Queensland: Building Boost Grant Act 2011 (Qld)

Building Boost Grant Act 2011 An Act to assist housing affordability, increase housing supply, and support employment in the housing construction industry, by establishing a scheme for the payment of grants to persons building or purchasing new homes Part 1 Preliminary Division 1 Introduction 1 Short title This Act may be cited as the Building Boost Grant Act 2011. 2 Commencement (1) The following provisions are taken to have commenced on 1 August 2011— (a) part 1, divisions 2 to 4, other than section 9(1)(h) and (4); (b) part 2, other than sections 18(e)(vii), 29, 32(2)(c)(iii) and 38(1)(a) and (b)(i) and (iii); (c) sections 94, 95(1) to (3), 102, 103, 105, 106 and 107; (d) schedule 2. (2) Part 7 commences immediately after the commencement of this section. Division 2 Purpose of the Act 3 Purpose of Act and its achievement (1) The purpose of this Act is to stimulate the housing market in Queensland in the following ways— (a) assisting the affordability of housing; (b) increasing the supply of housing; (c) supporting employment in the housing construction industry. (2) The purpose is achieved mainly by establishing a scheme for payment of a building boost grant. Division 3 Interpretation Subdivision 1 Dictionary 4 Definitions The dictionary in the schedule defines particular words used in this Act. Subdivision 2 Basic concepts 5 What is a building boost grant (1) Generally, a building boost grant is the grant payable under part 2. (2) A reference to a building boost grant for a home is a reference to a building boost grant for an eligible transaction relating to the home. 6 What is an eligible transaction (1) An eligible transaction is any of the following— (a) an eligible home purchase contract; (b) an eligible home building contract; (c) an eligible owner-builder arrangement. (2) Subsection (1) is subject to section 18. 7 Meaning of home (1) A building is a home if— (a) it is designed, or approved by a local government, for human habitation by a single family unit; and (b) it is suitable for use, and lawfully able to be used, as a place of residence; and (c) it is used or intended to be used mainly for residential purposes; and (d) it is fixed to land; and (e) the land on which it is fixed is used or intended to be used— (i) mainly for residential purposes; or (ii) mainly for primary production and for residential purposes. (2) Despite subsection (1), if an application is made for a building boost grant for a transaction for which the first home owner grant is paid or payable, a home, in relation to the application, has the same meaning as in the First Home Owner Grant Act. (3) Despite subsection (1)(c) and (e), a display home is also a home. 8 Meaning of new home (1) A new home is a home that— (a) has not been previously occupied or transferred as a place of residence; or (b) is a substantially renovated home. (2) For subsection (1)(b), a home is a substantially renovated home if— (a) the home is the subject of a home purchase contract; and (b) the sale of the home under the contract is, under the A New Tax System (Goods and Services Tax) Act 1999 (Cwlth), a taxable supply as a sale of new residential premises as defined under section 40-75(1)(b) of that Act; and (c) the home, as renovated, has not been previously occupied or transferred as a place of residence. 9 Meaning of relevant interest (1) A relevant interest in land is— (a) an estate in fee simple in the land; or (b) an interest as purchaser under— (i) a contract for the purchase from the Commonwealth or the State, or any Commonwealth or State instrumentality or authority, of an estate in fee simple in the land by instalments; or (ii) an instalment contract under the Property Law Act 1974, part 6, division 4 for the purchase of an estate in fee simple in the land; or (c) a person's right, given by a relative of the person, to occupy a home that is a detached dwelling built or to be built on land that is a part of land owned by the relative— (i) under a contract entered into by the person; or (ii) under an owner-builder arrangement; or (d) a manufactured home owner's interest in a site agreement for a site on which a manufactured home is positioned; or (e) a leasehold interest in the land granted by the Commonwealth or the State for which building a home is permitted under the terms of the lease or the Act under which the lease is granted; or (f) a sublessee's interest under a lease mentioned in paragraph (e) that is for a term of at least 10 years; or (g) an interest in a lease granted under— (i) the Aboriginal Land Act 1991, section 120(1) or (2); or (ii) the Torres Strait Islander Land Act 1991, section 85(1) or (2); or (h) another interest declared under a regulation to be a relevant interest. (2) Despite subsection (1), if an application is made for a building boost grant for a transaction for which the first home owner grant is paid or payable, a relevant interest, in relation to the application, has the same meaning as in the First Home Owner Grant Act. (3) Despite subsections (1) and (2), an interest is not a relevant interest at a particular time unless the holder of the interest has, or will have within 1 year after that time, a right to immediate occupation of the land. (4) A regulation under subsection (1)(h) may declare an interest to be a relevant interest in land even though the interest may not be recognised at law or in equity as an interest in land. (5) In this section— manufactured home owner means a home owner under the Manufactured Homes (Residential Parks) Act 2003, section 8. relative, of a person, means— (a) a parent, grandparent, child, stepchild, brother or sister of the person or the person's spouse; or (b) the spouse of anyone mentioned in paragraph (a). site agreement see the Manufactured Homes (Residential Parks) Act 2003, section 14. sublessee includes a sub-sublessee. 10 Meaning of unencumbered value (1) The unencumbered value of property is the value of the property determined without regard to— (a) any encumbrance to which the property is subject, whether contingently or otherwise; or (b) any arrangement— (i) the parties to which are not dealing with each other at arm's length; and (ii) that results in the reduction of the value of the property; or (c) any arrangement for which a significant purpose of any party to the arrangement was, in the commissioner's opinion, the reduction of the value of the property. (2) Also, the unencumbered value of property held by a person on trust must be determined without regard to the liabilities of the trust, including the liability to indemnify the trustee. (3) In this section— property means— (a) a home; or (b) land; or (c) a relevant interest in land. Division 4 Administration 11 Commissioner's functions and powers (1) The commissioner is responsible for the administration and enforcement of this Act. (2) The commissioner has the power to do all things necessary or convenient to be done for performing the commissioner's functions. (3) Without limiting subsection (2), the commissioner may, on behalf of the State— (a) enter into an agreement (an administration agreement) with a financial institution or other person for performing functions relating to administering the scheme for applications for and payment of building boost grants under