpose referred to in that section.
"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 borrower as defined in this section (as in force before, on or after the commencing day), otherwise than:
(a) merely because the person is or was the personal representative of a deceased purchaser or borrower as so defined; or
(b) merely because the person is or was a joint purchaser or borrower as so defined with the person's spouse or de facto partner and became such a purchaser or borrower on the basis that the person's spouse or de facto partner was an eligible person.
"instalment relief" has the same meaning as in the agreement.
"lease" , in relation to land held by way of company title, includes an agreement similar to a lease.
"limit" has the same meaning as in the agreement.
"member of a Peacekeeping Force" has the same meaning as in Part IV of the Veterans' Entitlements Act 1986 .
"mortgage" includes a security over an interest in shares that are shares giving rise to a company title.
(a) any interest in, or power over, property securing obligations of a borrower or guarantor; and
(b) a credit provider's title to land or goods that are subject to a sale by instalments.
"mortgagor" means a person who has given or gives a mortgage to a credit provider in relation to a subsidised advance.
"Munition worker" means a person who, during the First World War:
(a) entered into an agreement with the Commonwealth or the Minister of State for Defence to proceed to Great Britain for the purpose of:
(i) engaging in the work of producing munitions for the Imperial Government or otherwise; or
(ii) serving under the Imperial Government in the Ministry of Munitions; and
(b) engaged in the work of producing munitions for the Imperial Government or otherwise or served under the Imperial Government in the Ministry of Munitions, and whose agreement with the Commonwealth or the Minister of State for Defence was not determined by reason of his failure to observe and perform any term or condition contained in the agreement, or by reason of his dismissal from any work in Great Britain during the continuance of the agreement because of any conduct of the worker which, in the opinion of the Minister, was such as to justify the determination of the agreement.
"National serviceman" means a person who is a national serviceman in accordance with section 4AAB.
"notice of eligibility" means a notice of eligibility issued under this Act.
"other portfolio agreement" has the same meaning as in the Bank agreement.
"Owner" in relation to land includes every person who has purchased land on credit or deferred payment, and has obtained possession of the land, and, in relation to a dwelling - house, includes any person who has purchased or contracted to purchase a dwelling - house together with the land on which it is erected.
"parent" : without limiting who is a parent of anyone for the purposes of this Act, a person is the parent of another person if the other person is a child of the person within the meaning of the Family Law Act 1975 .
"portfolio asset" has the same meaning as in the Bank agreement.
"portfolio contract of sale" has the same meaning as in the Bank agreement.
"portfolio mortgage" has the same meaning as in the Bank agreement.
"portfolio supplementary agreement" has the same meaning as in the Bank 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.
"Regular serviceman" means a person who is a regular serviceman in accordance with section 4AAA.
(a) a retirement village registered under an approved law of a State or Territory; or
(b) in the case of a State or Territory that has no approved law--a retirement village within the meaning of the Veterans' Entitlements Act 1986 ; or
(c) a granny flat.
"reviewable decision" means a decision of the Secretary:
(aa) under subsection 4BB(2) (revocation of surrender election);
(a) refusing to issue a notice of eligibility, a certificate of entitlement or a certificate of assignment;
(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;
(da) cancelling a subsidy under section 27A;
(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.
"Secretary" means the Secretary of the Department.
"specified portfolio asset" has the same meaning as in the Bank agreement.
(a) an advance made by a credit provider in accordance with a certificate of entitlement; or
(b) an initial advance that the Bank is taken to have made under section 37.
"subsidised advance contract" means an agreement for the provision of a subsidised advance whether or not the Commonwealth has terminated the subsidy in respect of the advance.
"subsidised advance loan account" means:
(a) an account established by the Bank for the purpose of administering a specified portfolio asset; or
(b) an account established by any credit provider for the purpose of administering a subsidised advance.
"subsidy" means a subsidy payable under Part IV by the Commonwealth to a credit provider, being an amount calculated and payable in the manner provided in the agreement.
"supplementary agreement" means an agreement between the Commonwealth and the Bank, whether or not set out in a Schedule to this Act, that:
(a) amends the Bank agreement; and
(b) is expressed to be a supplementary agreement to the Bank agreement;
as varied and in force from time to time.
"Territory" means a Territory in which this Act applies or to which this Act extends.
