Division 4Amendments made by the National Rental Affordability Scheme Amendment (Investor Protection) Regulations 2018

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## Part 1—Preliminary #### 1 Name of Regulations These Regulations are the National Rental Affordability Scheme Regulations 2008. #### 3 The National Rental Affordability Scheme For section 5 of the Act, these Regulations constitute the National Rental Affordability Scheme (the Scheme). #### 4 Definitions In these Regulations: > Act means the National Rental Affordability Scheme Act 2008. > 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. > 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 or 22BG. > approved participants code of conduct has the meaning given by regulation 22BD(1). > 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. > associated party, in relation to an approved rental dwelling, means a person, other than the approved participant or a tenant of an approved rental dwelling, who: (a) is a party to an agreement that relates to the approved rental dwelling; and (b) under the agreement, is required to pass on to another person who is not the approved participant any payment or benefit (including rent) relating to the approved rental dwelling. > call for applications means a call for applications under regulation 7. > compliance breach has the meaning given by subregulation 22BA(4). > 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). > consumer protection law has the same meaning as in the Australian Postal Corporation Act 1989. > disqualifying breach has the meaning given by regulation 22BC. > eligible tenant has the meaning given by regulation 19. > endorsed charitable institution means an entity that is endorsed as exempt from income tax by the Commissioner of Taxation under section 50‑105 of the Income Tax Assessment Act 1997. > individual breach has the meaning given by subregulation 22BA(1). > insolvency event has the meaning given by subregulation 22BA(2). > investor, in relation to an approved rental dwelling, means a person: (a) who is the legal or beneficial owner of the rental dwelling; and (b) who is not an approved participant in relation to the dwelling. > market value rent has the meaning given by regulation 18. > NRAS incentive index means the Rents component of the Housing Group of the Consumer Price Index for the year, December quarter to December quarter as at 1 March of the immediately preceding NRAS year, using the Summary Table weighted average rate of eight capital cities housing component, as published in the Australian Bureau of Statistics publication Cat. no. 6401.0—Consumer Price Index, Australia, CPI: Group, Sub‑group and Expenditure Class, rounded to the nearest single decimal point. > NRAS market index means the Rents component of the Housing Group of the Consumer Price Index for the year, December quarter to December quarter as at 1 March of the immediately preceding NRAS year, using the capital city index for the relevant State, as published in the Australian Bureau of Statistics publication Cat. no. 6401.0—Consumer Price Index, Australia, CPI: Group, Sub‑group and Expenditure Class, Index Numbers by Capital City table (or equivalent), rounded to the nearest single decimal point. > NRAS tenant income index means the All Groups component of the Consumer Price Index, Percentage Change from Corresponding Quarter of Previous Year, December quarter, using the all groups weighted average of eight capital cities, as published in the Australian Bureau of Statistics publication Cat. no. 6401.0—Consumer Price Index, Australia, CPI: Groups, Weighted Average of Eight Capital Cities, Index Numbers and Percentage Changes, rounded to the nearest single decimal point. > pass on, in relation to an incentive, has the meaning given by subregulation 30A(2). > project means a set of related dwellings, and may include: (a) a development of dwellings, or some dwellings within a development; or (b) a set of dwellings in a nominated location; or (c) for small pockets of dwellings—dwellings in more than 1 location. > proposal means a submission in an application to the National Rental Affordability Scheme for allocations. > Note: A proposal may include 1 or more projects in a range of locations. > provisional allocation has the meaning given by subregulation 14(2C). > redirected, in relation to an incentive, has the meaning given by subregulation 22BH(5). > serious breach has the meaning given by subregulation 22BB(1). > special conditions has the meaning given by regulation 13. > subsidiary dwelling means a rental dwelling that is separately identifiable and tenanted, but is part of a larger dwelling. > tax offset certificate means a certificate of a kind mentioned in paragraph 9(a) of the Act. > transfer request has the meaning given by paragraph 22BE(1)(b). > 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. > unfair contract, in relation to an approved rental dwelling, means a contract that: (a) relates to the approved rental dwelling; and (b) includes a term that: (i) results in a significant imbalance in the rights and obligations of the parties to the contract; and (ii) is not reasonably necessary to protect the legitimate interests of a person other than an investor; and (iii) if applied, or relied upon, would cause detriment (whether financial or otherwise) to an investor. > Note: Terms used in these Regulations that are defined in the Act include the following: > Note: allocation, in relation to an incentive period, means an allotment to an approved participant of an entitlement to receive an incentive for an approved rental dwelling in relation to an NRAS year that falls within the incentive period if conditions are satisfied in relation to the rental dwelling. > Note: incentive means: (a) a National Rental Affordability Scheme Tax Offset; or (b) an amount payable for an NRAS year. > Note: incentive period means a 10 year period that starts on or after 1 July 2008. > Note: NRAS year (short for National Rental Affordability Scheme year) means: (a) the period beginning on 1 July 2008 and ending on 30 April 2009; and (b) the year beginning on 1 May 2009 and later years beginning on 1 May. > Note: rental dwelling means a dwelling for which rent is payable and includes: (a) a part of the dwelling or building that is capable of being lived in as a separate residence; and (b) a unit that is a dwelling; and (c) any dwelling prescribed by the regulations to be a rental dwelling for the purposes of this definition; > Note: but does not include a caravan, houseboat, another kind of mobile dwelling or any dwelling prescribed by the regulations not to be a rental dwelling for the purposes of this definition. > Note: Secretary means the Secretary of the Department. #### 5 Meaning of rental dwelling For the definition of rental dwelling in section 4 of the Act, a dwelling is not a rental dwelling if landlord, tenancy, building, and health and safety laws of the State or Territory and local government area in which the dwelling is located do not apply to it. ## Part 2—Application #### 6 Purpose This Part sets out the process for a person or entity to make an application for allocations under the Scheme. #### 7 Call for applications (1) The Secretary may, from time to time, make a call for applications for allocations under the Scheme. (2) The Secretary may, with a call for applications or later, issue guidelines about how a person or entity may apply for allocations in response to the call. (3) A call for applications must specify the set of assessment criteria in Schedule 1 that will apply to applications in response to the call. #### 8 Form of application (1) An application for allocations in response to a call for applications may be made by: (a) a person or entity to whom Division 380 of the Income Tax Assessment Act 1997 applies; or (b) an endorsed charitable institution. (2) An application must: (a) be in writing; and (b) comply with any guidelines for the call; and (c) contain a proposal for 1 or more projects of rental dwellings to be approved for the Scheme; and (d) describe the style, size and special attributes (if any) of the proposed dwellings. (3) A project may include dwellings that will not be available for rent until a time in the future, including dwellings that have not yet been built and cannot yet be individually identified. #### 9 Time for dealing with applications The Secretary must: (a) make reasonable efforts to determine the applications and notify applicants of the results within 6 months after the date applications are received; and (b) in any case, notify each applicant of the status of the application by that time. ## Part 3—Allocation ### Division 1—General #### 10 Purpose This Part provides for the making, transfer and revocation of allocations under the Scheme. #### 11 Assessment criteria for allocations Sets of assessment criteria for allocations in relation to calls are set out in Schedule 1. #### 12 Assessment of applications (1) The Secretary must assess applications in accordance with the assessment criteria specified for the call for applications, taking into account the overall goals expressed in the criteria as well as considering the individual