Defence
Force (Home Loans Assistance) Act 1990
Act No. 14 of 1991 as amended
This compilation was prepared on 15 December 2008
taking into account amendments up to Act No. 144 of 2008
The text of any of those amendments not in force
on that date is appended in the Notes section
The operation of amendments that have been incorporated may
be
affected by application provisions that are set out in the Notes section
Prepared by the Office of Legislative Drafting and
Publishing,
Attorney‑General’s Department, Canberra
Contents
Part 1—Introductory 1
1............ Short title [see Note 1]....................................................................... 1
2............ Commencement [see Note 1].............................................................. 1
3............ Definitions.......................................................................................... 1
3A......... Operational service member............................................................. 10
3B......... Warlike service member.................................................................... 11
3C......... Minister may declare warlike service............................................... 11
4............ When do former members stop being eligible
members?.................. 12
5............ Ownership of house......................................................................... 12
6............ Family members............................................................................... 13
7............ Breaking continuity of service.......................................................... 13
8............ Multiple surviving spouses or de facto
partners.............................. 13
9............ Approval of agreement etc............................................................... 14
Part 2—Entitlement certificates, loan increases and sales,
purchases and transfers 15
Division 1—Entitlement certificates 15
10.......... Application for certificate................................................................ 15
11.......... Issue of certificate............................................................................. 15
12.......... Criteria for issue of certificate.......................................................... 16
13.......... Cancellation, variation or revocation of
certificate........................... 18
Division 2—Loan increases 19
14.......... Application for approval in relation to loan
increase....................... 19
15.......... Grant of approval............................................................................. 19
16.......... Revocation of approval.................................................................... 20
Division 3—Sale etc. of houses subject to subsidised
loans 21
17.......... Application for approval in relation to sale,
purchase or transfer... 21
18.......... Grant of approval............................................................................. 21
19.......... Revocation of approval.................................................................... 22
Part 3—Subsidy 23
20.......... When does subsidy become payable?.............................................. 23
20A....... Condition of payment of subsidy—subsidy under one
scheme only 25
21.......... Maximum amounts on which subsidy is payable............................ 25
22.......... Minimum amounts on which subsidy is payable............................. 25
23.......... Subsidy period—eligible persons..................................................... 26
24.......... Subsidy period—widows and widowers.......................................... 29
25.......... Calculation of amounts of subsidy................................................... 30
26.......... Joint loans to entitled persons who are spouses
or de facto partners 31
27.......... Cancellation of subsidy.................................................................... 31
28.......... Request to cancel subsidy................................................................ 32
29.......... When does subsidy stop?................................................................. 33
30.......... What happens on the death of a borrower who is an
eligible person? 34
31.......... Recovery of certain payments by Commonwealth.......................... 35
32.......... Waiver etc......................................................................................... 37
Part 4—Miscellaneous 38
33.......... Internal review of reviewable decisions............................................ 38
34.......... Review of decisions by Administrative Appeals
Tribunal.............. 39
35.......... Subclause 8.4 of agreement not to be revoked or
varied................... 39
36.......... Exchange of information................................................................... 39
36A....... Use and disclosure of personal information..................................... 40
37.......... Delegation......................................................................................... 41
38.......... Appropriation.................................................................................. 42
39.......... Annual report................................................................................... 42
40.......... Regulations....................................................................................... 42
Schedule 1—Agreement between the Commonwealth and the
Bank 43
Schedule 2—Consequential amendments of the Defence
Service Homes Act 1918 103
Notes 105
An Act providing for the payment of home loan subsidies in
respect of certain members of the Defence Force and certain other persons, and
for related purposes
Part 1—Introductory
1
Short title [see
Note 1]
This Act may be cited as the Defence
Force (Home Loans Assistance) Act 1990.
2
Commencement [see
Note 1]
(1) Part 1 of this Act and Schedule 1
commence on the day on which this Act receives the Royal Assent.
(2) Subject to subsection (3), the
remaining provisions of this Act (including Schedule 2) commence on a day
or days to be fixed by Proclamation.
(3) If a provision referred to in subsection (2)
does not commence under that subsection before 15 May 1991, it commences on that day.
3
Definitions
In this Act, unless the contrary
intention appears:
advanced amount means the amount advanced to
a person by the Bank under a subsidised loan.
agreement means the agreement made between
the Commonwealth and the Bank on 5 November 1990 (a copy of which is set
out in Schedule 1), as that agreement is in force from time to time.
approved form means a form approved by the
Secretary for the purpose of the provision in which the expression is used.
Bank means National Australia Bank Limited,
or any person or body to whom it assigns all or any of its rights or
obligations under the agreement.
basic service period means:
(a) in relation to a person covered by
subparagraph (a)(i) of the definition of eligible person—either:
(i) 5 years of effective
full‑time service; or
(ii) 5 years of composite
service; and
(b) in relation to a person covered by
subparagraphs (b)(i), (ii) and (iii) of that definition—either:
(i) 5 years of effective
full‑time service less the number of years of effective full‑time
service completed before the person’s discharge; or
(ii) 5 years of composite
service less the number of years of composite service completed before the person’s
discharge; and
(c) in
relation to a person covered by subparagraph (d)(i) of that definition—the
number of years of effective full‑time service or composite service set
out in Column 2 of the following table opposite the number of years specified in
Column 1 that applies to the person:
|
Column 1
Number of years of effective full‑time service
or composite service completed before
the person’s discharge
|
Column 2
Number of years of effective full‑time service
or composite service to be completed by
the person after again becoming a member
|
|
11 or fewer
|
5
|
|
12
|
4
|
|
13
|
3
|
|
14
|
2
|
|
15
|
1
|
benchmark rate has
the same meaning as in the agreement.
child: without limiting who is
a child of a person for the purposes of this Act, someone is the child
of a person if:
(a) he or she is:
(i) a legally adopted
child or a stepchild of the person; or
(ii) a child of the person
within the meaning of the Family Law Act 1975; and
(b) he
or she is:
(i) under 16; or
(ii) a student.
commencing day means the day on which Part 2
commences.
compensable disability means any physical or
mental incapacity or disability suffered by a member (whether before, on or
after the commencing day) in respect of which compensation was or is payable
under:
(a) the Safety, Rehabilitation and
Compensation Act 1988; or
(b) the Veterans’ Entitlements Act
1986; or
(ba) the Military Rehabilitation and
Compensation Act 2004; or
(c) a law of the Commonwealth
prescribed by the regulations.
composite service, in relation to a person
who has completed a period of effective full‑time service and a period of
statutory training obligation without a break between the periods, means a
period of service that is worked out as follows:
where:
statutory training obligation years means the
years of statutory training obligation completed by a person.
statutory training factor is 0.625.
effective full‑time service years means
the years of effective full‑time service completed by a person.
Example 1: If
a person completes 7 years of statutory training obligation and 1 year of
effective full‑time service—the person’s years of composite service are:
Example 2: If
a person completes 4 years of statutory training obligation and 1 year of
effective full‑time service—the person’s years of composite service are:
Example 3: If
a person completes 10 years of statutory training obligation and 2 years of
effective full‑time service—the person’s years of composite service are:
continuous full‑time service means an
unbroken period of full‑time service by a member in the Defence Force.
Note: See section 7 for some special
circumstances in which a period of full‑time service is taken to have
been broken.
de facto partner has the meaning given
by the Acts Interpretation Act 1901.
DSH Act means the Defence Service Homes
Act 1918.
effective full‑time service means a
period of continuous full‑time service by a member, other than:
(a) a period longer than 21
consecutive days during which the member is:
(i) on leave of absence
without pay; or
(ii) absent without leave;
or
(iii) awaiting or undergoing
trial for an offence of which the member is later convicted; or
(iv) undergoing detention or
imprisonment; or
(b) in the case of a member who:
(i) is an officer of the
Defence Force; and
(ii) on his or her
appointment was enrolled as a student in a degree or diploma course at a
university or other tertiary educational institution; and
(iii) was required by an
appropriate authority in the Defence Force to continue those studies after
appointment;
the period, determined by an
appropriate authority in the Defence Force, during which the member cannot be
treated as rendering effective full‑time service because of the need to
engage in those studies or in activities connected with them.
eligible person
means:
(a) a
person who:
(i) is a non‑DSH
member (other than an operational service member, a warlike service member, a
rejoining member or a person covered by paragraph (b) or (d)); and
(ii) completes (whether
before, on or after the commencing day) the basic service period applicable to
the person; or
(b) a person who:
(i) on or after the
commencing day, is discharged from the Defence Force because of a compensable
disability; and
(ii) immediately before the
discharge, was a non‑DSH member engaged or appointed for a period of less
than 5 years; and
(iii) again becomes a member
within 2 years after the day on which the discharge took effect; and
(iv) then completes the
basic service period applicable to the person; or
(c) an incapacitated person; or
(d) a person who:
(i) having been an
incapacitated person, again becomes a member within 2 years after the day on
which his or her discharge as an incapacitated person took effect; and
(ii) then completes the
basic service period applicable to the person; or
(e) a rejoining member; or
(f) an operational service member; or
(fa) a warlike service member; or
(g) a person (other than an
incapacitated person) who:
(i) before, on or after
the commencing day resigns, retires or is discharged from the Defence Force;
and
(ii) immediately before the
resignation, retirement or discharge was an operational service member, a
warlike service member or a non‑DSH member covered by paragraph (a),
(b), (d), (e) or (f); and
(iii) has not again become a
member; or
(h) a
person:
(i) who
is a member of the Reserves; and
(ii) who completes the
training period applicable to the person; and
(iii) to whom the DSH Act
does not apply.
entitled person means a person who is the
holder of an entitlement certificate that is in force.
entitlement certificate means a certificate
issued under Part 2.
Family Court means the Family Court of
Australia.
finishing day:
(a) for
the purpose of subsection 12(6), in relation to the issue of an entitlement
certificate to a person—means:
(i) if
(at the time the decision is made in relation to the issue of an entitlement
certificate) the person is an eligible person who is a member of the Defence
Force (other than an operational service member)—30 June 2008; or
(ii) in any other case—30 June 2010; and
(b) for the purpose of subsection
15(3)—means 30 June 2010.
government authority means an authority
(including a local governing body) established for a public purpose by or under
a law of the Commonwealth, or of a State or Territory.
holder, in relation to an entitlement
certificate, means the person to whom the certificate was issued.
house means a dwelling‑house and
includes a single unit held under a strata title system, but does not include:
(a) a house that is unfit for anyone
to live in or that is the subject of a condemnation order; or
(b) a house that is to be, or has
been, compulsorily acquired by the Commonwealth or a State or Territory, or by
a government authority; or
(c) a building that is a block of
flats, or a flat that is not held under a strata title system; or
(d) a caravan or any kind of mobile
house.
incapacitated person
means:
(a) a person who, on or after the
commencing day, is discharged from the Defence Force because of a compensable
disability; or
(b) a person:
(i) whose first service in
the Defence Force began after 14 May 1985; and
(ii) who is not covered by paragraph (ga)
of the definition of Australian Soldier in subsection 4(1) of the
DSH Act; and
(iii) who, before the
commencing day, was discharged from the Defence Force because of a compensable
disability;
and who, immediately before the discharge:
(c) had been a non‑DSH member
engaged or appointed for a period that would have allowed the person to
complete at least 5 years of effective full‑time service or composite
service; and
(d) had completed less than 16 years
of effective full‑time service or composite service.
intestacy law means a law of, or in force in,
a State or Territory that provides for the devolution of the estate of a person
who dies intestate.
member means a member of the Defence Force.
Middle‑East operational area means the
area comprising the following countries and sea areas:
(a) Kuwait, Iraq, Bahrain, Oman, Qatar,
Saudi Arabia, the United Arab Emirates and the Island of Cyprus;
(b) the sea areas contained within the
Gulf of Suez, the Gulf of Aqaba, the Red Sea, the Gulf of Aden, the Persian
Gulf and the Gulf of Oman;
(c) the
sea area contained within the Arabian Sea north of the boundary formed by
joining each of the following points to the next:
|
(i)
|
20° 30¢N
|
70° 40¢E;
|
|
(ii)
|
14° 30¢N
|
67° 35¢E;
|
|
(iii)
|
8° 30¢N
|
60° 00¢E;
|
|
(iv)
|
6° 20¢N
|
53° 52¢E;
|
|
(v)
|
5° 48¢N
|
49° 02¢E;
|
(d) the
sea areas contained within the Suez Canal and the Mediterranean Sea east of 30°E.
non‑DSH member means:
(a) a member whose first service in
the Defence Force began after 14 May 1985 and who is not covered by paragraph (ga)
of the definition of Australian Soldier in subsection 4(1) of the
DSH Act; or
(b) a
member:
(i) whose
first service in the Defence Force began on or before 14 May 1985; or
(ii) whose
first service in the Defence Force began after 14 May 1985 and who is covered by paragraph (ga) of the definition of Australian Soldier
in subsection 4(1) of the DSH Act;
and who has made an election
under section 4BA of the DSH Act that has not been revoked.
operational service member means a person who
is an operational service member under subsection 3A(1) or (3).
parent: without limiting who is a parent of a
person for the purposes of this Act, someone is the parent of a person if the
person is his or her child because of the definition of child in
this subsection.
rejoining member
means a person who:
(a) before, on or after the commencing
day resigns, retires or is discharged from the Defence Force; and
(b) immediately before the
resignation, retirement or discharge was an eligible person; and
(c) again becomes a member within 2
years after the day on which the resignation, retirement or discharge took
effect.
Reserves has the same meaning as in the Defence
Act 1903.
reviewable decision means a decision:
(a) refusing to issue an entitlement
certificate; or
(b) cancelling an entitlement
certificate; or
(ba) refusing to make a determination
under subsection 4(1A); or
(c) refusing to grant approval under
section 15 or 18; or
(d) that subsidy is not payable under
subsection 20(2); or
(e) giving a notice under section 27;
or
(f) refusing an application under
section 31 or 32; or
(g) revoking an approval; or
(h) refusing to extend the period for
making an application under section 33.
Secretary means the Secretary to the
Department.
statutory training obligation means a period
of training in a 12 month period that has been rendered by a person because the
person is bound to render that training under the Defence Act 1903, the Naval
Defence Act 1910 or the Air Force Act 1923 or in accordance with
regulations made under the Defence Act 1903, the Naval Defence Act
1910 or the Air Force Act 1923.
student means a person who is:
(a) at least 16 but under 25; and
(b) receiving full‑time
education at a school or college, or at a university or other tertiary
education establishment.
subsidised borrower
means a person who:
(a) is liable, either alone or jointly
with another person, to pay the outstanding amount of a subsidised loan; and
(b) is an entitled person, or was an
entitled person before the first payment of subsidy was made on the loan.
subsidised loan has the same meaning as in
the agreement.
subsidy means a subsidy payable under Part 3
by the Commonwealth to the Bank on a loan by the Bank, being a monthly amount
calculated under this Act and payable, for the benefit of the borrower, in the
manner provided in the agreement.
subsidy period, in relation to a person,
means the period to which the person is entitled under section 23.
surviving spouse or de facto partner, in
relation to a deceased person, means a person who was the spouse or
de facto partner of the deceased person immediately before the deceased
person’s death.
Note: See also section 8.
training period, in relation to a person
covered by paragraph (h) of the definition of eligible person,
means:
(a) 5 years of effective full‑time
service; or
(b) a continuous period of 8 years of
statutory training obligation; or
(c) 5 years of composite service.
warlike service means duty declared under
subsection 3C(1) to be warlike service.
warlike service member has the meaning given
by section 3B.
3A
Operational service member
(1) A person
is an operational service member for the purposes of this Act if:
(a) the person is a member; and
(b) the person is a non‑DSH
member; and
(c) the person is allotted for duty
anywhere within the Middle‑East operational area; and
(d) the duty includes duty sometime
during the period that starts on 2 August 1990 and ends on 9 June 1991.
(2) An allotment for duty:
(a) may be taken into account for the
purposes of subsection (1) even though it takes effect retrospectively;
and
(b) may be taken into account for the
purposes of subsection (1) whether it occurs before or after the
commencing day; and
(c) will not be taken into account for
the purposes of subsection (1) unless it is made by written instrument
signed by the Vice Chief of the Defence Force.
(3) A person is also an operational service
member for the purposes of this Act if:
(a) the person is a member; and
(b) the person is a non‑DSH
member because of an election under section 4BA of the DSH Act; and
(c) the person is an Australian
Soldier for the purposes of the DSH Act because of paragraph (a), (b),
(c), (g) or (ga) of the definition of Australian Soldier in
subsection 4(1) of the DSH Act.
Note 1: for paragraph (3)(b) see paragraph (b)
of the definition of non‑DSH member in section 3 of
this Act.
Note 2: the people referred to in paragraph (3)(c)
served in operational areas in military conflicts before the Gulf conflict.
3B
Warlike service member
(1) A warlike service member is a member who:
(a) is a non‑DSH member; and
(b) has been allotted for duty
declared under subsection 3C(1) to be warlike service; and
(c) has performed some or all of that
duty.
(2) An allotment for duty:
(a) may be taken into account for the
purposes of subsection (1) even though it takes effect retrospectively;
and
(b) may be taken into account for
those purposes whether it occurs before or after the commencement of this
section; and
(c) will not be taken into account for
those purposes unless it is made by written instrument signed by the Vice Chief
of the Defence Force.
3C
Minister may declare warlike service
(1) The Minister may, by legislative
instrument, declare duty to be warlike service for the purposes of this Act.
(2) A declaration under subsection (1):
(a) must be in writing; and
(b) may take effect retrospectively;
and
(c) may relate to duty even if it was
performed before the commencement of this section.
(3) The Minister may, by legislative
instrument, revoke or vary a declaration under subsection (1).
(4) An instrument under subsection (3)
may take effect retrospectively, except in so far as it results in duty ceasing
to be warlike service for the purposes of this Act.
4 When
do former members stop being eligible members?
(1) An eligible person who is not a member
stops being an eligible person:
(a) if he or she is not an
incapacitated person referred to in paragraph (b) of the definition of incapacitated
person in section 3—at the end of 2 years after the day on which
his or her resignation, retirement or discharge from the Defence Force took
effect; or
(b) if he or she is such an
incapacitated person—on 1 December 1994.
(1A) However, the Secretary may determine in
writing that a person covered by paragraph (1)(a) continues to be an
eligible person for a specified period beyond the period of 2 years mentioned
in that paragraph, if:
(a) the person is an incapacitated
person; and
(b) the person satisfies the Secretary
that the compensable disability that caused the person’s discharge also caused,
or contributed to, the person’s failure to apply for an entitlement certificate
within that 2 year period.
(1B) An application for a determination under subsection (1A)
must be in writing.
(2) Subsection (1) does not apply to a
person who has been an operational service member under subsection 3A(1).
5
Ownership of house
(1) For the purposes of paragraphs 15(1)(b)
and 20(2)(d), a person who is a part owner of a house is taken to own the house
if:
(a) the person owns an interest in the
house that is more than a half interest; or
(b) the person owns, together with his
or her spouse, de facto partner or child or children, an interest in the
house that is more than a half interest; or
(c) the person owns an interest in the
house that, when added to any other interest in the house owned separately by
the person’s spouse, de facto partner or child or children, is more than a
half interest.
(2) In this section:
interest includes a legal or equitable
interest and a life interest, but does not include an interest as lessee unless
the relevant lease is a Crown lease for a term of more than 50 years.
6
Family members
For the purposes of this Act, the
members of a person's family are:
(a) the person’s spouse or
de facto partner; and
(b) a child of the person or of the
person’s spouse or de facto partner; and
(c) a parent of the person, or of the
person’s spouse or de facto partner, who is ordinarily dependent on the
person.
7
Breaking continuity of service
(1) Without otherwise limiting the meaning of
continuous full‑time service as defined in section 3,
a period of full‑time service by a member in the Defence Force is taken
to be broken, for the purposes of this Act, if:
(a) the member is absent on leave
without pay (other than prescribed leave) for longer than 12 consecutive
months; or
(b) in connection with a transfer of
the member between 2 arms of the Defence Force, the member stops serving in one
such arm and there is a delay of more than 21 consecutive days before the
member starts serving in the other.
(2) Paragraph (1)(b) does not apply if
the delay was caused by the processing of the transfer by the relevant
authorities in the Defence Force and was beyond the member's control.
(3) A period of full‑time service by a
member of the Defence Force is not taken to have been broken by a period
described in paragraph (a) or (b) of the definition of effective
full‑time service in section 3.
8
Multiple surviving spouses or de facto partners
(1) If a deceased person has more than one
surviving spouse or de facto partner, the surviving spouse or
de facto partner who was living with the person immediately before his or
her death is taken, for the purposes of Division 1 of Part 2 and
paragraph 29(h), to be the person’s sole surviving spouse or de facto
partner.
