National Rental Affordability Scheme Amendment (Provisional Allocations and Other Measures) Regulation 2014

Link to law: https://www.comlaw.gov.au/Details/F2014L01260

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National Rental Affordability Scheme Amendment (Provisional Allocations and Other Measures) Regulation 2014
 
Select Legislative Instrument No. 137, 2014
I, General the Honourable Sir Peter Cosgrove AK MC (Ret’d), Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following regulation.
Dated 18 September 2014
Peter Cosgrove
Governor‑General
By His Excellency’s Command
Kevin Andrews
Minister for Social Services
 
  
  
Contents
1............ Name of regulation.............................................................................. 1
2............ Commencement................................................................................... 1
3............ Authority............................................................................................. 1
4............ Schedules............................................................................................ 1
Schedule 1—Amendments                                                                                                2
Part 1—Amendments commencing day after registration                         2
National Rental Affordability Scheme Regulations 2008                                   2
Part 2—Amendments commencing 3 months after day after registration             14
National Rental Affordability Scheme Regulations 2008                                 14
Part 3—Other amendments                                                                                      17
National Rental Affordability Scheme Regulations 2008                                 17
 
1  Name of regulation
                   This regulation is the National Rental Affordability Scheme Amendment (Provisional Allocations and Other Measures) Regulation 2014.
2  Commencement
                   Each provision of this regulation specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
 
Commencement information

Column 1
Column 2

Provisions
Commencement

1.  Sections 1 to 4 and anything in this regulation not elsewhere covered by this table
The day after this regulation is registered.

2.  Schedule 1, Part 1
The day after this regulation is registered.

3.  Schedule 1, Part 2
The day after the end of the period of 3 months beginning on the day after this regulation is registered.

