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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
First Home Owner Grant Bill 2000
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Interpretation 2
4. Meaning of "home" 5
5. Meaning of "owner" of a home or "home owner" 5
6. Meaning of "relevant interest" 5
7. Meaning of an applicant's "spouse" 7
Part 2 -- First home owner grant
Division 1 -- Entitlement to grant
8. Entitlement to grant 8
Division 2 -- Eligibility criteria (applicants)
9. Criterion 1 -- applicant to be a natural person 8
10. Criterion 2 -- applicant to be Australian citizen or
permanent resident 8
11. Criterion 3 -- applicant or applicant's spouse must
not have received an earlier grant 9
12. Criterion 4 -- applicant or applicant's spouse must
not have had relevant interest in residential property 9
13. Criterion 5 -- residence requirement 10
Division 3 -- Eligible transactions
14. Eligible transaction 10
Division 4 -- Application for the grant
15. Application for grant 13
16. Interested persons 14
17. Application on behalf of person under legal disability 14
page i
111--1
First Home Owner Grant Bill 2000
Contents
Division 5 -- Decision on application
18. Commissioner to authorise payment of grant 14
19. Amount of grant 15
20. Payment of grant 15
21. Payment in anticipation of compliance with residence
requirement 15
22. Commissioner may impose conditions 16
23. Death of applicant 17
24. Power to correct decision 18
25. Notice of decision 18
Division 6 -- Objections and appeals
Subdivision 1 -- Definitions
26. Definitions 19
Subdivision 2 -- Objections
27. Right to object and procedure for making objections 19
28. Time for lodging objection 19
29. Consideration of objection 20
30. Decision on objection 20
Subdivision 3 -- Appeals
31. Right of appeal 21
32. Hearing and determination of appeals 21
Subdivision 4 -- Basis on which Commissioner may
act
33. Basis on which Commissioner may act 22
Part 3 -- Administration
Division 1 -- Administration generally
34. Administration of Act 23
35. Delegation 23
36. Authorised investigators 24
37. Administration agreements 24
Division 2 -- Investigations
38. Investigations 25
39. Cross-border investigations 26
40. Power of investigation 26
41. Power to require person to attend for examination 27
42. Entry of premises 28
page ii
First Home Owner Grant Bill 2000
Contents
43. Powers of authorised investigator on entry of premises 29
44. Warrants 31
45. Use of force 31
46. Self incrimination 32
Part 4 -- Miscellaneous
Division 1 -- Offences
47. False or misleading information and documents 33
48. Obstructing or misleading Commissioner or
authorised investigator 33
Division 2 -- Evidentiary provisions
49. Evidence 34
50. Presumption of regularity 34
Division 3 -- Repayments and penalties
51. Commissioner may require repayment and impose
penalty 35
52. Arrangements for instalments and extensions of time 36
53. Recovery of certain amounts 37
54. Writing off liability 38
Division 4 -- Charge on interest in home
55. Lodgement of memorial and creation of charge 38
56. Priority of charge 39
57. Release of relevant interest from charge 40
58. Order for sale of relevant interest 40
59. Charge not to limit other means of enforcing payment 42
60. Commissioner may require fees to be reimbursed 42
Division 5 -- Service of documents
61. Service on joint applicants or agent or representative 42
62. Method of service by Commissioner 43
63. Service of court process 44
64. Other enactments not limited 44
Division 6 -- General
65. Confidentiality 44
66. Time for commencing prosecutions 46
67. Protection from liability for wrongdoing 47
68. Appropriation of Consolidated Fund 47
page iii
First Home Owner Grant Bill 2000
Contents
69. Regulations 47
70. Review of Act 47
Defined Terms
page iv
Western Australia
LEGISLATIVE ASSEMBLY
First Home Owner Grant Bill 2000
A Bill for
An Act to encourage and assist home ownership by establishing a
scheme for the payment of grants to first home owners.
The Parliament of Western Australia enacts as follows:
page 1
First Home Owner Grant Bill 2000
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the First Home Owner Grant
Act 2000.
5 2. Commencement
This Act comes into operation on 1 July 2000.
3. Interpretation
(1) In this Act, unless the contrary intention appears --
"Australian citizen" means an Australian citizen under the
10 Australian Citizenship Act 1948 of the Commonwealth;
"authorised investigator" means a person appointed to be an
authorised investigator under section 36;
"building" includes part of a building;
"commencement date", in relation to an eligible transaction,
15 has the meaning given by section 14(5);
"Commissioner" means the Commissioner of State Revenue;
"completed", in relation to an eligible transaction, has the
meaning given by section 14(6);
"comprehensive home building contract" means a contract
20 under which a builder undertakes to build a home on land
from the inception of the building work to the point where
the home is ready for occupation and if, for any reason, the
work to be carried out under such a contract is not
completed, includes any further contract under which the
25 work is to be completed;
"consideration", in relation to an eligible transaction, has the
meaning given by section 14(8);
"corresponding law" means an Act of another State, or a
Territory, corresponding to this Act;
page 2
First Home Owner Grant Bill 2000
Preliminary Part 1
s. 3
"eligibility criteria" means the criteria set out in Part 2
Division 2 for determining whether an applicant for a first
home owner grant is eligible for the grant;
"eligible transaction" has the meaning given by section 14(1);
5 "first home owner grant" means a grant authorised under
section 18;
"first home owner grant scheme" means the scheme for
payment of first home owner grants established under this
Act;
10 "guardian", in relation to a person under a legal disability,
means --
(a) a trustee who holds property on trust for the person
under an instrument of trust or by order or direction
of a court or tribunal; or
15 (b) an administrator of the person's estate appointed
under the Guardianship and Administration
Act 1990;
"home" has the meaning given by section 4;
"identity card" means an identity card issued to an authorised
20 investigator under section 36;
"option to purchase" includes a right of pre-emption or a right
of first refusal;
"owner", in relation to --
(a) a home, has the meaning given by section 5;
25 (b) land, means a person who has a relevant interest in
the land;
"owner builder" means an owner of land who builds a home,
or has a home built, on the land without entering into a
comprehensive home building contract;
30 "permanent resident" means the holder of a permanent visa
within the meaning of section 30 of the Migration Act 1958
of the Commonwealth;
page 3
First Home Owner Grant Bill 2000
Part 1 Preliminary
s. 3
"premises" means --
(a) land (whether built on or not);
(b) a building or structure on land; or
(c) a vehicle,
5 and includes a part of premises;
"Registrar" means the Registrar of Titles or the Registrar of
Deeds and Transfers;
"relevant interest" means an interest in land mentioned in a
paragraph of subsection (1) of section 6 (as read with
10 subsection (2) of that section);
"relevant material" means an instrument, record or thing
relevant to determining --
(a) whether an application under this Act or a
corresponding law for a first home owner grant has
15 been properly made;
(b) whether an objection to a decision made under this
Act or a corresponding law should be upheld;
(c) whether an applicant to whom, or for whose benefit,
a first home owner grant has been paid under this Act
20 or a corresponding law was eligible for the grant;
(d) whether a condition on which a first home owner
grant has been paid under this Act or a corresponding
law has been complied with; or
(e) any other matter related to the administration or
25 enforcement of this Act or a corresponding law;
"repayment arrangement" means an arrangement approved
under section 52;
"residence requirement" means the requirement that an
applicant for a first home owner grant must satisfy under
30 section 13;
"residential property" has the meaning given by
subsection (2);
page 4
First Home Owner Grant Bill 2000
Preliminary Part 1
s. 4
"spouse" has the meaning given by section 7;
"taxation law" means a law of the Commonwealth or a State or
Territory for the assessment or imposition of a tax.
(2) For the purposes of this Act, land in Australia is "residential
5 property" at a particular time if there is, at that time, a building
on the land lawfully occupied as a place of residence or suitable
for occupation as a place of residence.
