Help to Buy (Commonwealth Powers) Act 2025

This Act is the Help to Buy (Commonwealth Powers) Act 2025.

The purposes of this Act are as follows—

adopt specified provisions of the Help to Buy Act 2024 of the Commonwealth for the purposes of the Commonwealth Constitution, section 51(xxxvii),

refer legislative power of the State in the form of an amendment reference to the Parliament of the Commonwealth to make amendments to the Help to Buy Act 2024 of the Commonwealth for the purposes of the Commonwealth Constitution, section 51(xxxvii), and

consequentially amend the following—

the Duties Act 1997,

the Duties Regulation 2022,

the First Home Owner Grant and Shared Equity Act 2000,

the Land Tax Management Act 1956,

the Property Tax (First Home Buyer Choice) Act 2022.

This Act commences on a day or days to be appointed by proclamation.

In this Act—

adoption means the adoption under section 4(1)(a) or (b).

amendment matters means—

matters relating to the provision of Commonwealth financial assistance for the purpose of assisting individuals to buy a home, where the financial assistance is provided under a Help to Buy arrangement that—

relates to residential property located in a State, and

is entered into while the State is a participating State, and

without limiting paragraph (a), matters relating to the following—

entering into Help to Buy arrangements that satisfy the conditions mentioned in paragraph (a)(i) and (ii),

administering Help to Buy arrangements of that kind,

monitoring compliance with Help to Buy arrangements of that kind, and

doing anything incidental or conducive to anything mentioned in subparagraph (i), (ii) or (iii).

amendment reference means the reference of matters under section 6(1).

Commonwealth Help to Buy Act means the Help to Buy Act 2024 of the Commonwealth.

express amendment of the Commonwealth Help to Buy Act—

means the direct amendment of the text of that Act, whether by insertion, omission, repeal, substitution or relocation of words or matter, by another Commonwealth Act or by an instrument under a Commonwealth Act, but

does not include the enactment by a Commonwealth Act of a provision that has or will have substantive effect otherwise than as part of the text of the Commonwealth Help to Buy Act.

Help to Buy arrangement has the same meaning as in the Commonwealth Help to Buy Act.

Help to Buy program has the same meaning as in the Commonwealth Help to Buy Act.

Housing Australia has the same meaning as in the Housing Australia Act 2018 of the Commonwealth.

primary version means the relevant version of the Commonwealth Help to Buy Act as originally enacted and as amended from time to time before the commencement of section 4, other than—

that Act, Part 2, Divisions 2 and 3, and

that Act, sections 24(1)(a)(ii), 25(3)(b) and (c) and 38.

residential property has the same meaning as in the Commonwealth Help to Buy Act.

residual version means the relevant version of the Commonwealth Help to Buy Act as originally enacted and as amended from time to time before the commencement of section 4, other than—

that Act, Part 2, Divisions 1 and 3, and

that Act, sections 24(1)(a)(i), 25(3)(a) and (c) and 38.

Note—

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

Unless the contrary intention appears, words defined in the Commonwealth Help to Buy Act and otherwise used in this Act have the same meaning in this Act as in the Commonwealth Help to Buy Act.

The following versions of the Commonwealth Help to Buy Act are adopted within the meaning of the Commonwealth Constitution, section 51(xxxvii)—

the primary version,

the residual version.

The operation of each paragraph of subsection (1) is not affected by the other paragraph.

The adoption has effect for a period—

beginning when subsection (1) comes into operation, and

ending at the end of the day fixed under section 7(1)(a) or (b).

To avoid doubt, it is the intention of the Parliament of the State that the Commonwealth Help to Buy Act may be expressly amended, or have its operation otherwise affected, at any time after the commencement of section 4—

by a provision of a Commonwealth Act the operation of which is based on legislative power that the Parliament of the Commonwealth has apart from under the amendment reference, and

by a provision of an instrument made under the Commonwealth Help to Buy Act or under a provision referred to in paragraph (a).

The amendment matters are referred to the Parliament of the Commonwealth, but only to the extent of making laws about those matters by making express amendments of the Commonwealth Help to Buy Act.

The reference in subsection (1) to making laws does not include making a law that would have the effect of—

giving Housing Australia, after a State stops being a participating State, the function of entering into, or the power to enter into, shared equity arrangements that relate to residential property located in the State, or

substantively removing or overriding—

a provision of the Commonwealth Help to Buy Act that requires approval of the State before certain things are done, or

the Commonwealth Help to Buy Act, section 41, 41A or 42.

The reference of a matter under subsection (1) has effect only—

if and to the extent that the matter is not included in the legislative powers of the Parliament of the Commonwealth, otherwise than by a reference for the purposes of the Commonwealth Constitution, section 51(xxxvii), and

if and to the extent that the matter is included in the legislative power of the Parliament of the State.

The amendment reference has effect for a period—

beginning when subsection (1) comes into operation, and

ending at the end of the day fixed under section 7(1)(c).