this Act; and (b) revoke an administration agreement. Part 2 Building boost grants Division 1 Entitlement to grant 12 Entitlement of applicants to building boost grants The applicant for a building boost grant is entitled to be paid a building boost grant only if— (a) the transaction for which the grant is sought— (i) is an eligible transaction; and (ii) has been completed; and Note— However, for authorisation of payment of the grant before the completion of the eligible transaction, see section 33(2). (b) the applicant or, if there are 2 or more of them, each of the applicants, complies with the eligibility criteria under division 3; and (c) the application for the grant is properly made. Division 2 Eligibility for transactions Subdivision 1 Preliminary 13 What is the transaction commencement day The transaction commencement day is— (a) for a home purchase contract or home building contract—the day the contract is made; or (b) for an owner-builder arrangement for a home—the day the laying of the foundations for the home starts. Subdivision 2 Home purchase contracts 14 What is an eligible home purchase contract A home purchase contract is an eligible home purchase contract if— (a) it is for the purchase of a new home that is, or is to be, built on land in the State; and (b) the transaction commencement day is on or after 1 August 2011 and before 1 May 2012; and (c) either— (i) it is for the acquisition of a relevant interest in the land on which the home has been built; or (ii) it is for the acquisition of a relevant interest in the land on which the home is to be built, before completion of the contract, by or for the seller of the home and at the expense of the seller; and (d) it has been entered into by each person who on completion of the contract will have a relevant interest in the land; and (e) the total of the following is less than $600,000— (i) the unencumbered value of the home; (ii) the unencumbered value of the relevant interest in the residential land at the transaction commencement day for the contract; and (f) for a contract to purchase a new home on a proposed lot on an unregistered plan of subdivision of land— (i) the contract provides that the building work must start before 1 May 2013 and be completed before 1 May 2015; or Note— See section 120. (ii) if subparagraph (i) does not apply, the building work under the contract is— (A) started before 1 May 2013; and (B) completed before 1 May 2015, or within a longer period allowed by the commissioner. Subdivision 3 Home building contracts and owner-builder arrangements 15 Definition for sdiv 3 In this subdivision— prescribed building period, for a contract to have a home built or an owner-builder arrangement for a home, means the period— (a) starting on the day the laying of the foundations for the home starts; and (b) ending 18 months after that day. 16 What is an eligible home building contract A home building contract is an eligible home building contract if— (a) it is a comprehensive home building contract to have a new home built on land in the State; and (b) the transaction commencement day is on or after 1 August 2011 and before 1 May 2012; and (c) it has been entered into by each person who will, on completion of the contract, have a relevant interest in the land; and (d) the laying of the foundations for the home starts within— (i) 26 weeks after the transaction commencement day; or (ii) the longer period allowed by the commissioner; and (e) either— (i) it provides for the home being ready for occupation as a place of residence within the prescribed building period; or (ii) if subparagraph (i) does not apply, the home is ready for occupation as a place of residence within the prescribed building period or the longer period allowed by the commissioner; and (f) the total of the following is less than $600,000— (i) the consideration for the transaction; (ii) the unencumbered value of the relevant interest in the residential land on the transaction commencement day. 17 What is an eligible owner-builder arrangement An owner-builder arrangement is an eligible owner-builder arrangement if— (a) it is for the building of a new home on land in the State; and (b) the transaction commencement day is on or after 1 August 2011 and before 1 May 2012; and (c) the home is ready for occupation as a place of residence within the prescribed building period or the longer period allowed by the commissioner; and (d) the total of the following is less than $600,000— (i) the consideration for the transaction; (ii) the unencumbered value of the relevant interest in the residential land on the transaction commencement day. Subdivision 4 Ineligible transactions 18 Transactions that are not eligible transactions The following transactions are not eligible transactions— (a) a transaction for which the consideration is $600,000 or more; (b) a transaction between the applicant and a related person of the applicant, unless the first home owner grant is paid or payable for the transaction; (c) a home purchase contract for which transfer duty is not payable under the Duties Act 2001, other than because of— (i) the concession for first homes under section 92 of that Act; or (ii) the exemption for manufactured homes under section 138 of that Act; or (iii) the exemption for charitable institutions under section 414 of that Act; (d) a legally binding arrangement made on or after 14 June 2011 for which the sole or main purpose is to defer the transaction commencement day for a home purchase contract or home building contract to 1 August 2011 or a later day before 1 February 2012 (the post-eligibility period), including, for example— (i) terminating a home purchase or building contract made before 1 August 2011 and, making, in the post-eligibility period, a home purchase or building contract for the same or a substantially similar home; and (ii) granting, before 1 August 2011, an option to enter into a home purchase or building contract and exercising the option in the post-eligibility period; Editor's note— The building boost grant was publicly announced on 14 June 2011. (e) a transaction for which financial assistance is given by or for the Commonwealth or the State, other than the following assistance— (i) a first home owner grant; (ii) a concession for transfer duty for first homes under the Duties Act 2001, section 92; (iii) a Commonwealth First Home Saver Account contribution; (iv) a National Rental Affordability Scheme incentive; (v) a loan on commercial terms; (vi) assistance given to mitigate the effects of a natural disaster; (vii) other assistance under a financial assistance scheme prescribed under a regulation; (f) a transaction that the commissioner is satisfied forms part of a scheme or arrangement to circumvent limitations on, or requirements affecting, eligibility or entitlement to the building boost grant. Division 3 Eligibility for applicants Subdivision 1 Preliminary 19 Meaning of substantially Australian owned (1) An entity is substantially Australian owned if it is— (a) a listed corporation; or (b) another corporation (a relevant entity) in which a significant proportion of the shares in the corporation is directly or ultimately owned, other than as a trustee, by an Australian entity; or (c) a listed unit trust; or (d) another trust (also a relevant entity) in