4. Meaning of "home"
A "home" is a building, affixed to land, that --
10 (a) may lawfully be used as a place of residence; and
(b) is, in the Commissioner's opinion, a suitable building
for use as a place of residence.
5. Meaning of "owner" of a home or "home owner"
A person is an "owner" of a home or a "home owner" if the
15 person has a relevant interest in land on which a home is built.
6. Meaning of "relevant interest"
(1) Subject to subsection (2), a "relevant interest" in land is --
(a) an estate in fee simple in the land;
(b) a life estate, approved by the Commissioner, in the land;
20 (c) a lease in perpetuity of the land granted by the
Commonwealth or the State;
(d) a leasehold interest in the land granted by the
Commonwealth or the State that may be converted
under the terms of the lease or by statute into an estate in
25 fee simple;
(e) an interest as purchaser under a contract for the purchase
from the Commonwealth or the State of an estate in fee
simple in the land by instalments;
page 5
First Home Owner Grant Bill 2000
Part 1 Preliminary
s. 6
(f) a licence or right of occupancy granted by the
Commonwealth or the State that gives, in the
Commissioner's opinion, the licensee or the holder of
the right reasonable security of tenure;
5 (g) an interest in a company's shares if the Commissioner is
satisfied that --
(i) the interest entitles the holder of the interest to
exclusive occupation of a specified home owned
by the company; and
10 (ii) the value of the shares is not less than the value
of the company's interest in the home;
or
(h) an interest prescribed by the regulations to be a relevant
interest.
15 (2) Subject to subsection (3) --
(a) an interest is not a relevant interest at a particular time
unless the holder of the interest has, or will have within
12 months after that time (or a longer time approved by
the Commissioner), a right to immediate occupation of
20 the land;
(b) an interest held by a person is not a relevant interest if
the person holds it subject to a trust; and
(c) an equitable interest is not a relevant interest unless it is
the interest of a person under a legal disability for whom
25 a guardian holds the interest on trust.
(3) Without limiting paragraph (h) of subsection (1), regulations
referred to in that paragraph may prescribe an interest (a
"non-conforming interest") to be a relevant interest --
(a) even though the interest does not conform with
30 subsection (2); and
(b) even though the interest may not be recognised at law or
in equity as an interest in land.
page 6
First Home Owner Grant Bill 2000
Preliminary Part 1
s. 7
(4) If a first home owner grant is authorised to be paid in
consequence of a non-conforming interest being prescribed as a
relevant interest, the Commissioner may impose appropriate
conditions on the payment of the grant to ensure its recovery if
5 any criteria prescribed by the regulations about future conduct
or events are not satisfied.
7. Meaning of an applicant's "spouse"
(1) A person is the "spouse" of an applicant for a first home owner
grant if the person is legally married to the applicant or --
10 (a) the person is a member of the opposite sex with whom
the applicant lives as husband or wife on a genuine
domestic basis, although not legally married to the
person; and
(b) the person has lived on that basis with the applicant for
15 at least 2 years at the time the application is made.
(2) If the Commissioner is satisfied at the time of deciding an
application for a first home owner grant that --
(a) an applicant is legally married but is living apart from
the person to whom the applicant is legally married; and
20 (b) the applicant and that person have no intention of again
living together as a couple,
the person to whom the applicant is legally married is taken not
to be the applicant's spouse.
page 7
First Home Owner Grant Bill 2000
Part 2 First home owner grant
Division 1 Entitlement to grant
s. 8
Part 2 -- First home owner grant
Division 1 -- Entitlement to grant
8. Entitlement to grant
(1) A first home owner grant is payable on an application under this
5 Act if --
(a) the applicant or, if there are 2 or more of them, each of
the applicants complies with the eligibility criteria; and
(b) the transaction for which the grant is sought --
(i) is an eligible transaction; and
10 (ii) has been completed.
(2) Despite subsection (1)(a), an applicant need not comply with the
eligibility criteria to the extent the applicant is exempted from
compliance by section 10(2) or 13(2).
(3) Only one first home owner grant is payable for the same eligible
15 transaction.
Division 2 -- Eligibility criteria (applicants)
9. Criterion 1 -- applicant to be a natural person
An applicant for a first home owner grant must be a natural
person.
20 10. Criterion 2 -- applicant to be Australian citizen or
permanent resident
(1) Subject to subsection (2), an applicant for a first home owner
grant must be an Australian citizen or a permanent resident.
(2) If an application is made by joint applicants and one of the
25 applicants is an Australian citizen or a permanent resident, it is
not necessary for any other to be an Australian citizen or
permanent resident.
page 8
First Home Owner Grant Bill 2000
First home owner grant Part 2
Eligibility criteria (applicants) Division 2
s. 11
11. Criterion 3 -- applicant or applicant's spouse must not have
received an earlier grant
(1) Subject to subsection (2), an applicant is ineligible if --
(a) the applicant or the applicant's spouse has been a party
5 to an earlier application under this Act or a
corresponding law; and
(b) a grant was paid on the application.
(2) An applicant is not ineligible if the grant was paid but later paid
back under the conditions on which the grant was made.
10 12. Criterion 4 -- applicant or applicant's spouse must not have
had relevant interest in residential property
(1) An applicant is ineligible if the applicant or the applicant's
spouse has, before 1 July 2000, held --
(a) a relevant interest in residential property in the State; or
15 (b) an interest in residential property in another State or a
Territory that is a relevant interest under the
corresponding law of that State or Territory.
(2) To work out for the purposes of subsection (1) whether an
applicant held a relevant interest (within the meaning of this Act
20 or a corresponding law) in residential property at a particular
time, any deferment of the applicant's right of occupation
because the property was subject to a lease is to be disregarded.
(3) An applicant is ineligible if the applicant or the applicant's
spouse has, on or after 1 July 2000 and before the date on which
25 the application is made, held an interest in property (other than
property to which the application relates), used at any time on or
after 1 July 2000 as the residence of the applicant or the
applicant's spouse, that is --
(a) a relevant interest in residential property in the State; or
page 9
First Home Owner Grant Bill 2000
Part 2 First home owner grant
Division 3 Eligible transactions
s. 13
(b) an interest in residential property in another State or a
Territory that is a relevant interest under the
corresponding law of that State or Territory.
13. Criterion 5 -- residence requirement
5 (1) An applicant for a first home owner grant must occupy the
home to which the application relates as the applicant's
principal place of residence within 12 months after completion
of the eligible transaction or a longer period approved by the
Commissioner.
10 (2) The Commissioner may exempt an applicant from the residence
requirement if --
(a) the applicant is one of 2 or more joint applicants for a
first home owner grant;
(b) at least one of the applicants complies with the residence
15 requirement; and
(c) there are, in the Commissioner's opinion, good reasons
to exempt the applicant from the residence requirement.
Division 3 -- Eligible transactions
14. Eligible transaction
20 (1) An "eligible transaction" is --
(a) a contract made on or after 1 July 2000 for the purchase
of a home in the State;
(b) a comprehensive home building contract made on or
after 1 July 2000 by the owner of land in the State, or a
25 person who will on completion of the contract be the
owner of land in the State, to have a home built on the
land; or
(c) if the building work begins on or after 1 July 2000 --
the building of a home in the State by an owner builder.
page 10
First Home Owner Grant Bill 2000
First home owner grant Part 2
Eligible transactions Division 3
s. 14
(2) A contract is a contract for the purchase of a home if it is a
contract for the acquisition of a relevant interest in land on
which a home is built.
(3) Unless the contract is declared under subsection (4) to be an
5 eligible transaction, a contract is not an eligible transaction if --
(a) in the case of a contract to purchase a home -- the
purchaser had an option to purchase the home granted
before 1 July 2000, or the vendor had an option to
require the purchaser to purchase the home granted
10 before that date; or
(b) in the case of a comprehensive home building
contract -- either party had a right or option granted
before 1 July 2000 to require the other party to enter into
the contract.