4.  Schedule 1, Part 3
1 May 2010.

3  Authority
                   This regulation is made under the National Rental Affordability Scheme Act 2008.
4  Schedules
                   Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
Schedule 1—Amendments
Part 1—Amendments commencing day after registration
National Rental Affordability Scheme Regulations 2008
1  Regulation 4
Insert:
agreed rental availability date, for a rental dwelling to which a reservation of an allocation relates, means:
                     (a)  the rental availability date for the dwelling in a reporting timetable included in the conditions of the reservation of the allocation; or
                     (b)  if a later rental availability date in relation to the dwelling has been agreed by the Secretary under these Regulations—the most recently agreed rental availability date for the dwelling.
applicant means a person or entity that:
                     (a)  has made an application under subregulation 8(1) in relation to a proposal for one or more projects of rental dwellings; and
                     (b)  is not an approved participant in relation to those dwellings.
2  Regulation 4 (definition of approved participant)
Repeal the definition, substitute:
approved participant, for an approved rental dwelling, means a person or entity to which an allocation in relation to the dwelling:
                     (a)  has been made under regulation 14; or
                     (b)  has been transferred under regulation 21.
3  Regulation 4 (definition of approved rental dwelling)
Repeal the definition, substitute:
approved rental dwelling means a rental dwelling in relation to which an allocation:
                     (a)  has been made under regulation 14; or
                     (b)  has been transferred under regulation 20.
4  Regulation 4
Insert:
conditions of the allocation, in relation to an approved rental dwelling, means the conditions set out in regulation 16.
conditions of the reservation of an allocation in relation to a rental dwelling means:
                     (a)  the conditions relating to location, style, size and special attributes (if any) of the dwelling identified in the offer of the reservation under subparagraphs 13(2)(a)(iia) and (iii); and
                     (b)  the other conditions specified under subregulation 13(3).
tax offset certificate means a certificate of a kind mentioned in paragraph 9(a) of the Act.
transitional period means the period of 3 months beginning on the commencement of Part 1 of Schedule 1 to the National Rental Affordability Scheme Amendment (Provisional Allocations and Other Measures) Regulation 2014.
5  Subregulation 8(4)
Repeal the subregulation.
6  Before regulation 10
Insert:
Division 1—General
7  Paragraph 14(1)(b)
After “conditions”, insert “of the reservation”.
8  Paragraphs 14(2)(a) and (b)
Repeal the paragraphs, substitute:
                     (a)  the dwelling is not available for rent by the agreed rental availability date for the dwelling;
                     (b)  the Secretary is satisfied that the dwelling will not be available for rent by the agreed rental availability date for the dwelling;
9  At the end of subregulation 14(2)
Add:
                   ; (e)  the application for the allocation:
                              (i)  includes information that is false or misleading; or
                             (ii)  fails to include information that the applicant knew, or ought reasonably to have known, was relevant;
                      (f)  an application made under Division 2 in relation to the reservation of the allocation:
                              (i)  includes information that is false or misleading; or
                             (ii)  fails to include information that the applicant knew, or ought reasonably to have known, was relevant.
Note:          Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.
10  Subregulation 14(4)
Repeal the subregulation.
11  Regulation 16 (note after the heading)
Repeal the note.
12  Before subregulation 16(1)
Insert:
          (1A)  The Secretary must make an allocation for an incentive period in respect of a rental dwelling on the conditions set out in this regulation.
Note:          See section 7 of the Act.
          (1B)  The rental dwelling must:
                     (a)  not have been lived in as a residence at any time before the first day of the incentive period; or
                     (b)  have been unfit for anyone to live in, and since the day on which it has been made fit for living in, not have been lived in as a residence between that day and the first day of the incentive period.
          (1C)  To the extent that the rental dwelling is rented during an NRAS year that falls within the incentive period:
                     (a)  the rental dwelling must be rented to one or more eligible tenants; and
                     (b)  the rent that is charged for the rental dwelling must, at all times during the year, be at least 20% less than the market value rent for the dwelling.
Note:          Eligible tenant is defined in regulation 19.
          (1D)  To the extent that the rental dwelling is not rented during an NRAS year that falls within the incentive period—the dwelling must not be vacant:
                     (a)  for longer than 26 weeks; and