(2) For the purposes of subsection (1),
the person is taken to have been living with a spouse or de facto partner
immediately before the death of the person if they were not living together at
that time only because of:
(a) a temporary absence from each
other; or
(b) illness or infirmity of either or
both of them.
9
Approval of agreement etc.
The agreement, as executed on 5 November 1990, and its execution on behalf of the Commonwealth, are approved.
Part 2—Entitlement certificates, loan increases and sales,
purchases and transfers
Division 1—Entitlement certificates
10
Application for certificate
(1) A person may apply to the Secretary for
an entitlement certificate.
(2) An application must be in writing, in the
approved form and must be made in accordance with the agreement.
(3) An application by a person who is not an
eligible person but who is the surviving spouse or de facto partner of a
deceased eligible person must be made within 2 years after:
(a) if the eligible person was not a
member—his or her resignation, retirement or discharge from the Defence Force
took effect; or
(b) in any other case—the death of the
eligible person.
(4) Subsection (3) does not apply if the
deceased eligible person was, or had been, an operational service member under
subsection 3A(1).
11
Issue of certificate
(1) Subject to this Act, the Secretary must,
on application by a person for an entitlement certificate, issue to the person
an entitlement certificate, in the approved form, certifying that the person is
an entitled person.
(2) An entitlement certificate remains in
force, unless it is sooner cancelled, until:
(a) if a subsidised loan is made to
the entitled person by the Bank within 12 months after the day on which the
certificate is issued—the first payment of subsidy is made on the loan; or
(b) in any other case—the end of the
12 months period mentioned in paragraph (a).
12 Criteria
for issue of certificate
(1) The Secretary must not issue an
entitlement certificate to a person unless satisfied that:
(a) the person is not the holder of an
entitlement certificate that is in force; and
(b) the person:
(i) is an eligible person,
or was an eligible person when he or she applied for the certificate; or
(ii) is the surviving
spouse or de facto partner of such an eligible person; and
(c) if the person is a member (other
than an operational service member, a warlike service member, a rejoining
member or a person covered by paragraph (h) of the definition of eligible
person)—the person has completed 6 months of effective full‑time
service after the end of the person’s basic service period; and
(d) if the person is an operational service
member under subsection 3A(3)—the person has completed 6 months of effective
full‑time service; and
(e) if the person is a rejoining
member who is not entitled to a subsidy period when he or she becomes a
rejoining member—the person has completed 6 months of effective full‑time
service after becoming a rejoining member; and
(f) the person’s subsidy period has
not ended; and
(g) the person has not already been
issued with an entitlement certificate on or after 1 July 2008.
(2) The Secretary must not issue an
entitlement certificate to an eligible person who is not a member, otherwise
than on an application made under subsection (4) or (5), if:
(a) 2 or more entitlement certificates
were previously issued to the person; and
(b) at least one of those certificates
was issued after the day on which the person’s resignation, retirement or
discharge from the Defence Force took effect.
(3) The Secretary must not issue an
entitlement certificate to a person who is a surviving spouse or de facto
partner of the kind mentioned in subsection 10(3) (otherwise than on an
application under subsection (4) of this section) if:
(a) where subsection 30(6) applies in
relation to the person—one entitlement certificate was previously issued to the
person within the period applicable to the person under subsection 10(3); or
(b) in any other case—2 entitlement
certificates were previously issued to the person within that period.
(4) In spite of anything else in this
Division, but subject to subsection (5), where a subsidised loan to a
person who was an entitled person is discharged as a result of:
(a) the destruction of the house to
which the loan relates; or
(b) the compulsory acquisition of the
property to which the loan relates by the Commonwealth or a State or Territory,
or by a government authority; or
(c) the sale or transfer of the
property to which the loan relates under an order of a court, other than an
order made under the Bankruptcy Act 1966 or in proceedings for the
recovery of a judgment debt;
the Secretary must issue to the person an entitlement
certificate if the person applies for the certificate within 12 months after
the loan is discharged.
(5) In spite of anything else in this
Division, where:
(a) a subsidised loan is made to a
person; and
(b) the person is discharged from the
Defence Force on or after the commencing day because of any compensable
disability suffered by the person (whether or not the person is an
incapacitated person); and
(c) the subsidised loan is discharged
as a result of the sale or transfer of the property to which the loan relates;
the Secretary must issue to the person an entitlement
certificate if, and only if:
(d) the person applies for the
certificate within 12 months after the loan is discharged; and
(e) the Secretary is satisfied that
the sale or transfer was reasonably necessary as a result of that disability.
(6) An entitlement certificate must not be
issued after the finishing day.
13
Cancellation, variation or revocation of certificate
(1) Where the Secretary is satisfied that:
(a) an entitlement certificate was
issued to a person as a result of a false or misleading statement made by the
person; or
(b) an entitlement certificate was
issued to a person who, when it was so issued, was not entitled to it;
the Secretary may, by written notice of cancellation given
to the person, cancel the certificate.
(2) If the Secretary is satisfied that a
certificate issued to a person by the Secretary contains an error or omission,
the Secretary may, by notice in writing:
(a) vary the certificate; or
(b) revoke the certificate and
substitute another;
and, where the Secretary does so, the varied or
substituted certificate has effect as if it had been issued at the time the
original certificate was issued.
(3) If the Secretary cancels a certificate
under subsection (1), the Secretary must give a copy of the notice of
cancellation to the Bank.
(4) If the Secretary varies a certificate, or
revokes a certificate and substitutes another, under subsection (2), the
Secretary must give copies of the notice of variation or of the notice of
revocation and substitution, as the case requires, to the person concerned and
to the Bank.
Division 2—Loan increases
14
Application for approval in relation to loan increase
(1) A subsidised borrower who:
(a) has obtained an advanced amount of
less than $80,000; and
(b) wishes to increase that amount;
may apply to the Secretary for approval of the payment of
subsidy in respect of the increase.
(2) An application must be in the approved
form.
(3) An application by a person who has
resigned, retired or been discharged from the Defence Force (other than a
rejoining member) must be made within 2 years after the day on which the
resignation, retirement or discharge took effect.
(3A) Subsection (3) does not apply to a
person who has been an operational service member under subsection 3A(1).
(4) An application by a person who is not an
eligible person but who is the surviving spouse or de facto partner of a
deceased eligible person must be made within 2 years after:
(a) if the eligible person was not a
member—his or her resignation, retirement or discharge from the Defence Force
took effect; or
(b) in any other case—the death of the
eligible person.
(5) Subsection (4) does not apply if the
deceased eligible person was, or had been, an operational service member under
subsection 3A(1).
15
Grant of approval
(1) On receipt of an application for approval
under section 14, the Secretary must grant the application if, and only
if, the Secretary is satisfied that:
(a) the person’s subsidy period has
not ended; and
(b) the person, or the person’s spouse
or de facto partner, is not the owner of a house in Australia (other than
that in respect of which the loan was made) being a house acquired after the
person obtained the subsidised loan.
Note: See section 5.
(2) Subsidy does not become payable in
relation to an increase in an advanced amount under a subsidised loan to a
person unless or until the Secretary is satisfied that the amount of the
increase has been used by the person:
(a) to enlarge, renovate or repair the
house in respect of which the loan was made, or to construct any permanent
improvements on the land on which the house is built; or
(b) to discharge another loan used by
the person for a purpose of the kind mentioned in subparagraph 20(2)(g)(i),
(ii), (iii), (iv) or (v).
(3) The Secretary must not grant an approval
after the finishing day.
(4) Where the Secretary approves the payment
of subsidy in relation to an increase in an advanced amount, the Secretary must
cause a notice of approval, in the approved form, to be sent to the applicant
and the Bank.
(5) An approval under this section stops
having any effect if the increase to which it relates is not obtained within 12
months after the approval is granted.
16
Revocation of approval
(1) Where the Secretary is satisfied that an
approval was granted to a person as a result of a false or misleading statement
made by the person, the Secretary may, by written notice given to the person,
revoke the approval.
(2) The Secretary must cause a copy of a
revocation to be given to the Bank.
(3) Where an approval is revoked under this
section it is taken never to have been granted.
Division 3—Sale etc. of houses subject to subsidised loans
17 Application
for approval in relation to sale, purchase or transfer
(1) Where:
(a) a subsidised borrower who is the
sole owner of the property to which the subsidised loan relates wishes, by a
sale or transfer of part of his or her interest in the property, to own the
property together with his or her spouse or de facto partner as joint
tenants; or
(b) a subsidised borrower who owns the
property to which the subsidised loan relates together with his or her spouse
or de facto partner, as joint tenants, wishes, by a purchase or transfer
of the spouse’s or de facto partner’s interest, to become the sole owner
of the property;
the borrower may apply to the Secretary for approval of
the continued payment of subsidy in relation to the property after the sale,
purchase or transfer takes place.
(2) An application must be in the approved
form and given to the Secretary at any time before the relevant sale, purchase
or transfer takes place.
18
Grant of approval
(1) On receipt of an application under
section 17, the Secretary must grant the approval sought if, and only if,
satisfied that:
(a) the proposed sale, purchase or
transfer has not been ordered by the Family Court; and
(b) as a result of the proposed sale,
purchase or transfer, the property concerned will be owned by the subsidised
borrower, or by the subsidised borrower and his or her spouse or de facto
partner as joint tenants, and will not be owned by any other person.
(2) Where the Secretary grants an approval
under this section, the Secretary must cause a notice of approval, in the
approved form, to be sent to the applicant and to the Bank.
19
Revocation of approval
(1) Where the Secretary is satisfied that an
approval was granted to a person as a result of a false or misleading statement
made by the person, the Secretary may, by written notice given to the person,
revoke the approval.
(2) The Secretary must cause a copy of a
revocation to be given to the Bank.
(3) Where an approval is revoked under this
section it is taken never to have been granted.
Part 3—Subsidy
20
When does subsidy become payable?
(1) Subject to this Part, subsidy is payable
to the Bank on a loan made by the Bank in accordance with the agreement.
(2) Subsidy does not become payable on a loan
to a person unless and until the Secretary is satisfied that:
(a) the person is an entitled person;
and
(b) the person’s subsidy period has
not ended; and
(c) each borrower has consented in
writing to the recovery by the Commonwealth in accordance with the agreement
and this Act of amounts to which subclauses 8.2 and 8.4 of the agreement apply;
and
(d) the person, or the person’s spouse
or de facto partner, is not the owner of any house in Australia other than
that in respect of which the loan was made; and
Note: See section 5.
(e) the house in respect of which the
loan was made:
(i) is owned by the
person, or by the person and the person’s spouse or de facto partner as
joint tenants (whether or not the spouse or de facto partner is also an
entitled person) and is not owned by any other person; and
(ii) is used by the person
as a home for the person and members of his or her family (if any); and
(iii) is suitable for use as
such a home, having regard to all the relevant circumstances, including the
person’s financial position, the needs of the members of his or her family (if
any) and the location of the house; and
(iv) is not ordinarily used
for the purpose of carrying on a business, trade or profession; and
(f) except where the agreement
provides otherwise, the loan is secured by a first mortgage over the property
to which it relates; and
(g) the
loan has been used to enable the person to do any of the following things:
(i) to
buy land and build the house to which the loan relates on the land;
(ii) to build that house on
land already owned by the person;
(iii) to buy that house
together with the land on which it is built;
(iv) if that house was
partly built and already owned by the person—to complete the house;
(v) if that house was
complete and already owned by the person—to enlarge, renovate or repair the
house, or to construct any permanent improvements on the land on which the
house is built;
(vi) to discharge another
loan used by the person for a purpose mentioned in subparagraph (i), (ii),
(iii), (iv) or (v).
(3) Subsidy is not payable in respect of a
house situated outside Australia.
(4) Subsidy is not payable on a loan to a
person in respect of a house if:
(a) subsidy was payable on a previous
loan to the person in respect of the same house; and
(b) that subsidy was cancelled under
section 28 at the person’s request; and
(c) more than 12 months has elapsed
since subsidy stopped being payable as a result of that cancellation.
(5) Subject to this Part, subsidy may be
payable on 2 or more successive loans by the Bank to the same subsidised
borrower, whether in respect of the same house or different houses.
(6) For the purposes of paragraphs (2)(e)
and (2)(g), but without limiting their meaning:
(a) a person is taken to own a house
in respect of which a loan is made if the person has an interest in the house
as a lessee under a Crown lease granted for a term of more than 50 years; and
(b) a person is taken to have bought a
house if the person has bought an interest in the house as such a lessee.
20A
Condition of payment of subsidy—subsidy under one scheme only
(1) This section applies if subsidy (2008
Act subsidy) is, or has ever been, payable to a person under the Defence
Home Ownership Assistance Scheme Act 2008.
(2) Subsidy is not payable on a loan to the
person under this Act on or after the earliest day the 2008 Act subsidy became
payable.
21
Maximum amounts on which subsidy is payable
(1) Subject to this Part, the amount on which
subsidy is payable is:
(a) the advanced amount; or
(b) $80,000;
whichever is less.
(2) If:
(a) a person obtains an advanced
amount of less than $80,000; and
(b) the person later borrows a further
amount by increasing that amount; and
(c) the payment of subsidy in respect
of the increase is approved under section 15;
then, subject to this Part, the amount on which subsidy is
payable is:
(d) the total of the borrowed amounts;
or
(e) $80,000;
whichever is less.
22
Minimum amounts on which subsidy is payable
(1) Subsidy is not payable on a loan of less
than $10,000.
(2) Where an advanced amount is increased by
a further borrowed amount of less than $10,000, subsidy is not payable in
respect of the further amount unless the total of the borrowed amounts is at
least $80,000.
23
Subsidy period—eligible persons
(1) Subject to this Part, subsidy is payable
on a subsidised loan to an eligible person while the person remains entitled to
a subsidy period.
(2) An eligible person is at any particular
time entitled to a subsidy period, being a period that at that time equals the
person’s entitlement period less the person’s used subsidy period (if any).
(3) In this
section:
entitlement period means:
(a) in relation to a member (other
than an operational service member, a warlike service member or a rejoining
member):
(i) the number of
completed years of subsidy service served by the member after completing his or
her basic service period; or
(ii) 20 years;
whichever is less; or
(b) in relation to a person who is or
has been an operational service member under subsection 3A(1):
(i) if the member has
served 16 completed years or less of subsidy service—16 years; or
(ii) if the member has
served more than 16, but not more than 20, completed years of subsidy
service—the number of completed years of subsidy service served by the member;
or
(iii) if the member has
served more than 20 completed years of subsidy service—20 years; or
(ba) in relation to a member who is an
operational service member under subsection 3A(3):
(i) if the member has
served 20 completed years or less of subsidy service—the number of completed
years of subsidy service served by the member; or
(ii) if the member has
served more than 20 completed years of subsidy service—20 years; or
(bb) in relation to a person who is or
has been a warlike service member:
(i) the total of:
(A) the
number of completed years (if any) of subsidy service served by the person; and
(B) the
number of additional years of subsidy to which the person is entitled under subsection (5);
or
(ii) 25 years;
whichever is less; or
(c) in relation to a rejoining member
who is a subsidised borrower 2 years after the day on which his or her
resignation, retirement or discharge from the Defence Force took effect:
(i) the number of
completed years of subsidy service served by the person after completing the
basic service period (if any) that last applied to the person before he or she
became a rejoining member; or
(ii) 20 years;
whichever is less; or
(d) in relation to a rejoining member,
other than a rejoining member covered by paragraph (c):
(i) the period equal to
the number of completed years of subsidy service served by the person:
(A) after he
or she became a rejoining member; and
(B) after
completing the basic service period (if any) that last applied to the person
before he or she became a rejoining member;
plus the total period
(if any) during which subsidy was paid on any subsidised loan to the person
before he or she became a rejoining member; or
(ii) 20 years;
whichever is less; or
(e) in relation to an incapacitated
person:
(i) the number of
completed years of subsidy service served by the person; or
(ii) 10 years;
whichever is less; or
(f) in relation to any other eligible
person who is not a member:
(i) the number of
completed years of subsidy service served by the person after completing the
basic service period (if any) that last applied to the person before the day on
which his or her resignation, retirement or discharge from the Defence Force
took effect; or
(ii) 20 years;
whichever is less.
rejoining member does not include a person
who has been an operational service member under subsection 3A(1) or has been a
warlike service member.
subsidy service means:
(a) effective full‑time service;
or
(b) statutory training obligation; or
(c) statutory training obligation
added to effective full‑time service.
used subsidy period, in relation to a person,
means the total period during which subsidy has been paid on any subsidised
loan to the person.
(4) If, but for this subsection, a person
would have 2 or more entitlement periods, the person’s entitlement period is
taken to be the longer or longest of those periods.
(5) A person who is or has been a warlike
service member is entitled to additional years of subsidy in accordance with
the following table:
|
Period, or total of periods, during which the person
performed warlike service
|
Additional years of subsidy
|
|
Not more than 3 months
|
2
|
|
More than 3 but not more than 6 months
|
3
|
|
More than 6 but not more than 9 months
|
4
|
|
More than 9 months
|
5
|
Examples: 1. A person who has
performed a total of 4 days warlike service is entitled to 2 additional years
of subsidy.
2. A person
who has performed a total of 3 months and 6 days warlike service is entitled to
3 additional years of subsidy.
3. A person
who has performed a total of 9 months and one day warlike service is entitled
to 5 additional years of subsidy.
(6) If a warlike service member is
repatriated from warlike service because of wounds, injury or illness, he or
she is taken for the purposes of subsection (5) to have continued to
perform that warlike service until the end of:
(a) the period for which, in the
opinion of the Secretary, the member could reasonably have expected at the time
of repatriation to be posted on that warlike service, but for the circumstances
leading to the repatriation; or
(b) the period for which the unit to
which the member was attached performed that warlike service;
whichever ended first.
(7) In forming an opinion for the purposes of
paragraph (6)(a), the Secretary must have regard to:
(a) any information given to the
member about the expected length of the posting;
(b) any information given to the
commander of the unit about the expected length of the posting of members of
that unit;
(c) any other relevant matter.
24
Subsidy period—widows and widowers
(1) Subject to this Part, subsidy is payable
on a subsidised loan to the surviving spouse or de facto partner of a
deceased eligible person while the surviving spouse or de facto partner
remains entitled to a subsidy period.
(2) Subject to subsection (3), the surviving
spouse or de facto partner of a deceased eligible person is at any
particular time entitled to a subsidy period that at that time is the same as
the period that would have applied at that time under section 23 if the loan
had been made to the eligible person.
(3) If the deceased is a prescribed member, subsection (2)
applies to the surviving spouse or de facto partner as if the deceased had
been an incapacitated person immediately before his or her death.
(4) In this section:
prescribed member
means a deceased member:
(a) who had completed less than 16
years of effective full‑time service or composite service immediately
before his or her death; and
(aa) who was neither an operational
service member nor a warlike service member; and
(b) in respect of whose death
compensation is payable under:
(i) the Safety,
Rehabilitation and Compensation Act 1988; or
(ia) the Military
Rehabilitation and Compensation Act 2004; or
(ii) the Veterans’
Entitlements Act 1986; or
(iii) a law of the
Commonwealth prescribed by the regulations.
surviving spouse or de facto partner
does not include a surviving spouse or de facto partner who is an eligible
person.
25
Calculation of amounts of subsidy
(1) Each monthly amount of subsidy is the
amount that results from working out the relevant regular monthly repayment (RMR)
amount under subsection (2) and then using that amount in the formula set
out in subsection (3).
(2) The RMR
amount must be worked out using the formula:
where:
BR is the
benchmark rate.
LA (loaned amount) is the amount on
which subsidy is payable.
(3) The
monthly subsidy amount must be worked out using the formula:
where:
LA has the same meaning as in subsection (2).
RMR is the amount worked out under that
subsection.
26
Joint loans to entitled persons who are spouses or de facto partners
(1) Where a subsidised loan is made to 2
entitled persons jointly, each of whom is the spouse or de facto partner
of the other, then:
(a) while both of them remain entitled
to a subsidy period, this Act applies in relation to the loan as if the
references in paragraphs 14(1)(a), 21(1)(b) and 21(2)(e), and in subsection
22(2), to $80,000 were references to $160,000; and
(b) when only one of them remains
entitled to a subsidy period, paragraph (a) stops applying and the other
provisions of this Act thereafter apply in relation to the loan as if he or she
were the sole subsidised borrower.
(2) If, when paragraph (1)(a)
applies in relation to a loan, one of the spouses or de facto partners dies:
(a) this Act continues to apply in
relation to the loan in the manner mentioned in that paragraph until:
(i) the end of the subsidy
period of the deceased spouse or de facto partner as at the date of death;
or
(ii) the end of the subsidy
period to which the surviving spouse or de facto partner is separately
entitled;
whichever happens first; and
(b) when one of those things happens, paragraph (a)
stops applying and the other provisions of this Act thereafter apply in
relation to the loan as if the surviving spouse or de facto partner were
the sole subsidised borrower.
