Bills Digest no. 141 2007–08
Defence Home Ownership Assistance Scheme Bill
2008
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Defence
Home Ownership Assistance Scheme Bill 2008
Date
introduced: 28 May
2008
House: House of Representatives
Portfolio: Defence
Commencement:
Sections 1 and 2 on the
day on which it receives the Royal Assent; sections 3 to 85 on
the later of, the day on which it receives the Royal Assent, or 1
July 2008.
Links: The
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
The purpose of the Bill is to
establish a home ownership assistance scheme which will be
available to eligible members of the Australian Defence Force (ADF)
who are serving on or after 1 July 2008. Members are offered
progressively higher levels of benefits as an incentive to remain
in active service.
The former Government s White Paper entitled Defence
2000: Our Future Defence Force highlighted the need for the ADF
to retain skilled and experienced people, noting that it was a
priority concern for the Government to ensure that people do not
leave the ADF when they are of most value.[1]
The White Paper followed on the heels of a
report by the Australian National Audit Office on retention of
military personnel.[2] The objective of the audit was to review the management
of personnel retention within the ADF with a view to evaluating the
measures Defence has in place to monitor, and control, the flow of
trained personnel from the Services. It found that Defence was
making considerable efforts to ensure that the conditions of
service for members did not become a factor in members decisions to
separate from the military.
In 2003, the Australian National Audit Office published a follow
up
report which concluded that:
action to reduce the flow of members from the
ADF would save resources lost in the training of members who leave
and in the resources that need to be applied to train their
replacements. Expenditure on retention has the potential to be much
more cost effective than expenditure on recruitment and
training.[3]
Despite the recognition of the importance of effective retention
of trained personnel, the ADF suffered something of a recruitment
and retention crisis in 2005.[4] This followed the release of the results of the
2004 Defence Attitude Survey which showed that one in three
military personnel surveyed wanted to quit on the grounds of,
amongst other things, poor pay and conditions.[5]
The Australian Strategic Policy Institute reported that despite
spending $500 million over five years on initiatives to improve the
recruitment and retention of military personnel, the process of
building ADF numbers had stalled. Not only had the size of the
permanent ADF fallen for two years in a row but the average
strength achieved in the financial year 2004/05 was almost a
thousand below the target that had been set.[6] These diminishing numbers occurred at a
time when Australia was deploying personnel to a diverse range of
activities. Major General Michael Jeffery listed the expected
future calls on the ADF as follows:
- Regional Assistance Missions to provide support throughout the
South West Pacific in similar ways to the assistance which had
already been provided to the Solomon Islands
- United Nations contributions in the prevention of genocide and
famine and for health support functions
- countering terrorism locally, regionally and globally, and
- disaster support to the civil community.[7]
The Bills
Digest for the Defence Force (Home Loans Assistance) Amendment
Bill 2007 provides the following information about the current
Defence HomeOwner Scheme (DHOS).
The DHOS was introduced in 1991 to assist eligible members and
ex-members of the Australian Defence Force to purchase their own
home by providing a subsidy on the interest of a home loan borrowed
from the approved lender, the National Australia Bank.
The scheme is administered in accordance with the Defence
Force (Home Loans Assistance) Act 1990 (the 1990 Act). The
Defence Housing Authority administers the scheme on behalf of the
Department of Defence.
Under the current scheme, ADF
personnel must serve a set period ( basic service period ) before
qualifying for the scheme. The basic service period is:
- regular service personnel who are still serving - five years of
continuous effective full-time service, or
- regular service personnel with less than 15 years of effective
full-time service, and have been discharged with a compensable
disability - basic service period is waived, or
- active and emergency reserve personnel still serving after 8
November 1996 - eight years of continuous efficient service (where
the annual statutory training obligation has been met each
financial year).
However, regular service personnel with warlike (Somalia,
Cambodia, East Timor, Afghanistan and Iraq) or operational service
need not serve the basic service period in order to qualify.
Warlike service is the period of service in an operational area
defined as warlike by the Minister for Defence.
Normally, eligible ADF members are entitled to one year of
subsidy for each completed year of service after completing their
respective basic service period, up to a maximum of 20
years of subsidy. Members with warlike service are eligible for an
extended subsidy period.