which a significant proportion of trust interests in the trust are directly or ultimately owned, other than as a trustee, by an Australian entity. (2) Subsection (3) applies if the commissioner can not reasonably decide if shares or trust interests in a relevant entity are ultimately owned by an Australian entity, including, for example, because of the complexity of the arrangements under which the shares or trust interests are held. (3) Despite subsection (1)(b) and (d), the relevant entity is substantially Australian owned if the commissioner is reasonably satisfied the shares or trust interests are probably ultimately owned by an Australian entity. (4) Despite subsections (1) to (3), a relevant entity is not substantially Australian owned if the commissioner considers, having regard to the relevant factors, that an ineligible individual may significantly benefit financially, other than as a trustee, from the relevant entity. (5) For subsection (4), the relevant factors are as follows— (a) the terms of the documents constituting the relevant entity; (b) the circumstances in which the relevant entity was established; (c) the operation of the relevant entity, including, for example, the way money and other assets of the entity are, and are likely to be, dealt with and distributed; (d) the relationship between the ineligible individual and any other person in establishing or operating the relevant entity; (e) if the relevant entity is a trust— (i) whether the trustee is a listed corporation, a corporation to which subsection (1)(b) applies, an Australian citizen or a permanent resident; and (ii) whether the trustee is accustomed to acting, or likely to act, in accordance with the directions or wishes of the ineligible individual; (f) if the relevant entity is a corporation or a trust for which the trustee is a corporation, whether the corporation or its executive officers or shareholders are accustomed to acting, or likely to act, in accordance with the directions or wishes of the ineligible individual; (g) other relevant matters. (6) In this section— Australian entity means— (a) a listed corporation; or (b) a listed unit trust; or (c) an individual who is an Australian citizen or a permanent resident. ineligible individual means an individual other than an Australian citizen or permanent resident. listed corporation means a corporation in which a significant proportion of the shares in the corporation are quoted on the market operated by the Australian Securities Exchange. listed unit trust means a unit trust in which a significant proportion of the units in the trust are quoted on the market operated by the Australian Securities Exchange. reasonably satisfied means to be satisfied on grounds that are reasonable in the circumstances. significant proportion— (a) of shares in a corporation—means the number of shares comprising at least 75% of the value of all the shares in the corporation; or (b) of trust interests or units in a trust—means trust interests or units comprising at least 75% of the value of all the trust interests or units in the trust. 20 Meaning of ultimately owned Shares in a corporation (the relevant property) or trust interests in a trust (also the relevant property) are ultimately owned by an entity (the ultimate owner) if, through a series of entities owning shares in corporations or trust interests in trusts, or a combination of any of them, there is a connection between the relevant property and the ultimate owner. Subdivision 2 Particular eligibility criteria 21 Eligible applicants (1) Without limiting division 1, 2 or 4, to be eligible for a building boost grant for a transaction, an applicant must— (a) have a relevant interest in the land on which the home is, or is to be, built; and (b) comply with the occupancy requirement; and (c) be any of the following— (i) if applying as a trustee—a trustee of a trust that is substantially Australian owned; (ii) an individual who is— (A) at least 18 years of age at the transaction commencement day; and (B) an Australian citizen or a permanent resident; (iii) a corporation that is substantially Australian owned. (2) This section is subject to sections 22 and 26. 22 General restriction on eligibility A building boost grant is payable only once for the following— (a) a particular eligible transaction; (b) a transaction relating to a particular home; (c) a particular relevant interest held in land on which a new home is, or is to be, built. Example for paragraph (c)— A person has a home (the first home) built on a parcel of land (the original parcel) owned by the person, for which a building boost grant is paid. The original parcel is subdivided and the person has another home (the second home) built on the subdivided part of the original parcel on which the first home is built. Because the grant has already been paid for the relevant interest in the original parcel, the grant is not payable for the same relevant interest for the building of the second home. 23 Eligibility for multiple grants (1) Subject to subsections (2) and (3), this Act does not prevent the same person from being entitled to receive 2 or more building boost grants for separate transactions. (2) Subsection (3) applies if— (a) either— (i) a person or a related person of that person has made 4 applications for building boost grants that have not been decided by the commissioner; or (ii) the commissioner has previously paid, or authorised payment of, a building boost grant to a person or a related person of that person at least 4 times; and (b) the person makes another application for a building boost grant for a transaction (the relevant transaction). (3) The applicant is entitled to receive a building boost grant for the relevant transaction only if the commissioner is satisfied, having regard to the relevant factors, that the transaction— (a) has been entered into for a purpose that advances the purpose of the Act; and (b) is not an artificial, blatant or contrived arrangement; and (c) has not been entered into for the sole or main purpose of obtaining a building boost grant. (4) For subsection (3), the relevant factors are as follows— (a) the relationship between the applicant and the following persons— (i) the other party to the relevant transaction; (ii) a person providing financial assistance for the transaction; (iii) a person with whom the applicant has entered, or is likely to enter, into a related arrangement; (b) the form and substance of the relevant transaction and any related arrangement, including, for example— (i) legal rights and obligations arising from the transaction or arrangement; and (ii) the commercial nature of the transaction or arrangement; (c) the way in which the relevant transaction and any related arrangement have been entered into or carried out; (d) whether or not the applicant has carried out similar transactions before 1 August 2011 and, if so, the way in which the transactions were carried out; (e) any change in a person's financial position that has happened or may reasonably be expected to happen because of the relevant transaction or related arrangement. (5) In this section— related arrangement means an arrangement made between the applicant and another person under which a person may obtain a financial benefit from the applicant's acquisition or occupation of the home. 24 Application for ruling for eligibility of particular transactions (1) A person may apply to the commissioner for a ruling on whether a transaction satisfies the matters mentioned in section 23(3)(a), (b) and (c). (2) The application must be— (a) in the approved form; and (b) accompanied by enough information to enable the commissioner to make a ruling. (3) The commissioner must give the person who applied for the ruling— (a) a notice of the ruling; and (b) if the ruling is that the commissioner is not satisfied of the matters mentioned in section 23(3)(a), (b) and (c)—a decision notice for the ruling. 