27
Cancellation of subsidy
(1) Where the Commonwealth is paying subsidy
on a loan to a person and the Secretary is satisfied that:
(a) the relevant entitlement
certificate was issued to the person as a result of a false or misleading
statement by the person; or
(b) when the certificate was issued to
the person, the person was not entitled to it; or
(c) all or any of the criteria set out
in subsection 20(2) were not in fact met, although the subsidy became payable
on the basis that the Secretary was, at the time the subsidy became so payable,
satisfied that they had been met;
the Secretary may, by written notice given to the person,
notify the person that subsidy will not be paid on the loan on or after the
date of the notice.
(2) Where:
(a) the Commonwealth is paying subsidy
on an increase on an advanced amount under a subsidised loan to a person; and
(b) the Secretary is satisfied that
the approval under section 15 relating to the increase was granted as a
result of a false or misleading statement by the person;
the Secretary may, by written notice given to the person,
notify the person that subsidy will not be paid in respect of the amount of the
increase on or after the date of the notice.
(3) The Secretary must cause a copy of a
notice to be given to the Bank in accordance with the agreement.
(4) Where the Secretary gives a notice under subsection (1)
in relation to subsidy on a loan:
(a) subsidy stops being payable on
that loan on and after the date of the notice; and
(b) all amounts of subsidy paid on the
loan before that date are taken, for the purposes of section 31, to be
amounts not payable under this Act.
(5) Where the
Secretary gives a notice under subsection (2) in relation to subsidy on an
increased amount of a loan:
(a) subsidy stops being payable on the
amount of the increase on and after the date of the notice; and
(b) all amounts of subsidy paid on the
amount of the increase before that date are taken, for the purposes of section 31,
to be amounts not payable under this Act.
28
Request to cancel subsidy
(1) A subsidised borrower may, by a signed
request in the approved form, ask the Secretary to cancel subsidy on the
borrower’s subsidised loan.
(2) Only one request may be made in respect
of any one subsidised loan.
(3) On receipt of a request, the Secretary
must, by notice of cancellation given to the subsidised borrower, cancel the
subsidy accordingly.
(4) The Secretary must cause a copy of a
notice of cancellation to be given to the Bank in accordance with the
agreement.
(5) Where subsidy on a subsidised loan is
cancelled under this section, subsidy stops being payable on the loan on and
after:
(a) the date of the notice; or
(b) if a later date is specified in
the notice—that later date.
29
When does subsidy stop?
Subject to sections 27 and 28,
subsidy stops being payable on a subsidised loan to a person who is a
subsidised borrower when any of the following things happen:
(a) all outstanding amounts due under
the loan are paid;
(b) the person’s subsidy period ends;
(c) if the property to which the loan
relates is owned by the person and his or her spouse or de facto partner as
joint tenants—the joint tenancy is converted into a tenancy in common;
(d) the property to which the loan
relates is transferred under an order of the Family Court to the person’s
spouse or de facto partner, or former spouse or former de facto
partner, or to the person and his or her former spouse or former de facto
partner, whether as joint tenants or as tenants in common;
(e) the property to which the loan
relates, or any interest in it, is sold or transferred to another person (other
than under an order of the Family Court) without an approval under section 18;
(f) the person (being a person to
whom subsection 30(6) applies) dies;
(g) the person (being a person who is
or was an eligible person) dies and does not have a surviving spouse or
de facto partner;
(h) the person (being a person who is
or was an eligible person) dies and the property to which the loan relates, or
any interest in it, is sold or transferred under the person’s will or an
intestacy law to someone other than the person's surviving spouse or
de facto partner.
30
What happens on the death of a borrower who is an eligible person?
(1) Where:
(a) a
prescribed borrower dies and has a surviving spouse or de facto partner;
and
(b) the house to which the subsidised
loan relates was, immediately before the borrower’s death, owned jointly by the
borrower and the surviving spouse or de facto partner;
then, subject to section 29, subsidy continues to be
payable on the loan.
(2) Where:
(a) a prescribed borrower dies and has
a surviving spouse or de facto partner; and
(b) the house to which the subsidised
loan relates was, immediately before the borrower’s death, owned solely by the
borrower;
subsidy on the loan is suspended until the house is sold
or transferred under the borrower’s will or an intestacy law.
(3) If:
(a) subsidy is suspended; and
(b) the house to which the subsidised
loan relates is transferred under the borrower’s will or an intestacy law to a surviving
spouse or de facto partner of the borrower who was living with the
borrower immediately before the borrower’s death; and
(c) the house is so transferred
subject to the loan;
then, subject to section 29, the suspension ends and
subsidy is payable on the loan on and after the day on which the suspension
took effect.
(4) If:
(a) subsidy is suspended; and
(b) the house to which the subsidised
loan relates is transferred under the borrower’s will or an intestacy law to a surviving
spouse or de facto partner; and
(c) the house is so transferred
subject to the loan; and
(d) no surviving spouse or
de facto partner of the borrower was living with the borrower immediately
before the borrower’s death;
then, subject to section 29, the suspension ends and
subsidy is payable on the loan on and after the day on which the suspension
took effect.
(5) Where subsidy is suspended, the Secretary
must cause a written notice of the suspension to be given to the Bank in
accordance with the agreement.
(6) When subsidy is payable on a loan under
this section, the relevant surviving spouse or de facto partner is to be
treated, for the purposes of this Act, as if he or she were the subsidised
borrower in relation to the loan.
(7) In this
section:
prescribed borrower means a subsidised
borrower who is or was an eligible person.
31
Recovery of certain payments by Commonwealth
(1) Where:
(a) an amount has been paid to the
Bank by the Commonwealth by way of subsidy on a loan to a person; and
(b) the amount is not payable under
this Act; and
(c) neither subclause 8.1 nor 8.5 of
the agreement applies in relation to the amount; and
(d) the Bank is not required to pay
the due amount to the Commonwealth under subclause 8.2 of the agreement;
the due amount is payable to the Commonwealth by the
person.
(2) Where:
(a) the Bank sells any property by way
of enforcing a mortgage securing a loan to a person; and
(b) as a result of the sale, the
Commonwealth is required to pay an amount to the Bank under subclause 8.4 of
the agreement;
an amount equal to that amount is payable to the
Commonwealth by the person.
(3) Where:
(a) the Bank sells any property that
is, or was at any time, subject to a subsidised loan to a person; and
(b) the sale is by way of enforcing a
mortgage securing that loan or another loan to the person; and
(c) a due amount is payable under this
section to the Commonwealth by the person;
the Bank must pay to the Commonwealth an amount equal to:
(d) the part of the proceeds of the
sale that, apart from this subsection, would have been payable by the Bank to
the person; or
(e) the unpaid part of the due amount;
whichever is less.
(4) A payment by the Bank to the Commonwealth
under subsection (3) is, to the extent of the payment, a discharge of any
liability of the person referred to in that subsection to the Commonwealth and
of any liability of the Bank to the person under the mortgage or the loan agreement.
(5) Where:
(a) an amount is payable to the
Commonwealth under this section by a person other than the Bank; and
(b) the
person does not pay the amount;
the amount may be recovered from the person in a court of
competent jurisdiction as a debt due to the Commonwealth.
(6) Where:
(a) a due amount is payable to the
Commonwealth under this section by a person other than the Bank; and
(b) the Secretary is satisfied, on
written application by the person, that payment of the due amount in full would
cause the person, or the person’s family, unreasonable financial hardship;
the Secretary may, by notice in writing given to the
person, reduce the due amount by such amount as the Secretary specifies in the
notice and this section applies in relation to the reduced amount as if it were
the due amount.
(7) The
Secretary must cause a copy of a notice under subsection (6) to be given
to the Bank in accordance with the agreement.
(8) In this section:
due amount means an amount equal to the
amount incorrectly paid to the Bank by way of subsidy on a loan to a person
plus interest on that amount at the benchmark rate from time to time applicable
from the day the incorrect payment was made until payment is made to the
Commonwealth under the agreement or this section, as the case requires.
32
Waiver etc.
(1) Subject to this section, the Secretary
may, on behalf of the Commonwealth, decide in writing:
(a) to write off an amount payable to
the Commonwealth by a person under section 31; or
(b) to waive the right of the
Commonwealth to recover from a person the whole or part of such an amount; or
(c) to allow such an amount to be paid
by such instalments as are specified in the decision.
(2) The Secretary may make a decision under subsection (1)
on his or her own initiative or on written application by the person concerned.
(3) The Secretary must not make a decision
under paragraph (1)(a), (b) or (c) on the application of a person unless
satisfied that a refusal of the application would cause the person, or the person’s
family, unreasonable financial hardship.
(4) A decision under subsection (1)
takes effect:
(a) on the day specified in the
decision, 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.
(5) In this section:
person does not include the Bank.
Part 4—Miscellaneous
33
Internal review of reviewable decisions
(1) The Secretary must, 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; and
(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 must 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 must, 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 must refer an application for review of
the decision to the Minister and the Minister must 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 does not include the
Bank.
34
Review of decisions by Administrative Appeals Tribunal
(1) Where a person makes a decision under
subsection 33(6) affirming or varying a reviewable decision, the person must cause
a notice in writing to be given to the person whose interests are affected by
the decision (other than the Bank) containing:
(a) the terms of the decision; and
(b) the reasons for the decision; and
(c) 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 mentioned in paragraph (1)(c) does not affect the
validity of the decision to which the notice relates.
(3) Subject to the Administrative Appeals
Tribunal Act 1975, application may be made to the Administrative Appeals
Tribunal by a person other than the Bank for a review of a decision made under
subsection 33(6) affirming or varying a reviewable decision.
(4) In this section:
decision has the same meaning as in the Administrative
Appeals Tribunal Act 1975.
35
Subclause 8.4 of agreement not to be revoked or varied
An agreement between the Commonwealth
and the Bank that revokes, amends or otherwise affects the operation of
subclause 8.4 of the agreement, as executed on 5 November 1990, has no effect.
36
Exchange of information
(1) The Commonwealth must disclose or give to
the Bank, in accordance with the agreement, any information in the
Commonwealth's possession that is required to be disclosed or given to the Bank
under the agreement.
(2) The Bank must disclose or give to the
Commonwealth, in accordance with the agreement, any information in the Bank's
possession that is required to be disclosed or given to the Commonwealth under
the agreement.
36A
Use and disclosure of personal information
(1) This section applies to personal
information about any of the following people:
(a) an applicant for an entitlement
certificate;
(b) a person who has been issued with
an entitlement certificate (whether or not the certificate is in force);
(c) a person who is, or has been, a
subsidised borrower;
(d) a surviving spouse or
de facto partner, or a family member, of a person covered by
paragraph (a), (b) or (c).
(2) A person covered by subsection (3)
may, for a purpose prescribed by the regulations:
(a) use the personal information; or
(b) disclose the personal information
to another person covered by that subsection.
(3) This subsection covers the following
people:
(a) the Secretary;
(b) a delegate of the Secretary under
section 37;
(c) a delegate of the Secretary under
the Defence Home Ownership Assistance Scheme Act 2008 (the 2008
Act) or the Defence Service Homes Act 1918 (the 1918 Act);
(d) the Bank, if the Bank has:
(i) received an
application for a subsidised loan from the person mentioned in
paragraph (1)(b) of this section; or
(ii) made a subsidised loan
to the person mentioned in paragraph (1)(c) of this section;
(e) a loan provider as defined under
section 3 of the 2008 Act, if the loan provider has:
(i) received an
application for a subsidised loan (as defined under section 3 of the 2008
Act) from the person mentioned in paragraph (1)(b) of this section; or
(ii) made a subsidised loan
(as defined under section 3 of the 2008 Act) to the person mentioned in
paragraph (1)(c) of this section;
(f) a credit provider as defined
under section 4 of the 1918 Act, if the credit provider has:
(i) received an
application for a subsidised advance (as defined under section 4 of the
1918 Act) from the person mentioned in paragraph (1)(b) of this section;
or
(ii) made a subsidised
advance (as defined under section 4 of the 1918 Act) to the person
mentioned in paragraph (1)(c) of this section.
(4) The use and disclosure of personal
information under subsection (2) is taken to be authorised by law for the
purposes of:
(a) the Privacy Act 1988; and
(b) any provision of a law of a State
or Territory that provides that personal information may be used or disclosed
if the use or disclosure is authorised by law.
Note: The authorisation under this subsection is
only for the use and disclosure of personal information for a prescribed
purpose mentioned in subsection (2).
(5) The regulations may prescribe
circumstances in which a person may, or must not, use or disclose personal
information for the purposes of this section.
(6) In this section:
personal information has the same meaning as
in the Privacy Act 1988.
37
Delegation
The Secretary may, by signed instrument,
delegate all or any of the Secretary's powers and functions under this Act to a
person who is:
(a) an officer of the Department; or
(b) a member (being an officer) of the
Defence Force; or
(c) a member, or member of the staff,
of the Defence Housing Australia; or
(d) a delegate of the Secretary under
subsection 81(2) of the Defence Home Ownership Assistance Scheme Act 2008.
38
Appropriation
The following payments by the
Commonwealth to the Bank are to be made out of the Consolidated Revenue Fund,
which is appropriated accordingly:
(a) payments of subsidy;
(b) payments made under subclause 8.4
of the agreement.
39
Annual report
(1) The Secretary must, as soon as
practicable after each 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.
(2) The Minister must cause a copy of each
report 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.
40
Regulations
The Governor‑General may make
regulations not inconsistent with this Act prescribing matters:
(a) required or permitted by this Act
to be prescribed; or
(b) necessary or convenient to be
prescribed for carrying out or giving effect to this Act.
Schedule 1—Agreement between the Commonwealth and the Bank
Section 3
TABLE
OF CONTENTS
Recital
Clause
1. DEFINITIONS AND
INTERPRETATION
1.1 Definitions
1.2 Interpretation
2. AGREEMENT
2.1 Parties to be
bound by this Agreement
2.2 Bank to act in
accordance with Scheme
3. FRANCHISE
4. FRANCHISE PAYMENTS
4.1 Payments
4.2 Provision of
invoices
4.3 Times for payment
4.4 Checking of
invoices by the Bank
4.5 Manner of payment
4.6 Resolution of
dispute as to sums payable under Sub‑clause 4.1(b)
4.7 Provision
for possible refund of part or all of the $42 million referred to in Sub‑clause 4.1(a)
5. SUBSIDISED LOANS
5.1 Preliminary enquiries
5.2 Entitlement
Certificates
5.3 Application for
Subsidised Loan
5.4 Obligation of the
Bank to make a Subsidised Loan
5.5 Increases in the
amount of a Subsidised Loan
5.6 Application of
Lending Criteria
5.7 Lending Criteria
5.8 Alteration of
Lending Criteria
5.9 Factors to be
excluded by the Bank
5.10 Provision
of reasons for rejection
5.11 Non‑discrimination
5.12 Security
5.13 Loan
agreement
5.14 Entitled
Person to include “spouse” in certain cases
5.15 Calculation
of Benchmark Rate
5.16 Changes
to Title or Subsidised Loan Account during term of a Subsidised Loan
6. FEES
6.1 Definitions
of “fees”
6.2 Fees
to be same as for other Housing Loan Customers
7. SUBSIDY
7.1 Obligation
of the Commonwealth to pay Subsidy
7.2 Obligation
of Bank on receipt of Subsidy
7.3 Payment
of Subsidy
8. OVER‑PAYMENT
OF SUBSIDY
8.1 Where
immediate repayment required
8.2 Where
over‑payments are to be added to Subsidised Loan Account
8.3 Bank
not required to add over‑payment where Subsidised Loan Account closed
8.4 Commonwealth
to refund amounts to Bank in certain circumstances
8.5 Cases
of fraud, mistake or concealment
8.6 Commonwealth
to notify Bank of due amount from time to time
8.7 Meaning
of “due amount”
8.8 Meaning
of “Subsidised Borrower”
9. FURTHER
HOUSING LOANS
9.1 Ability
to apply for Further Housing Loans
9.2 Bank
not to discriminate
10. PROMOTION
AND OPERATION OF THE SCHEME
10.1 Obligations
of the Bank
10.2 Obligations
of the Commonwealth
11. INFORMATION
11.1 Notices
by the Bank
11.2 Notices
by the Commonwealth
11.3 Provision
of information generally
11.4 Assistance
in preparing Annual Reports and evaluations
11.5 Disclosure
11.6 No
Charge to the Commonwealth by the Bank
12. ACKNOWLEDGEMENT
OF COMMONWEALTH ADMINISTRATIVE ARRANGEMENTS
12.1 Commonwealth
to act through Departments and statutory authorities
12.2 Meaning
of “Commonwealth” in the Agreement
13. DEALINGS
WITH SOUTH AFRICA
14. STAMP DUTY
15. LEGAL AND
ACCOUNTING COSTS
16. APPLICABLE
LAW
17. NOTICES
18. WAIVER
19. ENTIRE
AGREEMENT
20. AMENDMENTS
OR VARIATION
21. ASSIGNMENT
22. DISPOSAL BY
BANK
23. FURTHER
ASSURANCES
24. ARBITRATION
24.1 Notice
of dispute, question or difference
24.2 Submitting
a dispute to arbitration
24.3 Arbitration
relating to franchise payments
24.4 Arbitration
relating to Benchmark Rate
24.5 Provisions
relating to all arbitrations
25. CONFIDENTIALITY
25.1 Acknowledgement
by the Bank of confidential material
25.2 Duty
not to disclose
26. WARRANTIES
26.1 Warranties
by the Commonwealth
26.2 Warranties
by the Bank
27. INDEMNITIES
27.1 Obligations
of the Bank
27.2 Obligations
of the Commonwealth
28. RELATIONSHIP
OF THE PARTIES
29. DEFAULT PROVISIONS
29.1 Persistent failure by the Bank to provide Subsidised
Loans
29.2 Persistent
failure by the Bank to comply with any other term of the Agreement
29.3 Meaning
of “rectify the failure”
29.4 Immediate
termination
29.5 Effects
of termination
29.6 Interest
payable on moneys over‑due
30. AUDIT
30.1 Report
by external auditors of the Bank
30.2 Qualified
reports
30.3 Discussion
of audit procedures with external auditors
30.4 No
charge to the Commonwealth by the Bank
31. ENABLING
LEGISLATION
31.1 Enabling
legislation being passed by Parliament
31.2 Amendments
to draft Bill
31.3 Effect
of amendments
31.4 No
notice by Bank
31.5 Draft
Bill to be submitted to Parliament
31.6 Procedure
where notice given by the Bank
31.7 Effect
of termination
31.8 Agreement
approved by enabling legislation
31.9 Commencement
Date after 31 December 1991
31.10 Passage
of enabling legislation after 31 December 1990
SCHEDULES
1. Schedule A Table of
Franchise Payments
2. Schedule B Particulars
to be included in certain forms used under the Act
3. Schedule C Part
D—certificate by Bank manager
4. Schedule D Loan
agreement
AN AGREEMENT made the 5th day of November 1990 BETWEEN
THE COMMONWEALTH OF AUSTRALIA (“the Commonwealth”) of the one part, and
NATIONAL AUSTRALIA BANK LIMITED of 500 Bourke Street, Melbourne in the State of
Victoria of the other part,
WHEREAS:
A. The
Commonwealth wishes to introduce, with effect from 15 May 1991, a Scheme to assist certain Members and former Members of the Defence Force and their
spouses to meet repayments on Housing Loans provided to them by the lender
under the Scheme.
B. The Bank
provides Housing Loans in its ordinary course of business and has offered to be
the lender under the Scheme.
C. Assistance
will be provided in the form of Subsidy payments by the Commonwealth paid to
the Bank for the benefit of persons entitled to Subsidy and their spouses
where appropriate.
D. Entitlement
to Subsidy will be determined by the Commonwealth in accordance with the Act.
