Help to Buy Bill 2023, Help to Buy (Consequential Provisions) Bill 2023

The majority voted in favour of amendments introduced by the Government, which means they'll now be included in the bill. The amendments related to how this bill should interact with State and Territory laws.

Amendment text

(1) Clause 34, page 24 (line 28), omit "subsections 42(1) to (3)", substitute "section 41, 41A or 42".

(2) Clause 34, page 24 (lines 29 to 31), omit the note.

(3) Clause 42, page 29 (line 21) to page 32 (line 7), omit the clause, substitute:

41A When Help to Buy program does not apply — exclusion by law of State or Territory

(1) This section applies if a law of a participating State, a cooperating State, the Australian Capital Territory or the Northern Territory declares a matter to be an excluded matter for the purposes of this section in relation to:

(a) the whole of the Help to Buy program; or

(b) a specified provision of the Help to Buy program; or

(c) the Help to Buy program, other than a specified provision; or

(d) the Help to Buy program, otherwise than to a specified extent.

(2) The Help to Buy program, other than the provisions mentioned in section 42B, does not apply in relation to the excluded matter to the extent provided by the declaration.

Note: This subsection has effect subject to subsection (3) and section 42C.

(3) Subsection (2) does not apply to a declaration to the extent (if any) prescribed by the regulations.

Note: See also section 42A (when declarations and regulations may take effect).

42 Avoiding inconsistency with State and Territory laws*

(1) This section has effect despite anything else in the Help to Buy program.

(2) Subsection (4) does not apply to a provision of a law of a State or Territory that is capable of concurrent operation with the Help to Buy program.

Note: This kind of provision is dealt with by section 41.

(3) Subsection (4) applies to the interaction between:

(a) a provision of a law of a participating State, a cooperating State, the Australian Capital Territory or the Northern Territory (the displacement provision); and

(b) a provision of the Help to Buy program (the Commonwealth provision), other than a provision mentioned in section 42B;

only if the displacement provision is declared by a law of the State or Territory to be a Help to Buy program displacement provision for the purposes of this section (either generally or specifically in relation to the Commonwealth provision).

(4) The Commonwealth provision does not operate in, or in relation to, the State or Territory to the extent necessary to ensure that no inconsistency arises between:

(a) the Commonwealth provision; and

(b) the displacement provision to the extent to which the displacement provision would, apart from this subsection, be inconsistent with the Commonwealth provision.

Note 1: The operation of the displacement provision will be supported by section 41 to the extent to which it can operate concurrently with the Commonwealth provision.

Note 2: This subsection has effect subject to subsection (5) and section 42C.

(5) Subsection (4) does not apply in relation to the displacement provision to the extent to which the regulations provide that the subsection does not apply in relation to the displacement provision.

Note: See also section 42A (when declarations and regulations may take effect).

42A Declarations and regulations

Declarations

(1) For the purposes of this Subdivision, a declaration by a law of a State or Territory (the declaring law) that:

(a) a matter is an excluded matter for the purposes of section 41A; or

(b) a provision of a law of the State or Territory is a Help to Buy program displacement provision for the purposes of section 42;

takes effect at the later of the following times, if the declaration would otherwise take effect before that time:

(c) the commencement of this Act;

(d) when the declaring law is enacted or made.

Regulations

(2) Subsection 12(2) of the Legislation Act 2003 (retrospective application) does not apply in relation to regulations made for the purposes of subsection 41A(3) or 42(5) of this Act.

(3) Section 46 (approval of States and Territories required for regulations) does not apply in relation to regulations made for the purposes of subsection 41A(3) or 42(5).

42B Excluded provisions

A reference in subsection 41A(2) or 42(3) of this Act to the Help to Buy program does not include a reference to:

(a) Part 4 of this Act (finance); or

(b) this Division; or

(c) Division 3 of this Part (other miscellaneous matters); or

(d) regulations made for the purposes of a provision mentioned in paragraph (a), (b) or (c) of this section; or

(e) a legislative instrument (other than regulations) made under a provision mentioned in paragraph (a), (b) or (c).

42C Preservation of Commonwealth entitlement and security

(1) If:

(a) disregarding sections 41A and 42 and this section, Housing Australia, on behalf of the Commonwealth:

(i) is entitled under a Help to Buy arrangement to a return on a contribution made under the Help to Buy arrangement; or

(ii) under a Help to Buy arrangement, secures such an entitlement by means of a mortgage or other right relating to a residential property; and

(b) apart from this subsection, an effect of section 41A or 42 would be:

(i) that Housing Australia is not entitled to that return, or does not secure that entitlement in that way; or

(ii) to diminish or restrict that entitlement or security or Housing Australia's functions or powers in relation to that entitlement or security;

section 41A or 42 does not apply to the extent that it would otherwise have the effect described in paragraph (b) of this subsection.

(2) To avoid doubt, in subsection (1):

(a) a reference to a Help to Buy arrangement includes a reference to a Help to Buy arrangement that Housing Australia would be taken to have entered into if section 41A or 42 were disregarded; and

(b) a reference to a contribution made under a Help to Buy arrangement includes a reference to a contribution Housing Australia would be taken to have made, on behalf of the Commonwealth, under a Help to Buy arrangement if section 41A or 42 were disregarded; and

(c) a reference to Housing Australia's functions or powers in relation to an entitlement or security includes a reference to Housing Australia's functions or powers in relation to a Help to Buy arrangement, to the extent that the Help to Buy arrangement relates to the entitlement or security.

42D Modification of Help to Buy program

(1) Subject to subsection (3) of this section, the Minister may, by legislative instrument, modify the operation of the Help to Buy program if the Minister is satisfied that modification is necessary or desirable because of the effect of section 41A or 42 on the operation of a provision of the Help to Buy program.

(2) To avoid doubt:

(a) without limiting subsection (1) of this section, the Minister may make an instrument under that subsection because of an effect that section 41A or 42 might or will have in the future; and

(b) a modification made by such an instrument must not commence before section 41A or 42 begins to have that effect.

(3) To avoid doubt, a legislative instrument made under subsection (1) of this section may not do the following:

(a) create an offence or civil penalty;

(b) provide powers of:

(i) arrest or detention; or

(ii) entry, search or seizure;

(c) impose a tax;

(d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;

(e) directly amend the text of this Act;

(f) substantively remove or override section 41A or 42.