Commonwealth: Defence Force (Home Loans Assistance) Act 1990 (Cth)

Defence Force (Home Loans Assistance) Act 1990 No. 14, 1991 Compilation No. 22 Compilation date: 14 October 2024 Includes amendments: Act No. 38, 2024 About this compilation This compilation This is a compilation of the Defence Force (Home Loans Assistance) Act 1990 that shows the text of the law as amended and in force on 14 October 2024 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents Part 1—Introductory 1 Short title 2 Commencement 3 Definitions 3A Operational service member 3B Warlike service member 3C Minister may declare warlike service 4 When do former members stop being eligible members? 5 Ownership of house 6 Family members 7 Breaking continuity of service 8 Multiple surviving spouses or de facto partners 9 Approval of agreement etc. Part 2—Entitlement certificates, loan increases and sales, purchases and transfers Division 1—Entitlement certificates 10 Application for certificate 11 Issue of certificate 12 Criteria for issue of certificate 13 Cancellation, variation or revocation of certificate Division 2—Loan increases 14 Application for approval in relation to loan increase 15 Grant of approval 16 Revocation of approval Division 3—Sale etc. of houses subject to subsidised loans 17 Application for approval in relation to sale, purchase or transfer 18 Grant of approval 19 Revocation of approval Part 3—Subsidy 20 When does subsidy become payable? 20A Condition of payment of subsidy—subsidy under one scheme only 21 Maximum amounts on which subsidy is payable 22 Minimum amounts on which subsidy is payable 23 Subsidy period—eligible persons 24 Subsidy period—widows and widowers 25 Calculation of amounts of subsidy 26 Joint loans to entitled persons who are spouses or de facto partners 27 Cancellation of subsidy 28 Request to cancel subsidy 29 When does subsidy stop? 30 What happens on the death of a borrower who is an eligible person? 31 Recovery of certain payments by Commonwealth 32 Waiver etc. Part 4—Miscellaneous 33 Internal review of reviewable decisions 34 Review of decisions by Administrative Review Tribunal 35 Subclause 8.4 of agreement not to be revoked or varied 36 Exchange of information 36A Use and disclosure of personal information 37 Delegation 38 Appropriation 39 Annual report 40 Regulations Schedule 1—Agreement between the Commonwealth and the Bank Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history 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 This Act may be cited as the Defence Force (Home Loans Assistance) Act 1990. 2 Commencement (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 Column 2 Number of years of effective full‑time service or composite service completed before the person's discharge 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 (aa) the Safety, Rehabilitation and Compensation (Defence‑related Claims) 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. 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 of 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 Federal Circuit and Family Court of Australia (Division 1); 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 (iaa) the Safety, Rehabilitation and Compensation (Defence‑related Claims) 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 Federal Circuit and Family Court of Australia (Division 1) 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 Federal Circuit and Family Court of Australia (Division 1)) 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 Review 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 Review Tribunal Act 2024, application may be made to the Administrative Review 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 Review Tribunal Act 2024, application may be made to the Administrative Review 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 Review Tribunal Act