"the agreement" means whichever of the following agreements or arrangements is applicable in the circumstances:
(a) the Bank agreement;
(b) an agreement or arrangement in force between the Commonwealth and a credit provider other than the Bank for the provision by the credit provider of subsidised advances or other benefits under this Act.
"the Bank" means Westpac Banking Corporation and, as the context requires and subject to the Bank agreement, any body to which it assigns all or any of its rights or obligations under the Bank agreement, the portfolio assets or subsidised advances or any security for those advances, as provided by the Bank agreement.
"the Bank 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 varied or affected by a supplementary agreement or otherwise, and as in force from time to time.
"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.
"warlike service" has the same meaning as in the Veterans' Entitlements Act 1986 .
"War worker" means a person, who, during the First World War, entered into an agreement with the Commonwealth to proceed to Great Britain for the purpose of engaging in work as a labourer, fettler or navvy for the Imperial Government or otherwise and engaged in such work, and whose agreement with the Commonwealth or the Minister of State for Defence was not determined by reason of his failure to observe and perform any term or condition contained in the agreement, or by reason of his dismissal from any work in Great Britain during the continuance of the agreement because of any conduct of the worker which, in the opinion of the Minister, was such as to justify the determination of the agreement.
"widow" of a person who has died means a woman who was legally married to, or a de facto partner of, the person immediately before the person died.
"widower" of a person who has died means a man who was legally married to, or a de facto partner of, the person immediately before the person died.
"widow or widower 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.
(2) For the purposes of the definition of Australian Soldier in subsection (1), a person shall not be taken to be an Australian soldier in relation to the warlike operations in or in connection with Korea after 26 June 1950, or the warlike operations in or in connection with Malaya after 28 June 1950, unless:
(a) that person was allotted for duty in an operational area within the meaning of subsection 5B(2) of the Veterans' Entitlements Act 1986 in connection with those operations before 1 September 1957 and, if he was so allotted while in Australia, or in the part of the Queen's dominions other than the Commonwealth, as the case may be, he left the last port of call in Australia or in that other part of the Queen's dominions before that date for the purpose of serving in connection with those operations; or
(b) that person, not being a person to whom paragraph (a) applies, served, on or after 1 September 1957 and before 28 May 1963, in an area prescribed to be, or to have been, an operational area for the purposes of this paragraph.
(2A) Subject to subsection (2AA), for the purposes of paragraph (a) of the definition of Australian Soldier in subsection (1), a person who is or was:
(a) a member of the Citizen Military Forces;
(b) a member of the Women's Royal Australian Naval Service, the Australian Women's Army Service or the Women's Auxiliary Australian Air Force;
(c) a member of the Australian Army Medical Women's Service but not a member of the Australian Imperial Force; or
(d) a member of the Voluntary Aid Detachment;
shall not, by reason only of being or having been such a member, be taken to have been enlisted or appointed for active service outside Australia or on a ship of war.
(2AA) Subsection (2A) does not apply in relation to a person who, during the Second World War, was:
(a) a member of the Women's Royal Australian Naval Service, the Australian Women's Army Service or the Women's Auxiliary Australian Air Force; or
(b) a member of the Australian Army Medical Women's Service, other than a member of the Australian Imperial Force; or
(c) a full - time paid member of the Voluntary Aid Detachment.
(2AB) For the purposes of the definitions of further advance and initial advance in subsection 4(1), a person of a kind referred to in subsection (2AA) is not taken to have been a purchaser or borrower, merely because the person previously became a purchaser or borrower on the basis that:
(a) the person's spouse or de facto partner is or was an eligible person, and as a result they were, under subsection 4A(1), treated together as an eligible person for the purposes of this Act; or
(b) the person's spouse or de facto partner was an eligible person, and the person became an eligible person because her spouse or de facto partner died; or
(c) the person is an eligible person because she is a dependent parent.
(2AC) For the purposes of the definitions of further advance and initial advance in subsection 4(1), a man who:
(a) was an eligible person in his own right; and
(b) is the widower of a person of a kind referred to in subsection (2AA);
is not taken to have been a purchaser or borrower, merely because he previously became a purchaser or borrower on the basis that:
(c) he was an eligible person in his own right; or
(d) his spouse or de facto partner was an eligible person and they were, under subsection 4A(1), together treated as an eligible person for the purposes of this Act; or
(e) his spouse or de facto partner was an eligible person and he became an eligible person because his spouse or de facto partner died; or
(f) he was an eligible person because he was a dependent parent.