The Governor, at any time, by proclamation published in the Gazette, may fix a day on which—

the adoption of any or all of the primary version is to terminate, or

the adoption of any or all of the residual version is to terminate, or

the amendment reference is to terminate.

The Governor, by proclamation published in the Gazette, may revoke a proclamation published under subsection (1), in which case the revoked proclamation is taken, for the purposes of section 4 or 6, never to have been made and published.

A revoking proclamation made under subsection (2) has effect only if made and published before the day fixed under subsection (1).

The revocation of a proclamation referred to in subsection (1) does not prevent the making and publication of a further proclamation under that subsection.

If the amendment reference terminates before the adoption of the primary version is terminated, the termination of the amendment reference does not affect—

laws that were made under that reference before that termination, whether or not they have come into operation before that termination, or

the continued operation in the State of the Commonwealth Help to Buy Act as in operation immediately before that termination or as subsequently amended or affected by—

laws referred to in paragraph (a) that come into operation after that termination, or

provisions referred to in section 5.

Accordingly, if the amendment reference terminates, it continues to have effect for the purposes of subsection (1) unless the adoption of the primary version is terminated.

If the amendment reference terminates before the adoption of the residual version is terminated, the termination of the amendment reference does not affect—

laws that were made under that reference before that termination, whether or not they have come into operation before that termination, or

the continued operation in the State of the Commonwealth Help to Buy Act as in operation immediately before that termination or as subsequently amended or affected by—

laws referred to in paragraph (a) that come into operation after that termination, or

provisions referred to in section 5.

Accordingly, if the amendment reference terminates, it continues to have effect for the purposes of subsection (3) unless the adoption of the residual version is terminated.

The following matters are declared to be excluded matters for the purposes of the Commonwealth Help to Buy Act, section 41A in relation to the Help to Buy program—

approved shared equity schemes under the Duties Act 1997,

the First Home Buyers Assistance Scheme under the Duties Act 1997, Chapter 2, Part 8, Division 1,

first home owner grants and shared equity schemes under the First Home Owner Grant and Shared Equity Act 2000,

the administration and governance, including by the exercise of compliance functions, of the grants and schemes referred to in paragraphs (a)–(c),

another matter prescribed by the regulations.

The declaration of a matter to be an excluded matter under subsection (1) for the purposes of the Commonwealth Help to Buy Act, section 41A applies only to the extent to which the excluded matter would, but for this section, be inconsistent with the Commonwealth Help to Buy Act in relation to the Help to Buy program.

For the purposes of the Commonwealth Help to Buy Act, section 46(1), the Minister on behalf of the State, by notice given to the Commonwealth Minister during either the minimum consultation period or the extended consultation period, may object to a matter for the purposes of the Commonwealth Help to Buy Act.

After giving notice to the Commonwealth Minister under subsection (1), the Minister must ensure the notice is published in the Gazette as soon as practicable.

A notice under subsection (1) is to be taken as constituting the State’s objection to a matter for the purposes of the Commonwealth Help to Buy Act.

The Minister on behalf of the State, by notice given to the Commonwealth Minister, may withdraw an objection to a matter under subsection (1).

After giving notice to the Commonwealth Minister under subsection (4), the Minister must ensure the notice is published in the Gazette as soon as practicable.

A notice under subsection (4) is to be taken as constituting the State’s withdrawal of an objection to a matter for the purposes of the Commonwealth Help to Buy Act.

For the purposes of the Commonwealth Help to Buy Act, section 46(4), the Minister on behalf of the State, by notice given to the Commonwealth Minister during the minimum consultation period, may require an additional 15 business days to consider a matter for the purposes of the Commonwealth Help to Buy Act.

After giving notice to the Commonwealth Minister under subsection (7)—

the Minister must ensure the notice is published in the Gazette as soon as practicable, and

the extended consultation period applies for the purposes of giving notice to the Commonwealth Minister under subsection (1).

The validity of a notice given to the Commonwealth Minister under subsection (1), (4) or (7) is not affected by a failure to publish the notice in the Gazette.

In this section—

Commonwealth Minister means the Minister referred to in the Commonwealth Help to Buy Act, section 46.

The Governor may make regulations about a matter that is—

required or permitted by this Act to be prescribed, or

necessary or convenient to be prescribed for carrying out or giving effect to this Act.

The regulations may contain provisions of a savings or transitional nature consequent on the commencement of—

a provision of this Act, or

a provision amending this Act.

A savings or transitional provision consequent on the commencement of a provision must not be made more than 2 years after the commencement.

A savings or transitional provision made consequent on the commencement of a provision is repealed 2 years after the commencement.

A savings or transitional provision made consequent on the commencement of a provision may take effect before the commencement but not before—

for a provision of this Act—the date of assent to this Act, or

for a provision amending this Act—the date of assent to the amending Act.

A savings or transitional provision taking effect before its publication on the NSW legislation website does not—

affect the rights of a person existing before the publication in a way prejudicial to the person, or

impose liabilities on a person for anything done or omitted to be done before the publication.

In this section—

person does not include the State or an authority of the State.