applications. (1A) If a set of assessment criteria specified for a call for applications is divided into subsets, the Secretary: (a) must assess applications in accordance with the criteria in subset 1; and (b) if an application does not meet 1 or more of the criteria in subset 1, either: (i) decide not to make an offer of allocation for the application; or (ii) assess the application against the criteria in subset 2, before making a decision whether to make an offer of allocation; and (c) if the application meets the criteria in subset 1, assess the application against the criteria in subset 2, before making a decision whether to make an offer of allocation. (2) The Secretary may seek additional information from an applicant, or any other person, and may invite an applicant to vary an application. (3) The Secretary may choose any combination of dwellings from an application. #### 13 Offers of allocation (1) The Secretary may make offers to applicants in accordance with an assessment made under regulation 12. (2) An offer must: (a) identify: (i) for an allocation—the location of each dwelling by title reference or street address; and (iia) for a reservation of allocation—the location of each dwelling by postcode or other regional reference; and (ii) the number of dwellings in each postcode or region; and (iii) the style, size and special attributes (if any) of each dwelling; and (b) set out any conditions (special conditions) that will apply to an allocation in relation to particular dwellings or groups of dwellings covered by the offer; and (c) specify whether the offer may be accepted in part; and (d) set a period of not less than 4 weeks during which the offer remains open. (3) An offer that relates to a dwelling that is not yet available for rent must specify conditions, which may include a reporting timetable, that must be satisfied before an allocation (other than a provisional allocation) will be made for the dwelling. (4) When the Secretary is satisfied that no offer is likely to be made to a particular applicant, he or she must notify the applicant. (5) If the Secretary does not make an offer to an applicant, or does not make an offer to an applicant that relates to a particular dwelling, the applicant may, apply in writing for the reasons for the Secretary’s decision. (6) The Secretary must, within 28 days after receiving the request for the reasons mentioned in subregulation (5), provide reasons for the decision. (7) If the applicant does not agree with the reasons for the Secretary’s decision, or does not receive the reasons within the required time mentioned in subregulation (6), the applicant may apply for internal review of the Secretary’s decision (the original decision). (8) If the original decision was made by a delegate of the Secretary, the internal review must be conducted by the Secretary, or another delegate of the Secretary. (9) If the original decision was made by the Secretary, the internal review must be conducted by the Secretary. (10) The decision which is reached after the internal review is a new decision. #### 14 Allocations (1) When an offer is accepted by an applicant in relation to a dwelling, the Secretary must: (a) make an allocation in relation to the dwelling, specifying the date from which the allocation will operate or is taken to have operated; or (b) reserve an allocation in relation to the dwelling. > Note: A reservation of an allocation may be varied under Division 2. (2) The Secretary may withdraw a reservation of an allocation in relation to a dwelling if any of the following events occur: (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; (c) the applicant fails to comply with any condition of the reservation; (d) any advertisement relating to the reservation: (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 government as underwriting or endorsing the applicant, the dwelling or a proposed investment; or (v) presents the government as dealing directly with investors; or (vi) presents the government as being in partnership with any applicant, person or entity publishing details in association with the Scheme; (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. (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. (3) On making an allocation, or deciding to withdraw a reservation of an allocation, the Secretary must notify the applicant. #### 15 Notification to approved participants A notification of allocation must include the following: (a) particulars of the allocation, including those identifying the approved rental dwelling; and (b) the conditions that apply to the allocation; and (c) for subsidiary dwellings—the incentive amount for each dwelling under regulation 27. #### 16 Conditions of allocation (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 (the relevant NRAS year) that falls within the incentive period—the dwelling must not be vacant for: (a) a period of more than 26 weeks during the relevant NRAS year (whether or not the period is continuous); or (b) a continuous period of more than 26 weeks that: (i) begins no more than 26 weeks before the end of the previous NRAS year; and (ii) ends in the relevant NRAS year. (1) The approved participant for an approved rental dwelling must lodge Statements of Compliance for the dwelling with the Department in accordance with regulation 17. (2) The approved participant must ensure that each approved rental dwelling, and the management of it, 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, with the landlord, tenancy, building, and health and safety laws of the State or Territory and local government area in which the dwelling is located. (2A) The approved participant must not, in relation to an allocation made to the approved participant: (a) provide information to the Secretary or the Department that is false or misleading; or (b) fail to provide information to the Secretary or the Department that the approved participant knows, or ought reasonably to know, is relevant. (3) The approved participant must ensure that all special conditions are complied with. (4) The approved participant for an approved rental dwelling must obtain market rent valuations of the dwelling in accordance with regulation 18 and subregulations (5) and (5A) of this regulation: (a) when the dwelling is first available for rent under the National Rental Affordability Scheme; and (b) at the end of the fourth and seventh years of the incentive period in respect of the dwelling. (5) A market rent valuation of an approved rental dwelling obtained under paragraph (4)(a) or (b) must: (a) relate to the market value rent for the dwelling on a date within the permitted valuation period for the market rent valuation; and (b) specify the date to which the market value rent relates. (5A) For subregulation (5): (a) the permitted valuation period for a market rent valuation of an approved rental dwelling to be obtained under paragraph (4)(a) is the 26 week period: (i) beginning 13 weeks before the day when the dwelling is first available for rent under the National Rental Affordability Scheme; and (ii) ending at the end of 13 weeks after that day; and (b) the permitted valuation period for a market rent valuation of an approved rental dwelling to be obtained under paragraph (4)(b) is the 26 week period: (i) beginning 13 weeks before the last day of the fourth or seventh year (as the case may be) of the incentive period in respect of the dwelling; and (ii) ending at the end of 13 weeks after that day. (6) The approved participant for an approved rental dwelling: (a) must lodge with the Department the market rent valuation of the dwelling obtained under paragraph (4)(a): (i) within 13 weeks of the day when the dwelling is first available for rent under the National Rental Affordability Scheme; or (ii) if the Secretary approves an extended period under subregulation (6A)—within the extended period; and (b) must lodge with the Department the market rent valuations of the dwelling obtained under paragraph (4)(b): (i) within 13 weeks of the last day of the fourth or seventh year (as the case may be) of the incentive period in respect of the dwelling; or (ii) if the Secretary approves an extended period under subregulation (6A)—within the extended period. (6A) Subject to subregulation (6B), the Secretary may, on application in writing by the approved participant for an approved rental dwelling, approve an extended period within which a market rent valuation of the dwelling must be lodged under subregulation (6). (6B) The Secretary must not approve an extended period for lodging a market rent valuation unless: (a) the Secretary is satisfied that the applicant for the approval has a reasonable excuse for not being able to obtain and lodge the valuation within the period mentioned in subparagraph (6)(a)(i) or (b)(i) (as the case requires); or (b) both of the following apply: (i) the allocation concerned has been transferred to another dwelling or to another person or entity; (ii) the Secretary is satisfied that, because of the transfer, it is reasonable to extend the period for obtaining and lodging the valuation. (6C) If the Secretary approves an extended period under subregulation (6A), the Secretary must notify the applicant