NOW THEREFORE IT IS AGREED AS
FOLLOWS:
1. DEFINITIONS AND
INTERPRETATIONS
In this Agreement except where the
context otherwise requires:
1.1 Definitions
|
Act:
|
means the Defence Force (Home
Loans Assistance) Act 1990 as amended from time to time.
|
|
Agreement:
|
means this agreement between the
Commonwealth and the Bank signed on the above date.
|
|
Application for Payment of
Subsidy:
|
means an application to the
Commonwealth for payment of Subsidy by an Entitled Person or Subsidised
Borrower.
|
|
Bank:
|
means National Australia Bank
Limited or any person or body to whom it assigns all or any of its rights or
obligations under this Agreement.
|
|
Benchmark Rate:
|
means the rate of interest
calculated in accordance with Sub‑clause 5.15.
|
|
Business Day:
|
means a day upon which banks are
open for business in Canberra and in Melbourne.
|
|
Calendar Year:
|
means a period of twelve (12)
Months, beginning on 1 January.
|
|
Commencement Date:
|
means the day on which the entire
Act comes into effect or 15 May 1991 whichever is the later.
|
|
Entitled Person:
|
means a person who has been
issued with an Entitlement Certificate pursuant to the Act.
|
|
Entitlement Certificate:
|
means an entitlement certificate
issued pursuant to the Act by the Commonwealth.
|
|
Financial Year:
|
means a period of twelve (12)
Months commencing on 1 July.
|
|
Franchise Term:
|
means the period from the
Commencement Date to 31 December 2006.
|
|
Further Housing Loan:
|
means a Housing Loan made by the
Bank in respect of the Property and is a loan which is in addition to the
Subsidised Loan.
|
|
Grant of Approval:
|
means a grant of approval given
by the Commonwealth pursuant to the Act.
|
|
Housing Loan:
|
means a loan from a bank to a
borrower for any of the purposes for which Subsidised Loans may be made or
increased under the Act and is a loan in respect of a dwelling in which it is
intended that the borrower shall reside or is residing.
|
|
Joint Borrower:
|
means a person, not being a
Subsidised Borrower, joined as a mortgagor on Title with a Subsidised
Borrower.
|
|
Lending Criteria
|
means the lending criteria set
out in Sub‑clause 5.7.
|
|
Member:
|
means a member of the Defence
Force.
|
|
Month:
|
means a
calendar month.
|
|
Mortgage:
|
shall mean the mortgage,
including statutory mortgages under a Torrens system of registration,
securing the Subsidised Loan.
|
|
Property:
|
means the property over which the
Subsidised Loan is, or is to be secured, and shall be either:
(a) real
property; or
(b) a
Crown lease of real property where the term of the lease is more than fifty
(50) years.
|
|
Rest Day:
|
means the last Business Day of
each Month.
|
|
Scheme:
|
means the scheme of Housing Loan
assistance established by the Act and this Agreement.
|
|
Subsidy:
|
means a payment of subsidy to the
Bank by the Commonwealth pursuant to the Act.
|
|
Subsidised Borrower:
|
has the same meaning as in the
Act.
|
|
Subsidised Loan:
|
means a Housing Loan made by the
Bank under Clause 5 in respect of which:
(a) Subsidy is being paid;
(b) a
right to be paid Subsidy has been established; or
(c) Subsidy
will be paid provided the requirements of the Act and of this Agreement are
satisfied.
|
|
Subsidised Loan Account:
|
means the loan account maintained
by the Bank in the name of a Subsidised Borrower or, Subsidised Borrower and
Joint Borrower where applicable, in connection with a Subsidised Loan.
|
|
Subsidy Payment Commencement:
|
means in respect of a Subsidised
Loan the making of the first payment of Subsidy by the Commonwealth to the
Bank in respect of a Subsidised Loan which shall occur when the first payment
is included in an amount deposited with the Bank pursuant to Sub‑clause 7.3.2.
|
|
Title:
|
means the documents, deeds or
instruments confirming or evidencing title to the Property.
|
1.2 Interpretation
1.2.1 Words
importing one gender shall include the other gender.
1.2.2 Words
importing the singular shall include the plural and vice‑versa.
1.2.3 A
reference to a Clause shall be a reference to all of its Sub‑clauses, and
a reference to a Sub‑clause shall be a reference to all of its Sub‑Sub‑clauses.
1.2.4 The
Clause headings in this Agreement are for reference only and have no effect on
the construction, interpretation or meaning of the Clauses.
1.2.5 The
Schedules referred to herein form part of and are subject to the terms of this
Agreement.
1.2.6 Where
in this Agreement any period of time dating from a given day, act or event is
prescribed or allowed for any purpose, the time shall be reckoned inclusive of
such day or of the day of such act or event.
1.2.7 Where
the last day of any period prescribed or allowed by this Agreement for the
doing of anything falls on a Saturday, on a Sunday or on a day which is a
public holiday or a bank holiday in the place in which the thing is to be or
may be done, the thing may be done on the first day following which is not a
Saturday, a Sunday, a public holiday or a bank holiday in that place.
1.2.8 Where
in this Agreement any reference to time occurs, such time shall, unless it is
otherwise specifically stated, be deemed in each State or part of the
Commonwealth to mean the time in that State or part of the Commonwealth.
1.2.9 A
reference to a Clause shall be a reference to a Clause in this Agreement.
1.2.10 A
reference to the parties shall be a reference to the parties to this Agreement
or their permitted assigns.
1.2.11 All
sums of money referred to in this Agreement and all payments made under this
Agreement shall be in Australian dollars.
2. AGREEMENT
2.1 Parties
to be bound by this Agreement.
The parties
hereby agree to be bound by all terms and conditions set out in this Agreement.
2.2 Bank to
act in accordance with Scheme
The
Bank further agrees to be bound by and to act at all times in accordance with
the Scheme.
3. FRANCHISE
The
Commonwealth hereby grants to the Bank;
(a) during
the Franchise Term the exclusive right to participate as the lender under the
Scheme; and
(b) in
respect of Subsidised Loans advanced during the Franchise Term the exclusive
right to receive Subsidy for the benefit of Subsidised Borrowers, or Subsidised
Borrowers and Joint Borrowers, as the case may be,
and the
Bank accepts these grants.
4. FRANCHISE
PAYMENTS
4.1 Payments
The
Bank agrees to pay to the Commonwealth:
(a) forty‑two
million dollars ($42 million); and
(b) for
each of the periods set out in Column 1 of Schedule A a payment calculated in
accordance with the following formula:
P = (a — b) 
c
Where
P = the payment due to the
Commonwealth;
a = the total number of Subsidy
Payment Commencements made during the period set out in Column 1 of Schedule A,
or 4,500 whichever is the lesser;
b = the number set out in Column 2 on
the same line as the period in Column 1; and
c = the amount set out in column 3 on
the same line as the period in Schedule A;
provided that where P is a figure less
than one (1), no payment shall be due to the Commonwealth in respect of that
period.
4.2. Provision
of invoices
The
Commonwealth agrees to provide the Bank with a written invoice detailing its
claim for payments due under Sub‑clause 4.1 (b).
4.3 Times for
payment
The
payments referred to in Sub‑clause 4.1 shall be made as follows:
(a) the
sum of forty‑two million dollars ($42 million) referred to in Sub‑clause 4.1
(a) on the Commencement Date by 11.00 A.M; and
(b) the
payments referred to in Sub‑clause 4.1 (b) at the times set out in
Column 4 of Schedule A or within seven (7) days after receipt by the Bank of an
invoice under Sub‑clause 4.2, whichever is the later.
4.4 Checking of
invoices by the Bank
4.4.1 The Bank
agrees that, upon receipt of an invoice referred to in Sub‑clause 4.2,
it shall conduct a reasonable examination of such of its records as the Bank
considers relevant to determine the correctness or otherwise of the invoice.
If, following the examination, the Bank is of the opinion that the Commonwealth
has omitted to claim sums to which the Commonwealth is entitled it shall
immediately advise the Commonwealth in writing of the omission.
4.4.2 Where
an invoice omits to claim sums to which the Commonwealth is entitled and the
Bank has advised the Commonwealth of the omission pursuant to Sub‑clause 4.4.1,
the Commonwealth shall provide the Bank with a further written invoice in
respect of the omitted sum, such invoice to be payable by the Bank within seven
(7) days of receipt.
4.5 Manner of
payment
The sums
referred to in Sub‑clause 4.1 shall be paid by means of a Bank
cheque made payable to the Receiver of Public Moneys, Department of Finance and
shall be delivered by hand to the Receiver of Public Moneys, Department of
Finance, 624 Bourke Street, Melbourne, or as may be otherwise decided by the
Commonwealth and notified to the Bank.
4.6 Resolution
of disputes as to payments under Sub‑clause 4.1 (b).
Where a
dispute, question or difference has arisen between the Commonwealth and the
Bank as to a sum payable under Sub‑clause 4.1 (b), the Bank shall
pay to the Commonwealth the sum about which there is no dispute, question or
difference and the matter that is in dispute may be referred to arbitration by
one of the parties in accordance with Clause 24.
4.7 Provision
for possible refund of part or all of $42 million referred to in Clause 4.1
(a)
4.7.1 The
Commonwealth agrees that, pursuant to this Sub‑clause, the Bank may be
entitled to a refund of part or all of the sum of $42 million referred to in
Clause 4.1 (a) of this Agreement if, before 31 December 1995, the
Commonwealth should:
(a) pass
legislation to reduce the benefits available to Entitled Persons under the
Scheme;
(b) pass
legislation to change in a restrictive way the eligibility criteria for
participation in the Scheme; or
(c) introduce
another scheme of Housing Loan assistance for members of the Defence Force who
are eligible under this Scheme,
and this causes:
(d) the number
of persons to whom Subsidised Loans are provided by the Bank under the Scheme
to fall below:
(i) 2,000 in
the period from the Commencement Date to 31 December 1992; or
(ii) 2,000 in
the 1993 Calendar Year, the 1994 Calendar Year or the 1995 Calendar Year.
4.7.2 Where
the Bank is of the opinion that any of the above facts have occurred or will
occur, it may give notice of that situation to the Commonwealth in writing. On
receipt of such notice the Commonwealth and the Bank shall meet with a view to
verifying the facts and then determining the extent to which part or all of the
sum of $42 million referred to in Clause 4.1(a) shall be refunded to the
Bank by the Commonwealth to take account of the effects of such action by the
Commonwealth, such refund not to exceed the following sums:
Period within which number of
Subsidised Loans provided
by the Bank first falls below 2,000 $
Million
Commencement Date to 31 December 1992 42
1993 Calendar Year 30
1994 Calendar Year 20
1995 Calendar Year 10
1996 Calendar Year NIL
4.7.3 If within a
period of three (3) months after verifying the facts, agreement has not been
reached with the Commonwealth on the amount, if any, to be refunded to the Bank
pursuant to this Clause, then the matter may be referred to arbitration by one
of the parties in accordance with Clause 24.
5. SUBSIDISED
LOANS
5.1 Preliminary
Enquiries
Where a person enquires of the Bank
regarding the Scheme, the Bank shall immediately provide the person with:
(a) an
application for an Entitlement Certificate; and
(b) Commonwealth
and Bank publications describing the Scheme.
5.2 Entitlement
Certificates
5.2.1 Where the
Bank receives a completed and signed application for an Entitlement Certificate
from a person, the Bank shall immediately forward by registered mail the
application to the Commonwealth.
5.2.2 A person may
apply directly to the Commonwealth for an Entitlement Certificate in which case
the Commonwealth agrees to:
(a) advise the
person that the Bank has an exclusive right under this Agreement to participate
as the lender under the Scheme; and
(b) provide
the person with an application for an Entitlement Certificate.
5.2.3 The parties
acknowledge that a person who wishes his or her right to an Entitlement
Certificate to be determined may apply for the issue of an Entitlement
Certificate at any time whether or not the person has at that time purchased a
property or obtained, or applied for, a loan from the Bank.
5.2.4 Where the
Commonwealth has determined that a person is entitled to an Entitlement
Certificate it shall forward a copy of the Entitlement Certificate to any
branch of the Bank nominated by the person.
5.2.5 An
Entitlement Certificate shall include the particulars set out in Schedule B.
5.3 Application
for Subsidised Loan
5.3.1 Where an
Entitled Person wishes to apply for a Subsidised Loan the person shall lodge
with the Bank:
(a) loan
application documents reasonably required by the Bank;
(b) an
application for payment of Subsidy which is completed except for Part D of the
application; and
(c) an Entitlement
Certificate in which the Entitled Person's entitlement to Subsidy is stated.
Upon receipt of the above documents,
the Bank shall consider the application for the Subsidised Loan.
5.3.2 An
Application for Payment of Subsidy shall include the particulars set out in
Schedule B and Part D of the application shall be in the form set out in
Schedule C.
5.3.3 The
Bank shall consider and assess an application for a Subsidised Loan in
accordance with the Lending Criteria and shall advise the Entitled Person of
the outcome within fifteen (15) days from the date of receipt of the documents
specified in Sub‑clause 5.3.1.
5.4 Obligation
of the Bank to make a Subsidised Loan
5.4.1 Where
an Entitled Person satisfies the Lending Criteria and provides security in accordance
with Sub‑clause 5.12, the Bank shall make a Subsidised Loan of an
amount sought in the application for the Subsidised Loan on the date specified
by the Entitled Person.
5.4.2 After
making a Subsidised Loan in accordance with Sub‑clause 5.4.1 a Manager
of a branch of the Bank shall complete Part D of the application for Payment of
Subsidy and shall attach to it all documents supplied by the Entitled Person in
support of the application. The Bank shall then immediately forward to the
Commonwealth by registered mail the Application for Payment of Subsidy and
documents in support of the application.
5.4.3 Nothing
in this Agreement shall be construed as:
(a) preventing
the Bank from making or agreeing to make a Housing Loan to a person who has not
obtained an Entitlement Certificate; or
(b) obliging
the Commonwealth to pay Subsidy in respect of a Housing Loan until the
provisions of Sub‑clause 7.1 have been satisfied.
5.4.4 Where
an Entitled Person fails to satisfy the Lending Criteria and the Bank nevertheless
agrees to make a Subsidised Loan the Bank may require appropriate security in
addition to that set out in Sub‑clause 5.12, whether by way of
guarantee or otherwise from a person other than the Entitled Person, or may
require additional security from the Entitled Person.
5.5 Increase
in the amount of a Subsidised Loan
5.5.1 Where:
(a) a person
has obtained a Grant of Approval under the Act to increase the amount of a loan
upon which Subsidy is payable; and
(b) the
person has lodged with the Bank loan application documents in respect of the
increase reasonably required by the Bank,
the Bank agrees that, provided the
Lending Criteria are satisfied, it will grant an increase in the amount of the
Subsidised Loan.
5.5.2 The Bank
acknowledges that Subsidy in respect of an increase in the amount of the
Subsidised Loan shall not be payable by the Commonwealth until:
(a) the Bank
has forwarded to the Commonwealth an Application for Payment of Subsidy
including a certificate by a manager of a branch of the Bank in the form of
Part D; and
(b) the
provisions of Sub‑clause 7.1 have been satisfied.
5.5.3 The Bank
agrees that any increase in the amount of a Subsidised Loan shall be secured
under the Mortgage securing the original advance.
5.6 Application
of Lending Criteria
The Bank
agrees that it shall apply the Lending Criteria in its consideration and
assessment of an application for a Subsidised Loan or an application to
increase the amount of the Subsidised Loan and that the Lending Criteria shall
be the sole basis for refusal in whole or in part by the Bank of any such
application.
5.7 Lending
Criteria
The
Lending Criteria of the Bank are:
(a) Income
as a general principle, the amount
of repayments to be met by the Entitled Person on a Subsidised Loan shall not
exceed 25 per cent of the gross income of the Entitled Person;
(b) Commitments
known commitments of an Entitled
Person will be taken into consideration in determining the capacity of an
Entitled Person to meet the repayments; and
(c) the
Entitled Person will be generally required to meet a reasonable deposit/equity
ratio. As a general guideline, 20 per cent of the value of the Property is
considered a reasonable deposit. In the event that the Bank agrees to provide a
Subsidised Loan to an Entitled Person who is unable to meet the required
deposit/equity ratio, the Bank shall have the right to enter into a suitable
Mortgage insurance arrangement in respect of the Subsidised Loan and require
the Entitled Person to pay the premium in respect thereof.
5.8 Alteration
of Lending Criteria
The parties
agree that:
(a) the
Lending Criteria will be subject to alteration from time to time to reflect
changes in prevailing market conditions and lending norms as evidenced by the
lending criteria applied by the largest Banking Group providers of Housing
Loans in Australia determined in accordance with Sub‑clause 5.15.3;
and
(b) the Bank
shall notify the Commonwealth at least thirty (30) days prior to affecting any
such alteration to the Lending Criteria;
provided always that
the Bank will treat Entitled Persons no less favourably than its other Housing
Loan customers and that nothing in this Sub‑clause shall affect the
Bank's obligations under Sub‑clause 5.9.
5.9 Factors to be excluded by
the Bank
The Bank agrees that
the following factors will not be taken into account when considering whether
an Entitled Person has satisfied the Lending Criteria set out in Sub‑clause 5.7:
(a) the age
of the Entitled Person;
(b) the
amount of money that the Entitled Person has on deposit with the bank and/or
the period of time the Entitled Person has had money on deposit with the Bank;
(c) the fact
that the Entitled Person has never had money on deposit with the Bank or with
any other bank, building society or other financial institution;
(d) the fact
that the Entitled Person has dealt, or is currently dealing, with another bank,
building society or any other financial institution;
(e) the sex,
marital status, race, colour or religious beliefs of the Entitled Person; and
(f) the fact
that the Entitled Person seeks only a Subsidised Loan from the Bank and does
not seek a Further Housing Loan.
5.10 Provision of reasons for
rejection
Where the Bank has
rejected an application by an Entitled Person for a Subsidised Loan and the
Entitled Person requests reasons for the rejection, the bank shall within seven
(7) days provide reason in writing for the rejection specifying why it
considers the Lending Criteria have not been met.
5.11 Non‑discrimination
The Bank agrees that
it will not before, during or after repayment of a Subsidised Loan discriminate
against or differentiate, other than as provided for in this Agreement, between
persons who apply for Entitlement Certificates, Entitled Persons, Joint
Borrowers and Subsidised Borrowers, and the Bank's other Housing Loan
customers.
5.12 Security
The Bank agrees
that:
(a) all
Subsidised Loans shall be secured by way of a first Mortgage over the Property;
(b) the form
of the Mortgage shall be the standard first mortage security agreement in use
by the Bank from time to time for its other Housing Loan customers;
(c) where
provided for by law, the Mortgage will be registered; and
(d) the Title
shall be held in the sole name of the Entitled Person or, if purchased with his
or her spouse, as a joint tenant with that person.
5.13 Loan
agreement
5.13.1 The
Bank agrees that the loan agreement relating to a Subsidised Loan shall be in
the terms set out in Schedule D. The Bank may apply to the Commonwealth for
approval to vary the terms of the loan agreement and the Commonwealth's
approval to any such application shall not be unreasonably withheld, provided
that at all times the loan agreement provides that:
(a) the maximum
rate of interest to be applied by the Bank to a Subsidised Loan shall be the
Benchmark Rate;
(b) the term of
the Subsidised Loan shall be twenty five (25) years unless the Entitled Person
or Subsidised Borrower seeks a different term and the Bank agrees to such
different term;
(c) the amount
of the Subsidised Loan shall be a sum within the range prescribed by the Act;
(d) the loan
shall be a credit foncier loan repayable by monthly instalments which
instalments shall cover both principal and interest less the payments of
Subsidy made to the Bank by the Commonwealth; and
(e) payments of
instalments are due on Rest Days.
5.13.2 The
Commonwealth acknowledges that it shall be a term of a Subsidised Loan made by
the Bank to an Entitled Person pursuant to Sub‑clause 5.4 that if:
(a) the
Commonwealth declines to pay Subsidy in respect of the Subsidised Loan;
(b) the
Commonwealth at any time cancels pursuant to the Act Subsidy in respect of the
Subsidised Loan for any reason; or
(c) Subsidy
stops being payable pursuant to the Act,
the loan shall thereafter not be a
Subsidised Loan and the Bank shall thereafter not be bound by the Act or this
Agreement in respect of the loan and may deal with the borrower as the Bank
deals with its other Housing Loan customers. In particular, the Bank shall be
entitled to charge the interest rate applicable to similar loans provided by
the Bank to its other Housing Loan customers from the date Subsidy is declined
or terminated.
5.13.3 Sub‑clause 5.13.2
shall not apply for the reason only that Subsidy has been suspended under the
Act.
5.14 Entitled Person to include spouse
in certain cases.
For the purposes of Sub‑clauses 5.3
to 5.13, inclusive, a reference to “Entitled Person” shall, where appropriate,
include a reference to both the Entitled Person and spouse of the Entitled
Person.
5.15 Calculation
of the Benchmark Rate
5.15.1 Definitions
For the purpose of this Clause:
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Banking Group:
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means a bank licensed under the Banking
Act 1959 as amended (or under any future Commonwealth legislation
relating to the licensing of banks) or a bank constituted by or under a law
of the Commonwealth or of a State. Where one bank is a wholly‑owned
subsidiary of another bank then both banks shall be considered to be part of
the same Banking Group;
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Standard Rate of Interest:
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means the annual rate of interest
which is applied by a Banking Group to the largest number of its Housing
Loans in respect of the first forty thousand dollars ($40,000) of such loans
(or such other amount as the parties may agree), in a particular State or
Territory, as determined by reference to data supplied by the Reserve Bank of
Australia to the Commonwealth or, if no such data are available, as the
parties may otherwise agree. The expression shall not include annual rates of
interest in respect of:
(a) Housing
Loans made prior to 1 April 1986; or
(b) Housing
Loans in which the annual rate of interest is fixed for a period in excess of
twelve (12) months by agreement between the lender and the borrower.