15 (4) The Commissioner may declare a contract to which, apart from
this subsection, subsection (3) would apply to be an eligible
transaction if the Commissioner is of the opinion that the
contract does not have the effect of circumventing limitations
on, or requirements affecting, eligibility for or entitlement to a
20 first home owner grant.
(5) The "commencement date" of an eligible transaction is --
(a) in the case of a contract -- the date when the contract is
made; or
(b) in the case of the building of a home by an owner
25 builder --
(i) the date when laying the foundations for the
home begins; or
(ii) another date (on or after 1 July 2000) the
Commissioner considers appropriate in the
30 circumstances of the case.
page 11
First Home Owner Grant Bill 2000
Part 2 First home owner grant
Division 3 Eligible transactions
s. 14
(6) Subject to any qualifications prescribed by the regulations, an
eligible transaction is "completed" when --
(a) in the case of a contract for the purchase of a home --
(i) the purchaser becomes entitled to possession of
5 the home under the contract; and
(ii) if the purchaser is to obtain a registered title to
the land on which the home is situated -- the
necessary steps to obtain registration of the
purchaser's title have been taken;
10 (b) in the case of a contract to have a home built -- the
building is ready for occupation as a place of residence;
or
(c) in the case of the building of a home by an owner
builder -- the building is ready for occupation as a place
15 of residence.
(7) If a person purchases a movable building and intends to use it as
a place of residence on land in which the person has a relevant
interest but on which the building is not situated at the time of
purchase --
20 (a) this Act applies as if the person were an owner builder
building a home on the land;
(b) the commencement date of the transaction is taken to be
the date of the contract to purchase the movable
building; and
25 (c) the transaction is taken to be completed when the
movable building is ready for occupation as a place of
residence on land in which the purchaser has a relevant
interest.
(8) The "consideration" for an eligible transaction is --
30 (a) in the case of a contract for the purchase of a home --
the consideration for the purchase;
page 12
First Home Owner Grant Bill 2000
First home owner grant Part 2
Application for the grant Division 4
s. 15
(b) in the case of a comprehensive home building
contract -- the total consideration payable for the
building work; or
(c) in the case of the building of a home by an owner
5 builder -- the actual costs to the owner of carrying out
the work, excluding any allowance for the owner
builder's own labour.
Division 4 -- Application for the grant
15. Application for grant
10 (1) An application for a first home owner grant is to be made to the
Commissioner.
(2) The application --
(a) is to be in a form approved by the Commissioner; and
(b) is to contain the information required by the
15 Commissioner.
(3) An applicant must provide the Commissioner with any further
information the Commissioner requires to decide the
application.
(4) Information provided by an applicant in or in relation to an
20 application must, if the Commissioner so requires, be verified
by statutory declaration or supported by other evidence required
by the Commissioner.
(5) The application may only be made within a period --
(a) beginning on the commencement date of the eligible
25 transaction to which the application relates; and
(b) ending 12 months after the completion of the eligible
transaction to which the application relates.
(6) However, the Commissioner may allow an application to be
made before the application period.
page 13
First Home Owner Grant Bill 2000
Part 2 First home owner grant
Division 5 Decision on application
s. 16
(7) An applicant may, with the Commissioner's consent, amend an
application.
16. Interested persons
(1) All interested persons must be applicants, unless such a person
5 is excluded from the operation of this subsection by the
regulations.
(2) An applicant must be an interested person.
(3) In this section --
"interested person", in relation to an application for a first
10 home owner grant, means a person who is, or will be, on
completion of the eligible transaction to which the
application relates, an owner of the relevant home.
17. Application on behalf of person under legal disability
(1) An application may be made on behalf of a person under a legal
15 disability by a guardian.
(2) For the purpose of determining eligibility, the person under the
legal disability is taken to be the applicant.
Division 5 -- Decision on application
18. Commissioner to authorise payment of grant
20 (1) If the Commissioner is satisfied that a first home owner grant is
payable on an application, the Commissioner must authorise the
payment of the grant.
(2) Despite section 8(1)(b)(ii), the Commissioner may authorise the
payment of a first home owner grant before the completion of
25 the eligible transaction if the Commissioner is satisfied that --
(a) there are good reasons for doing so; and
page 14
First Home Owner Grant Bill 2000
First home owner grant Part 2
Decision on application Division 5
s. 19
(b) the interests of the State can be adequately protected by
conditions requiring repayment of the grant if the
transaction is not completed within a reasonable time.
19. Amount of grant
5 The amount of a first home owner grant is the lesser of the
following --
(a) the consideration for the eligible transaction;
(b) $7 000.
20. Payment of grant
10 (1) A first home owner grant is to be paid by electronic funds
transfer, by cheque or in any other way the Commissioner
thinks appropriate.
(2) A first home owner grant is to be paid to --
(a) the applicant; or
15 (b) another person to whom the applicant directs in writing
that the grant be paid.
21. Payment in anticipation of compliance with residence
requirement
(1) The Commissioner may authorise payment of a first home
20 owner grant in anticipation of compliance with the residence
requirement if the Commissioner is satisfied that each applicant
who is required to comply with, but has not yet complied with,
the residence requirement intends to occupy the home as his or
her principal place of residence within --
25 (a) 12 months after completion of the eligible transaction;
or
(b) a longer period approved by the Commissioner.
(2) If a first home owner grant is paid in anticipation of compliance
with the residence requirement, the payment is made on
page 15
First Home Owner Grant Bill 2000
Part 2 First home owner grant
Division 5 Decision on application
s. 22
condition that, if the residence requirement is not complied
with, the applicant must within 14 days after the relevant
date --
(a) give written notice of that fact to the Commissioner; and
5 (b) repay the amount of the grant.
(3) In subsection (2) --
"relevant date" means the earlier of --
(a) the date on which the period allowed for compliance
with the residence requirement ends; or
10 (b) the date on which it first becomes apparent to the
applicant (or any joint applicant) that the residence
requirement will not be complied with within that
period.
(4) In the case of a joint application, each joint applicant is
15 individually liable to comply with subsection (2)(a) and (b), but
compliance by any one or more of the joint applicants is taken
to be compliance by both or all of them.
(5) A person who fails to comply with the condition referred to in
subsection (2) commits an offence.
20 Penalty: $20 000.
22. Commissioner may impose conditions
(1) The Commissioner may authorise the payment of a first home
owner grant on conditions the Commissioner considers
appropriate.
25 (2) A condition imposed by the Commissioner (under this section
or another provision of this Act) may require a person on whose
application the first home owner grant is paid --
(a) to give written notice of non-compliance with the
condition within a period stated in the condition; and
page 16
First Home Owner Grant Bill 2000
First home owner grant Part 2
Decision on application Division 5
s. 23
(b) to repay the amount of the grant within a period stated in
the condition.
(3) In the case of a joint application, each joint applicant is
individually liable to comply with subsection (2)(a) and (b), but
5 compliance by any one or more of the joint applicants is taken
to be compliance by both or all of them.
(4) A person who fails to comply with a condition imposed by the
Commissioner (under this section or another provision of this
Act) commits an offence.
10 Penalty: $20 000.
23. Death of applicant
(1) An application for a first home owner grant does not lapse
because an applicant dies before the application is decided.
(2) If an applicant dies before the application is decided, the
15 following provisions apply --
(a) if the deceased was one of 2 or more applicants and one
or more applicants survive, the application is to be dealt
with as if the surviving applicants were the sole
applicants;
20 (b) in any other case, a first home owner grant, if payable
on the application, is to be paid to the estate of the
deceased.