                     (b)  for longer than a continuous period of 26 weeks that begins in the previous NRAS year and ends in the first‑mentioned NRAS year.
13  Subregulation 16(2)
Omit “complies at all times”, substitute “complies, at the time (the first available rent time) the dwelling first becomes available for rent and at all times after the first available rent time,”.
14  Subregulation 16(12)
Repeal the subregulation, substitute:
           (12)  The approved participant for an approved rental dwelling must, within the time specified by the Secretary, answer any queries from the Secretary, and give the Secretary any evidence requested by the Secretary, about matters covered by this regulation.
15  Subregulation 17(1)
Repeal the subregulation, substitute:
             (1)  The approved participant for an approved rental dwelling must lodge a Statement of Compliance for the dwelling in relation to each NRAS year for which the approved participant wishes to receive an incentive.
16  Subregulation 17(2)
Omit “13 May”, substitute “30 June”.
17  Regulations 20 and 21
Repeal the regulations, substitute:
20  Transfer of allocation to another rental dwelling
                   If the approved participant for an approved rental dwelling, or a person acting on behalf of the approved participant, requests the Secretary, in a form approved by the Secretary, to transfer the allocation to a different rental dwelling, the Secretary may transfer the allocation as requested.
21  Transfer of allocation to another approved participant etc.
                   If the approved participant for an approved rental dwelling, or a person acting on behalf of the approved participant, requests the Secretary, in a form approved by the Secretary, to transfer the allocation to another approved participant, or another person or entity, the Secretary may transfer the allocation as requested.
18  Regulation 21A
Repeal the regulation.
19  Subregulation 22(1)
Repeal the subregulation, substitute:
             (1)  The Secretary may revoke an allocation in relation to an approved rental dwelling if:
                     (a)  any conditions of the allocation are not complied with; or
                     (b)  the application for the allocation:
                              (i)  includes information that is false or misleading; or
                             (ii)  fails to include information that the applicant knew, or ought reasonably to have known, was relevant.
Note:          Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.
20  At the end of Part 3
Add:
Division 2—Variation of reservation of allocation
23A  Applications to vary conditions of reservation—general
             (1)  An applicant who has accepted an offer of a reservation of an allocation in relation to a rental dwelling, or a person acting on behalf of the applicant, may apply to the Secretary, in accordance with this Division, to vary the conditions of the reservation relating to any of the following:
                     (a)  the dwelling’s location;
                     (b)  the dwelling’s style;
                     (c)  the dwelling’s size;
                     (d)  the dwelling’s special attributes (if any);
                     (e)  the agreed rental availability date for the dwelling.
             (2)  An application must be in writing, in a form approved by the Secretary.
             (3)  An application must:
                     (a)  set out all commercial arrangements associated with the proposed variation, including the consideration or monetary value in respect of, arising from, or otherwise associated with the proposed variation; and
                     (b)  be accompanied by any documents directly relating to the commercial arrangements; and
                     (c)  if the application is for a variation of the location of a dwelling, or the agreed rental availability date for the dwelling, because of a natural disaster—include documents or information about the natural disaster that justify the application.
Note:          Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.
             (4)  The applicant must, within the time specified by the Secretary, answer any queries from the Secretary, and give the Secretary any documents requested by the Secretary, in relation to an application.
23B  Application to vary dwelling’s location or style
             (1)  An application to vary a rental dwelling’s location or style must not be made under regulation 23A after the transitional period.
             (2)  Despite subregulation (1), an application to vary a rental dwelling’s location may be made after the transitional period if, because of a natural disaster, the dwelling cannot be built:
                     (a)  in the location specified in the conditions of the reservation relating to the dwelling; or
                     (b)  if that location has been varied under this Division—in the varied location.
23C  Application to vary dwelling’s agreed rental availability date
             (1)  An application under regulation 23A to vary the agreed rental availability date for a rental dwelling must specify the new rental availability date for the dwelling. The new date must be:
                     (a)  if the application for the allocation in relation to the rental dwelling was made in response to the call for applications made on 18 April 2013—no later than 31 July 2015; or
                     (b)  in any other case—no later than 30 June 2016.
             (2)  After the transitional period, an applicant may make only one application under regulation 23A to vary the agreed rental availability date for a rental dwelling.
             (3)  If an application is made under regulation 23A after the transitional period to vary the agreed rental availability date for a rental dwelling, the new rental availability date requested by the applicant must not be later than 3 months after the agreed rental availability date for the dwelling.
             (4)  Subregulations (2) and (3) do not apply in relation to a rental dwelling if, because of a natural disaster, the dwelling is not able to be made available for rent by the agreed rental availability date for the dwelling.
             (5)  To avoid doubt, subregulation (1) applies in relation to an application to vary the agreed rental availability date for a rental dwelling that is made relying on subregulation (4).
23D  Decisions on applications
             (1)  The Secretary may assess an application under this Division to vary the conditions of the reservation of an allocation using the same criteria as applied to the application under regulation 8 for the allocation.
             (2)  In assessing the application, the Secretary may also take into account:
                     (a)  the documents and information mentioned in subregulation 23A(3); and
                     (b)  any answers or documents given under subregulation 23A(4); and
                     (c)  whether the documents, information or answers, if made public, would be likely to bring the Scheme into disrepute; and
                     (d)  whether the proposed variation would be consistent with the object of the Act.
             (3)  After assessing the application, the Secretary may:
                     (a)  agree to vary the conditions of the reservation of the allocation, in whole or in part; or
                     (b)  refuse to vary the conditions of the reservation of the allocation, in whole or in part.
             (4)  The Secretary must not agree to vary the location of a rental dwelling, or the agreed rental availability date for a rental dwelling, because of a natural disaster unless the Secretary is satisfied the variation is necessary because of the natural disaster.
21  Regulation 25
Repeal the regulation, substitute:
25  Entitlement to receive incentives
                   If the conditions of an allocation in relation to an approved rental dwelling are satisfied in an NRAS year, the approved participant for the dwelling is entitled to receive an incentive, under this Part, for the dwelling for the NRAS year.
22  Paragraph 28(2)(a)
Omit “to the Scheme”, substitute “for rent under the Scheme”.
23  At the end of subsection 28(2)
Add:
               ; or (d)  if the conditions of the allocation in relation to an approved rental dwelling were not satisfied during a period in an NRAS year—proportionately reduce the incentive for that period.
24  Regulation 28A
Repeal the regulation, substitute:
28A  Elections to receive incentive as tax offset certificate
             (1)  This regulation applies to an entity if the entity is:
                     (a)  an applicant, or an approved participant, that is an endorsed charitable institution during an NRAS year; or
                     (b)  an approved participant that becomes an endorsed charitable institution during an NRAS year.
             (2)  The entity may elect to receive an incentive to which the entity is entitled under this Part for an NRAS year as a tax offset certificate rather than as a payment.
             (3)  The entity may make only one election in each NRAS year.
             (4)  An election must be made in writing to the Secretary before the end of 31 December in an NRAS year.
             (5)  However, if an approved participant becomes an endorsed charitable institution after 31 December in an NRAS year, the approved participant may make an election when the approved participant becomes an endorsed charitable institution.
Note:          An election made by an approved participant as permitted by subregulation (5) will only apply in relation to an incentive to be received by the approved participant in an NRAS year beginning after the election was made (see subregulation 29(1)).
             (6)  An entity that has made an election under subregulation (2) or (5) may revoke the election before the end of 31 December in an NRAS year.
Note:          See regulation 29 in relation to the form in which an incentive is given.
28AA  Effect of election agreed to by Secretary
                   If the Secretary agrees to an election made by an entity in accordance with regulation 28A, the election has effect, subject to regulation 29, in relation to an incentive to be received by the entity in an NRAS year, unless the entity revokes the election.
25  Subregulation 29(1)
Repeal the subregulation, substitute:
             (1)  The Secretary must give an approved participant an incentive to which the approved participant is entitled, under this Part, for an NRAS year in accordance with the following table.
 