for the approval, in writing, of the extended period. (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. (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 information and documents requested by the Secretary, about matters relating to the Scheme. #### 17 Statement of Compliance (1) The approved participant for an approved rental dwelling must lodge with the Department a Statement of Compliance for the dwelling in relation to each NRAS year for which the approved participant wishes to receive an incentive. (2) The Statement of Compliance must be lodged: (a) by 30 June after the end of the NRAS year for which the approved participant wishes to receive an incentive; or (b) if the Secretary approves a later date under subregulation (2A) or (2B)—by the later date. (2A) Subject to subregulation (2C), the Secretary may, on the Secretary’s own initiative and if the Secretary considers it appropriate, approve a later date by which Statements of Compliance for approved rental dwellings in relation to a particular NRAS year must be lodged. (2B) Subject to subregulations (2C) and (2D), the Secretary may, on application in writing by the approved participant for an approved rental dwelling, approve a later date by which a Statement of Compliance for the dwelling in relation to an NRAS year must be lodged. (2C) The Secretary must not, under subregulation (2A) or (2B), approve a date by which a Statement of Compliance for an approved rental dwelling in relation to an NRAS year must be lodged that is later than 30 September after the end of the NRAS year. (2D) The Secretary must not, under subregulation (2B), approve a later date by which a Statement of Compliance for an approved rental dwelling in relation to an NRAS year must be lodged unless the Secretary is satisfied that the applicant has a reasonable excuse for not being able to lodge, or for not lodging, the Statement by 30 June after the end of the NRAS year. (2E) If the Secretary approves a later date under subregulation (2A), the Secretary must notify, in writing, all approved participants for approved rental dwellings of the later date. (2F) If the Secretary approves a later date under subregulation (2B), the Secretary must notify the applicant for the approval, in writing, of the later date. (3) The Statement must be in a form approved by the Secretary and must include: (a) a statement that at all times during the year, any tenant or tenants of the dwelling were eligible tenants, or details of any way in which this requirement was not met; and (b) details of the rental charged over the year; and (c) a statement that the rental charged during the year was at all times at least 20% less than the market value rent of the dwelling for the year, or details of any way in which this requirement was not met; and (d) details of any period during which the dwelling was vacant; and (e) details of each investor for the dwelling; and (f) a statement that at all times during the year the approved participant, in respect of the dwelling, complied with landlord, tenancy, building, and health and safety laws of the State or Territory and local government area in which the dwelling is located, or details of any way in which such laws were not complied with; and (fa) a statement that at all times during the year the approved participant complied with consumer protection laws in relation to the allocation, or details of any way in which such laws were not complied with; and (g) a statement that all special conditions have been complied with or details of any way in which this requirement was not met; and (h) a statement that the approved participant has complied with the approved participant’s obligations under Division 2 of Part 4, or details of any way in which those obligations were not complied with; and (i) such other information as is required by the form. #### 18 Determining market value rent (1A) In these Regulations, the market value rent for an approved rental dwelling for a year of an incentive period in respect of the dwelling is: (a) for the period of 12 months beginning when the dwelling is first available for rent under the National Rental Affordability Scheme—the market value rent for the dwelling, assessed under subregulation (1) for the purpose of obtaining a market rent valuation of the dwelling under paragraph 16(4)(a); and (b) for the fifth year of the incentive period in respect of the dwelling—the market value rent for the dwelling at the end of the fourth year of the incentive period, assessed under subregulation (1) for the purpose of obtaining a market rent valuation of the dwelling under paragraph 16(4)(b); and (c) for the eighth year of the incentive period in respect of the dwelling—the market value rent for the dwelling at the end of the seventh year of the incentive period, assessed under subregulation (1) for the purpose of obtaining a market rent valuation of the dwelling under paragraph 16(4)(b); and (d) for any other year (the relevant year) of the incentive period in respect of the dwelling—the market value rent for the dwelling for the year immediately preceding the relevant year, indexed on the first day of the relevant year in accordance with the NRAS market index, and rounded to the next whole dollar. (1) In these Regulations, the market value rent for an approved rental dwelling, for the purpose of obtaining a market rent valuation of the dwelling under paragraph 16(4)(a) or (b), is the amount assessed as the market value rent for the dwelling in a written valuation prepared by a valuer who: (a) is registered as a valuer: (i) in the State or Territory in which the dwelling is located; and (ii) with a professional organisation that has a code of conduct and adopts the professional practice standards of the Australian Property Institute; and (b) has no commercial relationship with, or interest in: (i) the registered owner or manager of the dwelling; or (ii) a recipient of a Commonwealth, State or Territory government benefit in relation to the dwelling. (2) A valuer preparing a valuation under subregulation (1) must assess the market value rent of an approved rental dwelling on the basis of the condition in which the dwelling is to be rented, including whether the dwelling will be rented fully or partially furnished. #### 19 Eligible tenants (1) In this regulation: (a) a reference to the tenants of an approved rental dwelling is a reference to a particular person or persons who are tenants of the dwelling; and (b) the day on which those tenants become tenants of the dwelling is their start day; and (c) the 12 month period beginning on their start day or an anniversary of their start day is an eligibility year for those tenants; and (d) adult means: (i) a person 18 years of age or older; or (ii) a person under 18 years of age living independently outside of the family home and who is not financially dependent on an eligible tenant; and (e) child means a person under 18 years of age who is financially dependent on an eligible tenant. (2) For these Regulations, the tenants of an approved rental dwelling become eligible tenants on their start date if their combined gross income for the 12 months ending on the day before the start date does not exceed the income limit for their household as set out in this regulation. (3) Eligible tenants cease to be eligible tenants if: (a) they cease to be tenants of an approved rental dwelling; or (b) their combined gross income exceeds the income limit for their household by 25% or more in 2 consecutive eligibility years. (4) The income limits for a household are: (a) if a household does not include a sole parent: (i) $40 501 for the first adult; and (ii) $15 490 for each additional adult; and (iii) $13 432 for each child; or (b) if a household includes a sole parent: (i) $42 599 for the first sole parent; and (ii) $15 490 for each additional adult; and (iii) $13 432 for each child. (4A) For this regulation: (a) each subsidiary dwelling that forms part of an approved rental dwelling may only include 1 household; and (b) an approved rental dwelling, other than an approved rental dwelling mentioned in paragraph (a), may only include 1 household; and (c) the combined gross incomes of the tenants in a subsidiary dwelling must be considered in assessing the household income for that subsidiary dwelling. (5) The income limits mentioned in subregulation (4), for a household for each subsequent year beginning 1 May, are the amounts for the previous year indexed in accordance with the NRAS tenant income index, rounded to the next whole dollar. (6) The Secretary may, by legislative instrument, change from time to time, any or all of the income limits mentioned in subregulation (4). ### Division 1A—Transfer and revocation of allocations #### Subdivision A—Transfer on request #### 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 person or entity (1) If the approved participant (the original 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 person or entity (the gaining approved participant), the Secretary may transfer the allocation as requested. Transfer of incentive (2) If the Secretary transfers that allocation, the Secretary may give an incentive to the gaining approved participant instead