(3) If a deceased applicant for a first home owner grant had not, by
the date of death, occupied the home to which the application
25 relates as the applicant's principal place of residence, but the
Commissioner is satisfied that he or she intended to do so within
12 months after completion of the eligible transaction or a
longer period approved by the Commissioner, the residence
requirement is satisfied.
page 17
First Home Owner Grant Bill 2000
Part 2 First home owner grant
Division 5 Decision on application
s. 24
24. Power to correct decision
(1) If the Commissioner decides an application and is later satisfied,
independently of an objection under this Act, that the decision is
incorrect, the Commissioner may vary or reverse the decision.
5 (2) If, before a home owner grant is paid to an applicant, the
Commissioner is satisfied that --
(a) the decision to authorise the payment is incorrect; and
(b) the reversal of the decision would prejudice the
applicant or another person because of having acted in
10 reliance on that decision,
the Commissioner may authorise the payment to be made on
condition that the applicant must within the period stated in the
condition repay the amount of the grant.
(3) Subject to subsection (4), a decision cannot be varied or
15 reversed under this section more than 5 years after it was made.
(4) If the Commissioner is satisfied that a decision was made on the
basis of false or misleading information, the decision may be
varied or reversed under this section at any time.
25. Notice of decision
20 (1) When the Commissioner decides an application, or decides to
vary or reverse an earlier decision on an application, the
Commissioner must give the applicant written notice of the
decision.
(2) If the decision is to authorise the payment of a first home owner
25 grant without conditions, the payment of the grant is sufficient
notice of the decision.
(3) If the decision is to refuse an application, or to vary or reverse
an earlier decision on an application, the Commissioner must
state in the notice the reasons for the decision.
page 18
First Home Owner Grant Bill 2000
First home owner grant Part 2
Objections and appeals Division 6
s. 26
Division 6 -- Objections and appeals
Subdivision 1 -- Definitions
26. Definitions
In this Division --
5 "decision on the application", in relation to an application for
a first home owner grant, includes --
(a) a decision to vary or reverse an earlier decision;
(b) a requirement under section 51 to repay an amount
paid on the application; and
10 (c) an imposition of a penalty under section 51;
"objector" means a person who makes an objection under
section 27.
Subdivision 2 -- Objections
27. Right to object and procedure for making objections
15 (1) An applicant for a first home owner grant who is dissatisfied
with the Commissioner's decision on the application may object
to the decision.
(2) An objection --
(a) is to be in writing;
20 (b) is to set out fully and in detail the grounds of the
objection; and
(c) is to be lodged with the Commissioner.
28. Time for lodging objection
(1) An objection to a decision on the application is to be lodged
25 within 60 days after the date on which notice of the decision is
given to the objector.
page 19
First Home Owner Grant Bill 2000
Part 2 First home owner grant
Division 6 Objections and appeals
s. 29
(2) However, the Commissioner may, on application by the
objector, extend the time for lodging an objection.
(3) An application for an extension of time is to set out fully and in
detail the grounds on which the objector asks for an extension of
5 time.
29. Consideration of objection
(1) The Commissioner must consider an objection and must make a
decision on the objection on the basis of --
(a) the grounds set out in the written objection and any
10 other relevant written material submitted by the
objector; and
(b) any information obtained by the Commissioner in the
course of investigating the objection.
(2) The onus of establishing that the decision on the application to
15 which an objection relates is incorrect lies on the objector.
30. Decision on objection
(1) The Commissioner may decide an objection by confirming,
varying or reversing the decision on the application to which the
objection relates.
20 (2) The Commissioner must give the objector notice of the decision
on the objection and, if the objection is disallowed, the reasons
for the decision on the objection.
(3) If a decision not to authorise the payment of a first home owner
grant is reversed as a result of an objection, interest at the
25 prescribed rate is payable on the amount of the grant from the
date of the objection to the date of the decision on the objection.
page 20
First Home Owner Grant Bill 2000
First home owner grant Part 2
Objections and appeals Division 6
s. 31
Subdivision 3 -- Appeals
31. Right of appeal
(1) An objector who is dissatisfied with the Commissioner's
decision on the objection may appeal to a Local Court against
5 the decision.
(2) An appeal is to be commenced within 60 days after the date on
which notice of the decision on the objection is given to the
objector.
(3) However, the court may, on application by the objector, extend
10 the time for commencing an appeal.
32. Hearing and determination of appeals
(1) A Local Court has jurisdiction to hear and determine an appeal
and --
(a) the proceedings are to be conducted in the manner
15 prescribed by the rules of court or, if no rules of court
are applicable, in the manner directed by the court; and
(b) unless the court otherwise orders, the appeal is to be in
the nature of a rehearing.
(2) The court may dispose of an appeal by --
20 (a) confirming, varying or reversing the Commissioner's
decision on the application; and
(b) making any consequential or ancillary orders (including
orders for costs) that it considers appropriate.
(3) The decision on an appeal under this section is final.
25 (4) If a decision not to authorise the payment of a first home owner
grant is reversed as a result of an appeal, interest at the
prescribed rate is payable on the amount of the grant from the
date of the objection to the decision on the application to the
date of the decision on the appeal.
page 21
First Home Owner Grant Bill 2000
Part 2 First home owner grant
Division 6 Objections and appeals
s. 33
Subdivision 4 -- Basis on which Commissioner may act
33. Basis on which Commissioner may act
(1) Although a decision on the application is subject to an objection
or appeal under this Division, the Commissioner may act on the
5 basis that the decision is correct until the objection or appeal is
decided.
(2) When an objection or appeal is decided, the Commissioner must
take any necessary action to give effect to that decision.
page 22
First Home Owner Grant Bill 2000
Administration Part 3
Administration generally Division 1
s. 34
Part 3 -- Administration
Division 1 -- Administration generally
34. Administration of Act
(1) The Commissioner is responsible to the Minister for applying
5 and giving effect to this Act.
(2) The Commissioner is not subject to the control or direction of
the Minister in relation to --
(a) the interpretation of this Act; or
(b) the performance of a function under this Act.
10 35. Delegation
(1) The Commissioner may, by instrument, delegate the
performance of any of the Commissioner's functions under this
Act except --
(a) this power of delegation; or
15 (b) the power to authorise an authorised investigator under
section 42(3), 43(1)(a) or 45(2).
(2) A delegation under subsection (1) may be made --
(a) to a person employed or engaged in the administration
or enforcement of this Act or another Act administered
20 by the Commissioner or under which the Commissioner
exercises statutory functions;
(b) to an authority or person referred to in section 39(2); or
(c) in accordance with an agreement entered into by the
Commissioner under section 37.
25 (3) A delegate cannot subdelegate the performance of any function
unless the delegate is expressly authorised by the instrument of
delegation to do so.
page 23
First Home Owner Grant Bill 2000
Part 3 Administration
Division 1 Administration generally
s. 36
(4) A function performed by a delegate of the Commissioner is
taken to be performed by the Commissioner.
(5) A delegate performing a function under this section is taken to
do so in accordance with the terms of the delegation unless the
5 contrary is shown.
(6) Nothing in this section or section 37 limits the ability of the
Commissioner to act through the Commissioner's officers and
agents in the normal course of business.
36. Authorised investigators
10 (1) The Commissioner may appoint a person to be an authorised
investigator for the purposes of this Act.
(2) The Commissioner must issue an identity card to each
authorised investigator.
(3) An identity card is to --
15 (a) contain a statement to the effect that the person
identified by the card is an authorised investigator for
the purposes of this Act; and
(b) display a photograph of the authorised investigator.
(4) If a person to whom an identity card is issued ceases to be an
20 authorised investigator, the person commits an offence if the
person does not immediately return the card to the
Commissioner.
Penalty: $20 000.