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5.15.2 The
Benchmark Rate shall be calculated by the Commonwealth in the following way:
(a) the
calculation shall be made as at the last Business Day of each Month;
(b) the largest
Banking Group providers of Housing Loans in Australia shall be determined
pursuant to Sub‑clause 5.15.3;
(c) for each of
the largest Banking Groups a simple arithmetic average of the Standard Rates of
Interest which that Banking Group applied on the day referred to in Sub‑clause 5.15.2
(a) in all States and the Australian Capital Territory and the Northern
Territory in which that Banking Group conducted Housing Loan business shall be
calculated;
(d) the figures
so calculated for each Banking Group shall then be subject to a simple
arithmetic average and, subject to Sub‑clause 5.15.2 (e), the figure
resulting shall be the Benchmark Rate to be applied from the first day of the
second Month commencing after the day referred to in Sub‑clause 5.15.2
(a);
(e) in cases
where, on the date referred to in Sub‑clause 5.15.2 (a) and on the
basis of data supplied by the Reserve Bank of Australia to the Commonwealth, it
appears that the Bank has offered publicly to provide Housing Loans in any
State or Territory on terms which include an interest rate lower than that
referred to in Sub‑clause 5.15.2 (d), then the lower interest rate
so offered by the Bank shall be taken to be the Benchmark Rate to be applied in
that State or Territory from the first day of the second Month commencing after
the day referred to in Sub‑clause 5.15.2(a); provided that this Sub‑clause
shall not refer to Housing Loans in which the annual rate of interest is fixed
for a period in excess of twelve (12) months by agreement between the Bank and
the borrower;
(f) the
Commonwealth shall notify the Bank of the Benchmark Rate calculated in
accordance with this Sub‑clause within seven (7) days of the date
referred to in Sub‑clause 5.15.2(a).
5.15.3 The largest Banking Group providers of Housing Loans in Australia
shall be determined in the following way:
(a) until 30 September 1992 the largest Banking Group providers
of Housing Loans in Australia shall be deemed to be:
(i) Commonwealth
Banking Corporation of Australia;
(ii) Westpac
Banking Corporation;
(iii) State
Bank of Victoria;
(iv) National
Australia Bank Limited;
(v) Australia
and New Zealand Banking Group Limited.
(b) On 30 September
1992 and on 30 September of each succeeding year the largest Banking
Groups shall be the five (5) largest Banking Group providers of Housing Loans
in Australia as determined on the basis of the total amount outstanding under
Housing Loans during July 1992 and July of each succeeding year as appropriate
as shown in data supplied by the Reserve Bank of Australia.
(c) If such
data are not supplied by the Reserve Bank of Australia on 30 September
1992 or on 30 September of each succeeding year, then the five (5) largest
Banking Group providers of Housing Loans shall be the five (5) largest Banking
Group providers of Housing Loans last determined under this Sub‑clause
until the data are supplied by the Reserve Bank of Australia. If on 31 December 1992 or 31 December of a succeeding year as appropriate the data are
still not available the parties shall use such data as are otherwise agreed.
(d) Where a
Banking Group had been one of the five (5) largest Banking Group providers of
Housing Loans and that Banking Group ceases to be a Banking Group within the
meaning of Sub‑clause 5.15.1, then the remainder of the five (5)
largest Banking Groups shall be deemed to be the largest Banking Group
providers of Housing Loans until another determination is made under this Sub‑Sub‑clause.
5.15.4 The
parties agree that data supplied by the Reserve Bank of Australia to the
Commonwealth pursuant to this Sub‑clause shall be treated by them as
final and conclusive.
5.15.5 Where a dispute, question or difference arises as to the
Benchmark Rate notified by the Commonwealth to the Bank pursuant to Sub‑clause 5.15.2(f)
the matter may be referred to arbitration by the Bank in accordance with Clause 24.
If a determination is not made by the arbitrator or the matter otherwise
resolved by the date referred to in Sub‑clause 5.15.2(d), then the
Benchmark Rate first notified by the Commonwealth pursuant to Sub‑clause 5.15.2(f)
shall be treated by the parties as final and conclusive.
5.15.6 For the
purposes of calculations of Subsidy payments under the Act the Benchmark Rate
shall be expressed as a decimal fraction, for example 16.75 per cent shall be
expressed as 0.1675.
5.16 Changes to
Title of Subsidised Loan Account during the term of a Subsidised Loan
Where a
Subsidised Borrower who:
5.16.1 (a) is
the sole owner of the Property and wishes by a sale or transfer of part of his
or her interest in the Property to own the Property together with his or her
spouse as joint tenants;
(b) together
with his or her spouse as joint tenants owns the Property and wishes by a
purchase or transfer of the spouse's interest to become the sole owner of the
Property; or
(c) has
obtained a Subsidised Loan of less than forty thousand dollars ($40,000.00) and
wishes to increase the amount of the loan and to apply to the Commonwealth for
approval of payment of Subsidy in respect of the increase,
the Bank shall advise the Subsidised
Borrower immediately that an application must be made to the Commonwealth for a
Grant of Approval and the Bank shall provide the person with such an
application.
5.16.2 Where
the Bank receives a completed and signed application for a Grant of Approval
from a Subsidised Borrower the Bank shall immediately forward by registered
mail the application to the Commonwealth.
5.16.3 Where
the Commonwealth issues a Grant of Approval it shall forward a copy to any
branch of the Bank nominated by the Subsidised Borrower. A Grant of Approval
shall include the particulars set out in Schedule B.
5.16.4 Except where it is required by law to do so or a Subsidised
Borrower has requested under the Act that Subsidy be cancelled, the Bank will
not after Subsidy payments have commenced in respect of a Subsidised Loan allow
a Property held as a joint tenancy to be held or converted to a tenancy in
common, and shall not, unless approved by the Commonwealth, allow:
(a) a person,
other than a person named in the Entitlement Certificate, to be joined to the
Title, Mortgage or Subsidised Loan Account;
(b) the name of
a person to be removed from the Title, Mortgage or Subsidised Loan Account; or
(c) the name of
a person appearing on the Title, Mortgage or Subsidised Loan Account to be
changed from that appearing in the Entitlement Certificate.
5.16.5 A
Subsidised Borrower may apply directly to the Commonwealth for a Grant of
Approval.
6. FEES
6.1 Definition
of “fees”
6.1.1 For
the purposes of this Clause, “fees” shall mean any fee or disbursement charged
by the Bank to a Housing Loan customer in connection with any services or other
matters relating to a Housing Loan, including:
(a) the
processing and determining of applications for Housing Loans secured by a first
mortgage;
(b) the
valuation of properties, loan establishment and settlement services;
(c) the
management of Housing Loans, including account keeping services;
(d) the
repayment and discharge of a Housing Loan and mortgage;
(e) the
exercise or attempted exercise of any power or remedy pursuant to a Housing
Loan contract or mortgage; and
(f) the
preparation and execution of all documentation associated with the above
services or matters.
6.1.2 For
the purposes of this Clause, “disbursement” includes, but is not limited to,
State and Commonwealth charges relating to stamping and registration of
documents, legal costs, mortgage insurance premiums and charges to the Bank for
advising, consulting and valuation services.
6.2 Fees to be
the same as for other Housing Loan customers
6.2.1 The
Bank agrees that persons who use or seek to use the Scheme shall pay no more in
fees (and no other fees) in respect of Housing Loans provided by the Bank than
are paid by its other Housing Loan customers.
6.2.2 In
particular where an Entitled Person applies for a Subsidised Loan and at the
same time applies for a Further Housing Loan from the Bank, regardless of the
number of accounts which may be operated by the Bank in relation to the loans,
the Bank hereby agrees that it shall charge only one set of fees. Such fees
shall be calculated as though the Entitled Person has applied for a single
Housing Loan of an amount equal to the aggregate amount of the Subsidised Loan
and the Further Housing Loan.
7. SUBSIDY
7.1 Obligation
of the Commonwealth to pay Subsidy
7.1.1 Subject
to Sub‑clause 7.1.2, the Commonwealth agrees to pay Subsidy to the
Bank in accordance with the Act and this Agreement.
7.1.2 The
obligation of the Commonwealth referred to in Sub‑clause 7.1.1 is
conditional on:
(a) the
satisfaction of all of the relevant provisions of the Act, including the
Commonwealth's acceptance of Part D of the Application for Payment of Subsidy;
(b) the
advancing of a loan by the Bank pursuant to Sub‑clause 5.4 or the
advancing of an increase pursuant to Sub‑clause 5.5.1 within twelve
(12) months of the date of issue of the Entitlement Certificate or a Grant of
Approval as the case may be.
7.1.3 In
cases where the Commonwealth is not satisfied with the contents of Part D of
the Application for Payment of Subsidy, the Commonwealth shall immediately
notify the Bank and the applicant and specify the matters in respect of which
the Commonwealth is not satisfied. The applicant and the Bank shall be given a
reasonable opportunity to rectify the deficiencies specified.
7.1.4 The
Bank acknowledges that the Commonwealth may, in accordance with the Act,
terminate or suspend payments of Subsidy. In the event that the Commonwealth
decides to terminate or suspend Subsidy payments it shall provide notice to the
Bank in accordance with Sub‑clause 11.2.
7.2 Obligation
of Bank on receipt of Subsidy
The Bank agrees that it will receive
and deal with Subsidy payments for the benefit of the Subsidised Borrowers and
Joint Borrowers to whom they relate in accordance with the Act and this
Agreement.
7.3 Payment of
Subsidy
7.3.1 The
first payment of Subsidy in respect of a Subsidised Loan shall be made on the
second Rest Day after the Bank has advanced a Subsidised Loan pursuant to Sub‑clause 5.4.
Prior to a Subsidy Payment Commencement being made, the Commonwealth shall
advise the Entitled Person and the Bank of the date of commencement and the
basis of calculation of Subsidy. The Commonwealth shall continue to pay Subsidy
to the Bank on each Rest Day thereafter until such time as payments of Subsidy
stop or are cancelled or suspended in accordance with the Act, or the
Subsidised Loan is repaid in full, whichever is the earlier.
7.3.2 All
Subsidy payments due to be paid to the Bank on a particular Rest Day shall be
totalled and paid by the Commonwealth to the Bank by depositing the amount so
totalled to such account as the Bank may from time to time advise.
7.3.3 The
Commonwealth shall on the day Subsidy is paid provide the following:
(a) the name of
each Subsidised Borrower and Joint Borrower, if any;
(b) the number
of each Subsidised Loan Account to which Subsidy is to be credited;
(c) the amount
of Subsidy to be credited to each Subsidised Loan Account; and
(d) such other
information as may be agreed between the parties.
7.3.4 On the
day Subsidy is paid, the Bank shall credit Subsidy payments to the relevant
Subsidised Loan Accounts as notified by the Commonwealth, provided that if the
information referred to in Sub‑clause 7.3.3 is delivered to the Bank
after 3.00 p.m. on the day Subsidy is paid, the Bank will endeavour to credit
Subsidy to the relevant Subsidised Loan Accounts on that day and if it is
unable to do so, Subsidy shall be credited to Subsidised Loan Accounts on the
following Business Day.
7.3.5 The
information referred to in Sub‑clause 7.3.3 shall be delivered to a
lodgement point nominated by the Bank and shall be supplied on magnetic tape or
in such other computerised form as the parties may agree and in accordance with
agreed standards and specifications.
7.3.6 In
cases where, on payment of Subsidy, the Bank is unable to exactly match its
records relating to a Subsidised Borrower or Joint Borrower (namely, the
correct name or names of such persons together with the Subsidised Loan Account
number) with that advised by the Commonwealth, then unless the parties can
resolve the discrepency in records the Bank agrees that it will repay to the
Commonwealth the Subsidy received within three (3) days of its receipt.
8. OVER‑PAYMENT
OF SUBSIDY
8.1 Where
immediate repayment required
In the
event that the Bank receives a Subsidy payment for the benefit of a Subsidised
Borrower and:
(a) the Mortgage
has been discharged;
(b) the
Property or Mortgage has been transferred without the issue of a Grant of
Approval; or
(c) the
Subsidised Loan has been repaid,
the Bank agrees that it will repay the
amount of Subsidy received to the Commonwealth within three (3) days of its
receipt, together with written advice as to the reason for the return of the
Subsidy amount.
8.2 Where Over‑payments
are to be added to Subsidised Loan Account
Subject to Sub‑clause 8.3
and 8.5, where Subsidy has not been paid in accordance with the Act and there
has been an over‑payment of Subsidy, the following procedures shall be
followed:
(a) the amount
payable to the Commonwealth shall be the due amount determined in accordance
with the provisions of the Act;
(b) the
Commonwealth will notify the Subsidised Borrower and the Bank of the over‑payment
of Subsidy and request that the Subsidised Borrower within thirty (30) days
either,
(i) repay the
due amount directly to the Commonwealth; or
(ii) consent
to the due amount being paid to the Commonwealth in the manner provided in Sub‑clause 8.2(d);
(c) the due
amount shall be paid to the Commonwealth by the Bank in the manner provided in
Sub‑clause 8.2(d) where:
(i) the
Subsidised Borrower at any time so consents,
(ii) the
Subsidised Borrower makes no reply to the Commonwealth's request under Sub‑clause 8.2
(b),
(iii) the
Commonwealth obtains a judgment of a court against the Subsidised Borrower for
payment of the due amount which is not paid within thirty (30) days of the date
of the judgment, or
(iv) seeks a
review of a decision of the Commonwealth pursuant to the Act relating to relief
against hardship and the decision of the Commonwealth is upheld, or the due
amount reduced and the due amount is not paid to the Commonwealth within thirty
(30) days of written notification to the Subsidised Borrower of the
Commonwealth's decision;
(d) where Sub‑clause 8.2
(c) is applicable, the Commonwealth shall notify the Bank in writing and the
Bank shall,
(i) pay the
due amount to the Commonwealth and add the amount of such payment to the
principal sum outstanding on the Subsidised Borrower's Subsidised Loan Account,
and,
(ii) immediately
advise the Commonwealth in writing that the amount has been so added specifying
the date on which it was added and the principal and interest owing to the Bank
before the amount was added in respect of any advance by the Bank secured over
the Property;
(e) the
Parties acknowledge that where the Bank adds an amount to the principal sum
outstanding on a Subsidised Loan Account pursuant to Sub‑clause 8.2
(d), such amount shall be repayable to the Bank as if the Bank had advanced the
amount to the Subsidised Borrower as a Housing Loan secured by a mortgage and
that the Commonwealth is not obliged under the Act to pay Subsidy in respect of
the amount.
8.3 Bank not
required to add over‑payment where Subsidised Loan Account closed.
8.3.1 Pursuant
to the Act, the Bank shall not be required to perform its obligations under Sub‑clause 8.2
(d) where the Subsidised Loan Account is closed at the time the Bank receives
notice from the Commonwealth pursuant to that Sub‑clause.
8.3.2 For
the purposes of this clause the Subsidised Loan Account shall not be taken to
be closed until all agreements made between the Bank and the Subsidised
Borrower and which related to the Subsidised Loan, including increases in the
amount of the Subsidised Loan, have been discharged.
8.4 Commonwealth
to refund Amount to Bank in certain circumstances. Where pursuant to Sub‑clause 8.2
(d) (i) the Bank has paid an amount to the Commonwealth and added that amount
to the principal outstanding on a Subsidised Loan Account and has provided the
advice to the Commonwealth set out in Sub‑clause 8.2 (d) (ii), if at
any time thereafter:
(a) the Bank,
for any reason or in any circumstances, realises the Mortgage securing the
loan;
(b) the
proceeds of such realisation are insufficient to meet, all or any part of, the
moneys due to the Bank under the said Mortgage; and
(c) the Bank
has taken action against the borrower to recover the shortfall suffered by the
Bank on realisation of the Mortgage and such action has not been successful or
the Bank in the ordinary course of its business would have written off the
amount of the shortfall as a bad debt,
the Commonwealth will refund to the
Bank such amount of the moneys paid by the Bank to the Commonwealth pursuant to
Sub‑clause 8.2 (d) as is necessary to recompense the Bank for the
shortfall suffered on realisation of the Mortgage; provided always that in
assessing the extent of the shortfall to be recompensed to the Bank no account
shall be taken of moneys owing to the Bank over and above those referred to in
8.2 (d) (ii).
8.5 Cases of
fraud, mistake or concealment
Where there has been any fraud,
mistake or concealment by the Bank or its servants or agents and this results
in an over‑payment of Subsidy, the Bank shall pay immediately the due
amount to the Commonwealth. In cases of fraud or concealment, and provided the
Subsidised Borrower has not been a party thereto, the Bank shall make no claim
against the Subsidised Borrower in respect of the due amount
8.6 Commonwealth
to notify Bank of due amount from time to time
Where:
(a) pursuant
to the Act, a due amount is payable to the Commonwealth by a person who is or
was a Subsidised Borrower;
(b) such
person has been allowed to pay the due amount to the Commonwealth by
instalments; and
(c) the
Bank is, or may be, required to pay pursuant to the Act the balance of the due
amount after deduction of instalments, to the Commonwealth,
the Commonwealth shall upon request
notify the Bank in writing of the balance of the due amount from time to time.
8.7 Meaning of
“due amount”
In this Clause “due amount” has the
same meaning as in the Act.
8.8 Meaning of
Subsidised Borrower
In this Clause a reference to a
“Subsidised Borrower” shall, where appropriate, include a reference to both a
Subsidised Borrower and a Joint Borrower.
9. FURTHER
HOUSING LOANS
9.1 Ability to
apply for Further Housing Loan
Nothing in this Agreement shall
operate in any way to restrict the ability of a person to apply to the Bank for
such Further Housing Loan as the person may require.
9.2 Bank not to
discriminate
Where a person applies to the Bank for
a Subsidised Loan and at the same or a subsequent time also applies for a
Further Housing Loan, the Bank agrees that it will treat such applications in
its ordinary and usual course of business and will treat the person no
differently than it would its other Housing Loan customers. The Bank further
agrees that both the Subsidised Loan and the Further Housing Loan shall be
secured under the same first Mortgage.
10 PROMOTION
AND OPERATION OF THE SCHEME
10.1 Obligations
of the Bank
The Bank hereby agrees that it will:
(a) provide a
high level of banking service in respect of Subsidised Loans and other related
banking services to persons who apply for Entitlement Certificates, Entitled
Persons, Joint Borrowers and Subsidised Borrowers;
(b) subject to
consultation, comply with such reasonable directions to promote the Scheme to
prospective applicants as the Commonwealth may from time to time give to the
Bank;
(c) ensure
that a sufficient number of its officers and employees are conversant with the
Scheme so as to ensure that the Bank will be able reasonably to assist and
advise persons who are or may be entitled to receive Subsidy under the Scheme;
and
(d) produce
and print appropriate publications describing the Scheme, ensure that a
sufficient number of its branches or agencies have an adequate supply of these
publications, and provide reasonable numbers of the publications to the
Commonwealth, on request.
10.2 Obligations
of the Commonwealth
The Commonwealth hereby agrees that it
will:
(a) properly
administer the Scheme for the benefit of persons seeking or entitled to a
Subsidised Loan from the Bank;
(b) produce
and print appropriate publications describing the Scheme, applications for an
Entitlement Certificate and Grants of Approval and provide the Bank with a
reasonable quantity of such publications and applications for distribution to
its branches on request; and
(c) provide
such reasonable assistance to the Bank to promote the Scheme as the Bank may
from time to time request.
11. INFORMATION
11.1 Notices by
the Bank
Where in the course of normal banking
business, an officer of a branch of the Bank at which a Subsidised Loan Account
is maintained becomes aware of or receives notice of any of the matters listed
below, the Bank shall notify the Commonwealth in writing of that matter within
the number of days specified in brackets:
(a) repayment
of the Subsidised Loan or discharge of the Mortgage (3 days);
(b) transfer
of the Property or Mortgage, where such transfer has not been approved by the
Commonwealth by the issue of a Grant of Approval (3 days);
(c) where the
Property is held as a joint tenancy the conversion of the joint tenancy to a
tenancy in common (7 days);
(d) issue of a
notice relating to the resumption of the Property by a government or statutory
body or local authority (7 days);
(e) total
destruction of a dwelling on the Property (7 days);
(f) death of a
Subsidised Borrower or Joint Borrower (7 days);
(g) receipt of
a request from a Subsidised Borrower to have Subsidy cancelled (3 days);
(h) an error
by the Bank in:
(i) the
completion of Part D of an Application for Payment of Subsidy (7 days); or
(ii) crediting
of a Subsidy payment to a Subsidised Loan Account (1 day); and
(i) change of
name or names on the Title, Mortgage or Subsidised Loan Account where the
change has not been approved by the Commonwealth by the issue of a Grant of
Approval (7 days); and
(j) receipt
by the Bank of a court order or other document which by law requires the Bank
to transfer the Property or Mortgage where such change has not been approved by
the Commonwealth by the issue of a Grant of Approval (7 days).