The subsidy is equal to 40% of the average monthly
interest on the loan, calculated on a 25 year loan period.
The maximum loan amount eligible for the subsidy is $80,000 per ADF
member (a married or defacto couple who were both eligble ADF
members could get $160,000).
In May 2006 a
review of the scheme, which was due to end on 31 December 2006,
was announced. The purpose of the review was to examine ways of
improving the DHOS and to take advantage of the more competitive
conditions in the house finance market.[8] The Defence Force (Home Loans
Assistance) Amendment Act 2006 extended the life of the scheme
for a further year so that the review could be carried out.
In the 2007/08 Budget, the then Minister for Defence, the Hon.
Dr Brendan Nelson, released some details of the Government s
response to the Review. The key proposals would:
- replace the old home loans assistance scheme
- provide contemporary and relevant home loan assistance which
would reflect housing prices
- provide increasing entitlements as members serve beyond key
exit points
- be responsive to changes in the housing market, and
- provide flexibility and choice by giving a number of mortgage
providers.
The Defence Force (Home Loans
Assistance) Amendment Act 2007 provided for a further
extension to the DHOS to 30 July 2008 to allow time for the new
Scheme, announced in the 2007 Budget, to be fully developed and
implemented.
However, relevant legislation had not been introduced when
Parliament was prorogued on 15 October 2007.
The Hon. Bob Baldwin has stated that
the coalition supports the Bill on the grounds that the new DOHS
was a Howard government initiative and the 2007/08 budget provided
relevant funding.[9]
This bills digest should be read in conjunction with the
Bills Digest for the Defence Home Ownership Assistance Scheme
(Consequential Amendments) Bill 2008.
The financial implications of the new home ownership assistance
scheme are:
- Defence will meet the ongoing monthly subsidy payments.
- Defence will meet administrative costs of the scheme, including
assessing applications for entitlement and payment of subsidy.
- Defence will pay Fringe Benefits Tax in relation to the
subsidy, which is a reportable fringe benefit.
The costs of the above will be, to some extent, offset by
payment by loan providers to the Commonwealth, of a premium
amounting to $169.87 million over 10 years. All costs and revenue
will be dependant on the extent of take-up of subsidised loans
under the scheme.[10]
This Bill will require funding for the scheme to be provided as
an administered appropriation to the Department of Defence. The
2008-09 Federal Budget
approved funding of $988.965 million over the period 2008-09 to
2017-18.
Part 1 contains preliminary provisions.
The definitions in clause 3 which are relevant
to this section are:
Compensable condition means a condition,
disease, illness or injury suffered by a person for which
compensation is, has been or would be payable under the
following:
- the Safety, Rehabilitation and Compensation Act
1988
- the Veterans Entitlements Act 1986
- the Military Rehabilitation and Compensation Act 2004
or
- a law of the Commonwealth prescribed by regulations.
Effective service is service in
the Defence Force by the person in accordance with the
regulations.
Foreign service member means a member of the
Defence Force who had been a member of the armed forces of a
foreign country.
Partner a person is the partner of another
person if the two persons have a relationship as a couple (whether
the persons are different sexes or the same sex) and ordinarily
live with each other on a permanent and bona fide domestic
basis.
Permanent Forces means the Permanent Navy, the
Regular Army or the Permanent Air Force.
Reserves means the Naval Reserve, the Army
Reserve or the Air Force Reserve.
Clause 5 provides that, for the purposes of the
Scheme, a person who has been engaged as a member of the Reserves
will be treated as a member of the Reserves until their engagement
ends or, when in a service year, the person does not perform
effective service.
Clause 7 lists the categories of persons who
will be eligible to participate in the home ownership assistance
scheme as:
- a serving member
- an incapacitated member
- a rejoining incapacitated member
- a rejoining member
- a separated member
- an old scheme member.
A person is eligible as a serving
member at a particular time (referred to as the
eligibility time throughout this Part) if the person is a member of
the Defence Force and has completed the relevant qualifying service
period : subclause 8(1). Subclause
8(2) provides that the qualifying service period is 4
years of effective service for a member of the Permanent Forces or
a foreign service member; and 8 years of effective service for a
member of the Reserves.