25 Occupancy requirement (1) An applicant for a building boost grant for a home must ensure the home is occupied as a place of residence for a total of at least 3 months before the first of the following happens— (a) the end of 1 year after the completion of the transaction; (b) the applicant transfers the applicant's relevant interest in the land on which the home is, or is to be, built. (2) For subsection (1)— (a) the home need not be occupied by the applicant; and (b) the 3 months need not be continuous. (3) Despite subsection (1), if a first home owner grant is paid or payable for the relevant transaction for the home and the applicant satisfies the residence requirements under the First Home Owner Grant Act for the home, the applicant is taken to have complied with the occupancy requirement. 26 Particular entities not eligible for grant (1) The following entities are not eligible for a building boost grant for a transaction— (a) a person who carries on a business involving building homes and enters into the transaction in carrying on the business; (b) the Commonwealth, the State or another State; (c) a government agency. (2) In this section— government agency means any of the following — (a) a government entity under the Public Sector Act 2022, section 276; (b) a government owned corporation; (c) a rail government entity under the Transport Infrastructure Act 1994; (d) a local government; (e) a local government owned corporation, or a subsidiary of a local government owned corporation, under the Local Government Act 2009; (f) a department or administrative office of the government of the Commonwealth or another State; (g) a statutory body representing the Commonwealth or another State. Division 4 Application for grant Subdivision 1 General provisions 27 Application for grant (1) An application for a building boost grant must be made to the commissioner or an agent of the commissioner. (2) The application must be— (a) in the approved form; and (b) supported by the information required by the commissioner. (3) The application may be made only within the period (the application period)— (a) starting on the transaction commencement day of the eligible transaction to which the application relates; and (b) ending 1 year after the completion of the eligible transaction to which the application relates. (4) However, the commissioner may allow an application to be made before or after the application period. (5) This section is subject to section 29. 28 Each interested person must apply (1) An application for a building boost grant for a transaction for a home can be made only if each interested person is an applicant. (2) For subsection (1), a person is an interested person in a home if the person will have, on completion of the transaction, a relevant interest in the land on which the home is, or is to be, built. (3) However, if an applicant for a building boost grant is the holder of a coexisting relevant interest in the land on which a home is, or is to be, built, the holder of another relevant interest in the land is not an interested person in the home for subsection (1). (4) In this section— coexisting relevant interest means a relevant interest in land mentioned in section 9(1)(c), (d), (f) or (g). Subdivision 2 Notice of intention to apply 29 Prospective applicant must give notice of intention to apply for grant (1) This section applies if an applicant— (a) has entered into a transaction for a home; and (b) does not intend to make, or has not made, an application for a building boost grant for the transaction before the later of the following days (the notice day)— (i) 1 September 2012; (ii) a later day, if any, allowed by the commissioner; and (c) intends to apply for a building boost grant for the transaction after the notice day. (2) The applicant must, before the notice day, give the commissioner or an agent of the commissioner a notice (a preliminary notice), in the approved form, of intention to apply for a building boost grant for the transaction. (3) If the applicant does not give the preliminary notice before the notice day, the applicant can not apply for a building boost grant for the transaction. (4) However, subsections (2) and (3) do not apply if— (a) a first home owner grant for the transaction is paid or payable to the applicant; and (b) the applicant applies for a building boost grant for the transaction no later than applying for the first home owner grant. Division 5 Decision on application 30 Additional information for application (1) The commissioner may, by notice, ask an applicant to give the commissioner further reasonable information or documents about the application in the following period (the information period)— (a) the period of at least 5 business days stated in the notice; (b) any longer period agreed between the commissioner and the applicant. (2) The commissioner may refuse the application if the applicant does not give the commissioner the information or documents in the information period, without reasonable excuse. 31 Commissioner to decide applications (1) The commissioner must— (a) consider each application for a building boost grant; and (b) either— (i) if satisfied a building boost grant is payable—decide to authorise payment of the grant; or (ii) otherwise—refuse the application. (2) If the commissioner decides to authorise payment of the grant, the commissioner may impose a reasonable condition on the grant. (3) The commissioner must give the applicant notice of— (a) the decision; and (b) if a condition is imposed—the condition. (4) However, if the commissioner has authorised payment of the grant with no conditions, the payment of the grant is taken to be notice of the decision for subsection (3)(a). (5) If the commissioner decides to refuse the application or impose a condition on the grant, the notice of the decision must include or be accompanied by a decision notice for the decision. Division 6 Payment of grant 32 Amount of grant (1) The amount of a building boost grant for a home is the lesser of the following— (a) the consideration for the transaction; (b) $10,000. (2) For working out the amount of the consideration under subsection (1)(a), the amount must be reduced by the amount for any of the following that the applicant for the grant has received or is entitled to receive— (a) a Commonwealth First Home Saver Account contribution used, or to be used, for the transaction; (b) a National Rental Affordability Scheme incentive relating to the home for the financial year starting on 1 July 2011; (c) any of the following paid or payable for the transaction— (i) the first home owner grant; (ii) an amount relating to the consideration for the transaction, including, for example, an insurance payment to build the home; (iii) an amount paid or payable under another financial assistance scheme prescribed under a regulation. (3) However, the amount of the consideration under subsection (1)(a) must not be reduced by the amount of any assistance that the Commonwealth or State has given the applicant to mitigate the effects of a natural disaster. 