of the original approved participant if: (a) the original approved participant requests the Secretary to give the incentive to the gaining approved participant; and (b) the gaining approved participant agrees to accept the incentive. #### Subdivision B—Revocation generally #### 22 Revocation of allocation other than provisional allocation (1) The Secretary may revoke an allocation (other than a provisional allocation) made to an approved participant in relation to an approved rental dwelling if: (a) any conditions of the allocation are not complied with; or (aa) the approved participant fails to comply with the approved participant’s obligations under Division 2 of Part 4; or (ab) the approved participant provides false or misleading information about the Scheme to an investor for the approved rental dwelling; or (ac) the approved participant fails to provide information to an investor that the approved participant knows, or ought reasonably to know, is relevant; or (ad) the approved participant fails to comply with a consumer protection law in relation to the allocation; or (ae) if the approved participant receives a tax offset certificate in respect of the approved rental dwelling—the approved participant claims a tax offset (or a part of a tax offset) in relation to the certificate to which the approved participant is not entitled; or (af) if the approved participant is a company—either: (i) ASIC has published notice of the proposed deregistration of the company under paragraph 601AA(4)(d) or 601AB(3)(b) of the Corporations Act 2001; or (ii) a court has ordered the deregistration of the company by ASIC under paragraph 413(1)(d) or 481(5)(b) or subsection 509(2) of that Act; or (ag) the approved participant: (i) becomes bankrupt; or (ii) takes steps to take the benefit of any law for the relief of bankrupt or insolvent debtors; or (iii) compounds with one or more of his or her creditors; or (iv) makes an assignment of his or her remuneration for the benefit of one or more of his or her creditors; 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. (2) If an allocation is revoked under subregulation (1), no incentive is payable for the NRAS year in which the revocation occurred, or in any subsequent NRAS year. #### 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. #### 22B Matters that may be taken into account by Secretary in deciding to revoke an allocation In deciding whether to revoke an allocation under this Subdivision, the Secretary may take into account the following matters: (a) whether the approved participant has failed to manage an allocation in accordance with the objectives of the Scheme; (b) any advice provided to the Secretary by a Commonwealth, State or Territory regulatory authority about whether the conduct of the approved participant in relation to an allocation has contravened a law of the Commonwealth or of a State or Territory; (c) any matters notified to the Secretary about the approved participant’s conduct by a State or Territory government; (d) any conduct by the approved participant in relation to an allocation which the Secretary considers might bring the Scheme into disrepute; (e) the approved participant’s current financial circumstances including, but not limited to, financial circumstances that may significantly limit the approved participant’s capacity to comply with the conditions of the allocation; (f) the nature, significance, persistence and seriousness of any contravention of: (i) a condition of an allocation; or (ii) an obligation under Division 2 of Part 4; (g) the need to ensure that: (i) allocations under the Scheme are properly managed; and (ii) investors maintain confidence in the Scheme; (h) whether the approved participant has ever: (i) become bankrupt; or (ii) applied to take the benefit of any law for the relief of bankrupt or insolvent debtors; or (iii) compounded with his or her creditors; or (iv) assigned his or her remuneration for the benefit of creditors; (i) any other matter that the Secretary considers relevant. #### Subdivision C—Transfer or revocation because of breach #### 22BA Individual breach (1) The Secretary may determine that the approved participant for an approved rental dwelling has committed an individual breach if the Secretary is satisfied that the approved participant: (a) is the subject of an insolvency event; or (b) has breached the approved participants code of conduct in relation to the dwelling; or (c) has committed a compliance breach in relation to the dwelling. (2) The approved participant is the subject of an insolvency event if the approved participant: (a) dies or ceases to exist; or (b) becomes bankrupt or insolvent; or (c) commences to be wound up. (3) The approved participant breaches the approved participants code of conduct if the approved participant fails to comply with the code. (4) The approved participant commits a compliance breach if: (a) the approved participant fails to comply with the Act or these regulations (other than the approved participants code of conduct); or (b) a condition of the allocation for the dwelling is contravened in circumstances that are within the control of the approved participant. #### 22BB Serious breach (1) The Secretary may determine that the approved participant for an approved rental dwelling has committed a serious breach if the Secretary is satisfied that: (a) the approved participant has breached the approved participants code of conduct in relation to 3 or more investors within a period of 6 months, resulting in material financial detriment to those investors; or (b) has committed a compliance breach that involves one or more of the following: (i) providing false or misleading information to the Secretary or the Department in relation to the National Rental Affordability Scheme; (ii) failing to comply with the law of the Commonwealth or a State or Territory in relation to the dwelling or any other aspect of the National Rental Affordability Scheme; (iii) claiming a tax offset that the approved participant is not entitled to claim; (iv) passing on a tax offset to a person who is not entitled to claim the tax offset; or (c) all of the following apply: (i) the approved participant has breached the approved participants code of conduct or committed a compliance breach; (ii) the Secretary has, by writing, required the approved participant to take remedial action in relation to the breach; (iii) the remedial action is not taken within 28 days after the requirement is given to the approved participant; or (d) all of the following apply: (i) the approved participant has breached the approved participants code of conduct or committed a compliance breach; (ii) the Secretary has given the approved participant a written warning in relation to the breach; (iii) within 12 months after being given the warning, the approved participant commits a similar breach (whether in relation to the same or another allocation). (2) If the Secretary determines that the approved participant has committed a serious breach: (a) the Secretary may publish notice of the breach on the Department’s website; and (b) an investor for any approved rental dwelling (the investor’s dwelling) for which the allocation is held by the approved participant dwelling may, by writing, request the Secretary to transfer the allocation for the investor’s dwelling. #### 22BC Disqualifying breach The Secretary may determine that an approved participant for an approved rental dwelling has committed a disqualifying breach if: (a) the Secretary is satisfied that the approved participant is the subject of an insolvency event; or (b) the Secretary: (i) has determined that the approved participant has committed a serious breach; and (ii) is satisfied that the Secretary could, within 12 months, determine that the approved participant has committed another serious breach. #### 22BD Approved participants code of conduct (1) The approved participants code of conduct is set out in subsection (2). (2) The approved participant for an approved rental dwelling: (a) must comply with legal obligations relating to investors in a timely manner; and (b) must comply with the law of the Commonwealth and the States and Territories in relation to dealings with investors and tenants; and (c) must lodge an annual Statement of Compliance in relation to the dwelling; and (d) must respond to a communication from an investor within 30 days, unless the approved participant has a reasonable excuse; and (e) must have an internal or external dispute resolution mechanism for use by investors; and (f) must not enforce, seek to enforce or threaten to enforce an unfair contract; and (g) must not make a misrepresentation to an investor; and (h) must not engage in misleading or deceptive conduct in relation to an investor; and (i) must not threaten or coerce an investor to take an action the investor is not required to take under contract; and (j) must not prevent an investor from entering into a contract with a suitably qualified and experienced person in relation to the dwelling; and (k) must not threaten to take action that would result in an investor not receiving incentive to which the investor is entitled under law; and (l) must not require an