11.2 Notices by
the Commonwealth
The Commonwealth will notify the Bank
in writing within the number of days specified in brackets in cases where the
Commonwealth becomes aware of or has notice of:
(a) the
Subsidy payable to a Subsidised Borrower ceasing within 60 days (7 days);
(b) a request
by a Subsidised Borrower for the cessation of Subsidy (7 days); and
(c) an error
in an Entitlement Certificate, Grant of Approval or a Subsidy payment (30
days).
11.3 Provision of
information generally
Unless the Bank is prohibited by law
from doing so, the Bank agrees thatit will provide the Commonwealth with copies
of any documents or any other information in the possession or under the
control of the Bank relating to applications for Subsidised Loans or to
Subsidised Loans as may be requested by the Commonwealth in writing. The Bank
shall comply with any request by the Commonwealth within fourteen (14) days of
receipt of the request or provide written reasons to the Commonwealth why it
has not and advise the Commonwealth when it shall comply; provided that in all
cases the Bank shall comply with the request within twenty‑eight (28)
days of receipt.
11.4 Assistance
in preparing Annual Reports and evaluations
The Bank hereby agrees to provide
reasonable assistance to the Commonwealth in connection with the preparation of
Annual Reports to the Parliament regarding the operation of the Scheme and in
evaluating the effectiveness of the Scheme at intervals between three (3) and
five (5) years against objectives determined by the Commonwealth from time to
time. The Bank further agrees that it will:
(a) ensure
that its officers and employees are available for discussion and will provide
such other reasonable assistance as the Commonwealth may from time to time
request to assist it in the preparation of such Annual Reports;
(b) provide
such reasonable assistance to the Commonwealth as the Commonwealth may from
time to time request in the preparation of evaluations of the Scheme at
intervals between three (3) and five (5) years including but not limited to:
(i) the
provision of reports to the Commonwealth on the operation of the Scheme stating
whether in the Bank's opinion the objectives of the Scheme are being met and,
if not, specifying any shortcomings and also recommending appropriate changes
to enable the objectives to be met; and
(ii) ensuring
that its officers are available for discussion and to provide reasonable
assistance in the preparation of evaluations.
11.5 Disclosure
The reports by the Bank referred to in
Sub‑clause 11.4 (b) (i) are not to be copied, used, disclosed or
otherwise made available to any third party without the prior written consent
of both parties.
11.6 No charge to
the Commonwealth by the Bank
The Bank shall not be entitled to
charge a fee for any act done by it pursuant to this Clause.
12. ACKNOWLEDGEMENT
OF COMMONWEALTH ADMINISTRATIVE ARRANGEMENTS
12.1 Commonwealth
to act through Departments and statutory authorities
The Bank agrees that the Commonwealth
may discharge its rights and exercise its obligations under this Agreement
through any Department of State of the Commonwealth or statutory authority of
the Commonwealth.
12.2 Meaning of “Commonwealth” in Agreement
Any reference to the “Commonwealth” in
this Agreement shall, unless the contrary intention appears, include any
Department or Departments of State of the Commonwealth, or any statutory
authority of the Commonwealth which is charged with the responsibility for
administering the Scheme pursuant to Sub‑clause 12.1.
13. DEALINGS
WITH SOUTH AFRICA
13.1 The Bank
hereby agrees that:
(a) as at the
date of signing this Agreement no South African person has a beneficial
interest in 50 per cent or more of the issued shares of the Bank or,
alternatively, no South African person has a controlling interest in the Bank;
(b) for the
duration of this Agreement no South African person shall be allowed to attain a
beneficial interest in 50 per cent or more of the issued shares of the Bank or,
alternatively, no South African person shall be allowed to attain a controlling
interest in the Bank; and
(c) the
Commonwealth will be notified in writing if, during the Franchise Term, there
is any actual or proposed change to the Bank which will lead or is likely to
lead to a South African person having a beneficial interest in 50 per cent or
more of the issued shares of the Bank or, alternatively, a South African person
having a controlling interest in the Bank.
For the purposes of this Clause a
South African person is defined as a “natural person who is a citizen of or
resides in South Africa or alternatively is a company or body corporate or any
body not being a body corporate which is incorporated or formed in South Africa”.
14. STAMP DUTY
Any Stamp Duty payable on or arising
out of this Agreement or its implementation shall be borne by the Bank. This
provision shall not be construed as obliging the Bank to pay Stamp Duty on any
loan instrument, mortgage or other security document relating to a Subsidised
Loan.
15. LEGAL AND
ACCOUNTING COSTS
The parties hereto shall bear their
own legal and accounting costs of and incidental to the preparation, execution
and implementation of this Agreement.
16. APPLICABLE
LAW
This Agreement shall be governed by
and be construed in accordance with the law for the time being in force in the
State of Victoria and the parties hereby agree to submit to the jurisdiction of
the courts of the State of Victoria.
17. NOTICES
Unless the contrary intention appears
in this Agreement, any notice, request or other communication to be given or
served pursuant to this Agreement shall be in writing and shall be delivered by
hand or sent by pre‑paid post or data facsimile transmission to:
(a) In respect of the Commonwealth,
Secretary
Department of Defence
Russell Offices
CANBERRA ACT 2600
For Attention: First Assistant
Secretary
Human Resources Division
Facsimile: (06) 266 8624
(b) In respect
of the Bank,
Chief Manager
Consumer Market Development
National Australia Bank
100 Victoria Parade
East Melbourne 3002
Facsimile: (03) 6658974
Such notice, request or other
communication shall be deemed to have been given or served:
(a) if
delivered by hand, upon delivery;
(b) if in the
form of a letter sent by pre‑paid post, upon the expiration of two (2)
working days after the date on which it was so sent;
(c) if by data
facsimile transmission, upon the sender's facsimile machine recording that the
facsimile has been properly transmitted to the recipients's address,
provided that if such delivery or
receipt is later than 4.30 p.m. on a day on which business is generally carried
on in the place to which such communication is delivered or sent, it shall be
deemed to have been duly given at the commencement of business on the next day
in that place. Either party may change its address for service of notices by
notice in writing to the other party.
18. WAIVER
The failure by either party at any
time to enforce any of the provisions of this Agreement or any amendments made
thereto shall not be construed as a waiver by such party of such provision or
in any way affect the validity of this Agreement or any part hereof, or the
rights of the other party thereof, or the rights of the other party thereafter
to enforce each and every provision. The waiver by either party of any
provision of this Agreement shall not constitute a wavier of any future
obligation to comply with such provision.
19. ENTIRE
AGREEMENT
The terms and conditions in this
Agreement together with any written amendments made thereto which are confirmed
by the parties as amendments to this Agreement shall constitute the complete
agreement between the parties hereto. It is hereby expressly agreed and declared
that no further or other convenants or provisions in respect of this Agreement
or otherwise shall be deemed to be implied in this Agreement or to exist
between the parties by way of collateral or other agreement or by estoppel by
reason of any promise, representation, warranty or undertaking given or made by
any party to the other on or prior to the execution of this Agreement, and
without limiting the generality of the foregoing shall include those (if any)
contained in the Request for Registration of Interest document entitled
“Proposed Scheme of Home Loan Assistance for Members of the Australian Defence
Force” issued by the Commonwealth and dated 18 August 1989, or contained
in, or related to statistics provided by the Commonwealth to the Bank dealing with
the size and composition of the Defence Force and the existence of any such
implication or collateral or other agreement or right is hereby negated and
further the obligation to perform the terms and conditions of this Agreement
shall not be affected by the making of any such promise, representation,
warranty or undertaking.
20. AMENDMENTS OR VARIATIONS
No variation, modification or waiver
of any provision of this Agreement nor consent to any departure therefrom by
any party shall in any event be of any force or effect unless the same shall be
confirmed in writing, signed by all of the parties hereto, and then such
variation, modification, waiver or consent shall be effective only to the
extent for which it may be made or given.
21. ASSIGNMENT
This Agreement may not be assigned in
whole or in part by either party without the prior written consent of the
other.
22. DISPOSAL BY
BANK
The Bank shall not, without the prior
written consent of the Commonwealth, transfer, assign, sell, give or otherwise
dispose of its interest in any Mortgage to any person, including a subsidiary,
holding company, partner or joint venturer of the Bank, or any company or
organisation whether incorporated or not, in which the Bank has an interest,
holds stocks or shares, or is a member of or holds a position in either
directly or otherwise unless:
(a) suitable
arrangements are made such that Subsidised Borrowers and Joint Borrowers can
continue to deal only with the Bank;
(b) the Bank
remains liable to the Commonwealth to ensure that all of the Bank's obligations
under this Agreement are complied with and that the rights of Subsidised
Borrowers and Joint Borrowers are not adversely affected notwithstanding that
the Mortgages may be transferred by the Bank to another entity;
(c) the Commonwealth
shall only be obliged to pay Subsidy to the Bank; and
(d) the Bank
gives the Commonwealth thirty (30) days notice of its intention to do so
together with details as to the manner in which the Bank is to comply with the
provisions of this Clause.
23. FURTHER ASSURANCES
Each party to this Agreement shall do,
sign and execute all deeds, schedules, acts, documents and things as may
reasonably be required by the other party effectively to carry out and give
effect to the terms and intentions of this Agreement whether before or after
the date of execution.
24. ARBITRATION
24.1 Notice of
dispute, question or difference
If any party considers that a dispute,
question or difference has arisen as to the meaning, operation or effect of the
provisions of this Agreement or the rights, obligations or liabilities of any
of the parties then such party shall serve on the other party a notice of such
dispute, question or difference and the parties shall meet forthwith in an
attempt to settle such dispute, question or difference.
24.2 Submitting a
dispute to arbitration
In the event that such dispute,
question or difference is not settled within fourteen (14) days from the date
of service of the notice referred to in Sub‑clause 24.1, either
party may submit the dispute, question or difference to arbitration by serving
a further notice on the other party stating that it requires that the dispute,
question or difference be referred to arbitration and the giving of such
further notice shall operate to refer such dispute, question or difference to
arbitration. Such dispute, question or difference shall then be determined,
subject to the provisions of this Agreement, by an arbitrator selected by
agreement in writing by the parties within fourteen (14) days of the giving of the
aforementioned further notice or, in the absence of such agreement, by an
arbitrator appointed in accordance with the provisions of the law relating to
arbitration in force in the State of Victoria.
24.3 Arbitration
relating to Franchise Payments
For the purposes of a dispute,
question or difference referred to in Sub‑clause 4.6, the time
periods referred to in Sub‑clause 24.2 shall be seven (7) days and
the arbitrator shall be appointed by the President of the Australian Institute
of Chartered Accountants.
24.4 Arbitration
Relating To Benchmark Rate
For the purposes of a dispute,
question or difference as to the Benchmark Rate notified by the Commonwealth to
the Bank pursuant to Sub‑clause 5.15.2 (f), the following provisions
shall apply:
(a) the Bank shall
immediately serve on the Commonwealth a notice of such dispute, question or
difference and the parties shall meet or confer within two (2) days of receipt
of the notice in an attempt to settle such dispute, question or difference;
(b) in the
event that such dispute, question or difference is not settled within three (3)
days from the date of service of the notice referred to in Sub‑clause 24.4
(a), the Bank may submit the dispute, question or difference to arbitration by
serving a further notice on the Commonwealth stating that it requires the
dispute, question or difference to be referred to arbitration and the giving of
such further notice shall operate to refer such dispute, question or difference
to arbitration; and
(c) such
dispute, question or difference shall then be determined, subject to the
provisions of this Agreement, by an arbitrator appointed by the President of
the Australian Institute of Chartered Accountants being an arbitrator who has
agreed in writing before his appointment to make a determination within twenty‑one
(21) days of the date referred to in Sub‑clause 5.15.2 (a).
24.5 Provisions
relating to all arbitrations
The following
provisions shall apply to all arbitrations:
(a) a
reference to arbitration under this Clause shall be deemed to be a reference
to arbitration within the meaning of the law of the State of Victoria;
(b) the fees
and expenses of the arbitrator shall be borne equally by the Bank and the
Commonwealth;
(c) the
parties may be represented or assisted in any arbitration proceedings by
persons of their choice; and
(d) any sum
payable pursuant to a determination of an arbitrator shall be paid within seven
(7) days of the making of the determination.
25. CONFIDENTIALITY
25.1 Acknowledgement
by the Bank of confidental material
The Bank acknowledges that any
information or documents supplied to it by the Commonwealth, its employees,
servants, officers or agents:
(a) in respect
of applicants for Entitlement Certificates, Entitled Persons, Subsidised
Borrowers and Joint Borrowers under the Scheme; or
(b) relating
to the Defence Force which is indicated as being confidential when supplied,
is to be received by the Bank in
confidence and, except where the Bank is required by law to do so, shall not be
copied, used, disclosed or otherwise made available to any third person without
the prior written consent of the Commonwealth.
25.2 Duty not to
disclose
The Bank agrees not to copy, use,
disclose or otherwise make available other than for the sole purpose of the
Bank's administration of the Scheme any information or document relating to
persons who are or were Entitled Persons, Subsidised Borrowers or Joint
Borrowers in circumstances in which disclosure is not authorised by the normal
Banker/Customer relationship or by the Act.
26. WARRANTIES
26.1 Warranties
by the Commonwealth
The Commonwealth warrants that it has
full power and authority to enter into, execute, deliver and complete the
transactions contemplated by this Agreement.
26.2 Warranties
by the Bank
The Bank warrants, undertakes and
represents to the Commonwealth and it is a condition of this Agreement that:
(a) the
execution and delivery of this Agreement has been duly and validly authorised
by all necessary corporate action on behalf of the Bank;
(b) the Bank
has full corporate power and lawful authority to execute this Agreement and to
consummate and perform or cause to be performed its obligations herein and this
Agreement shall constitute a legal, valid and binding obligation of the Bank
enforceable in accordance with its terms by appropriate legal remedy and does
not conflict with, or constitute, or result in, a breach of or default of any
provision of the Bank's Memorandum and Articles of Association or any material
term or provision of any agreement or any deed or any writ, order or
injunction, judgment, law, rule or regulation to which the Bank is a party or
is subject to or by which the Bank is bound;
(c) no
agreement or commitment has been entered into or incurred by the Bank which
involves or is likely to involve obligations or liabilities which by reason of
their magnitude or nature ought reasonably to be made known to the
Commonwealth;
(d) no
statutory notices have been served on the Bank which might in any way impair,
prevent or interfere with the Bank's performance of its obligations hereunder
or pursuant to the Act; and
(e) it has all
of the necessary approvals, licences (including statutory licences) and
accreditation, consents, permission, authorities and permits for the proper
carrying on of its business and knows of no factors that might in any way
prejudice the continuance or renewal of any of those approvals, licences,
permissions or consents.
27. INDEMNITIES
27.1 Obligations
of the Bank
The Bank shall indemnify and keep
indemnified the Commonwealth, its officers, employees and agents from and
against all and any reasonable losses, costs (including legal costs) and
liabilities, refunds, expenses and other out‑goings incurred by the
Commonwealth in connection with any claim made by a third party against the Commonwealth
in relation to a Subsidised Loan to the extent to which those losses, costs,
refunds, liabilities, expenses or other outgoings are incurred by the
Commonwealth as a result of the Bank's failure to perform its obligations under
this Agreement.
27.2 Obligations
of the Commonwealth
The Commonwealth shall indemnify and
keep indemnified the Bank, its officers, employees and agents from and against
all and any reasonable losses, costs (including legal costs) and liabilities,
refunds, expenses and other out‑goings incurred by the Bank in connection
with any claim made by a third party against the Bank in relation to a
Subsidised Loan to the extent to which those losses, costs, refunds,
liabilities, expenses or other out‑goings are incurred by the Bank as a
result of the Commonwealth's failure to perform its obligations under this
Agreement.
28. RELATIONSHIP
OF THE PARTIES
This Agreement does not constitute
either party as a joint venturer, partner, agent, employee or representative of
the other party and any act or omission of either party shall not bind or
obligate the other party except as is expressly set forth in this Agreement.
29. DEFAULT
PROVISIONS
29.1 Persistent
failure by the Bank to provide Subsidised Loans.
Where it appears to the Commonwealth that
there has been a persistent failure by the Bank to provide Subsidised Loans in
accordance with this Agreement the following provisions shall apply:
29.1.1 the
Commonwealth shall serve upon the Bank a notice in writing giving particulars
of the persistent failure and requiring the Bank to rectify the failure;
29.1.2 within
twenty‑eight (28) days of the date of service of such a notice on the
Bank either party may request a meeting in which case the parties shall
forthwith meet in order that agreement can be reached on whether there has been
a persistent failure and, if so, the appropriate steps and procedures to be
taken or adopted by the Bank in order to rectify the failure;
29.1.3 where
three (3) months has elapsed from the date of service of such a notice on the
Bank and the parties have not met or are unable to reach agreement pursuant to
Sub‑clause 29.1.2 then, if the Commonwealth considers that the Bank
has not rectified the persistent failure, the Commonwealth may require the Bank
to show cause to the Commonwealth why the Commonwealth should not terminate the
Agreement, and in the event that the Bank fails to do so, the Commonwealth may
terminate the Agreement.
29.2 Persistent
failure by Bank to comply with any other term of the Agreement.
Where it appears to the Commonwealth
that there has been a persistent failure by the Bank to comply with any other
term of this Agreement the following provisions shall apply:
29.2.1 the
Commonwealth shall serve upon the Bank a notice in writing specifying the nature
of the persistent failure and giving particulars thereof and requiring the Bank
to rectify the failure;
29.2.2 where
following such notice the Commonwealth considers that the Bank has not
rectified the persistent failure, the Commonwealth may refer the matter to
arbitration in accordance with Clause 24. In the event that it is
determined that there has been a persistent failure by the Bank, the
Commonwealth may require the Bank to show cause to the Commonwealth why the
Commonwealth should not terminate the Agreement and in the event that the Bank
fails to do so the Commonwealth may terminate the Agreement.
29.3 Meaning of
“rectify the failure”
The expression “rectify the failure”
in this Clause shall include, where appropriate, taking steps or adopting procedures
to ensure that a similar breach does not occur again in the future.
29.4 Immediate
Termination
Where:
(a) an order
is made or a resolution is passed for the winding up, or the dissolution
without winding up, of the Bank (except for the purposes of reconstruction or
amalgamation with the consent of the Commonwealth);
(b) the Bank
becomes insolvent or is unable to pay its debts within the meaning of Section 364
(2) of the Companies Code in the State in which the Bank is incorporated;
(c) the Bank
enters into an arrangement, reconstruction or composition with its creditors or
with any of them whereby the Bank affects an assignment of all or substantially
all of its property for the benefit of its creditors;
(d) a receiver
is appointed to the Bank;
(e) pursuant
to the provisions of the Companies Code of the State in which the Bank is
incorporated or the corresponding legislation of any other State or Territory
the Bank is placed under official management;
(f) the Bank
merges, amalgamates or reconstructs if that results in the merged,
reconstructed or amalgamated entity having no authority, power or facilities to
effectively perform the Bank's obligations under this Agreement;
(g) the Bank
assigns its rights or obligations under this Agreement in whole or in part
without the consent of the other party;
(h) pursuant
to the Banking Act 1959 as amended the Reserve Bank of Australia appoints an
officer to investigate the affairs of the Bank or the Reserve Bank of Australia
assumes control of and carries on the business of the Bank; or
(i) the Bank loses its approval to carry on banking business in Australia,
then the Commonwealth shall be
entitled by notice in writing to immediately terminate this Agreement.
29.5 Effects of
termination
29.5.1 Upon
the termination of this Agreement for any reason the exclusive rights granted
to the Bank in Clause 3 shall be terminated and the Commonwealth may grant
those rights to another person of the Commonwealth's sole choosing.
29.5.2 In the
event that the Commonwealth terminates the Agreement under Sub‑clauses 29.1,
29.2 or 29.4 the Bank shall not, pursuant to Sub‑clause 4.7 have any
claim to a refund of part or all of the payment of the forty‑two million
dollars ($42 million) made pursuant to Sub‑clause 4.1 (a).
29.5.3 Upon the
termination of this Agreement, the Bank shall be obliged to complete all
outstanding applications for Housing Loans already submitted by Entitled
Persons and Entitled Persons and their spouses, where appropriate, as though
the agreement had not been terminated.