37. Administration agreements
25 (1) Without limiting section 35, the Commissioner may enter into
an agreement (an "administration agreement") with a
financial institution or other person under which --
(a) the Commissioner delegates functions related to the
administration of the first home owner scheme to the
30 financial institution or other person; and
page 24
First Home Owner Grant Bill 2000
Administration Part 3
Investigations Division 2
s. 38
(b) the financial institution or other person is required to
carry out the delegated functions in accordance with
conditions specified in the agreement.
(2) The conditions specified in an administration agreement must
5 include any conditions prescribed by the regulations.
(3) The conditions that may be prescribed by the regulations
include --
(a) conditions requiring the financial institution or other
person to keep specified records for a specified period;
10 (b) conditions relating to the retention of interest on
amounts received by the financial institution or other
person.
(4) The Commissioner may at any time, at the Commissioner's
discretion, terminate an administration agreement.
15 Division 2 -- Investigations
38. Investigations
An investigation may be carried out under this Division to
determine --
(a) whether an application under this Act or a corresponding
20 law for a first home owner grant has been properly
made;
(b) whether an objection to a decision made under this Act
or a corresponding law should be upheld;
(c) whether an applicant to whom, or for whose benefit, a
25 first home owner grant has been paid under this Act or a
corresponding law was eligible for the grant;
(d) whether a condition on which a first home owner grant
has been paid under this Act or a corresponding law has
been complied with; or
page 25
First Home Owner Grant Bill 2000
Part 3 Administration
Division 2 Investigations
s. 39
(e) any other matter related to the administration or
enforcement of this Act or a corresponding law.
39. Cross-border investigations
(1) The Commissioner may, at the request of an authority
5 responsible for administering a corresponding law, carry out an
investigation for the purposes of the corresponding law.
(2) The Commissioner may, under section 35, delegate powers of
investigation under this Division to the authority responsible for
the administration of a corresponding law or a person nominated
10 by that authority.
40. Power of investigation
(1) For the purposes of an investigation, the Commissioner may
require a person --
(a) to provide oral or written answers to specified questions;
15 or
(b) to produce to the Commissioner specified relevant
material, or relevant material of a specified class, in the
person's possession or control.
(2) The Commissioner may make the requirement --
20 (a) if an oral answer is required -- orally; or
(b) if a written answer is required -- by written notice given
to the person to whom the requirement is addressed.
(3) A person who is required to provide written answers to
questions must, if the notice given to the person so requires,
25 verify the answers by statutory declaration.
(4) A person who does not comply with a requirement of a notice
within the time specified in the notice, or any further time
approved by the Commissioner, commits an offence.
Penalty: $20 000.
page 26
First Home Owner Grant Bill 2000
Administration Part 3
Investigations Division 2
s. 41
41. Power to require person to attend for examination
(1) For the purposes of an investigation, the Commissioner may
require a person to attend at a specified time and place before an
authorised investigator for examination on a subject specified in
5 the notice under subsection (2).
(2) A requirement is to be made by written notice given to the
person to whom the requirement is addressed.
(3) The time and place fixed for the examination of the person to
whom a notice is addressed under this section, if practicable, is
10 to be reasonably convenient to that person.
(4) A notice requiring a person to attend for examination may
require the person to bring and produce to the authorised
investigator conducting the examination specified relevant
material in the person's possession or control relating to the
15 subject of the examination.
(5) An authorised investigator conducting an examination --
(a) may require a person attending for examination to make
an oath or affirmation to answer all questions truthfully
and may administer the oath or affirmation;
20 (b) may require the person to answer a question relevant to
the subject matter of the examination put by the
authorised investigator or, with the consent of the
authorised investigator, by another person present at the
examination; and
25 (c) may require the person to produce for examination by
the authorised investigator relevant material in the
person's possession at the examination.
(6) A person who does not comply with a requirement under this
section commits an offence.
30 Penalty: $20 000.
page 27
First Home Owner Grant Bill 2000
Part 3 Administration
Division 2 Investigations
s. 42
(7) The regulations may provide for the payment of witness fees
and expenses to persons who attend for examination under this
section.
42. Entry of premises
5 (1) Subject to subsection (2), an authorised investigator may, for the
purposes of an investigation, enter and remain on premises to
exercise an investigator's powers of investigation under this
Division.
(2) An authorised investigator may only enter premises that
10 comprise a residential property --
(a) at any reasonable time with the consent of the occupier
of the premises;
(b) in accordance with the authorisation conferred by a
warrant; or
15 (c) if the authorised investigator believes, on reasonable
grounds, that it is urgently necessary to do so in order to
prevent the destruction of or interference with relevant
material --at any time without the consent of the
occupier and without a warrant.
20 (3) The authorised investigator must not exercise the power in
subsection (2)(c) unless the Commissioner has, in the particular
case, authorised the investigator to do so.
(4) The authorised investigator must, at the reasonable request of a
person apparently in a position of authority on the premises or
25 any other person on the premises --
(a) display the investigator's identity card; and
(b) if the investigator has entered or is about to enter the
premises under a warrant -- display the warrant.
page 28
First Home Owner Grant Bill 2000
Administration Part 3
Investigations Division 2
s. 43
43. Powers of authorised investigator on entry of premises
(1) An authorised investigator who enters premises under
section 42 may do any one or more of the following --
(a) search the premises and examine anything on the
5 premises, opening it if necessary and, if specifically
authorised to do so by the Commissioner, breaking it
open;
(b) take possession of relevant material and retain it for as
long as may be necessary --
10 (i) for examining it, or examining and copying it, to
determine its evidentiary value;
(ii) if it is relevant to an investigation of the
eligibility for a first home owner grant of a
person --
15 (I) by whom, or on whose behalf, an
application for the grant has been made;
or
(II) to whom, or for whose benefit, the grant
has been paid,
20 until the eligibility of the person has been
determined; or
(iii) if it is relevant to possible legal proceedings --
for the purposes of those proceedings;
(c) if relevant material found on the premises cannot be
25 conveniently removed, secure it against interference;
(d) request any person who is on the premises --
(i) to state his or her full name and address;
(ii) to answer (orally or in writing) questions put by
the authorised investigator relevant to the
30 investigation;
(iii) to produce relevant material in the person's
possession or control;
page 29
First Home Owner Grant Bill 2000
Part 3 Administration
Division 2 Investigations
s. 43
(iv) to operate, or allow the authorised investigator to
operate, for investigation purposes equipment or
facilities on the premises; or
(v) to give other assistance the authorised
5 investigator reasonably requires to carry out the
investigation.
(2) A person who does not comply with an authorised investigator's
request under this section commits an offence.
Penalty: $20 000.
10 (3) An authorised investigator is not authorised to take anything
from premises unless the investigator --
(a) gives the occupier, or another person apparently
responsible to the occupier, a receipt for the thing taken,
if requested to do so by the occupier or other person; or
15 (b) if the occupier, or a person apparently responsible to the
occupier, is not present -- leaves a receipt for the thing
taken, in an envelope addressed to the occupier, in a
prominent position on the premises.
(4) A receipt is to be in a form approved by the Commissioner.
20 (5) The Commissioner must ensure that a person from whom
anything is taken under this section and who would otherwise
be entitled to possession of the thing is allowed --
(a) if the thing taken is a document -- reasonable access to
it or a copy of it, as the Commissioner considers
25 appropriate; or
(b) in any other case -- reasonable access to it.
(6) If an authorised investigator takes possession of anything under
this section, the Commissioner must ensure that it is returned to
the person entitled to possession of it --
30 (a) if it was taken in connection with the prosecution or
possible prosecution of a suspected offence under this
Act -- as soon as practicable after the relevant
page 30
First Home Owner Grant Bill 2000
Administration Part 3
Investigations Division 2
s. 44
prosecution is completed or discontinued or, if no
prosecution is commenced, as soon as practicable after
the decision not to prosecute is made;
(b) if it was taken in connection with the investigation of the
5 eligibility for a first home owner grant of a person
referred to in subsection (1)(b)(ii) -- as soon as
practicable after the eligibility of the person has been
determined and any procedures, including legal
proceedings, relating to the recovery of the grant have
10 been completed; or
(c) in any other case -- within 28 days after it was taken.