investor to enter into a contract with another person in relation to the dwelling, unless the contract relates to a property management service provider and the approved participant is able to ensure that the provider: (i) complies with the contract between the provider and the investor; and (ii) complies with legal obligations relating to the investor in a timely manner; and (iii) complies with the laws of the Commonwealth and the States and Territories in relation to dealings with investors and tenants; and (iv) does not enforce, seek to enforce or threaten to enforce an unfair contract with an investor; and (v) does not make a misrepresentation to an investor; and (vi) does not engage in misleading or deceptive conduct in relation to an investor; and (vii) does not threaten or coerce an investor to take action the investor is not required to take under contract; and (m) if the approved participant requires the investor to enter into a contract as mentioned in paragraph (l)—ensures that the property management service provider acts in accordance with subparagraphs (l)(i) to (vii). #### 22BE Secretary may determine breach on own initiative or on request by an investor (1) The Secretary may determine that an approved participant for an approved rental dwelling has committed an individual breach, a serious breach or a disqualifying breach: (a) on the Secretary’s own initiative; or (b) on a written request (the transfer request) by an investor for the allocation for the dwelling to be transferred because the approved participant has committed an individual breach, a serious breach or a disqualifying breach. (2) A transfer request: (a) must: (i) be in a form approved by the Secretary; and (ii) include details of the breach alleged by the investor; but (b) does not need to specify whether the breach is an individual breach, a serious breach or a disqualifying breach. (3) However, an investor must not make a transfer request unless: (a) the investor has given the approved participant written notice of the alleged breach; and (b) 90 days have passed since the notice was given; and (c) the investor is satisfied that the approved participant has not taken appropriate action in relation to the alleged breach. (4) Subsection (3) does not apply in relation to an insolvency event. #### 22BF Secretary must notify proposed determination (1) Before determining that the approved participant for an approved rental dwelling has committed an individual breach, a serious breach or a disqualifying breach, the Secretary must give written notice of the proposed determination to: (a) the approved participant; and (b) if the Secretary proposes to make the determination because an investor made a transfer request—the investor. (2) The notice must: (a) state that the Secretary proposes to determine that the approved participant has committed the breach; and (b) invite the approved participant or investor, as the case requires, to make a written submission to the Secretary about the proposed determination no later than 14 days after the day the Secretary gives the notice. (3) In deciding whether to make the determination, the Secretary must have regard to any submission so made. (4) Subregulation (3) does not limit the matters to which the Secretary may have regard in deciding whether to make the determination. #### 22BG Transfer or revocation because of breach (1) This regulation applies if: (a) the Secretary has determined that an approved participant for an approved rental dwelling has committed an individual breach, a serious breach or a disqualifying breach; and (b) either: (i) the Administrative Appeals Tribunal has confirmed the Secretary’s decision to make the determination; or (ii) the period for making an application to the Administrative Appeals Tribunal for review of the Secretary’s decision to make the determination has expired. Individual breach (2) The Secretary must transfer the allocation for the dwelling to another person or entity if: (a) the Secretary has determined that the approved participant committed an individual breach; and (b) an investor has requested the transfer. Serious breach—investor requested transfer (3) The Secretary must transfer the allocation for the dwelling to another person or entity if: (a) the Secretary has determined that the approved participant committed a serious breach; and (b) an investor has requested the transfer. > Note: The investor may make this request under paragraph 22BB(2)(b) or 22BE(1)(b). Serious breach—determined on the Secretary’s own initiative (4) The Secretary may transfer or revoke the allocation for the dwelling to another person or entity if: (a) the Secretary has determined that the approved participant committed a serious breach; and (b) the determination was made on the Secretary’s own initiative under paragraph 22BB(1)(a). Disqualifying breach (5) If the Secretary determines that the approved participant committed a disqualifying breach, the Secretary must transfer or revoke all of the approved participant’s allocations for approved rental dwellings to other persons or entities within 6 months. Requirements for transfer (6) The Secretary must not transfer an allocation to a person or entity under this regulation unless: (a) the Secretary is satisfied that the person or entity: (i) has the capacity to properly manage the allocation; and (ii) is a suitable person or entity to whom the allocation may be transferred; and (b) the person or entity has agreed in writing to the transfer. #### 22BH Secretary may redirect incentive (1) This regulation applies if, under this Subdivision, the Secretary transfers an allocation for an approved rental dwelling from an approved participant (the original approved participant) to another person or entity (the gaining approved participant). Incentive for year of transfer (2) The Secretary may give an incentive to the gaining approved participant instead of the original approved participant if: (a) the Secretary transfers the allocation during an NRAS year; and (b) apart from the operation of this regulation and any determination in force under subregulation 25(2), the original approved participant: (i) would be entitled to receive the incentive for the approved rental dwelling for the NRAS year; and (ii) would be required to pass on all or part of the incentive to an investor. Incentive for an earlier year (3) The Secretary may give an incentive to the gaining approved participant instead of the original approved participant if: (a) the Secretary transfers an allocation during an NRAS year; and (b) apart from the operation of this regulation and any determination in force under subregulation 25(2), the original approved participant: (i) would be entitled to receive the incentive for the approved rental dwelling for an earlier NRAS year; and (ii) would be required to pass on all or part of the incentive to an investor. Redirected incentive to be given to investor (4) If the Secretary gives an incentive to the gaining approved participant: (a) the gaining approved participant must give the incentive to the investor concerned; and (b) to avoid doubt, and despite any agreement to the contrary, the original approved participant is no longer required to pass on all or part of the incentive to the investor. Meaning of redirected (5) An incentive given to a gaining approved participant under this regulation is redirected. Secretary to notify of proposed redirection (6) Before the Secretary redirects an incentive, the Secretary must give written notice of the proposed redirection to the following: (a) the original approved participant; (b) the investor concerned. (7) The notice must invite the original approved participant or investor, as the case requires, to make a written submission to the Secretary about the proposed redirection no later than 14 days after the day the Secretary gives the notice. Incentive that has been given cannot be redirected (8) To avoid doubt, this regulation does not apply to allow the Secretary to redirect an incentive that has already been given to an original approved participant. #### 22BJ Statement of compliance if allocation is transferred If the Secretary transfers an allocation for an approved rental dwelling from an approved participant to another person or entity during an NRAS year, the Secretary may require the gaining approved participant (within the meaning of regulation 22BH) to lodge a Statement of Compliance for the dwelling that includes statements and details for either or both of the following: (a) the NRAS year; (b) the previous NRAS year. > Note: For access to information held by an original approved participant, see regulation 22D. #### Subdivision D—General provisions #### 22C Contracts do not prevent transfers A contract has no effect to the extent that the contract prohibits or prevents an investor from, or penalises an investor for: (a) requesting the transfer of an allocation; or (b) assisting with, or supporting in any way, a request for the transfer of an allocation. #### 22D Obligations of approved participants when allocations are transferred (1) This regulation applies if an allocation is transferred from an approved participant (the original approved participant) to another