33 When grant is payable (1) A building boost grant for a transaction for a home is payable— (a) if the transaction is completed before the application for the grant is decided—when payment of the grant is authorised; or (b) otherwise—after the transaction is completed. (2) However, the commissioner may pay the grant before the transaction is completed if the commissioner is satisfied it is appropriate to pay the grant in the circumstances. 34 How grant must be paid (1) A building boost grant must be paid— (a) by electronic funds transfer, cheque or in any other way the commissioner considers appropriate; and (b) to— (i) the applicant; or (ii) someone else to whom the applicant directs the commissioner in writing to pay the grant. (2) If the applicant requests, the commissioner can apply the amount of a building boost grant, or part of the amount, towards a liability for State taxes, fees or charges. Division 7 Repayment of grant Subdivision 1 Particular grounds for repayment 35 Contravention of consideration requirement on completion (1) This section applies if— (a) a building boost grant is paid for a home purchase contract (the relevant transaction) mentioned in section 14(c)(ii) before the transaction is completed; and (b) on completion of the relevant transaction, the unencumbered value of the home results in it not being an eligible transaction under section 14(e). (2) This section also applies if— (a) a building boost grant is paid for a home building contract or owner-builder arrangement (each, also the relevant transaction) before the transaction is completed; and (b) on completion of the relevant transaction, the consideration for the transaction results in it not being an eligible transaction under section 16(f) or 17(d). (3) The applicant for the grant is required within 28 days after completion of the relevant transaction to— (a) give the commissioner notice of the ineligibility of the transaction; and (b) repay the amount of the grant. (4) The applicant must not contravene the requirement under subsection (3) unless the applicant has a reasonable excuse. Maximum penalty—40 penalty units. (5) For a joint application, each applicant is individually liable to comply with subsection (3), but compliance by any 1 or more of them must be regarded as compliance by both or all. 36 Contravention of occupancy requirement (1) This section applies if a building boost grant for a home is paid to an applicant before the applicant has complied with the occupancy requirement for the home. (2) If the occupancy requirement is contravened or the applicant knows, or reasonably ought to know, it will be contravened, the applicant is required within 14 days after the relevant day to— (a) give notice of the contravention to the commissioner; and (b) repay the amount of the grant. (3) The applicant must not contravene the requirement under subsection (2) unless the applicant has a reasonable excuse. Maximum penalty—40 penalty units. (4) For a joint application, each applicant is individually liable to comply with subsection (2), but compliance by any 1 or more of them must be regarded as compliance by both or all. (5) In this section— relevant day means the earlier of the following— (a) the day when it first becomes apparent, or reasonably ought to be apparent, to the applicant that the occupancy requirement can not be complied with; (b) the end of 1 year after the completion of the transaction. 37 Contravention of repayment requirement under condition of grant (1) This section applies if a condition imposed on a building boost grant states a requirement (a repayment requirement) that, if the condition is contravened, the applicant for the grant must— (a) give the commissioner notice of the contravention within a stated period; and (b) repay the grant within a stated period. (2) The applicant must not contravene the repayment requirement unless the applicant has a reasonable excuse. Maximum penalty—40 penalty units. (3) For a joint application, each applicant is individually liable to comply with the repayment requirement but, compliance by any 1 or more of them must be regarded as compliance by both or all. Subdivision 2 Notice to repay 38 Repayment notice (1) This section applies if— (a) a person contravenes section 35(3) or 36(2) or a repayment requirement; or (b) a building boost grant has been wrongly paid to a person because of— (i) a contravention of section 81; or (ii) a mistake to which the person has not contributed; or Example— an administrative or clerical error (iii) another reason. (2) The commissioner may give the applicant or recipient a notice (a repayment notice)— (a) stating— (i) the circumstances under subsection (1) for which the notice is given; and (ii) that the person is required to repay the amount of the building boost grant within a stated period of at least 60 days; and (b) including or accompanied by a decision notice for the decision to issue the repayment notice. Note— A repayment notice may also be given under section 115(3). Part 3 Enforcement Division 1 Authorised investigations 39 Powers on investigation (1) For carrying out an authorised investigation, the commissioner may, by notice, require a person to do 1 or more of the following— (a) give the commissioner written information stated in the notice; (b) attend at a stated time and place before the commissioner, or a stated authorised officer, to answer questions relevant to the investigation; (c) produce a document relevant to the investigation to the commissioner at a reasonable stated time and place. (2) The commissioner may require information given, or to be given, under this section to be verified on oath or by statutory declaration. (3) A person must not, without reasonable excuse, fail to comply with a requirement under this section. Maximum penalty—40 penalty units. (4) A person who, having attended before the commissioner or officer in response to a notice under subsection (1)(b), must not fail to answer a question relevant to the investigation unless the person has a reasonable excuse. Maximum penalty—40 penalty units. (5) It is a reasonable excuse for an individual to fail to comply with a requirement under subsection (3) to give information or produce a document or to answer a question under subsection (4) if complying with the requirement or answering the question might tend to incriminate the individual. 40 Access to particular records without fee For carrying out an authorised investigation, the commissioner may, without payment of a fee, inspect and take copies of any record relevant to the investigation that is kept by a public sector unit or local government. Division 2 General provisions about authorised officers Subdivision 1 Appointment 41 Authorised officers under divs 2 – 6 This division and divisions 3 to 6 include provision for the appointment of authorised officers, and give authorised officers particular powers. 