44. Warrants
(1) If a justice is satisfied by a complaint on oath that it is
reasonably necessary for an authorised investigator to enter
15 premises for the purposes of an investigation, the justice may
issue a warrant authorising an authorised investigator --
(a) to enter the premises at a time or within a period stated
in the warrant; and
(b) to exercise an investigator's powers of investigation
20 under this Division.
(2) An authorised investigator who applies to a justice for a warrant
under this section must produce to the justice the investigator's
identity card.
(3) The authority conferred by a warrant may be exercised by the
25 authorised investigator on whose application the warrant was
issued or by any other authorised investigator.
45. Use of force
(1) An authorised investigator may use reasonable force --
(a) to enter premises under section 42; or
30 (b) to exercise the powers under section 43(1)(a), (b) and
(c).
page 31
First Home Owner Grant Bill 2000
Part 3 Administration
Division 2 Investigations
s. 46
(2) However, if the use of reasonable force is likely to cause
damage to property, the authorised investigator is not entitled to
use force under subsection (1) unless the Commissioner has, in
the particular case, authorised the investigator to do so.
5 (3) No liability is incurred as a result of injury or damage arising
from the use of reasonable force under this section.
46. Self incrimination
(1) A person is not excused from complying with a requirement
under this Division to answer a question or produce relevant
10 material on the ground that the answer to the question or the
contents of the material might tend to incriminate the person or
make the person liable to a penalty.
(2) However, if the person answers the question or produces the
relevant material after objecting on the ground referred to in
15 subsection (1), evidence of the answer to the question or the
production or contents of the material is not admissible against
the person in any proceedings other than proceedings for an
offence against this Act or arising out of the false or misleading
nature of the answer given or material produced.
page 32
First Home Owner Grant Bill 2000
Miscellaneous Part 4
Offences Division 1
s. 47
Part 4 -- Miscellaneous
Division 1 -- Offences
47. False or misleading information and documents
(1) A person who provides information, orally or in writing, or a
5 document to the Commissioner or an authorised investigator
knowing the information or document to be false or misleading
in a material particular commits an offence.
Penalty: $20 000.
(2) If a person provides information or a document to the
10 Commission or an authorised investigator that is false or
misleading in a material particular, the person is to be
presumed, in proceedings for an offence against this section, to
have known that the information or document was false or
misleading in a material particular unless the contrary is proved.
15 (3) In this section --
"document" means anything or any process --
(a) on or by which information is recorded or stored; or
(b) by means of which a meaning can be conveyed in a
visible or recoverable form,
20 whether or not the use or assistance of an electronic,
electrical, mechanical, chemical or other device or process
is required to recover or convey the information.
48. Obstructing or misleading Commissioner or authorised
investigator
25 (1) A person who hinders or obstructs an authorised investigator in
carrying out functions under this Act commits an offence.
Penalty: $20 000.
page 33
First Home Owner Grant Bill 2000
Part 4 Miscellaneous
Division 2 Evidentiary provisions
s. 49
(2) A person who misleads an authorised investigator in a way that
may affect the carrying out of the investigator's functions under
this Act commits an offence.
Penalty: $20 000.
5 (3) In this section --
"authorised investigator" includes the Commissioner.
Division 2 -- Evidentiary provisions
49. Evidence
(1) A certificate signed by the Commissioner stating that a first
10 home owner grant was paid to a person named in the certificate
on a specified date is admissible in legal proceedings as
evidence of the payment.
(2) A copy of a notice issued by the Commissioner imposing a
penalty under this Act is admissible in legal proceedings as
15 evidence of the imposition of the penalty.
(3) A copy of a notice issued by the Commissioner requiring the
payment or repayment of a specified amount is admissible in
legal proceedings as evidence --
(a) that the requirement was made; and
20 (b) that the amount specified in the notice was outstanding
at the date of the notice.
50. Presumption of regularity
(1) Proceedings for an offence against this Act that are taken in the
name of the Commissioner are presumed, in the absence of
25 evidence to the contrary, to have been duly taken by the
Commissioner or under the Commissioner's authority.
(2) In legal proceedings, compliance by the Commissioner or an
authorised investigator with the requirements of this Act is
presumed, in the absence of evidence to the contrary.
page 34
First Home Owner Grant Bill 2000
Miscellaneous Part 4
Repayments and penalties Division 3
s. 51
Division 3 -- Repayments and penalties
51. Commissioner may require repayment and impose penalty
(1) The Commissioner may, by written notice, require an applicant
for a first home owner grant to repay an amount paid on the
5 application if --
(a) the amount was paid in error;
(b) the Commissioner reverses the decision under which the
amount was paid for a reason other than that the amount
was paid in error; or
10 (c) the Commissioner imposed a condition on the payment
of the amount with which the applicant (or any joint
applicant) has failed to comply within the period stated
in the condition.
(2) If an amount paid on an application for a first home owner grant
15 was paid in error because of information that the Commissioner
considers to be false or misleading given by the applicant in or
in relation to the application, the Commissioner may, by written
notice, impose a penalty of not more than the amount the
applicant is required to pay.
20 (3) If an amount required to be repaid under this section by an
applicant is not paid within the period mentioned in
subsection (4), the Commissioner may, by written notice,
impose a penalty of not more than the amount the applicant is
required to pay.
25 (4) Subject to section 52, a repayment required, or a penalty
imposed, under this section must be paid by the applicant within
28 days after the date on which notice of the requirement or
penalty is given to the applicant.
(5) If a person is liable to pay a penalty under both subsections (2)
30 and (3), payment of the penalty under one subsection discharges
the person from liability to pay the penalty under the other
subsection to the extent of the payment made.
page 35
First Home Owner Grant Bill 2000
Part 4 Miscellaneous
Division 3 Repayments and penalties
s. 52
52. Arrangements for instalments and extensions of time
(1) The Commissioner may approve (with or without amendment) a
written arrangement --
(a) extending the period for paying a repayment required, or
5 a penalty imposed, under section 51 (a "required
repayment"); or
(b) providing for the required repayment to be made in
specified instalments.
(2) An application for the Commissioner's approval of a proposed
10 repayment arrangement is to set out fully and in detail the
reasons why the applicant wants more time to make the required
repayment.
(3) A repayment arrangement may include --
(a) conditions agreed with the applicant providing for the
15 payment (and allowing for the remission) of interest at
the prescribed rate or at another rate fixed by or under
the arrangement with the agreement of the applicant;
and
(b) any other conditions the Commissioner considers
20 appropriate.
(4) The Commissioner may, by written notice given to the person
with whom a repayment arrangement has been made, amend the
arrangement --
(a) by agreement with the person; or
25 (b) as provided in the conditions of the arrangement.
(5) The Commissioner may, by written notice given to the person
with whom a repayment arrangement has been made, cancel the
arrangement if --
(a) a payment is not made in accordance with the
30 arrangement; or
page 36
First Home Owner Grant Bill 2000
Miscellaneous Part 4
Repayments and penalties Division 3
s. 53
(b) the person does not comply with any condition of the
arrangement.
(6) On the cancellation of a repayment arrangement, the whole of
the required repayment outstanding under the arrangement,
5 together with interest, becomes due and payable as from the
date of the cancellation or the original due date for making the
required repayment to which the arrangement applies,
whichever is the later.
(7) Despite the cancellation of a repayment arrangement, interest
10 continues to accrue at the prescribed rate, or the other rate fixed
by or under the agreement, until the outstanding required
repayment to which the arrangement formerly applied is paid.