person or entity (the gaining approved participant). (2) The original approved participant must give to the gaining approved participant any information that is: (a) requested by the Secretary; and (b) relevant to the administration of the Scheme. (3) The information must be given within 21 days after the request is made. ### Division 1B—Variation of certain conditions #### 23 Variation of certain conditions (1) The Secretary may, with the agreement of the approved participant, vary the special conditions in relation to an approved rental dwelling. (2) The Secretary may, with the agreement of an approved participant for an approved rental dwelling, vary a condition of the reservation of the allocation in relation to the dwelling that relates to the size of the dwelling. ### 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. ## Part 4—Incentives ### Division 1—Receiving incentives #### 24 Purpose This Division sets out the process for receipt of incentives under the National Rental Affordability Scheme. #### 25 Entitlement to receive incentives (1) An approved participant for an approved rental dwelling is entitled to receive an incentive, under this Division, for the dwelling for the NRAS year, if: (a) the conditions of an allocation in relation to the approved rental dwelling are satisfied for the NRAS year; and (b) a determination under subregulation (2) is not in force in relation to the allocation. (2) The Secretary may, in accordance with this regulation, make a written determination that subregulation (1) does not apply in relation to a particular allocation if: (a) an investor has requested the transfer of the allocation under regulation 22BE and the request has not been finally determined; or (b) the Secretary believes on reasonable grounds that such a request will be made; or (c) less than 90 days have passed since a request to transfer the allocation under regulation 22BE was finally determined; or (d) a redirection of the incentive is made within the 90 days mentioned in paragraph (c) and less than 30 days have passed since the redirection of the incentive; or (e) an application relating to redirection of the incentive made to the Administrative Appeals Tribunal under paragraph 33(1)(ab) has not been finally determined. (3) The Secretary must revoke the determination if the Secretary is satisfied that the grounds on which the determination was made no longer apply and none of the other grounds for making a determination apply. (4) For the purposes of this regulation, a request or an application is finally determined when either: (a) the decision made in respect of the request or application is not subject to any form of appeal or review; or (b) the period within which such an appeal or review could be instituted has ended without an appeal or review having been instituted. (5) A determination made under subregulation (2) is not a legislative instrument. #### 25A Additional eligibility in 2012–13 and 2013–14 NRAS years (1) For the NRAS year beginning on 1 May 2012 (the 2012–13 NRAS year), an approved participant for an approved rental dwelling is also entitled to receive an incentive if: (a) the tenants of the dwelling were not eligible tenants or ceased to be eligible tenants because of their combined gross income; and (b) the combined gross income of the tenants exceeded the income limit for their household in the 2012–13 NRAS year by: (i) for new tenants of the dwelling—less than 1.5%; and (ii) for existing tenants of the dwelling—less than 26.875%; and (c) all other conditions of the allocation have been satisfied. (2) For the NRAS year beginning on 1 May 2013 (the 2013–14 NRAS year), an approved participant for an approved rental dwelling is also entitled to receive an incentive if: (a) the tenants of the dwelling ceased to be eligible tenants during the 2013–14 NRAS year because of their combined gross income; and (b) the combined gross income of the tenants exceeded the income limit for their household in the 2012–13 NRAS year by less than 26.875%; and (c) all other conditions of the allocation have been satisfied. #### 26 Full incentive amount for standard dwelling (1) The amount of the incentive for an approved rental dwelling other than a subsidiary dwelling, for a full NRAS year is: (a) for the period beginning on 1 July 2008 and ending on 30 April 2009—$5 000; and (b) for the year beginning on 1 May 2009—the amount of $6 000, indexed in accordance with the NRAS incentive index. (2) For each subsequent year beginning 1 May, the amount of the incentive is the amount for the previous year indexed in accordance with the NRAS incentive index. #### 27 Full incentive amount for subsidiary dwelling (1) The Secretary must determine an incentive for a subsidiary dwelling proportionate to the number of tenancies in the dwelling, to a maximum of: (a) for the period beginning on 1 July 2008 and ending on 30 April 2009—$5 000; and (b) for the year beginning on 1 May 2009—the amount of $6 000, indexed in accordance with the NRAS incentive index. > Note: Example for paragraph (b): If a dwelling consists of 5 subsidiary dwellings, the maximum incentive amount for each of them is $1 200. (2) For each subsequent year beginning 1 May, the amount of the incentive is the amount for the previous year indexed in accordance with the NRAS incentive index. (3) Other than for subregulation (1), these Regulations apply to subsidiary dwellings in the same way as they apply to other approved rental dwellings. #### 28 Reductions from full incentive amount (1) The Secretary must, for each allocation, determine the reductions that are to be made from the amount of the incentive. (2) In determining the amount of the incentive, the Secretary must: (a) if an approved rental dwelling is made available for rent for less than a full NRAS year—proportionately reduce the incentive for the period that the dwelling was not available for rent under the Scheme; or (b) if an approved rental dwelling is vacant for a cumulative or continuous period of more than 13 weeks in an NRAS year—proportionately reduce the incentive for each week (or part of a week) that the dwelling is vacant beyond 13 weeks; or (c) if an approved rental dwelling is vacant for a continuous period of more than 13 weeks across 2 NRAS years—proportionately reduce the incentive for the second NRAS year for each week (or part of a week) that the dwelling is vacant beyond 13 weeks; 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. (2A) However, paragraph (2)(d) does not apply in relation to an incentive for an approved rental dwelling for an NRAS year if the condition mentioned in subregulation 16(1D) is not satisfied in relation to the dwelling for that year. > Note: Example 1: If a dwelling would otherwise attract an incentive of $6 000 but is not made available for rent until 6 months into the NRAS year, the incentive would be $3 000. > Note: Example 2: If a dwelling would otherwise attract an incentive of $6 000 but is vacant for 3 periods of 5 weeks in the NRAS year, the Secretary must reduce the incentive by $230 ($6 000 divided by 365 days, multiplied by 14 days). > Note: Example 3: If a dwelling would otherwise attract an incentive of $6 000 but is vacant for a continuous period of 17 weeks across 2 NRAS years, the Secretary must reduce the incentive for the second NRAS year by $460 ($6 000 divided by 365 days, multiplied by 28 days). Internal review (3) If, under this regulation, the Secretary determines a reduction from the amount of an incentive, the Secretary must give the approved participant for the allocation concerned written notice of the determination. (4) The following may apply to the Secretary for review of the determination: (a) the approved participant to whom the notice was given; (b) if the allocation is transferred to another person or entity within the period that applies under paragraph (5)(b)—to the gaining approved participant (within the meaning of regulation 22BH). (5) The application must be made: (a) in the form approved by the Secretary; and (b) within 60 days after notice of the determination is given under subregulation (3), or within such further period as the Secretary allows. (6) If an application for review of the determination is made in accordance with this regulation, the Secretary must: (a) review the determination; and (b) confirm, revoke or vary the determination; and (c) give the applicant notice in writing of the confirmation, revocation or variation (the review notice). (7) If the Secretary has not given the applicant a review notice within 2 months after the applicant applied for the review, the Secretary is taken to have given the applicant a review notice confirming the determination. #### 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 Division 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 for an NRAS year, unless the entity revokes the election. #### 29 Receipt of incentives (1) The Secretary must give an approved participant an incentive to which the approved participant is entitled, under this Division, for an NRAS year in accordance with the following table. ```html <table cellspacing="0" cellpadding="0" style="width:100%; border-collapse:collapse"><thead><tr><td colspan="3" style="border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">Receiving incentives</td></tr><tr><td style="width:10.08%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">Item</td><td style="width:51.88%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">If …</td><td style="width:38.04%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">the Secretary must give the approved participant the incentive …</td></tr></thead><tbody><tr><td style="width:10.08%; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">1</td><td style="width:51.88%; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">(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</td><td style="width:38.04%; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">as a tax offset certificate.