A person is eligible as an incapacitated
member if the person ceased being a member of the Defence
Force on or after 1 July 2008 because of a compensable condition
and has not become a member again: clause 9.
Clause 10 provides that a person
is eligible as a rejoining incapacitated member
if:
- the person stopped being a member of the Defence Force due to a
compensable condition and
- on or after 1 July 2008, again became a member of the Defence
Force
- no more than five years elapsed between the time the person
stopped being a member of the Defence Force and their return
and
- at the eligibility time, the person is a member of the Defence
Force who has completed the relevant qualifying service period
.
Subclause 10(2) provides that
the qualifying service period is 4 years of effective service for a
member of the Permanent Forces and 8 years of effective service for
a member of the Reserves.
Clause 11 states that a person
is eligible as a rejoining member if:
- the person stopped being a member of the Defence Force, having
been eligible immediately before that time and
- on or after 1 July 2008, again became a member of the Defence
Force
- no more than five years elapsed between the time the person
stopped being a member of the Defence Force and their return
and
- at the eligibility time, the person is a member of the Defence
Force.[11]
A person is eligible as a separated
member if the person stopped being a member of the Defence
Force on or after 1 July 2008, was eligible immediately before they
stopped being a member, and has not again become a member of the
Defence Force: clause 12.
A person is eligible to participate in the home
ownership assistance scheme as an old scheme member if the person
meets the requirements prescribed by the regulations:
clause 13.
This Part sets out the process by which an eligible person can
apply for, and be provided with, a subsidy certificate . Once
issued, the subsidy certificate can be given to a loan provider as
evidence of eligibility for subsidy under the home ownership
assistance scheme.
A person must apply to the Secretary[12] for a subsidy certificate on the
approved form: clause 14. Once the person s
application has been lodged, the Secretary must
give a subsidy certificate if the provisions of clauses 17 to 20
apply: subclause 16(2).
Under clause 17 a subsidy certificate
must be given to a person who:
- is eligible
- does not already hold a subsidy certificate which is in force
and
- where the person is not a member of the Defence Force, has not
already applied for a subsidy certificate.
Subclauses 17(2) and (3) provide
some qualification to the entitlement of an eligible person to
obtain a subsidy certificate as follows:
- For an incapacitated member , the Secretary
may give the subsidy certificate if the
application is made within two years of the time that the person
stopped being a member due to their compensable condition, or the
Secretary is satisfied that the compensable condition caused or
contributed to the person s failure to apply within two years:
subclause 17(2).
- For a separated member the Secretary may give
the subsidy certificate only if the application is made within two
years of the date the applicant stopped being a member of the
Defence Force: subclause 17(3).
Under clause 18 a subsidy certificate
must be given to a person where:
- the applicant is the surviving partner of a deceased
partner[13]
- the deceased partner was eligible immediately before their
death[14] and
- the person has not already applied or been given a subsidy
certificate in respect of the deceased partner.
Subclauses 18(2) and (3) provide
some qualification to the rights of a surviving partner s
entitlement to obtain a subsidy certificate as follows:
- the Secretary may give the subsidy certificate
only if the application is made within two years of the time of the
death of the deceased partner, or the date the deceased partner
ceased to be a member of the Defence Force, whichever, is the
earlier: subclause 18(2)
- the Secretary has the discretion to extend the two year
application period for a further year if satisfied that the late
application was reasonable: subclause 18(3).
Clause 19 provides an exception to the time
limits imposed under clauses 17 and 18 where a
subsidised loan has been discharged because the property that
secured the loan has been destroyed, compulsorily acquired under a
Commonwealth, State or Territory law or sold or transferred under
an order of a Court. In those circumstances the Secretary must give
a subsidy certificate as long as the relevant application is made
within 12 months after the subsidised loan was discharged.
Clause 20 provides an exception to the time
limit for issue of a subsidy certificate for an incapacitated
member. A subsidy certificate must be issued in circumstances where
the person was discharged from the Defence Force for a compensable
condition and finds it necessary to move to another house because
of factors directly attributable to that condition.