(2B) For the purposes of paragraph (c) of the definition of Australian Soldier in subsection (1), a person shall not be taken to have served in the Naval, Military or Air Forces of any part of the King's Dominions, other than the Commonwealth, unless he served in such Forces:
(a) in an operational area outside the country or place of his enlistment or appointment for service; or
(b) as a combatant in an active combat unit.
(2C) Subject to subsection (2D), an Australian soldier who, by reason of his misconduct or misbehaviour:
(a) was discharged from, or otherwise ceased to be a member of, the Naval, Military or Air Forces of Australia; and
(b) is included in a class of members specified in the Schedule to the War Gratuity Act 1945 ;
shall not be treated as an eligible person for the purposes of this Act, but this subsection shall not prevent a widow, widower or dependent parent of such an Australian soldier being an eligible person.
(2D) Where the relevant misconduct or misbehaviour of an Australian soldier referred to in subsection (2C) consisted only of his absence without leave, the Secretary may treat him as an eligible person for the purposes of this Act if the Secretary, having regard to the quality of his service outside Australia, considers it appropriate to do so.
(3) Where, in the case of a person, being a female, who is:
(a) a person described in paragraph (g) of the definition of Australian soldier in subsection 4(1); or
(b) a regular serviceman;
the whole or any part of the service by reason of which she is such a member or such a regular serviceman, as the case may be, was service as a member of a nursing service, she shall, for the purposes of paragraph 18(1)(f), be deemed to be a person included in paragraph (b) of the definition of Australian Soldier in subsection (1) of section 4.
(a) an applicant is the lessee of land under a lease for a term of years from the Commonwealth, the Administration of a Territory or a State, being a lease under which he is entitled, on the fulfilment of the terms, conditions and covenants of the lease, to a grant in fee simple of the land; and
(b) the applicant satisfies the Secretary that the applicant has a reasonable prospect of carrying out the terms, conditions and covenants of the lease;
the land shall be deemed to be a holding for the purposes of this Act in relation to the applicant.
(a) an applicant is purchasing land from a State on terms that entitle him, on compliance with specified conditions, to a grant in fee simple of the land; and
(b) the applicant satisfies the Secretary that the applicant has a reasonable prospect of complying with those conditions;
the land shall be deemed to be a holding for the purposes of this Act in relation to the applicant.
(6) For the purposes of this Act a person is taken, subject to subsection (7), to have a right of residence in a retirement village if the person has a right of permanent residence in the retirement village, subject to any contractual conditions governing the person's residence.
(7) For the purposes of this Act a person is not taken to have a right of residence in a retirement village if the person's right of residence is derived from the person's interest in a holding of the person.
(8) In this Act, a reference to a person's retirement village accommodation means that part of a retirement village in which the person has, or the person and the person's spouse or de facto partner have, obtained a right of residence.
(9) A reference in this Act to an advance that a person may seek from a credit provider, includes a reference to such an advance that a person may seek from a credit provider on behalf of an assignee, or a proposed assignee, of the person.
(10) A reference in this Act to an assignee of a person is a reference to another person in relation to whom the first - mentioned person is an assignor.
(11) For the purposes of the definitions of further advance and initial advance in subsection 4(1), if the subsidised advance in question is an assigned advance in respect of an assignor:
(a) a reference in those definitions to the person to whom the advance in question is made is a reference to the assignee; and
(b) the assignee is not taken to have previously been a purchaser or borrower merely because the assignee previously became a purchaser or borrower, either as an eligible person in his or her own right or as an assignee in relation to another assignor.
(12) For the purposes of paragraph (b) of the definition of further advance in subsection 4(1), a person is not taken to have been a purchaser or borrower immediately before an assigned advance is made, merely because the person is a purchaser or borrower, as an assignee, in relation to an assignor other than the one in question.
(13) For the purposes of the definitions of further advance and initial advance in subsection 4(1), a person who has been an assignor is taken to have been a borrower unless the person:
(a) was an assignor merely because the person is or was the personal representative of a deceased assignor; or
(b) was an assignor merely because the person is or was an
assignor together with the person's spouse or de facto
partner, and became such an assignor on the basis that the person's
spouse or de facto partner was an eligible person.