42 Appointment and qualifications (1) The commissioner may, by instrument in writing, appoint a public service employee as an authorised officer. (2) However, the commissioner may appoint a person as an authorised officer only if the commissioner is satisfied the person is qualified for appointment because the person has the necessary expertise or experience. 43 Appointment conditions and limit on powers (1) An authorised officer holds office on any conditions stated in— (a) the authorised officer's instrument of appointment; or (b) a signed notice given to the authorised officer; or (c) a regulation. (2) The instrument of appointment, a signed notice given to the authorised officer or a regulation may limit the authorised officer's powers. (3) In this section— signed notice means a notice signed by the commissioner. 44 When office ends (1) The office of a person as an authorised officer ends if any of the following happens— (a) the term of office stated in a condition of office ends; (b) under another condition of office, the office ends; (c) the authorised officer's resignation under section 45 takes effect. (2) Subsection (1) does not limit the ways the office of a person as an authorised officer ends. (3) In this section— condition of office means a condition under which the authorised officer holds office. 45 Resignation An authorised officer may resign by signed notice given to the commissioner. Subdivision 2 Identity cards 46 Authorised officer's identity card (1) The commissioner must issue an identity card to each authorised officer. (2) The identity card must— (a) contain a recent photograph of the authorised officer; and (b) contain a copy of the authorised officer's signature; and (c) identify the person as an authorised officer under this part; and (d) state an expiry day for the card. (3) This section does not prevent the giving of a single identity card to a person for this Act and other purposes. 47 Production or display of identity card (1) In exercising a power in relation to a person in the person's presence, an authorised officer must— (a) produce the authorised officer's identity card for the person's inspection before exercising the power; or (b) have the identity card displayed so it is clearly visible to the person when exercising the power. (2) However, if it is not practicable to comply with subsection (1), the authorised officer must produce the identity card for the person's inspection at the first reasonable opportunity. (3) For subsection (1), an authorised officer does not exercise a power in relation to a person only because the authorised officer has entered a place as mentioned in section 51(1)(b) or (d). 48 Return of identity card If the office of a person as an authorised officer ends, the person must return the person's identity card to the commissioner within 21 days after the office ends unless the person has a reasonable excuse. Maximum penalty—40 penalty units. Subdivision 3 Miscellaneous powers 49 References to exercise of powers If— (a) a provision of this Act refers to the exercise of a power by an authorised officer; and (b) there is no reference to a specific power; the reference is to the exercise of all or any authorised officers' powers under this Act or a warrant, to the extent the powers are relevant. 50 Reference to document includes reference to reproductions from electronic document A reference in this Act to a document includes a reference to an image or writing— (a) produced from an electronic document; or (b) not yet produced, but reasonably capable of being produced, from an electronic document, with or without the aid of another article or device. Division 3 Entry of places by authorised officers Subdivision 1 Power to enter 51 General power to enter places (1) An authorised officer may enter a place if— (a) an occupier at the place consents under subdivision 2 to the entry and section 54 has been complied with for the occupier; or (b) it is a public place and the entry is made when the place is open to the public; or (c) the entry is authorised under a warrant and, if there is an occupier of the place, section 61 has been complied with for the occupier; or (d) it is a place of business and the entry is made when the place is— (i) open for carrying on business; or (ii) otherwise open for entry. (2) For subsection (1)(d), a place of business does not include a part of the place where a person resides. (3) If the power to enter arose only because an occupier of the place consented to the entry, the power is subject to any conditions of the consent and ceases if the consent is withdrawn. (4) If the power to enter is under a warrant, the power is subject to the terms of the warrant. (5) In this section— public place means a place, or part of a place, the public is entitled to use or is open to, or used by, the public, whether or not on payment of an admission fee. Subdivision 2 Entry by consent 52 Application of sdiv 2 This subdivision applies if an authorised officer intends to ask an occupier of a place to consent to the authorised officer or another authorised officer entering the place under section 51(1)(a). 53 Incidental entry to ask for access For the purpose of asking the occupier for the consent, an authorised officer may, without the occupier's consent or a warrant— (a) enter land around premises at the place to an extent that is reasonable to contact the occupier; or (b) enter part of the place the authorised officer reasonably considers members of the public ordinarily are allowed to enter when they wish to contact an occupier of the place. 54 Matters authorised officer must tell occupier Before asking for the consent, the authorised officer must give a reasonable explanation to the occupier— (a) about the purpose of the entry, including the powers intended to be exercised; and (b) that the occupier is not required to consent; and (c) that the consent may be given subject to conditions and may be withdrawn at any time. 55 Consent acknowledgement (1) If the consent is given, the authorised officer may ask the occupier to sign an acknowledgement of the consent. (2) The acknowledgement must state— (a) the purpose of the entry, including the powers to be exercised; and (b) that the following has been explained to the occupier— (i) the purpose of the entry, including the powers intended to be exercised; (ii) the occupier is not required to consent; (iii) the consent may be given subject to conditions and may be withdrawn at any time; and (c) that the occupier gives the authorised officer or another authorised officer consent to enter the place and exercise the powers; and (d) the time and day the consent was given; and (e) any conditions of the consent. (3) If the occupier signs the acknowledgement, the authorised officer must immediately give a copy to the occupier. (4) If— (a) an issue arises in a proceeding about whether the occupier consented to the entry; and (b) an acknowledgement complying with subsection (2) for the entry is not produced in evidence; the onus of proof is on the person relying on the lawfulness of the entry to prove the occupier consented. Subdivision 3 Entry under warrant 56 Application for warrant (1) An authorised officer may apply to a magistrate for a warrant for a place. (2) The authorised officer must prepare a written application that states the grounds on which the warrant is sought. (3) The written application must be sworn. (4) The magistrate may refuse to consider the application until the authorised officer gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires. Example— The magistrate may require additional information supporting the written application to be given by statutory declaration. 