Clause 22 provides the period
during which the subsidy certificate is in force. The period starts
on the day stated on the subsidy certificate. The period ends on
the earliest of the day the subsidy commences, the day the
certificate is cancelled or 12 months after the date that the
subsidy certificate was issued.
The Secretary may vary a subsidy certificate if
it contains an error: clause 24. The Secretary may
also cancel a subsidy certificate in circumstances where it was
given as a result of a false or misleading statement or where the
person was not entitled to be given the certificate: clause
25.[15]
The definitions in clause 3 which are relevant
to this part are:
House means a single dwelling, including a unit
that is a single dwelling, but does not include:
- a dwelling which is unfit for habitation
- a dwelling which is to be compulsorily acquired under a law of
the Commonwealth, State or Territory or any local government
authority
- a caravan, houseboat, or any other mobile dwelling or
- a flat that is not a unit.
Subsidised borrower means a person to whom
subsidy is payable.
Subsidised loan means a loan in relation to
which subsidy is payable.
Subsidised loan account in relation to a
subsidised borrower who is party to a subsidised loan with a loan
provider, means the loan account maintained by the loan provider in
the name of the borrower in connection with the subsidised
loan.
Unit means a unit held under a strata title
system established under a law of a State or Territory together
with accompanying common property and any permanent improvement
such as a garage or storeroom.
Once a subsidy certificate has been issued, the amount of
subsidy to which the eligible person is entitled and the manner in
which it will be paid has to be determined.
Clause 26 provides that subsidy is payable as
either or both a monthly subsidy or a subsidy lump
sum.
Clause 28 provides that subsidy becomes payable
when:
- the loan is made by a declared loan provider[16]
- the loan is secured by a mortgage over an interest in land
and
- the conditions in clauses 29 to 34 are satisfied.
Subclause 28(4) provides that subsidy is
payable for only one loan at any one time.
Under clause 30, the Secretary must satisfied
that the loan which will be subsidised is to be used for any of the
following:
- to buy land on which a house already stands
- to buy land on which a house is to be constructed, renovated or
repaired (called building work )
- to undertake building work on land which is already owned by
the person or
- to discharge another loan which was used for any of the above
purposes.
In addition:
- the subsidised borrower (or the subsidised borrower and their
partner) must hold a 50% or greater interest in the land[17] and the land must be
in Australia: clause 31.
- where the subsidised loan is to buy land on which a house
already stands, the subsidised borrower, or a dependant of the
subsidised borrower, occupies the house as a home : clause
32, for at least the first year after the first
authorisation day for the subsidy: clause 39
and
- the land is not used primarily for carrying on a business,
trade or profession: clause 33.
Clause 34 sets out the
conditions in which a subsidy lump sum (rather than monthly
subsidy) becomes payable. It provides, amongst other things, that a
subsidy lump sum is payable only for the first home that the member
has purchased while the borrower has been a member of the Defence
Force: paragraph 34(1)(f).
Clause 36 contains a table which
sets out events and critical times. Any of the events which are
listed will cause subsidy to stop being payable. Subsidy ceases to
be payable from the start of the monthly authorisation period in
which the critical time occurs.
In addition, subsidy will stop being payable
if:
- building work is not completed within 2 years after the first
authorisation day for subsidy: clause 37
- if the subsidised borrower holds an interest of less than 50%
in the land: clause 38 or
- where the subsidised loan is to buy a house and land, or to
build a house, the subsidised borrower does not occupy the house as
a home for at least one year from the date of the first
authorisation day for subsidy, unless there are exceptional
circumstances: clauses 39 and 40
respectively.
Clause 42 requires a subsidised
borrower to give notice to the Secretary of any change in
circumstances which would cause the subsidy to stop being payable
within a reasonable time after the subsidised borrower because
aware of the event (called the constructive knowledge time ).
A subsidised borrower may request the Secretary,
on the approved form, to stop the payment of the subsidy:
clause 43.