29.5.4 All
covenants and agreements by either party which by their terms or by reasonable
implication are to be performed in whole or in part after the termination of
this Agreement shall survive such termination including the duties arising
pursuant to Clause 25.
29.5.5 Except
as may otherwise be provided for in this Sub‑clause, the termination of
this Agreement for any reason:
(a) shall not
abrogate, impair, release or extinguish any debt, obligation or liability of
one party to the other party which may have accrued hereunder including without
limitation any such debt, obligation or liability which was the cause of
termination or arose out of such cause; and
(b) shall be
without prejudice to any right or remedy which shall have accrued or which may
accrue thereafter in favour of either party.
29.6 Interest
payable on moneys over‑due
29.6.1 Unless
otherwise provided, if either party defaults in the payment of any moneys due
to the other party under this Agreement the party in default shall, without
prejudice to any other rights of the other party, pay on demand interest on the
moneys due. Such interest shall be paid at a rate per annum equal to the
Benchmark Rate as at the date of default plus 5 per cent and shall be
calculated from the date the moneys are due until they are paid.
29.6.2 The
parties acknowledge that this Sub‑clause shall not apply to:
(a) payments of
Subsidy by the Commonwealth; or
(b) any refund
made pursuant to Sub‑clause 4.7 of the $42 million referred to in
Sub‑clause 4.1 (a) until any sum is due under Sub‑clause 24.5
(d).
30. AUDIT
30.1 Report by
external auditors of Bank
The Bank agrees to provide to the
Commonwealth within two (2) months of the Commencement Date and prior to the
end of each Calendar Year in which Subsidy is paid to the Bank under this
Agreement, a report by the Bank's external auditors advising as to the extent
to which, in their opinion, the Bank's systems for maintaining data concerning
Subsidised Loans can be relied upon and whether the Bank's accounts and records
concerning Subsidised Loans have been properly and accurately maintained.
30.2 Qualified
Reports
If the external auditors' opinion is
qualified in any respect the reasons for such qualification shall be specified
in the report and the Bank agrees to take immediate action to remedy the
matters specified and to obtain a further report from its external auditors
within twenty‑eight (28) days stating that, in their opinion, the reasons
for the qualification no longer apply.
30.3 Discussion
of audit procedures with external auditors
If at any time the Commonwealth
considers it to be desirable the Bank will arrange with its external auditors
for the Commonwealth to discuss with the external auditors the audit procedures
they have applied.
30.4 No charge to
the Commonwealth by the Bank
The Bank shall not be entitled to
charge a fee for any information or service provided to the Commonwealth
pursuant to this clause.
31. ENABLING
LEGISLATION
31.1.1 Enabling
legislation being passed by Parliament
This Agreement is binding on the
parties but, except for this Clause, is subject to and conditional upon
legislation being passed by Parliament in the form of the draft Bill initialled
on behalf of the parties at the time of execution of this Agreement with such
amendments only as:
(i) are agreed
in writing on behalf of the parties; or
(ii) are taken
to have been agreed to by the Bank pursuant to Sub‑clause 31.4.
31.1.2 The
draft Bill referred to in Sub‑clause 31.1.1 to be initialled by the
parties shall not include Schedule 1 thereto.
31.2 Amendments
to draft Bill
In the event that the legislation
passed by Parliament should contain any amendments from the draft Bill referred
to in Sub‑clause 31.1, the Commonwealth shall within two (2) days of
the passage of the legislation give notice to the Bank of the amendments
together with such information relating to those amendments as it wishes to
provide.
31.3 Effect of
Amendments
If the amendments:
(a) alter the
obligations of the Bank set out in the Agreement or the draft Bill;
(b) alter the
arrangements for the payment of Subsidy set out in the Agreement or the draft
Bill;
(c) reduce or
restrict the entitlements of persons set out in the Agreement or the draft
Bill; or
(d) alter any
of the obligations of the Commonwealth set out in the Agreement or the draft
Bill or affect the capacity of the Commonwealth to perform its obligations
under this Agreement or the draft Bill, and in the opinion of the Bank, this
adversely affects the position of the Bank under the Scheme, the Bank shall
notify the Commonwealth within seven (7) days of receipt of the notice under
Sub‑clause 31.2 or such further period as may be agreed upon by the
parties.
31.4 No Notice by
Bank
In the event that the Bank does no
give notice under Sub‑clause 31.3, it shall be taken to have agreed
to such amendments for the purposes of Sub‑clause 31.1.
31.5 Draft Bill
to be submitted to Parliament
The Commonwealth agrees that the draft
Bill to be submitted to the Parliament shall be the draft Bill referred to in
Sub‑clause 31.1 with only such amendments thereto as may be agreed
in writing on behalf of the parties.
31.6 Procedure
where notice given by the Bank
If a notice is served by the Bank in
accordance with Sub‑clause 31.3, then the parties will, as soon as
possible after receipt of the notice, meet or communicate to discuss the effect
of the amendments and to reach agreement on whether this Agreement shall
proceed. If, after twenty one (21) days of service of the notice under Sub‑clause 31.3,
agreement has not been reached by the parties, then the Agreement shall
terminate.
31.7 Effect of
termination
In the event that the Agreement is
terminated or has no force or effect arising from Clause 31.6, neither the
Bank nor the Commonwealth will have any right to claim compensation, losses,
expenses, costs or damages arising or resulting from this Agreement against the
other.
31.8 Agreement
approved by enabling legislation
The parties hereby agree that a copy
of this Agreement shall be annexed to and approved by the enabling legislation.
31.9 Commencement
Date after 31 December 1991
In the event that the Commencement
Date is a date after 31 December 1991 then this Agreement shall be of no
force or effect and neither the bank nor the Commonwealth will have any right
to claim for compensation, losses, expenses, costs or damages arising or
resulting from this Agreement against the other.
31.10 Passage of
enabling legislation after 31 December 1990
In the event that the enabling
legislation is passed after 31 December 1990, references to the Act in
this Agreement shall be read as references to the Defence Force (Home Loans
Assistance) Act 1991.
IN WITNESS WHEREOF the parties
have executed this Agreement as at the day and year first before written:
SIGNED for
and on behalf of the
Commonwealth of Australia by GORDON BILNEY
The Honourable GORDON NEIL
BILNEY, Minister for Defence
Science and Personnel, in the presence of:
JONATHAN HUTSON
SIGNED on
behalf of
NATIONAL AUSTRALIA JOHN F. ASTBURY
BANK LIMITED by its Attorney Chief General Manager JOHN FREDERICK ASTBURY, Relationship Banking
(North) under Power of Attorney dated
22nd February 1990 (who states
that he holds the office in the
Bank indicated under his signature)
in the presence of:
R. J. MILLER
Schedule A
|
Column 1
|
Column 2
|
Column 3
|
Column 4
|
|
From
Commencement
|
|
|
|
|
Date to 31 Dec 1991
|
1400
|
$985
|
15 January 1992 by 11.00 A.M.
|
|
1992 Calendar Year
|
2800
|
$985
|
15 January 1993 by 11.00 A.M.
|
|
1993 Calendar Year
|
2800
|
$985
|
15 January 1994 by 11.00 A.M.
|
|
1994 Calendar Year
|
2800
|
$985
|
15 January 1995 by 11.00 A.M.
|
|
1995 Calendar Year
|
2800
|
$985
|
15 January 1996 by 11.00 A.M.
|
|
1996 Calendar Year
|
2800
|
$985
|
15 January 1997 by 11.00 A.M.
|
|
1997 Calendar Year
|
2800
|
$1760
|
15 January 1998 by 11.00 A.M.
|
|
1998 Calendar Year
|
2800
|
$1760
|
15 January 1999 by 11.00 A.M.
|
|
1999 Calendar Year
|
2800
|
$1760
|
15 January 2000 by 11.00 A.M.
|
|
2000 Calendar Year
|
2800
|
$1760
|
15 January 2001 by 11.00 A.M.
|
|
2001 Calendar Year
|
2800
|
$1760
|
15 January 2002 by 11.00 A.M.
|
|
2002 Calendar Year
|
2800
|
$2700
|
15 January 2003 by 11.00 A.M.
|
|
2003 Calendar Year
|
2800
|
$2700
|
15 January 2004 by 11.00 A.M.
|
|
2004 Calendar Year
|
2800
|
$2700
|
15 January 2005 by 11.00 A.M.
|
|
2005 Calendar Year
|
2800
|
$2700
|
15 January 2006 by 11.00 A.M.
|
|
1 January 2006 to
31 January 2007
|
2800
|
$2700
|
15 January 2007 by 11.00 A.M.
|
Schedule B—Particulars to be included in documents referred to in this
Agreement
ENTITLEMENT CERTIFICATE
An Entitlement Certificate will
include:
– name of the
Entitled Person who is to become the Subsidised Borrower
– the Service
Number of the Entitled Person
– name of the
Entitled Person's spouse who may be joined on the Title as a joint tenant
– a unique
identifying number relating to the Certificate
– statement
that the Secretary (or delegate) is satisfied that the service by the Entitled
Person (or deceased spouse) is sufficient to enable a loan to the person to
attract Subsidy and that the person has an entitlement
– statement of
the Subsidy period or that the Subsidy period is continuing to accrue if the
Entitled Person is still a service member
– advice to the
Entitled Person that the Bank has an exclusive right to participate as the
lender under the Scheme
– details of
any properties that must be disposed of before Subsidy can commence
– the date of
the Certificate noting that Certificates are only valid for 12 months
– if provided
by the Entitled Person the name of the branch of the Bank with which the
Entitled Person wishes to deal
APPLICATION FOR
SUBSIDY
The Application for Subsidy will
consist of FOUR PARTS containing the following particulars:
Part A
– This part
will be completed by the Entitled Person and will include particulars drawn
from the Entitlement Certificate or Grant of Approval relating to a Loan
Increase (“Grant of Approval—Loan Increase”) such as:
– the name of
the Entitled Person
– the Service
Number of the Entitled Person
– the name of a
spouse to be joined on Title (if any)
– the number of
the Entitlement Certificate or (Grant of Approval—Loan Increase)
– the date of
the Certificate or (Grant of Approval—Loan Increase)
– whether this
application relates to a new loan or a loan increase
Part B
– This part
will relate to the Property that is to be the security for the Subsidised Loan
and shall include a declaration by the person that Parts B and A have been
accurately completed. It shall include the following particulars:
– the address
of the Property to which the loan or loan increase relates
– a declaration
that the person or spouse has not acquired any other houses other than those
specified in the Entitlement Certificate (or Grant of Approval—Loan Increase)
and that those properties specified in the Entitlement Certificate (or Grant of
Approval—Loan Increase) have been disposed of. The Entitled Person will be
required to provide documentary evidence of sale to the Bank
– an
acknowledgement of and consent to the recovery arrangements
– an statement
that the funds advanced under the Subsidised Loan will be used for the purposes
specified in the Act
– a statement
that the Entitled Person and family will occupy or are occupying the house to
which the loan relates
Part C
– Part C shall
be a signed statement by the Secretary or delegate that they are:
– satisfied
that the house mentioned in Part B is suitable for the use of the Entitled
Person and family (if any) in terms of the provisions of the Act
– believe that
there is no impediment to the occupation of the house by the Entitled Person or
family (if applicable)
– if applicable
a statement that the person signing the Part is a delegate of the Secretary
under the Act
Part D
Part D shall be in
the form specified in Schedule C
Instructions
Suitable instructions on the
completion of the Application for Payment of Subsidy form and the nature of
supporting documents required will be made available with the form to assist
Entitled Persons.
GRANT OF APPROVAL—LOAN INCREASES
A Grant of Approval—Loan Increases
will include the following particulars:
– name of the
Subsidised Borrower
– name of a
spouse joined on Title (if any)
– a unique
identifying number relating to the Grant of Approval
– date of the
approval (noting that the Grant of Approval will only be valid for 12 months)
– the branch of
the Bank where the Subsidised Loan Account is held
– the
Subsidised Loan Account number
– the maximum and
minimum amounts by which the Subsidised Loan may be increased and attract
Subsidy on that increase
– the address
of the Property securing the Subsidised Loan
GRANT OF APPROVAL—TRANSFERS
A Grant of Approval relating to
Transfers will include the following details:
– name of the
Subsidised Borrower who MUST remain on Title if Subsidy is to continue
– name of the
Subsidised Borrower's spouse who may be joined on the Title as a joint tenant
or separated from the Title as the case may be
– a unique
indentifying number relating to this Grant of Approval
– date of the
Grant of Approval
– the branch of
the Bank where the Subsidised Loan Account is held
– the
Subsidised Loan Account number
Schedule C
PART D—CERTIFICATE BY BANK
MANAGER
I,.......................................... ,
manager of the............................................ branch of the
National Australia Bank certify that:
(1) the
security offered for the Subsidised Loan (“the loan”) is the property named in
Part B and the Subsidised Loan is secured by a first mortgage over this
property;
(2) the
persons specified in Part A (“the applicants”) are the sole proprietors, or
joint tenants, of the property specified in Part B;
(3) (a) the
Applicants have informed the Bank that the funds advanced under the Subsidised
Loan are to be used to do one or more of the following things:
(i) to buy
land and build the house to which the loan relates on the land;
(ii) to build
the house on land already owned by the person;
(iii) to buy
the house together with the land on which it is built;
(iv) if the
house was partly built and already owned by the person—to complete the house;
(v) if the
house was complete and already owned by the person—to enlarge renovate or
repair the house or to construct any permanent improvements on the land on
which the house is built; or
(vi) to
discharge another loan used by the person for a purpose mentioned in sub‑paragraphs (i)
(ii) (iii) (iv) or (v).
OR
(b) where
the Applicants have obtained a Grant of Approval relating to a Loan Increase,
the Applicants have informed the Bank that the amount of the increase has been
used by them to do one or more of the following things:
(i) to
enlarge, renovate or repair the house in respect of which the loan was made, or
to construct any permanent improvements on the land on which the house is
built; or
(ii) to
discharge another loan used by the person of the kind mentioned in sub‑paragraph
3 (a) (i), (ii), (iii), (iv) or (v) above.
(4) the
Applicants have informed me that the house is sufficiently complete to permit
the Applicants to be owner‑occupiers and they have informed me that they
are doing so;
(5).... the loan
or Loan Increase was approved on ...................... ;
(6).... the
final advance on the Subsidised Loan or the advance of the Loan increase was
made on ;
(7).... the
BSB/loan account number for the Subsidised Loan is .................. ;
(8).... the
Subsidised Loan or loan increase amounts to $40000/$................ (delete
$40000 and insert amount ONLY if total subsidised home loan borrowings are
BELOW $40000, otherwise delete space);
(9) I have
attached documentary evidence provided by the borrowers indicating that the property(ies)
they were required to dispose of in order to obtain the subsidy have been
disposed of and other documents in support of the application.
Date................................................. Signed................................
Name.................................
Branch...............................
Address.............................
Telephone Number ( ).......
Schedule D—Loan Agreement
TO: National Australia Bank
Limited (the “Bank”).
The Applicant named in Item 1
of the Schedule hereby applies to the Bank for the loan as set out in Item 2
of the Schedule upon the following terms and conditions:—
1. Except to
the extent that such interpretation may be excluded by or be repugnant to the
context when herein used:—
(i) “Applicant”
shall mean every person who applies for the loan and shall include the legal
personal representatives and assigns of each of them.
(ii) “Balance
of the loan” means the amount of the loan lent by the Bank and outstanding from
time to time, and shall include, interest accrued to the Bank hereunder, fees,
costs, charges or expenses when debited to the loan account pursuant to Clauses 2,
3, 6, 8 and 10 hereof and any amount debited to the loan account pursuant to
Clause 15 (a) hereof.
(iii) “Scheme
rate” means the benchmark rate of interest fixed by the Commonwealth in
accordance with the Scheme from time to time.
(iv) “Commonwealth”
means the Commonwealth of Australia and shall include any Department or
Departments of State of the Commonwealth or statutory authority of the
Commonwealth with responsibility for administering the Scheme.
(v) “Current
interest rate” means the interest rate set out in Item 8 of the Schedule
or such other rate as the Bank may hereafter fix from time to time.
(vi) “Entitlement
certificate” means the entitlement certificate issued by the Commonwealth to a
person who is entitled thereto under the Scheme and who is an Applicant in
respect of the loan hereby applied for.
(vii) “Interest
day” means the last working day in each calender month in each year or such
date as the Bank may adopt for the purpose of debiting interest payments as set
out in Item 4 of the Schedule.
(viii) “Reference
rate” means the nominal rate of interest selected by the Bank set out in Item 3
of the Schedule (if any) upon which the monthly instalments set out in Item 3
of the Schedule are assessed, or such other rate as the Bank may hereafter fix
from time to time.
(ix) “Scheme”
means the Australian Defence Force Home Loan Assistance Scheme established by
the Defence Force (Home Loans Assistance) Act 1990 and by the agreement made
between the Bank and the Commonwealth on 5th November 1990, a copy of which is set out in Schedule 1 to the said Act, as they both are in force
from time to time.
(x) “Securities”
means the securities set out in Item 6 of the Schedule, and any other
securities which may be held by the Bank hereafter in respect of all or any of
the Applicant's liabilities to the Bank.
(xi) “Subsidy”
means periodic subsidy payments to the Bank by the Commonwealth pursuant to the
Scheme for the benefit of the Applicant in respect of the loan hereby applied
for.
(xii) Words
herein used importing the singular shall include the plural and vice versa, and
words importing the masculine gender shall include the feminine and neuter
genders.
2. Subject to
Clause 3 hereof, interest shall accrue to the Bank for so long as the
balance of the loan remains unpaid and shall be calculated at the Scheme rate
applicable from time to time on the daily balance of the loan. Such interest
shall be debited to the loan account on each interest day.
3. (i) The
Applicant agrees that, during such period/s as the Bank is not in receipt of
subsidy, interest accruing to the Bank pursuant to Clause 2 hereof shall
be calculated at the current interest rate and the Bank may review the
instalments payable pursuant to Clause 4 hereof in the manner provided for
in sub‑clauses 6 (ii) or 6 (iii) hereof.
(ii) Paragraph (i)
hereof shall not apply during such periods as the Bank is not in receipt of
subsidy by reason only that subsidy has been suspended pursuant to the Scheme.
4. The
Applicant shall pay to the Bank the instalments set out in Item 3 of the
Schedule or the instalments as varied pursuant Clause 6 hereof on the
dates set out in Item 3 of the Schedule until the loan shall have been
repaid and all interest and other money owing to the Bank hereunder shall have
been paid, provided however, that the instalments payable by the Applicant
pursuant to this clause shall be reduced by such amount as in necessary to
reflect the amount of subsidy, if any, paid in respect of the loan.
5. Each
instalment referred to in Clause 4 shall be applied first in or towards
payment of interest and the balance (if any) shall reduce the balance of the
loan.
6. (i) The
following provision shall apply during such period/s as the Bank is in receipt
of subsidy:—
Upon
the anniversary of the final drawdown of the loan in each year, or upon the
fixing of a new Scheme rate, the Bank may review the instalments payable
pursuant to Clause 4 hereof and the amount of each instalment payable
thereafter may be varied by the Bank to ensure that the balance of the loan is
repaid by instalments of equal amounts within the term of the loan set out in
Item 2 of the Schedule or within such other period as may be agreed
between the Bank and the Applicant. In the event that the Bank should so vary
the amount of instalments, the Bank shall give one months notice to the Applicant
of such variation.
(ii) If no
reference rate is set out in Item 3 of the Schedule, and the Bank is not
in receipt of subsidy, then the following provision applies:—
Upon the fixing of a new current
interest rate by the Bank, or debiting an annual insurance premium as set out
in Item 7 of the Schedule, the amount of each instalment payable
thereafter may be varied by the Bank notwithstanding that such variation may
increase or decrease the term of the loan set out in Item 2 of the
Schedule. In the event that the Bank should so vary the amount of instalments,
the Bank shall give one months notice to the Applicant of such variation.
(iii) If a
reference rate is set out in Item 3 of the Schedule, and the Bank is not
in receipt of subsidy, then the following provision applies:—
Once
during each year until the loan is repaid in full, the Bank will review the
instalments payable pursuant to Clause 4 hereof. If the current interest
rate at the date of the review exceeds the reference rate then fixed by the
Bank such instalment will be increased by a rate equal to the difference
between the current interest rate and such reference rate. The instalments may
also be increased to provide for the debiting to the loan account of annual
premium/s for insurance/s set out in Item 7 of the Schedule. The Bank
shall give the Applicant one months notice of any variation to the instalment.
7. The Applicant shall have the right, at any time, to repay the
whole or any part of the balance of the loan, provided however, that any such
repayment shall not reduce the amount of each instalment payable thereafter
except by prior agreement with the Bank.
8. (i) The
Applicant shall pay to the Bank on demand an application fee as set out in Item 5
of the Schedule.