</td></tr><tr><td style="width:10.08%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">2</td><td style="width:51.88%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">(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</td><td style="width:38.04%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">as a payment.</td></tr><tr><td style="width:10.08%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">3</td><td style="width:51.88%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">the approved participant was an endorsed charitable institution during part only of the NRAS year</td><td style="width:38.04%; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">as a tax offset certificate.</td></tr><tr><td style="width:10.08%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">4</td><td style="width:51.88%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">the approved participant was not an endorsed charitable institution during any part of the NRAS year</td><td style="width:38.04%; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">as a tax offset certificate.</td></tr></tbody></table> ``` (2) A tax offset certificate for subregulation (1) must contain the following: (a) an identifying number; (b) if applicable—identification as ‘an amended, replacement certificate’; (c) the name and any applicable Australian Business Number or Australian Company Number of the approved participant; (d) the date of issue of the certificate (being the date the Secretary approves the certificate showing the amount of tax offset); (e) the NRAS year to which the certificate relates; (f) the total National Rental Affordability Scheme Tax Offset covered by the certificate; (g) a listing of each dwelling covered by the certificate and the incentive determined for each dwelling for the NRAS year; (h) any offset, variation or apportionment made to the Tax Offset and the NRAS year to which it relates. > Note 1: Regulations 28 and 30 also contain information about apportionment, variation and offset of incentive. > Note 2: References to an amount may include zero. > Note 3: One certificate may relate to multiple approved rental dwellings and those dwellings may be associated with different joint ventures to which the approved participant is a party. #### 30 Variation of incentive amount (1) If the Secretary determines that an error arose making an incentive for a particular allocation, he or she may vary the incentive to correct the error and, where appropriate, recoup any overpayment. (2) If the Secretary determines that an incentive should be increased, he or she must: (a) for an endorsed charitable institution: (i) make an additional payment to the institution; or (ii) if the institution agrees—add the additional amount to an incentive for a future NRAS year; and (b) for other approved participants: (i) issue an amended certificate; or (ii) if the approved participant agrees—add the additional amount to a certificate for a future NRAS year. (3) If the Secretary determines that an incentive should be decreased, he or she may: (a) for an endorsed charitable institution: (i) offset an overpayment against any other incentives payable to the institution in the current NRAS year or a future NRAS year; or (ii) seek repayment by the institution of the overpaid amount, including by debt recovery action; or (b) for other approved participants: (i) issue an amended certificate; or (ii) deduct the overpayment from a certificate for a current or future NRAS year. ### Division 2—Obligations in relation to incentives #### 30A Approved participant’s obligations to investors (1) This Division sets out an approved participant’s obligations to an investor for an approved rental dwelling in respect of which the approved participant receives an incentive. (2) An approved participant is required to pass on an incentive to an investor if, under a legal obligation, the approved participant or an associated party is required: (a) to pass on to the investor any payment or benefit (including rent) relating to the approved rental dwelling; or (b) to take steps to enable the investor to claim a tax offset to which the investor is entitled under Division 380 of the Income Tax Assessment Act 1997 in relation to the incentive; or (c) to make an election under section 380‑11 or 380‑16 of the Income Tax Assessment Act 1997 in relation to the incentive. #### 30B Obligation to pass on incentives in timely manner (1) This regulation applies if: (a) an approved participant receives an incentive under regulation 29 for an approved rental dwelling; and (b) the approved participant is required to pass on all or part of the incentive to an investor for the dwelling. (1A) This regulation also applies if an approved participant is required, under regulation 22BH, to give an investor all or part of a redirected incentive. (2) The approved participant must comply with the requirement before the earliest of the following: (a) if a legal obligation requires the incentive to be passed on within a particular period (however described)—the end of that period; (b) 90 days after the approved participant receives the incentive. (3) If the approved participant does not comply with the requirement within 90 days after the approved participant receives the incentive, the approved participant is taken not to have complied with the requirement within a reasonable time. (4) Subregulation (3) does not limit subregulation (2). #### 30C Incentives not to be withheld or refused if investor fails or refuses to accept other services provided by approved participant (1) This regulation applies if: (a) an approved participant is required to pass on an incentive to an investor; and (b) the contractual arrangement concerned is expressed to be subject to a term that the investor must use a tenancy management service (or any similar, or other, service) that is provided by the approved participant or another person specified by the approved participant; and (c) the investor fails, or refuses, to use the service. (2) The approved participant: (a) must comply with the requirement mentioned in paragraph (1)(a) as if the term were not included in the contractual arrangement; and (b) must not terminate the contractual arrangement only because the investor fails, or refuses, to use the service. #### 30D Incentives not to be withheld or refused if bond not paid (1) This regulation applies if: (a) an approved participant is required to pass on an incentive to an investor; and (b) the contractual arrangement concerned is expressed to be subject to a term that the investor or another person must pay to the approved participant a monetary bond (however described) if: (i) the investor uses a service (the alternative service) of a kind mentioned in paragraph 30C(1)(b); and (ii) the alternative service is not provided by the approved participant or a person specified by the approved participant; and (c) the investor uses the alternative service and the bond is not paid to the approved participant. (2) The approved participant: (a) must comply with the requirement mentioned in paragraph (1)(a) as if the term were not included in the contractual arrangement; and (b) must not terminate the contractual arrangement only because the investor uses the alternative service and the bond is not paid to the approved participant. #### 30E Approved participant must give summary of code of conduct to investors The approved participant for a rental dwelling must give an investor for the dwelling a summary of the approved participants code of conduct on or before the later of the following: (a) the day that is 28 days after this regulation commences; (b) the day that is 28 days after the investor becomes an investor for the dwelling. ## Part 5—Ancillary matters #### 31 Record keeping An approved participant must maintain all records in relation to an application, an allocation or a payment of an incentive, for 5 years. #### 32 Sharing and use of information (1) Information (including personal information) obtained by the Secretary for the purposes of the National Rental Affordability Scheme may be used or disclosed by the Secretary for: (a) the purposes of the Scheme; or (b) the purposes of programs to: (i) increase the supply of affordable rental dwellings; or (ii) reduce rental costs for low and moderate income households. (2) Without limiting subsection (1), the information may be: (a) disclosed to another agency of the Commonwealth