53. Recovery of certain amounts
(1) This section applies to --
15 (a) an amount that is required to be repaid under the
conditions of a first home owner grant or by a
requirement of the Commissioner under this Act;
(b) the amount of a penalty imposed by the Commissioner
under this Act;
20 (c) an amount, together with interest, that is due and
payable under a repayment arrangement; and
(d) an amount that is required to be paid under section 60.
(2) An applicant for a first home owner grant who is required to
repay or pay an amount to which this section applies is liable to
25 pay the amount to the Commissioner and, if there are 2 or more
applicants, the liability is joint and several.
(3) An amount to which this section applies is recoverable by the
Commissioner in a court of competent jurisdiction as a debt due
to the Crown.
page 37
First Home Owner Grant Bill 2000
Part 4 Miscellaneous
Division 4 Charge on interest in home
s. 54
54. Writing off liability
(1) The Commissioner may write off the whole or part of an
outstanding amount to which section 53 applies if satisfied that
action, or further action, to recover the amount is impracticable
5 or unwarranted.
(2) The Commissioner does not, by writing off an outstanding
amount --
(a) extinguish the liability to pay the amount; or
(b) prevent later proceedings to recover the amount.
10 (3) A decision by the Commissioner to write off an outstanding
amount, or not to write off the amount, cannot be the subject of
appeal or judicial review or otherwise be called in question in
any proceedings.
(4) This section is subject to the Financial Administration and
15 Audit Act 1985.
Division 4 -- Charge on interest in home
55. Lodgement of memorial and creation of charge
(1) The Commissioner may lodge with the Registrar a memorial
signed by the Commissioner if an applicant for a first home
20 owner grant --
(a) is liable to pay an amount to which section 53 applies;
and
(b) holds a relevant interest in relation to the home for
which the grant was sought.
25 (2) When the memorial is registered by the Registrar, a charge for
the amount to which section 53 applies is created on the
relevant interest.
(3) If the memorial so provides, the Registrar cannot, after its
registration, register a dealing with the relevant interest, and
page 38
First Home Owner Grant Bill 2000
Miscellaneous Part 4
Charge on interest in home Division 4
s. 56
must reject an instrument submitted for registration relating to
such a dealing, unless --
(a) the Commissioner consents; or
(b) the registration of the memorial has been cancelled.
5 (4) The Registrar must cancel the registration of the memorial --
(a) on the application of the Commissioner; or
(b) on the application of the person who holds the relevant
interest, if the application is accompanied by an
instrument signed by the Commissioner releasing the
10 relevant interest from the charge created by the
registration of the memorial.
(5) When the memorial is registered, the Commissioner must notify
the holder of any registered encumbrance over the relevant
interest of the registration of the memorial, but a failure to do so
15 does not invalidate the registration of the memorial.
(6) In this section --
"registered" means registered under the Registration of Deeds
Act 1856 or Transfer of Land Act 1893, as the case
requires.
20 56. Priority of charge
(1) A charge created by the registration of a memorial referred to in
section 55 is a first charge on the relevant interest to which it
relates and has priority over all other mortgages, charges and
other encumbrances over the relevant interest.
25 (2) However, if there is another charge on the relevant interest that
ranks as a first charge under another Act, the relative priority of
the charge referred to in subsection (1) and the other charge is to
be determined according to the order of registration.
page 39
First Home Owner Grant Bill 2000
Part 4 Miscellaneous
Division 4 Charge on interest in home
s. 57
57. Release of relevant interest from charge
(1) The Commissioner must, on payment of the amount secured by
a charge on a relevant interest created by the registration of a
memorial referred to in section 55, release the relevant interest
5 from the charge.
(2) The Registrar must, on the production of the instrument of
release, cancel the registration of the memorial.
58. Order for sale of relevant interest
(1) If --
10 (a) an applicant for a first home owner grant --
(i) is liable to pay an amount under section 53(2)
(the "outstanding amount"); and
(ii) holds a relevant interest in relation to the home
for which the grant was sought;
15 (b) the outstanding amount remains unpaid for 18 months
after the registration of the memorial referred to in
section 55 to create a charge to secure the amount; and
(c) the registration of the memorial has not been cancelled,
the Commissioner may apply to the Supreme Court for an order
20 for the sale of the relevant interest so that the proceeds of sale
may be applied towards satisfaction of the outstanding amount.
(2) At least 6 months before the Commissioner makes an
application to the Supreme Court under this section, the
Commissioner must --
25 (a) have notice of the intended application published in
2 newspapers --
(i) one circulating generally throughout the State;
and
(ii) the other circulating generally throughout
30 Australia;
page 40
First Home Owner Grant Bill 2000
Miscellaneous Part 4
Charge on interest in home Division 4
s. 58
(b) if the whereabouts of the person referred to in
subsection (1)(a) are known to the Commissioner --
give written notice of the intended application to the
person; and
5 (c) give written notice of the intended application to the
holder of any registered encumbrance over the relevant
interest whose whereabouts are known to the
Commissioner.
(3) On an application under this section, the Supreme Court may
10 order the sale of the relevant interest and make incidental
orders --
(a) about how the sale is to be conducted;
(b) authorising an officer of the Court to execute
documents, and to do anything else necessary, for the
15 sale and conveyance of the relevant interest;
(c) authorising the Registrar to register a transfer to a
purchaser without requiring the duplicate (if any) of the
certificate of title or any other document;
(d) directing (subject to subsection (5)) how the proceeds of
20 sale are to be dealt with; and
(e) dealing with the costs of the proceedings and other
incidental matters.
(4) A sale by order of the Supreme Court discharges the relevant
interest from any mortgage, charge or other encumbrance
25 securing a monetary obligation, but the relevant interest remains
subject to any lease, easement or other encumbrance.
(5) The proceeds of the sale are to be applied --
(a) firstly, in payment of the costs of the sale;
(b) secondly, in payment of the costs of the proceedings so
30 far as those costs are, by order of the Court, to be paid
out of the proceeds of sale;
(c) thirdly, in payment of the outstanding amount; and
page 41
First Home Owner Grant Bill 2000
Part 4 Miscellaneous
Division 5 Service of documents
s. 59
(d) fourthly, in discharge of any outstanding monetary
liability secured by a mortgage, charge or other
encumbrance referred to in subsection (4),
and any remaining balance is to be applied as directed by the
5 Court.
59. Charge not to limit other means of enforcing payment
The existence of a charge created by the registration of a
memorial referred to in section 55 does not affect the
Commissioner's discretion to proceed for recovery of the
10 amount secured by the charge in proceedings unrelated to the
charge.
60. Commissioner may require fees to be reimbursed
(1) The Commissioner may, by written notice, require an applicant
for a first home owner grant, who holds a relevant interest in
15 relation to which a memorial is lodged under section 55, to pay
the amount of any fees paid by the Commissioner for the
registration, or the cancellation of the registration, of the
memorial.
(2) An amount required to be paid under subsection (1) must be
20 paid by the applicant within 28 days after the date on which
notice of the requirement is given to the applicant.
Division 5 -- Service of documents
61. Service on joint applicants or agent or representative
(1) A notice or other document to be served by the Commissioner
25 under this Act on joint applicants for a first home owner grant is
taken to have been duly served on both or all of the applicants if
duly served on any one of them.
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First Home Owner Grant Bill 2000
Miscellaneous Part 4
Service of documents Division 5
s. 62
(2) A notice or other document to be served by the Commissioner
under this Act is duly served if served on --
(a) an agent with apparent authority to accept service of the
notice or other document; or
5 (b) a person who lodged the application to which the notice
or other document relates.