(ii) The
Applicant shall pay a service fee calculated in accordance with the Bank’s
scale current from time to time. Such service fee shall be debited to the loan
account on the days adopted for this purpose from time to time by the Bank. The
initial service fee is set out in Item 5 of the Schedule provided that the
service fee may be varied by the Bank without notice to the Applicant.
(iii) If the
loan is not drawn before the expiration of three months from the date of
approval of the application by the Bank, the Applicant shall pay a commitment
fee as set out in Item 5 of the Schedule, being a percentage per annum of
the amount of the loan undrawn, calculated on a daily basis from the date of
approval until the loan is drawn, or in the case of a progressive loan, the
first drawdown of the loan, provided that the Bank at its discretion may
require the Applicant to pay the commitment fee on the undrawn instalments of
such progressive loan until the loan is fully drawn. The commitment fee shall
be paid upon drawdown of the loan or upon the final drawdown of the loan in
case of a progressive loan.
9. Notwithstanding
Clause 8 (iii) hereof or the fact that a commitment fee may have been
charged by the Bank if the Applicant does not avail of the loan or any part
thereof within twelve months of the date of issue of the entitlement
certificate (or, if no Entitlement Certificate is issued, within twelve (12)
months of the date of approval of the loan) the Bank may thereafter at any time
elect that it shall no longer be under any obligation to make the loan hereby
applied for provided that the Bank shall give to the Applicant not less than
one months notice of its intention to exercise such election and the Applicant
shall have the right to draw the loan (subject to the terms and conditions)
prior to the expiration of the period mentioned in such notice; provided always
that if the Bank does elect not to make the loan it shall not affect the
Applicant's right to apply for further loans under the Scheme or otherwise.
10. The Applicant shall pay, or reimburse the Bank on demand, or at
its discretion the Bank may debit the Applicant's account, for all costs,
charges and expenses of every description which the Bank may according to its
usual practice incur in connection with:—
(a) this
application, the loan, any instrument executed by the Applicant pursuant to
these terms and conditions or any of the securities or any other document given
or which may be given in relation to the loan, and
(b) the
exercise or attempted exercise of any power or remedy pursuant to these terms
and conditions, any of the securities or any other document or otherwise in
respect of the loan,
including, but not limited to, all
charges for legal advice or assistance as between solicitor and client, stamp
duty and search and registration fees. The Bank may debit all such costs,
charges and expenses to the loan account so that the amounts thereof shall be
included in the balance of the loan from time to time or may debit the same to
the account nominated on the Home‑Loan Application for debiting of
instalments.
11. Sub‑clause 6.1
and sub‑clause 6.2 of the agreement made between the Bank and the
Commonwealth on 5th November 1990, a copy of which is set out in Schedule 1
of the Defence Force (Home Loans Assistance) Act 1990, are incorporated by
reference herein for the purposes of Clause 8 and Clause 10 hereof.
12. The balance
of the loan together with interest and all fees and other moneys owing by the
Applicant to the Bank shall be secured by the securities. The Applicant shall not
be entitled to drawdown the loan or any part thereof until the Bank is
satisfied that each security is properly executed and, where appropriate, is
capable of registration.
13. The
Applicant shall set forth such information in a Home‑Loan Application as
the Bank may require.
14. Notwithstanding
anything to the contrary expressed or implied herein or in any other document
whatsoever whether connected with the loan or with any other transaction and
whether executed heretofore or hereafter the Applicant agrees with the Bank to
pay the balance of the loan together with interest and all fees and other
moneys owing by the Applicant to the Bank on the date upon which demand
therefor in writing is made on the Applicant by the Bank after the occurrence
of any one or more of the following events:—
(a) default
is made in the payment of any moneys on the day upon which they become due and
payable pursuant to the provisions hereof,
(b) default
(other than the default mentioned in the preceding sub‑ paragraph (a))
is made in the performance or observance of any of the provisions hereof,
(c) the
Applicant commits a breach of any covenant or agreement contained in the said
securities,
(d) the
Applicant commits a breach of or defaults under the terms of any other agreement
or arrangement between the Applicant and the Bank,
(e) any
mortgagee or encumbrancer of the land comprised in the security exercises or
attempts to exercise any power by virtue of any default under the mortgage or
encumbrance,
(f) the
Applicant without the written consent of the Bank (which may attach such terms
or conditions to the giving of consent as it thinks fit) further mortgages,
charges or otherwise further encumbers the land subject to the securities, or
does or suffers to be done anything whereby any charge or liability becomes or
might become imposed upon the land subject to the securities of any part or
parts thereof, whether in priority to the securities or not or attempts so to
do,
(g) the
Applicant without the written consent of the Bank (which may attach such terms
or conditions to the giving of consent as it thinks fit) transfers, sells or
leases or attempts to transfer, sell, lease or in any way parts with possession
of the land subject to the securities or any part or parts thereof or attempts
so to do, or alters, demolishes or removes any building thereon,
(h) the
Applicant without the written consent of the Bank (which may attach such terms
or conditions to the giving of consent as it thinks fit) subdivides the land
subject to the securities or any part or parts thereof or attempts so to do, or
calls for an apportionment of the loan pursuant to the provisions of any
statute, rule of law or equity,
(i) any
guarantor of the loan becomes bankrupt or assigns his estate for the benefit of
his creditors or enters into a composition or arrangement with his creditors or
in the case of a company goes into liquidation either voluntarily or
compulsorily,
(j) the
Applicant becomes bankrupt or assigns his estate for the benefit of his
creditors or enters into a composition or arrangement with his creditors or in
the case of a company goes into liquidation either voluntarily or compulsorily,
(k) any of
the information supplied by the Applicant appearing in the Home‑Loan
Application is found to be false or, in the opinion of the Bank, is misleading,
or
(l) any of
the information supplied by the Applicant in support of any application to the
Commonwealth under the Scheme (including, but not limited to, information
supplied in an application for an entitlement certificate or application for
payment of subsidy) is found to be false.
15. The
Applicant agrees and acknowledges that during such period as the Bank is in
receipt of subsidy in respect of the loan the Bank shall be bound to act in
accordance with the Scheme and in particular the Applicant acknowledges and
agrees that:
(a) (i) where
an amount is incorrectly paid to the Bank by the Commonwealth by way of
subsidy, the Bank will, in accordance with the Scheme, pay to the Commonwealth
an amount equal to the amount incorrectly paid (together with any interest
thereon due under the Scheme) and any such payment will be debited to the loan
account so that the amount thereof shall be included in the balance of the loan
from time to time and shall be secured by the securities;
(ii) where the
Bank pays an amount to the Commonwealth under sub‑paragraph (i)
hereof and such amount (or any part thereof) is reimbursed or refunded to the
Bank by the Commonwealth pursuant to the Scheme, the Applicant will be indebted
to the Commonwealth for such amount; and
(iii) if the
Applicant is indebted to the Commonwealth under the Scheme for any amount
incorrectly paid to the Bank by the Commonwealth by way of subsidy and the Bank
realises any securities over the property specified in Item 6 of the
Schedule, then the Bank will from the proceeds of such realisation pay to the
Commonwealth such amount as the Bank is required to pay under the Scheme in
respect of the Applicant's indebtedness;
(b) the Bank
will provide the Commonwealth with copies of any documents or any other
information in the possession or under the control of the Bank relating to the
loan or application for loan or to the Scheme as may from time to time be
requested by the Commonwealth pursuant to the Scheme or which the Bank is
otherwise required to provide to the Commonwealth pursuant to the Scheme;
(c) the Bank
shall not be liable or responsible to the Applicant for any loss, damage or
cost suffered or incurred by the Applicant (whether directly or indirectly) as
a result of, or arising from, the operation of the Scheme except where such
loss, damage or cost is attributable to failure by the Bank to act in
accordance with the Scheme;
(d) the Bank
will not allow:
(i) the name
of the Applicant appearing on the loan account or on the securities to be
changed from that appearing in the entitlement certificate; or
(ii) a person
to be joined to or separated from the loan account or securities,
unless the Bank agrees to such change
and the Applicant obtains approval from the Commonwealth for such change;
(e) the Bank
will not allow a property specified in Item 6 of the Schedule to be held
on, or converted to, a tenancy in common.
16. The
Applicant acknowledges that the Commonwealth has sole responsibility for
considering and approving any applications which the Applicant is required to
make to the Commonwealth pursuant to the Scheme (including, but not limited to,
applications for entitlement certificate and payment of subsidy) and for
determining whether subsidy is payable or whether subsidy shall be cancelled or
suspended.
17. The Bank
agrees to be bound by and act in accordance with the Scheme. The generality of
this clause shall not be affected by any other provisions herein.
18. When two
or more Applicants are parties hereto the agreements on their part herein
contained or implied shall bind them and any two or more of them jointly and
each of them severally.
Schedule
Item:
1. Applicant:
2. Loan:
$
Term: years
3. Instalments
Initial Instalment: $
Due: Monthly/Fortnightly*—commencing that
period from final drawdown or such other date as advised by the Bank.
Reference Rate:
% per annum
4. Loan
Interest Day
Last business
day of each—Month** (* *Delete and specify
relevant period if other than Month)
5. Fees
Application Fee: $
Initial Service Fee: $ per
half year
Commitment fee: % per annum
6. Securities
(To be) registered First/Second* Mortgage over
property situated at—
7. Insurances
Please effect a:
* Home Safe
Policy with National and General Insurance Co. Ltd.
* Mortgage Safe
Policy with National and General Insurance Co. Ltd.
* Mortgage Safe Policy with National
Australia Life Ltd.
and debit to the loan account the
annual premium/s as advised by the Insurer/s.
*Delete whichever is inapplicable.
8. Current
Interest Rate
% per annum
Notes to
the Defence Force (Home Loans Assistance) Act
1990
Note 1
The Defence Force (Home Loans Assistance) Act 1990 as
shown in this compilation comprises Act No. 14, 1991 amended as indicated
in the Tables below.
For all relevant information pertaining to application, saving
or transitional provisions see Table A.
Table of Acts
|
Act
|
Number
and year
|
Date
of Assent
|
Date of commencement
|
Application, saving or transitional provisions
|
|
Defence Force (Home Loans Assistance) Act 1990
|
14, 1991
|
21 Jan 1991
|
Part 1 (ss. 1–9) and Schedule 1: Royal Assent
Schedule 2: 1 Mar 1991 (see Gazette 1991, No. S24)
Remainder: 15 May 1991
|
|
|
Defence Force (Home Loans Assistance) Amendment Act
1991
|
152, 1991
|
21 Oct 1991
|
S. 4(a): 21 Jan 1991
Remainder: Royal Assent
|
—
|
|
Veterans‘ Affairs Legislation Amendment Act 1992
|
70, 1992
|
26 June 1992
|
Part 7 (s. 88): Royal Assent (a)
|
—
|
|
Defence Legislation Amendment Act 1992
|
91, 1992
|
30 June 1992
|
Ss. 1–12 and
15–17: Royal Assent
Remainder: 1 Sept 1992 (see Gazette 1992, No. S211)
|
—
|
|
Defence Legislation Amendment Act 1993
|
95, 1993
|
22 Dec 1993
|
22 Dec 1993
|
—
|
|
Defence Force (Home Loans Assistance) Amendment Act
1994
|
61, 1994
|
19 May 1994
|
19 May 1994
|
—
|
|
Defence Legislation Amendment Act 1995
|
43, 1995
|
15 June 1995
|
Schedule 3: (b)
|
—
|
|
Defence Legislation Amendment Act (No. 1) 1996
|
56, 1996
|
8 Nov 1996
|
Schedule 1 (items 1–3): 28 May 1992
Remainder: Royal Assent
|
Sch. 1 (item 44)
|
|
Defence Legislation Amendment Act (No. 1) 1999
|
116, 1999
|
22 Sept 1999
|
Schedule 6 (item 1): Royal Assent (c)
|
—
|
|
Defence Legislation Amendment (Enhancement of the
Reserves and Modernisation) Act 2001
|
10, 2001
|
22 Mar 2001
|
Schedule 2 (items 40–43, 94, 95): 19 Apr 2001 (d)
|
Sch. 2 (items 94, 95)
|
|
Defence Legislation Amendment Act 2003
|
135, 2003
|
17 Dec 2003
|
Schedule 2 (items 26, 27): Royal Assent
|
—
|
|
Military Rehabilitation and Compensation (Consequential
and Transitional Provisions) Act 2004
|
52, 2004
|
27 Apr 2004
|
Schedule 3 (items 15–18): 1 July 2004 ( see s. 2)
|
—
|
|
Defence Legislation Amendment Act (No. 1) 2005
|
121, 2005
|
6 Oct 2005
|
Schedule 5: (e)
Remainder: Royal Assent
|
—
|
|
Defence Housing Authority Amendment Act 2006
|
45, 2006
|
22 May 2006
|
Schedule 2 (item 1): 22 Nov 2006
|
—
|
|
Defence Force (Home Loans Assistance) Amendment Act 2006
|
137, 2006
|
30 Nov 2006
|
30 Nov 2006
|
—
|
|
Defence Force (Home Loans Assistance) Amendment Act
2007
|
81, 2007
|
21 June 2007
|
21 June 2007
|
—
|
|
Defence Home Ownership Assistance Scheme (Consequential
Amendments) Act 2008
|
28, 2008
|
23 June 2008
|
Schedule 1 (items 1–5): 1 July 2008 (see s. 2(1))
|
—
|
|
Same‑Sex Relationships (Equal Treatment in
Commonwealth Laws—General Law Reform) Act 2008
|
144, 2008
|
9 Dec 2008
|
Schedule 4 (items 2–46): 10 Dec 2008
|
Sch. 4 (items 16, 22, 24, 35)
|
(a) The Defence Force (Home Loans Assistance)
Act 1990 was amended by Part 7 (section 88) only of the Veterans’
Affairs Legislation Amendment Act 1992, paragraph 2 (1) (f) of which
provides as follows:
(1) The following provisions commence on
the day on which this Act receives the Royal Assent:
(f) Part 7;
(b) The Defence Force (Home Loans Assistance)
Act 1990 was amended by the Defence Legislation Amendment Act 1995,
subsection 2(4) of which provides as follows:
(4) Schedule 3 is taken to have
commenced immediately before 1 September 1994.
(c) The Defence Force (Home Loans Assistance)
Act 1990 was amended by Schedule 6 (item 1) only of the Defence
Legislation Amendment Act (No. 1) 1999, subsection 2(1) of which
provides as follows:
(1) Subject to this section, this Act
commences on the day on which it receives the Royal Assent.
(d) The Defence Force (Home Loans Assistance)
Act 1990 was amended by Schedule 2 (items 40–43) only of the Defence
Legislation Amendment (Enhancement of the Reserves and Modernisation) Act 2001,
subsection 2(1) of which provides as follows:
(1) Subject to this section, this Act
commences on the 28th day after the day on which it receives the Royal Assent.
(e) Subsection 2(1) (item 3)
of the Defence Legislation Amendment Act (No. 1) 2005 provides as
follows:
(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.
|
Commencement
information
|
|
Column 1
|
Column 2
|
Column 3
|
|
Provision(s)
|
Commencement
|
Date/Details
|
|
3.
Schedule 5
|
Immediately
after the commencement of section 3 of the Legislative Instruments
Act 2003.
|
1 January
2005
|
Table of Amendments
|
ad. = added or
inserted am. = amended rep. = repealed rs. = repealed and
substituted
|
|
Provision affected
|
How affected
|
|
Part 1
|
|
|
S. 3 .....................................
|
am. No. 152, 1991; Nos. 70 and 91, 1992; No. 95,
1993; No. 56, 1996; No. 116, 1999; No. 10, 2001; No. 135,
2003; No. 52, 2004; No. 137, 2006; No. 81, 2007; Nos. 28 and
144, 2008
|
|
S. 3A ..................................
|
ad. No. 152, 1991
|
|
S. 3B ..................................
|
ad. No. 95, 1993
|
|
S. 3C ..................................
|
ad. No. 95, 1993
|
|
|
am. No. 121, 2005
|
|
S. 4 .....................................
|
am. No. 152, 1991; No. 91, 1992; No. 43,
1995; No. 135, 2003
|
|
Ss. 5, 6................................
|
am. No. 144, 2008
|
|
S. 8......................................
|
rs. No. 144, 2008
|
|
Part 2
|
|
|
Division 1
|
|
|
S. 10 ...................................
|
am. No. 152, 1991; No. 144, 2008
|
|
S. 12 ...................................
|
am. No. 152, 1991; No. 95, 1993; No. 56,
1996; Nos. 28 and 144, 2008
|
|
S. 13 ...................................
|
am. No. 91, 1992
|
|
Division 2
|
|
|
S. 14 ...................................
|
am. No. 152, 1991; No. 56, 1996;
No. 144, 2008
|
|
S. 15....................................
|
am. No. 144, 2008
|
|
Division 3
|
|
|
Ss. 17, 18............................
|
am. No. 144, 2008
|
|
Part 3
|
|
|
S. 20....................................
|
am. No. 144, 2008
|
|
S. 20A ................................
|
ad. No. 28, 2008
|
|
Ss. 21, 22............................
|
am. No. 56, 1996
|
|
S. 23 ...................................
|
am. No. 152, 1991; No. 95, 1993; No. 56,
1996
|
|
S. 24 ...................................
|
am. No. 152, 1991; No. 95, 1993; No. 56,
1996; No. 52, 2004; No. 144, 2008
|
|
Heading to s. 26..................
|
am. No. 144, 2008
|
|
S. 26....................................
|
am. No. 56, 1996; No. 144, 2008
|
|
Ss. 29, 30............................
|
am. No. 144, 2008
|
|
Part 4
|
|
|
S. 35 ...................................
|
am. No. 61, 1994
|
|
S. 36A ................................
|
ad. No. 28, 2008
|
|
|
am. No. 144, 2008
|
|
S. 37 ...................................
|
am. No. 45, 2006; No. 28, 2008
|
Table A
Application, saving or transitional provisions
Defence
Legislation amendment Act (No. 1) 1996 (No. 56, 1996)
Schedule 1
44 Application
(1) The amendments made by items 5 to 13, 15, 16,
17 and 41 do not apply to a person who is a subsidised borrower on the day this
item commences.
(2) The amendments made by items 29 to 40 only
apply in relation to the statutory training obligation of a person, who is a
subsidised borrower on the day this item commences, that is commenced after
that day.
Defence Legislation Amendment (Enhancement of the Reserves
and Modernisation) Act 2001 (No. 10, 2001)
Schedule 2
94 Saving—old regulations
(1) Regulations that were in effect under any Act
immediately before the commencement of this item continue to have effect after
that time as if members of an arm of the Defence Force who were members of a
particular part or component of that arm immediately before the commencement of
this item were still members of that part or component after that time, even if
that part or component no longer exists.
Example: Assume that, immediately before the commencement
of this item, regulations imposed training obligations on members of the Air
Force Specialist Reserve. Those obligations would continue to apply to former
members of that Reserve after commencement, even though the Air Force
Specialist Reserve itself is no longer mentioned in the Air Force Act 1923
and the members have now become members of the Air Force Reserve.
(2) However, regulations that continue in effect under
this item do so only to the extent that they are not amended or revoked by
later regulations.
95 Regulations about transitional matters
(1) The regulations may make provision in relation to
other saving and transitional matters in connection with the amendments made by
this Schedule.
(2) In particular, such regulations may deal with the
status, after the commencement of the amendments, of persons who were members
of the Defence Force immediately before that time.
(3) Subitem (2) does not limit the scope of subitem (1).
Same‑Sex Relationships
(Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008 (No. 144, 2008)
Schedule 4
16 Application provision
The amendments of sections 10 and 12 of the Defence Force
(Home Loans Assistance) Act 1990 made by this Schedule apply in relation to
an application for an entitlement certificate made on or after the commencement
of this Schedule.
22 Application provision
The amendments of sections 14, 15, 17 and 18 of the Defence
Force (Home Loans Assistance) Act 1990 made by this Schedule apply in
relation to an application made under section 14 of that Act on or after
the commencement of this Schedule.
24 Application provision
If:
(a) a person is an entitled person
immediately before the commencement of the amendment of paragraph 20(2)(d) of
the Defence Force (Home Loans Assistance) Act 1990 made by this
Schedule; and
(b) apart from this item, subsidy
would not become payable to the person on a loan on or after that commencement;
and
(c) subsidy would not become payable
to the person on the loan only because of the amendment;
the amendment does not apply in respect of the person and the
loan.
35 Application provision
To avoid doubt, the amendment of paragraph 29(c) of the Defence
Force (Home Loans Assistance) Act 1990 made by this Schedule does not apply
in relation to a subsidised loan on a property where the ownership of the
property was converted from a joint tenancy into a tenancy in common with
effect before the commencement of the amendment.