45Variation of authorisation of payment of subsidy—when a person is not a member of the Reserves

#### 45 Variation of authorisation of payment of subsidy—when a person is not a member of the Reserves Scope (1) This section applies in relation to a subsidised borrower if the Secretary is satisfied that, immediately after the end of a service year: (a) the Secretary, under section 27, has authorised the payment of subsidy to the subsidised borrower during an entitlement period beginning at or after the start of the service year on the basis of the borrower’s eligibility as a member of the Reserves; and (b) subsection 5(2) applies to the subsidised borrower’s membership of the Reserves in relation to the service year; and (c) by the operation of that subsection, the Secretary would (apart from this section) have the power to revoke the authorisation of the payment of subsidy to the subsidised borrower under section 44; and (d) during the entitlement period, the Secretary could have given a subsidy certificate to the subsidised borrower, and subsidy on the basis of that certificate would have been payable to the borrower, otherwise than on the basis of the borrower’s eligibility as a member of the Reserves. > Note: Example 1: Paragraph (d) may apply because of the operation of subsection 5(2). Subsidy might have otherwise been payable to the subsidised borrower on the basis of the borrower’s eligibility as a separated member (as the result of the person’s being taken to have stopped being a member of the Reserves). > Note: Example 2: Paragraph (d) may also apply despite the operation of subsection 5(2). If the subsidised borrower’s partner is a member of the Defence Force, and the partner dies, subsidy might in any case have been payable to the borrower as the surviving partner of the deceased partner. Variation of authorisation (2) The Secretary may, by written notice to the subsidised borrower, vary the authorisation of the payment of subsidy to the borrower in relation to the entitlement period. > Note: Part 5 provides for the administrative review of the Secretary’s decision to vary the authorisation. (3) The Secretary may give a notice under subsection (2) during the entitlement period, or at any time after the end of the entitlement period. Effect of variation (4) If an authorisation is varied under this section: (a) subsidy is payable, and is taken to have become payable, to the subsidised borrower on the basis of the borrower’s eligibility (otherwise than as a member of the Reserves) as mentioned in paragraph (1)(d); and (b) subsidy is taken to have become (and continued) to be so payable (subject otherwise to this Act) with effect from the earliest time that subsidy would have been payable to the subsidised borrower as mentioned in paragraph (1)(d). > Note: If the amount of subsidy paid to the subsidised borrower during the entitlement period on the basis of the borrower’s membership of the Reserves exceeds the amount of subsidy payable to the borrower as a result of the operation of this subsection, the Commonwealth may recover the amount of the excess as an overpayment (see Division 6). Application of section 44 (5) If this section applies in relation to the authorisation of the payment of subsidy to a subsidised borrower, the authorisation cannot be revoked under section 44 only because of the operation of subsection 5(2). Notice to loan provider (6) The Secretary must give a copy of a notice under subsection (2) to the loan provider who made the loan to the subsidised borrower. If the subsidised borrower has died (7) If the subsidised borrower has died, the Secretary may vary the authorisation of the payment of subsidy to the subsidised borrower by giving a notice under subsection (2) to the borrower’s legal personal representative.