or a State or Territory: (i) for the purposes of the operation of the National Rental Affordability Scheme; or (ii) for the purposes of developing policy in relation to the National Rental Affordability Scheme; or (iii) for the purposes of ensuring compliance with a law of the Commonwealth or a State or Territory; or (b) disclosed by the Secretary to approved participants or investors in relation to, or tenants of, rental dwellings for the purposes of administering the National Rental Affordability Scheme; or (c) given by the Secretary to a person or entity if the Secretary is satisfied that: (i) the person or entity is a person or entity to whom an allocation for an approved rental dwelling has been transferred or an investor in relation to an approved rental dwelling; and (ii) the information is relevant to the person or entity’s interest in an allocation for an approved rental dwelling or an approved rental dwelling. #### 32A Secretary may request other documents and information (1) The approved participant for an approved rental dwelling must give the Secretary any other information or document requested by the Secretary for the purposes of the operation of the National Rental Affordability Scheme. (2) The information or document must be given to the Secretary within the period specified by the Secretary, which must be a reasonable period. #### 32B Notice of end of allocation (1) The approved participant for an approved rental dwelling must give tenants of the dwelling written notice of the end of the allocation for the dwelling. (2) The notice must be given: (a) in the form approved by the Secretary; and (b) within the time specified in the form. #### 33 Review by AAT of decisions by Secretary (1) Application may be made to the Administrative Appeals Tribunal for review of a decision of the Secretary: (a) under regulation 22 to revoke an allocation; or (aa) under regulation 22BA, 22BB or 22BC to determine that an approved participant has committed an individual breach, a serious breach or a disqualifying breach; or (ab) under regulation 22BH to redirect an incentive; or (b) set out in a review notice under regulation 28 that confirms a decision to reduce the amount of an incentive (whether or not the decision set out in the review notice varies the amount of the reduction); or (c) under regulation 30 to determine that an error arose making an incentive for a particular allocation, to vary the incentive to correct the error, and where appropriate, recoup any overpayment. (2) An application for review under paragraph (1)(b) may only be made: (a) after an internal review of the decision under subregulation 28(3) has been requested and completed; or (b) if the internal review under subregulation 28(3) has not been completed—2 months after requesting the review. ## Part 6—Transitional provisions ### Division 1—Amendments made by the National Rental Affordability Scheme Amendment (Administrative Processes) Regulations 2017 #### 34 Application—vacancy periods Subregulation 16(1D) of the National Rental Affordability Scheme Regulations 2008, as inserted by item 1 of Schedule 1 to the National Rental Affordability Scheme Amendment (Administrative Processes) Regulations 2017, applies in relation to the NRAS year beginning on 1 May 2016 and each later NRAS year. #### 35 Application—variation of conditions of the reservation of an allocation Subregulation 23(2) of the National Rental Affordability Scheme Regulations 2008, as inserted by item 4 of Schedule 1 to the National Rental Affordability Scheme Amendment (Administrative Processes) Regulations 2017, applies in relation to a reservation of an allocation made before the commencement of this regulation if, immediately before that commencement, the allocation has not been revoked. ### Division 2—Amendments made by the National Rental Affordability Scheme Amendment (Investor Protection) Regulations 2017 #### 36 Application (1) The amendments made by items 7, 8 and 9 of Schedule 1 to the National Rental Affordability Scheme Amendment (Investor Protection) Regulations 2017 apply in relation to a Statement of Compliance lodged with the Secretary on or after the commencement of those items. (2) Paragraphs 21A(2)(a), (b), (c), (d), (e) and (h), as inserted by item 11 of Schedule 1 to the National Rental Affordability Scheme Amendment (Investor Protection) Regulations 2017, apply regardless of whether the conduct giving rise to the grounds mentioned in those paragraphs occurred before, on or after the commencement of that item. (3) Paragraphs 22(1)(aa), (ab), (ac), (ad) and (ae), as inserted by item 13 of Schedule 1 to the National Rental Affordability Scheme Amendment (Investor Protection) Regulations 2017, apply regardless of whether the conduct giving rise to the grounds mentioned in those paragraphs occurred before, on or after the commencement of that item. (4) Regulation 22B, as inserted by item 14 of Schedule 1 to the National Rental Affordability Scheme Amendment (Investor Protection) Regulations 2017, applies in relation to a transfer or revocation of an allocation, whether the allocation was made before, on or after the commencement of that regulation. (5) Division 2 of Part 4, as inserted by item 17 of Schedule 1 to the National Rental Affordability Scheme Amendment (Investor Protection) Regulations 2017, applies in relation to an approved participant who receives an incentive before, on or after the commencement of that Division. ### Division 3—Amendments made by the National Rental Affordability Scheme Amendment (Approved Participant Obligations) Regulations 2017 #### 37 Application Regulations 30C and 30D, as inserted by item 6 of Schedule 1 to the National Rental Affordability Scheme Amendment (Approved Participant Obligations) Regulations 2017, apply in relation to an approved participant who enters into a contractual arrangement with an investor on or after the commencement of that item. ### Division 4—Amendments made by the National Rental Affordability Scheme Amendment (Investor Protection) Regulations 2018 #### 38 Application (1) Paragraph 21A(2)(k) and subregulation 21A(5), as inserted by items 8 and 10 of Schedule 1 to the National Rental Affordability Scheme Amendment (Investor Protection) Regulations 2018, apply: (a) in relation to a decision to transfer an allocation under regulation 21A made after the commencement of those provisions, including on a request made before that commencement; and (b) in relation to conduct engaged in before, on or after that commencement. (2) Paragraphs 21D(1)(a) and (2)(a), as inserted by item 11 of Schedule 1 to the National Rental Affordability Scheme Amendment (Investor Protection) Regulations 2018, apply in relation to transfers that occur in an NRAS year beginning on or after 1 May 2018, including transfers that occurred before the commencement of those paragraphs. (3) Regulation 22C, as inserted by item 14 of Schedule 1 to the National Rental Affordability Scheme Amendment (Investor Protection) Regulations 2018: (a) has effect from the commencement of that regulation; but (b) applies in relation to a contract entered into before, on or after that commencement. (4) Regulation 22D, as inserted by item 14 of Schedule 1 to the National Rental Affordability Scheme Amendment (Investor Protection) Regulations 2018 applies in relation to allocations transferred before, on or after the commencement of that regulation. ### Division 5—Amendments made by the National Rental Affordability Scheme Amendment (Investor Protection) Regulations 2019 #### 40 Definitions In this Division: > amending Schedule means Schedule 1 to the National Rental Affordability Scheme Amendment (Investor Protection) Regulations 2019. > commencement time means the time when the amending Schedule commences. #### 41 Operation of Subdivision C of Division 1A of Part 3 (1) Subdivision C of Division 1A of Part 3, as inserted by item 20 of the amending Schedule, applies in relation to conduct engaged in before, on or after the commencement time. (2) However, if, before the commencement time, the Secretary gave notice of the proposed transfer of an allocation under regulation 21B, the Secretary may transfer the allocation under regulation 21A as in force immediately before the commencement time. (3) If the Secretary transfers an allocation under regulation 21A (whether before or after the commencement time): (a) the Secretary may redirect incentive in relation to the allocation under either of the following: (i) regulation 21D as in force immediately before the commencement time; (ii) regulation 22BH as if the allocation had been transferred under Subdivision C of Division 1A of Part 3; and (b) regulation 21C as in force immediately before the commencement time applies in relation to the transfer; and (c) regulation 22BJ applies in relation to the transfer. (4) Subregulations (2) and (3) do not limit subregulation (1). #### 42 Internal review of incentive amounts under regulation 28 Despite the amendments of regulation 28 made by items 27 and 28 of the amending Schedule, subregulation 28(3) as in force immediately before the commencement time, continues to apply in relation to determinations made under regulation 28 before the commencement time.