The Secretary may, by written notice to the
subsidised borrower, revoke the authorisation of the payment of
subsidy where the Secretary is satisfied that it should never have
been given or was given because of a false or misleading statement
by the borrower or another person: clause
44.[18]
Where an authorisation is revoked, the subsidy that has been paid
is taken to have never been payable and may be recoverable by the
Commonwealth: subclause 44(4). Where the
subsidised borrower has died, the Commonwealth may give notice that
the authorisation has been revoked to the borrower s legal personal
representative: subclause 44(6).
Clause 45 provides that an
authorisation may be varied when a subsidised borrower has not
provided effective service in a year when they were a member of the
Reserves. In that case, the borrower may be entitled to subsidy as
a separated member. The Secretary must advise the subsidised
borrower in writing that this may effect the subsidy amount.
Clause 29 provides that subsidy becomes payable
if the subsidised borrower has a subsidy certificate which is in
force and has a service credit .
The first step is to work out the person s accrued
subsidy period in accordance with the table in
clause 47.
Clause 46 contains the method statement for
working out a person s service credit . This is the difference
between the number of months the person has undertaken specified
service at any particular time (the accrued subsidy period ) and
the number of months during which the person has already been
entitled to subsidy, including any subsidy under a previous
scheme.
Clause 48 provides additional months of subsidy
where a person has performed warlike service.[19] Subclause 48(2)
contains a table setting out the additional months of subsidy for
periods of warlike service ranging from three months or less to
more than nine months. According to subclause
48(3) where a person is repatriated from warlike service
because of wounds, injury or illness, the additional months of
service will be calculated as if the person continued to perform
warlike service until the end of the period the Secretary considers
that the person could reasonably be expected to have continued to
undertake warlike service.
Clauses 49-51 set out the necessary technical
formulae for working out the amount of monthly subsidy. The formula
in subclause 50(2) refers to the median interest
rate . Clause 53 provides that the Minister may,
by legislative instrument, either determine the median interest
rate or determine the method for calculating the median interest
rate .
In addition subclause 51(2) contains a table
which sets out the limit of the amount of the subsidised loan
payable to a subsidised borrower at a particular time. The amount
payable is referrable to the average house price . Clause
52 provides that the Minister may by legislative
instrument determine the average house price for the purposes of
the Act in a financial year.
Clause 54 determines the method of calculating
any subsidy lump sum which is payable to a subsidised borrower in
accordance with the provisions of clauses 34 and 58.
Clause 56 provides that the subsidy must be
paid to the loan provider[20] in accordance with either clause 57 or
clause 58 into the subsidised borrower s
subsidised loan account for the benefit of the borrower.
Clause 57 is about payment of monthly subsidy.
It is payable to a loan provider in accordance with a loan
agreement and any other relevant agreement or determination by the
Minister: subclause 57(1). The subsidy is paid on
a monthly basis in arrears in respect of the most recently ended
monthly authorisation period . This begins at the
start of a day of one month, and end immediately before the start
of a day of the next month: subclause 57(3).
Clause 58 is about payment of a subsidy lump
sum. It is payable to a loan provider in accordance with a loan
agreement and any other relevant agreement or determination by the
Minister: subclause 58(1).
Clause 60 applies where subsidy was payable to
a deceased partner in respect of an interest in land which is held
with the surviving partner as joint tenants. In that case, the
subsidy is transferred to the surviving partner and continues to be
payable in the same way as it had been paid to the deceased.
Where the surviving partner was not a joint tenant with the
deceased partner (paragraph 61(1)(a)) but their
interest is transferred to the surviving partner under a will or
under an intestacy law (paragraph 61(1)(b)), the
subsidy is suspended (subclause 61(2)) until the
transfer takes place and will be back paid to the date of the
suspension (subclause 61(3)).
Where the surviving partner was not a joint tenant with the
deceased partner and does not inherit their interest in the land on
which subsidy was payable, clause 62 provides
that:
- upon the death of the deceased partner borrower the subsidy is
suspended
- upon the transfer of the interest in the land to another
person, the subsidy is taken to have stopped with effect from the
start of the monthly authorisation period in which the death
occurred.
Clause 63 gives effect to clause
18 whereby a surviving partner is able to access a subsidy
certificate loan under the same criteria as would have been applied
to the deceased partner . Clause 64 contains a
table which sets out the eligibility class for the surviving
partner so that they are treated in the same way that the deceased
partner would have been treated had they not died.