Receiving incentives

Item
If …
the Secretary must give the approved participant the incentive …

1
(a) the approved participant was an endorsed charitable institution during the whole of the NRAS year; and
(b) an election was in effect under regulation 28AA for the endorsed charitable institution for that year
as a tax offset certificate.

2
(a) the approved participant was an endorsed charitable institution during the whole of the NRAS year; and
(b) no election was in effect under regulation 28AA for the endorsed charitable institution for that year
as a payment.

3
the approved participant was an endorsed charitable institution during part only of the NRAS year
as a tax offset certificate.

4
the approved participant was not an endorsed charitable institution during any part of the NRAS year
as a tax offset certificate.

 
26  After Part 5
Insert:
Part 6—Transitional provisions
  
34  Requests to change rental availability date not decided before commencement
             (1)  This regulation applies if:
                     (a)  before the commencement of Part 1 of Schedule 1 to the National Rental Affordability Scheme Amendment (Provisional Allocations and Other Measures) Regulation 2014 (the amendment regulation), the Secretary had received a request to agree to change the rental availability date for a rental dwelling to which a reservation of an allocation relates; and
                     (b)  the Secretary had not made a decision on the request before that commencement.
Note:          See paragraphs 14(2)(a) and (b) of these Regulations, as in force immediately before the commencement of Part 1 of Schedule 1 to the amendment regulation.
             (2)  Subject to subregulation (3), the Secretary must deal with the request as if the amendments made by Part 1 of Schedule 1 to the amendment regulation had not happened.
             (3)  If the request relates to the rental availability date for a rental dwelling in relation to which the application for an allocation was made in response to the call for applications made on 18 April 2013, the Secretary must not agree to change the rental availability date for the dwelling to a date later than 31 July 2015.
35  Requests to change location, style etc. of dwelling not decided before commencement
             (1)  This regulation applies if:
                     (a)  an application had been made under regulation 21A (previous regulation 21A) of these Regulations, as in force immediately before the commencement of Part 1 of Schedule 1 to the National Rental Affordability Scheme Amendment (Provisional Allocations and Other Measures) Regulation 2014; and
                     (b)  the application had not been decided before that commencement.
             (2)  The Secretary must decide the application in accordance with previous regulation 21A as if that regulation had not been repealed.
36  Elections to receive incentive as a tax offset certificate in effect before commencement
             (1)  This regulation applies if an election by an applicant or an approved participant to receive an incentive as a tax offset certificate, rather than as a payment, was in effect under regulation 28A immediately before the commencement of Part 1 of Schedule 1 to the National Rental Affordability Scheme Amendment (Provisional Allocations and Other Measures) Regulation 2014 (the amendment regulation).
             (2)  The election has effect, at and after the commencement of Part 1 of Schedule 1 to the amendment regulation, as if the Secretary had agreed to the election under section 28AA of these Regulations, as inserted by that Part.
37  Repeal of this Part
                   This Part is repealed on the day after the end of the period of 12 months beginning on the day after this regulation is registered.
Part 2—Amendments commencing 3 months after day after registration
National Rental Affordability Scheme Regulations 2008
27  Regulation 4
Insert:
provisional allocation has the meaning given by subregulation 14(2C).
28  Subregulation 13(3)
After “allocation”, insert “(other than a provisional allocation)”.
29  Paragraph 14(1)(b)
Repeal the paragraph, substitute:
                     (b)  reserve an allocation in relation to the dwelling.
Note:          A reservation of an allocation may be varied under Division 2.
30  After subregulation 14(2)
Insert:
          (2A)  If the Secretary reserves an allocation in relation to a dwelling under paragraph (1)(b), the Secretary must make the allocation on the earlier of:
                     (a)  the date when the conditions of the reservation of the allocation are satisfied; and
                     (b)  the agreed rental availability date for the dwelling.
Note:          The agreed rental availability date for a dwelling in relation to which a reservation of an allocation applies cannot be after 30 June 2016 (see regulation 23C).
          (2B)  An allocation made under subregulation (2A) operates on the day the allocation is made.
          (2C)  An allocation that is made on the agreed rental availability date for a dwelling under paragraph (2A)(b), and in relation to which the conditions of the reservation of the allocation have not been satisfied, is a provisional allocation.
31  After subregulation 16(11)
Insert:
        (11A)  If the allocation is a provisional allocation, the conditions of the reservation of the allocation (other than the condition relating to the agreed rental availability date) must be satisfied.
32  Regulation 20
Before “If”, insert “(1)”.
33  At the end of regulation 20
Add:
             (2)  However, the Secretary must not transfer a provisional allocation to a different rental dwelling.
34  Regulation 21
Before “If”, insert “(1)”.
35  At the end of regulation 21
Add:
             (2)  However, the Secretary must not transfer a provisional allocation to another approved participant or another person or entity.
36  Regulation 22 (heading)
Repeal the heading, substitute:
22  Revocation of allocation other than provisional allocation
37  Subregulation 22(1)
After “an allocation”, insert “(other than a provisional allocation)”.
38  After regulation 22
Insert:
22A  Revocation of provisional allocation
                   The Secretary may revoke a provisional allocation in relation to a rental dwelling if:
                     (a)  any conditions of the allocation are not complied with; or
                     (b)  any advertisement relating to the allocation:
                              (i)  is likely to mislead; or
                             (ii)  misrepresents the Scheme; or
                            (iii)  exaggerates or overstates the tax or other financial advantages resulting from involvement in the Scheme; or
                            (iv)  presents the Commonwealth as underwriting or endorsing the approved participant or the dwelling; or
                             (v)  presents the Commonwealth as dealing directly with investors; or
                            (vi)  presents the Commonwealth as being in partnership with the approved participant or any person or entity publishing details in association with the Scheme; or
                     (c)  the application for the allocation:
                              (i)  includes information that is false or misleading; or
                             (ii)  fails to include information that the applicant knew, or ought reasonably to have known, was relevant; or
                     (d)  an application made under Division 2 to vary the conditions of the reservation of the allocation:
                              (i)  includes information that is false or misleading; or
                             (ii)  fails to include information that the applicant knew, or ought reasonably to have known, was relevant.
Note:          Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.
Part 3—Other amendments
National Rental Affordability Scheme Regulations 2008
39  Paragraphs 26(1)(b) and 27(1)(b)
Omit “$6 000”, substitute “the amount of $6 000, indexed in accordance with the NRAS incentive index”.