57 Issue of warrant (1) The magistrate may issue the warrant for the place only if the magistrate is satisfied there are reasonable grounds for suspecting that there is at the place, or will be at the place within the next 7 days, a particular thing or activity that may provide evidence of an offence against this Act. (2) The warrant must state— (a) the place to which the warrant applies; and (b) that a stated authorised officer or any authorised officer may with necessary and reasonable help and force— (i) enter the place and any other place necessary for entry to the place; and (ii) exercise the authorised officer's powers; and (c) particulars of the offence that the magistrate considers appropriate; and (d) the name of the person suspected of having committed the offence unless the name is unknown or the magistrate considers it inappropriate to state the name; and (e) the evidence that may be seized under the warrant; and (f) the hours of the day or night when the place may be entered; and (g) the magistrate's name; and (h) the day and time of the warrant's issue; and (i) the day, within 14 days after the warrant's issue, the warrant ends. 58 Electronic application (1) An application under section 56 may be made by phone, fax, email, radio, videoconferencing or another form of electronic communication if the authorised officer reasonably considers it necessary because of— (a) urgent circumstances; or (b) other special circumstances, including, for example, the authorised officer's remote location. (2) The application— (a) may not be made before the authorised officer prepares the written application under section 56(2); but (b) may be made before the written application is sworn. 59 Additional procedure if electronic application (1) For an application made under section 58, the magistrate may issue the warrant (the original warrant) only if the magistrate is satisfied— (a) it was necessary to make the application under section 58; and (b) the way the application was made under section 58 was appropriate. (2) After the magistrate issues the original warrant— (a) if there is a reasonably practicable way of immediately giving a copy of the warrant to the authorised officer, including, for example, by sending a copy by fax or email, the magistrate must immediately give a copy of the warrant to the authorised officer; or (b) otherwise— (i) the magistrate must tell the authorised officer the information mentioned in section 57(2); and (ii) the authorised officer must complete a form of warrant, including by writing on it the information mentioned in section 57(2) provided by the magistrate. (3) The copy of the warrant mentioned in subsection (2)(a), or the form of warrant completed under subsection (2)(b) (in either case the duplicate warrant), is a duplicate of, and as effectual as, the original warrant. (4) The authorised officer must, at the first reasonable opportunity, send to the magistrate— (a) the written application complying with section 56(2) and (3); and (b) if the authorised officer completed a form of warrant under subsection (2)(b), the completed form of warrant. (5) The magistrate must keep the original warrant and, on receiving the documents under subsection (4)— (a) attach the documents to the original warrant; and (b) give the original warrant and documents to the clerk of the court of the relevant magistrates court. (6) Despite subsection (3), if— (a) an issue arises in a proceeding about whether an exercise of a power was authorised by a warrant issued under this section; and (b) the original warrant is not produced in evidence; the onus of proof is on the person relying on the lawfulness of the exercise of the power to prove a warrant authorised the exercise of the power. (7) This section does not limit section 56. (8) In this section— relevant magistrates court, in relation to a magistrate, means the Magistrates Court that the magistrate constitutes under the Magistrates Act 1991. 60 Defect in relation to a warrant (1) A warrant is not invalidated by a defect in— (a) the warrant; or (b) compliance with this subdivision; unless the defect affects the substance of the warrant in a material particular. (2) In this section— warrant includes a duplicate warrant mentioned in section 59(3). 61 Entry procedure (1) This section applies if an authorised officer is intending to enter a place under a warrant issued under this subdivision. (2) Before entering the place, the authorised officer must do or make a reasonable attempt to do the following things— (a) identify himself or herself to a person who is an occupier of the place and is present by producing the authorised officer's identity card or another document evidencing the authorised officer's appointment; (b) give the person a copy of the warrant; (c) tell the person the authorised officer is permitted by the warrant to enter the place; (d) give the person an opportunity to allow the authorised officer immediate entry to the place without using force. (3) However, the authorised officer need not comply with subsection (2) if the authorised officer believes on reasonable grounds that entry to the place without compliance is required to ensure the execution of the warrant is not frustrated. (4) In this section— warrant includes a duplicate warrant mentioned in section 59(3). Division 4 General powers of authorised officers after entering places 62 Application of div 4 (1) The powers under this division may be exercised if an authorised officer enters a place under section 51(1). (2) However, the powers under this division are subject to any conditions of any consent or terms of any warrant. 63 General powers (1) The authorised officer may do any of the following (each a general power)— (a) search any part of the place; (b) inspect, examine or film any part of the place or anything at the place; (c) place an identifying mark in or on anything at the place; (d) take an extract from, or copy, a document at the place, or take the document to another place to copy; (e) produce an image or writing at the place from an electronic document or, to the extent it is not practicable, take a thing containing an electronic document to another place to produce an image or writing; (f) take to, into or onto the place and use, any person, equipment and materials the authorised officer reasonably requires for exercising the authorised officer's powers under this division; (g) remain at the place for the time necessary to achieve the purpose of the entry. (2) The authorised officer may take a necessary step to allow the exercise of a general power. (3) If the authorised officer takes a document from the place to copy it, the authorised officer must copy and return the document to the place as soon as practicable. (4) If the authorised officer takes from the place an article or device reasonably capable of producing a document from an electronic document to produce the document, the authorised officer must produce the document and return the article or device to the place as soon as practicable. (5) In this section— examine includes analyse, test, account, measure, weigh, grade, gauge and identify. film includes photograph, videotape and record an image in another way. inspect, a thing, includes open the thing and examine its contents. 