Overpayments under this Act will occur when the Secretary has
paid an amount to a loan provider as subsidy into a subsidised loan
account when the overpaid amount was not payable. In that case the
debtor (that is, the subsidised borrower) must pay the amount due
to the Commonwealth under subclause 67(1). The
amount owing is the overpaid amount plus interest at the general
interest charge rate [21] per day: subclause 67(2).
Subclause 68(1) empowers the Secretary to give
notice in writing to a loan provider of the amount of a debt which
is to be deducted from an authorised loan account.[22] Subclause 68(2)
provides that the loan provider must comply with the notice by
paying out of the borrower s subsidised loan account either the
whole of the debt due to the Commonwealth or, if there are
insufficient funds in the subsidised loan account to meet the whole
of the debt, then the amount available in the subsidised loan
account.
Where a loan provider sells an interest in land
by way of enforcing a mortgage securing the subsidised loan, then
clause 69 requires that the loan provider must pay
the Commonwealth the amount of the debt out of any monies that the
loan provider would otherwise return to the debtor.
Clause 70 empowers the Secretary
to recover a debt due to the Commonwealth in a Court of competent
jurisdiction.
Clause 71 lists all of the decisions which are
reviewable decisions under the Act.
Clause 72 specifically provides that a declared
loan provider is not considered to be a person whose interests are
affected by the scheme.
The Secretary must give notice in writing to all of the persons
who are affected by a reviewable decision, including the reasons
for the decision and the person s right of review: clause
73. A person whose interests are affected by a reviewable
decision may apply to the Secretary for review of the decision. The
application for review must be in the approved form
(subclause 74(2)) and made within 28 days after
the person was notified of the decision, or such longer period as
the Secretary allows: subclause 74(3).
The Bill provides for a two-tiered mechanism of review. The
first tier is by way of internal review by a
reviewer appointed by the Secretary: clause 75.
Where the Secretary personally made the decision in dispute, then
the reviewer will be the Minister.[23] Where a delegate of the Secretary
made the decision in dispute, the reviewer will be the Secretary,
or another delegate who was not involved in making the reviewable
decision.
The reviewer is empowered to confirm, vary or set aside the
reviewable decision and substitute a new decision:
subclause 75(2).
The second tier provides for external review of
an internal review decision by the Administrative Appeals Tribunal:
clause 76. Subclause 76(2)
specifically excludes a declared loan provider from appealing
against an internal review decision.
Subclause 79(1) is about use and disclosure of
the personal information of an applicant for subsidy certificate, a
person who has been given a subsidy certificate, a person who is,
or has been, a subsidised borrower and their partner or
dependants.
Subclauses 79(2) and (3) provide that the
following entities may use personal information, or disclose
personal information to another of the entities, for a purpose
prescribed by regulation:
- the Secretary
- a delegate of the Secretary under section 81 or the Defence
Force (Home Loans Assistance) Act 1990 (the 1990 Act) or the
Defence Service Homes Act 1918 (the 1918 Act)
- a loan provider who has received an application for a
subsidised loan, or who has made a subsidised loan under this
Act
- a Bank which has received an application for subsidised loan,
or made a subsidised loan under the 1990 Act, and
- a credit provider who has received an application for a
subsidised advance, or made a subsidised advance under the 1918
Act.
Clause 80 provides that the Minister may
delegate to the Secretary or an SES employee or an acting SES
employee, the power to determine an average house price or the
median interest rate . Subclause 81(1) provides
that the Secretary delegate any of their powers and functions to a
Naval officer holding the rank of Commodore or higher, an Army
officer holding the rank of Brigadier or higher, an Air Force
officer holding the rank of Air Commodore or higher, or to an SES
or acting SES officer in the Department.
The Secretary may also delegate any or all of their functions to
an authorised Commonwealth contractor under subclause
81(2).
The Bill appears to be uncontroversial and to have general
support from both the Government and the Opposition.
Paula Pyburne
18 June 2008
Bills Digest Service
Parliamentary Library
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