62. Method of service by Commissioner
(1) A notice or other document to be served by the Commissioner
under this Act is duly served on a particular person if --
10 (a) given to the person personally;
(b) left for the person at the person's place of residence or
business;
(c) sent by prepaid post (including document exchange)
addressed to the person at an address appearing on
15 correspondence addressed by or on behalf of the person
to the Commissioner or otherwise notified to the
Commissioner;
(d) left for collection by the person, or that person's agent,
in a collection box maintained at the Commissioner's
20 office;
(e) faxed or sent by computer transmission to a facsimile
number or an address for the receipt of electronic mail
appearing in correspondence addressed by or on behalf
of the person to the Commissioner or otherwise notified
25 to the Commissioner; or
(f) communicated in some other way agreed by the person.
(2) The use of a particular method for service of a document on a
particular person does not prevent the service of other
documents on the same person in a different way.
30 (3) If a notice or other document is not served personally, the
document is taken to be served on the business day following
the day on which the document is sent to, or left for, the person
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First Home Owner Grant Bill 2000
Part 4 Miscellaneous
Division 6 General
s. 63
to whom it is addressed, subject to the exceptions in subsection
(4).
(4) If --
(a) the notice or document is sent by post to an address
5 within Australia but outside the State -- a further
4 business days are to be allowed;
(b) the notice or document is sent by post to an address
outside Australia -- a further 10 business days are to be
allowed.
10 63. Service of court process
If a person on whom a document is to be served for the purpose
of court proceedings commenced by the Commissioner under
this Act has not notified the Commissioner of an address in the
State at which the document may be served (either on the person
15 or on an agent who has authority to accept service), the
document is taken to have been duly served --
(a) if sent by prepaid post to the last known address (within
or outside Australia) of the person to be served; or
(b) if notice of the document is given in accordance with the
20 court's directions.
64. Other enactments not limited
This Division does not limit any other enactment that provides
for the service of documents.
Division 6 -- General
25 65. Confidentiality
(1) A person is subject to a duty of confidentiality under this section
if --
(a) the person is, or has been, engaged in the administration
of this Act; or
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First Home Owner Grant Bill 2000
Miscellaneous Part 4
General Division 6
s. 65
(b) the person has obtained access to confidential
information, whether directly or indirectly, from a
person referred to in paragraph (a).
(2) A person who is subject to a duty of confidentiality under this
5 section must not record, disclose or make use of confidential
information except --
(a) for a purpose related to the administration or
enforcement of --
(i) this Act or a corresponding law;
10 (ii) another Act administered by the Commissioner
or under which the Commissioner exercises
statutory functions; or
(iii) a taxation law;
(b) with the written consent of the person to whom the
15 information relates; or
(c) for the purposes of legal proceedings.
Penalty: $20 000.
(3) This section does not prevent --
(a) the disclosure of information or material in connection
20 with the investigation or prosecution of a criminal
offence to --
(i) the Director of Public Prosecutions for a State or
the Commonwealth;
(ii) an officer of the police force of a State or the
25 Commonwealth;
(iii) an officer of the Australian Securities and
Investments Commission; or
(iv) an officer of another law enforcement agency
established under a law of a State or the
30 Commonwealth that is authorised by the
regulations to receive confidential information
under this paragraph;
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First Home Owner Grant Bill 2000
Part 4 Miscellaneous
Division 6 General
s. 66
(b) the disclosure of statistical or other information that
could not reasonably be expected to lead to the
identification of any person to whom it relates; or
(c) the disclosure of information or material in other
5 circumstances in which its disclosure is permitted by the
regulations.
(4) Information or material that has restrictions on its disclosure
imposed under another Act remains subject to those restrictions
despite the information or material being obtained by the
10 Commissioner, and such information or material may only be
disclosed under subsection (2) to the extent that the disclosure is
consistent with those restrictions.
(5) If confidential information is lawfully disclosed under this
section, this section does not prevent the further disclosure of
15 the confidential information, or the recording or use of it, for the
purpose for which the disclosure was made.
(6) A court cannot require a person who is subject to a duty of
confidentiality under this section to give evidence, or to produce
material, contrary to this section, except in proceedings arising
20 from the lawful disclosure of confidential information.
(7) In this section --
"confidential information" means information or material
obtained in the course of the administration of this Act
about an applicant for a first home owner grant or about the
25 applicant's spouse;
"State" includes Territory.
66. Time for commencing prosecutions
A prosecution for an offence against this Act may be
commenced at any time within 5 years after the date on which it
30 is alleged the offence was committed.
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First Home Owner Grant Bill 2000
Miscellaneous Part 4
General Division 6
s. 67
67. Protection from liability for wrongdoing
(1) A person is not liable for anything that the person has, in good
faith, done in the performance or purported performance of a
function under this Act.
5 (2) The Crown is also relieved of any liability that it might
otherwise have had for another person having done anything as
described in subsection (1).
(3) The protection given by this section applies even though the
thing done as described in subsection (1) may have been
10 capable of being done whether or not this Act had been enacted.
(4) In this section, a reference to the doing of anything includes a
reference to an omission to do anything.
68. Appropriation of Consolidated Fund
The payment of a first home owner grant under this Act is to be
15 charged to the Consolidated Fund, and this section appropriates
that Fund accordingly.
69. Regulations
(1) The Governor may make regulations prescribing all matters that
are required or permitted by this Act to be prescribed, or are
20 necessary or convenient to be prescribed for giving effect to the
purposes of this Act.
(2) Regulations may create offences and provide, in respect of an
offence so created, for the imposition of a penalty not exceeding
$5 000.
25 70. Review of Act
(1) The Minister is to carry out a review of the operation and
effectiveness of this Act as soon as is practicable after the
expiry of 5 years from its commencement.
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First Home Owner Grant Bill 2000
Part 4 Miscellaneous
Division 6 General
s. 70
(2) The Minister is to prepare a report based on the review and, as
soon as is practicable after the report is prepared, is to cause it
to be laid before each House of Parliament.
page 48
First Home Owner Grant Bill 2000
Miscellaneous Part 4
General Division 6
Defined Terms
Defined Terms
[This is a list of terms defined and the provisions where they are defined.
The list is not part of the law.]
Defined Term Provision(s)
Australian citizen ........................................................................................ 3(1)
authorised investigator....................................................................... 3(1), 48(3)
building....................................................................................................... 3(1)
commencement date ...................................................................................14(5)
Commissioner ............................................................................................. 3(1)
completed...................................................................................................14(6)
comprehensive home building contract ........................................................ 3(1)
confidential information .............................................................................65(7)
consideration..............................................................................................14(8)
corresponding law ....................................................................................... 3(1)
decision on the application ............................................................................. 26
document ...................................................................................................47(3)
eligibility criteria......................................................................................... 3(1)
eligible transaction .....................................................................................14(1)
first home owner grant................................................................................. 3(1)
first home owner grant scheme .................................................................... 3(1)
guardian ...................................................................................................... 3(1)
home owner ..................................................................................................... 5
home................................................................................................................ 4
identity card ................................................................................................ 3(1)
interested person ........................................................................................16(3)
non-conforming interest............................................................................... 6(3)
objector.......................................................................................................... 26
option to purchase ....................................................................................... 3(1)
outstanding amount ....................................................................................58(1)
owner.......................................................................................................3(1), 5
owner builder .............................................................................................. 3(1)
permanent resident ...................................................................................... 3(1)
premises...................................................................................................... 3(1)
registered ...................................................................................................55(6)
Registrar ..................................................................................................... 3(1)
relevant date...............................................................................................21(3)
relevant interest ................................................................................... 3(1), 6(1)
relevant material.......................................................................................... 3(1)
repayment arrangement ............................................................................... 3(1)
required repayment.....................................................................................52(1)
residence requirement.................................................................................. 3(1)
residential property...................................................................................... 3(1)
page 49
First Home Owner Grant Bill 2000
Part 4 Miscellaneous
Division 6 General
Defined Terms
spouse .............................................................................................................. 7
State...........................................................................................................65(7)
taxation law................................................................................................. 3(1)
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