64 Power to require reasonable help (1) The authorised officer may make a requirement (a help requirement) of an occupier of the place or a person at the place to give the authorised officer reasonable help to exercise a general power, including, for example, to produce a document or to give information. (2) When making the help requirement, the authorised officer must warn the person that, without a reasonable excuse, it is an offence for the person to whom the requirement is made not to comply with it. 65 Offence to contravene help requirement (1) A person of whom a help requirement has been made must comply with the requirement unless the person has a reasonable excuse. Maximum penalty—40 penalty units. (2) It is a reasonable excuse for an individual not to comply with a help requirement if complying might tend to incriminate the individual. 66 Evidential immunity for individuals complying with help requirement (1) Subsection (2) applies if an individual gives or produces information or a document to an authorised officer under a help requirement. (2) Evidence of the information or document, and other evidence directly or indirectly derived from the information or document, is not admissible against the individual in any proceeding to the extent it tends to incriminate the individual in the proceeding. (3) Subsection (2) does not apply to— (a) a proceeding about the false or misleading nature of the information or anything in the document; or (b) a proceeding in which the false or misleading nature of the information or document is relevant evidence. Division 5 Seizure by authorised officers Subdivision 1 Power to seize 67 Seizing evidence at a place that may be entered without consent or warrant An authorised officer who enters a place the authorised officer may enter under this Act without the consent of an occupier of the place and without a warrant may seize a thing at the place if the authorised officer reasonably believes the thing is evidence of an offence against this Act. 68 Seizing evidence at a place that may be entered only with consent or warrant (1) This section applies if— (a) an authorised officer is authorised to enter a place only with the consent of an occupier of the place or a warrant; and (b) the authorised officer enters the place after obtaining the consent or under a warrant. (2) If the authorised officer enters the place with the occupier's consent, the authorised officer may seize a thing at the place only if— (a) the authorised officer reasonably believes the thing is evidence of an offence against this Act; and (b) seizure of the thing is consistent with the purpose of entry as explained to the occupier when asking for the occupier's consent. (3) If the authorised officer enters the place under a warrant, the authorised officer may seize the evidence for which the warrant was issued. (4) The authorised officer may also seize anything else at the place if the authorised officer reasonably believes— (a) the thing is evidence of an offence against this Act; and (b) the seizure is necessary to prevent the thing being hidden, lost or destroyed. 69 Seizure of property subject to security (1) An authorised officer may seize a thing, and exercise powers relating to the thing, despite a lien or other security over the thing claimed by another person. (2) However, the seizure does not affect the other person's claim to the lien or other security against a person other than the authorised officer or a person acting for the authorised officer. Subdivision 2 Powers to support seizure 70 Power to secure seized thing (1) Having seized a thing under this division, an authorised officer may— (a) leave it at the place where it was seized (the place of seizure) and take reasonable action to restrict access to it; or (b) move it from the place of seizure. (2) For subsection (1)(a), the authorised officer may, for example— (a) seal the thing, or the entrance to the place of seizure, and mark the thing or place to show access to the thing or place is restricted; or (b) for equipment—make it inoperable; or Example of making equipment inoperable— dismantling it or removing a component without which the equipment can not be used (c) require a person the authorised officer reasonably believes is in control of the place or thing to do an act mentioned in paragraph (a) or (b) or anything else an authorised officer could do under subsection (1)(a). 71 Offence to contravene other seizure requirement A person must comply with a requirement made of the person under section 70(2)(c) unless the person has a reasonable excuse. Maximum penalty—40 penalty units. 72 Offence to interfere (1) If access to a seized thing is restricted under section 70, a person must not tamper with the thing or with anything used to restrict access to the thing without— (a) an authorised officer's approval; or (b) a reasonable excuse. Maximum penalty—40 penalty units. (2) If access to a place is restricted under section 70, a person must not enter the place in contravention of the restriction or tamper with anything used to restrict access to the place without— (a) an authorised officer's approval; or (b) a reasonable excuse. Maximum penalty—40 penalty units. Subdivision 3 Safeguards for seized things 73 Receipt and decision notice for seized thing (1) This section applies if an authorised officer seizes anything under this division unless— (a) the authorised officer reasonably believes there is no-one apparently in possession of the thing or it has been abandoned; or (b) because of the condition, nature and value of the thing it would be unreasonable to require the authorised officer to comply with this section. (2) The authorised officer must, as soon as practicable after seizing the thing, give an owner or person in control of the thing before it was seized— (a) a receipt for the thing that generally describes the thing and its condition; and (b) a decision notice about the decision to seize it. (3) However, if an owner or person from whom the thing is seized is not present when it is seized, the receipt and decision notice may be given by leaving them in a conspicuous position and in a reasonably secure way at the place at which the thing is seized. (4) The receipt and decision notice may— (a) be given in the same document; and (b) relate to more than 1 seized thing. (5) The authorised officer may delay giving the receipt and decision notice if the authorised officer reasonably suspects giving them may frustrate or otherwise hinder an investigation by the authorised officer under this Act. (6) However, the delay may be only for so long as the authorised officer continues to have the reasonable suspicion and remains in the vicinity of the place at which the thing was seized to keep it under observation. 74 Access to seized thing (1) Until a seized thing is returned, the authorised officer who seized the thing must allow an owner of the thing— (a) to inspect it at any reasonable time and from time to time; a