WAR SERVICE HOMES.

No. 43 of 1918.

An Act to make provision for Homes for Australian Soldiers and female dependants of Australian Soldiers.

[Assented to 25th December, 1918.]

BE it enacted by the King’s Most Excellent Majesty, the Senate, and the House of Representatives of the Commonwealth of Australia, as follows:—

Part I.—Preliminary.

Short title.

1. This Act may be cited as the War Service Homes Act 1918.

Commencement

2. This Act shall commence on a date to be fixed by Proclamation.

Parts.

3. This Act is divided into Parts, as follows:—

Part I.—Preliminary.

Part II.—Administration.

Part III.—Acquisition of Land and Erection of Dwelling-houses.

Part IV.—Sale of Homes on Rent-Purchase System.

Part V.—Advances on Mortgage for purposes of Homes.

Part VI.—Conditions of Contracts of Sale and Advances.

Part VII.—Funds.

Part VIII.—Miscellaneous.

Definitions.

4. In this Act, unless the contrary intention appears—

“Advance” means an advance under this Act;

“Australian Soldier” means a person who, during the continuance of the war which commenced in the year One thousand nine hundred and fourteen—

(a) was a member of the Naval or Military Forces of Australia employed on active service outside Australia or on a ship of war; or

(b) was a member of the Army Medical Corps Nursing Service accepted or appointed by the Director-General of Medical Services for service outside Australia and was employed on active service outside Australia: or

(c) served in the Naval or Military Forces of any part of the King’s, Dominions, other than the Commonwealth, and who proves to the satisfaction of the Commissioner that he had, before his enlistment or appointment for service, resided in Australia; or

(d) was a member of the Army Medical Corps Nursing Service of any part of the King’s Dominions, other than the Commonwealth, and who proves to the satisfaction of the Commissioner that she had, before her appointment to that service, resided in Australia;

“Borrower” means a person who has received an advance;

“Contract of Sale” means a contract for the sale by the Commissioner of a dwelling-house and land;

“Dwelling-house” includes a house and its appurtenances, necessary outbuildings, fences, and permanent provision for lighting, water supply, drainage and sewerage, but does not include any land;

“Eligible person” means—

(a) An Australian soldier who satisfies the Commissioner that he—

(i) is married; or

(ii) is about to marry; or

(iii) has dependants for whom it is necessary for him to maintain a home; or

(b) the female dependant of an Australian soldier;

“Female dependant” means the widow of an Australian soldier, or, in the case of a deceased Australian soldier who was not married, his mother, provided that—

(a) she is a widow and was prior to the enlistment of the soldier dependent upon him; or

(b) her husband is so incapacitated as to be unable to contribute materially to her support;

“Holding” means land of which an applicant or borrower is the beneficial owner in fee simple;

“Owner” includes every person who has purchased land on credit or deferred payment, and has obtained possession of the land and has paid at least fifteen per centum of the purchase money;

“Purchaser” means a person who has purchased from the Commissioner a dwelling-house and land;

“The Commissioner” means the War Service Homes Commissioner appointed under this Act.

Part II.—Administration.

Incorporation of Commissioner.

5.—(1.) There shall be a Commissioner, who shall, subject to the directions of the Minister, be responsible for the execution of this Act.

(2.) The Commissioner shall be a body corporate by the name of the War Service Homes Commissioner, and shall have perpetual succession and a common seal, and be capable of suing and being sued, and shall, subject to this Act, have power to acquire, purchase, sell, lease and hold lands, tenements, hereditaments, goods, chattels, and any other property for the purposes of this Act.

(3.) All courts, judges and persons acting judicially shall take judicial notice of the seal of the Commissioner affixed to any document or notice, and shall presume that it was duly affixed.

Appointment of Commissioner.

6. The Governor-General may appoint a fit and proper person to be Commissioner, and may, on the happening of any vacancy in the office of Commissioner, appoint a person to the vacant office.

Uncertificated insolvent not to be Commissioner.

7. A person who is an uncertificated bankrupt or insolvent shall be incapable of being appointed Commissioner.

Tenure of Commissioner.

8.—(1.) Subject to this Act, a person who is appointed Commissioner shall hold office, during good behaviour, for a term of seven years.

(2.) The Commissioner may from time to time be re-appointed for any further term not exceeding seven years.

Commissioner not subject to Commonwealth Public Service Act 1902-1917.

9. The Commissioner shall not be subject to the Commonwealth Public Service Act 1902–1917, but if an officer of the public service of the Commonwealth is appointed Commissioner his service as Commissioner shall, for the purpose of determining his existing or accruing rights, be taken into account as if it were service in the public service of the Commonwealth, and if an officer of the public service of a State is appointed Commissioner, his service as Commissioner shall, for the purpose of determining his existing and accruing rights, be taken into account as if it were service in the public service of the Commonwealth and as if he had been an officer of a department transferred to the Commonwealth and were retained in the service of the Commonwealth.

Appointment of Acting Commissioner.

10.—(1.) In the case of the illness, absence, or suspension of the Commissioner, or in the event of the office of Commissioner becoming vacant, the Governor-General may appoint a person to be Acting Commissioner during the illness, absence or suspension of the Commissioner, or until the appointment of a Commissioner, as the case may be, and the Acting Commissioner shall have all the powers and perform all the duties of the Commissioner.

(2.) An Acting Commissioner shall be liable to be suspended from office by the Minister upon the same grounds as the Commissioner is liable to be suspended from office.

(3.) Where an Acting Commissioner has been suspended from office by the Minister a full statement of the cause of the suspension shall be laid before both Houses of the Parliament within seven

days after the suspension or, if the Parliament is not then sitting, within seven days after the next meeting of Parliament, and if within thirty days thereafter an address is presented to the Governor-General by the Senate and the House of Representatives praying for the restoration of the Acting Commissioner to office the Acting Commissioner shall be restored accordingly; but if no such address is so presented the Governor-General may confirm the suspension and thereupon the Acting Commissioner shall cease to hold office.

Suspension of Commissioner.

11.—(1.) The Minister may suspend the Commissioner from office for misbehaviour or incapacity.

(2.) The Minister shall, within seven days after the suspension, if the Parliament is then sitting, or if the Parliament is not then sitting, within seven days after the next meeting of the Parliament, cause to be laid before both Houses of the Parliament a full statement of the grounds of suspension, and if within sixty days thereafter an address is presented to the Governor-General by the Senate and the House of Representatives praying for the restoration of the Commissioner to office the Commissioner shall be restored accordingly; but if no such address is so presented the Governor-General may confirm the suspension and declare the office of the Commissioner to be vacant and the office shall thereupon be and become vacant.

Office of Commissioner—how vacated.

12.—(1.) The Commissioner, or the Acting Commissioner (if any), shall be deemed to have vacated his office if—

(a) he engages, during his term of office, in any employment outside the duties of his office; or

(b) he becomes bankrupt or insolvent, or applies to take the benefit of any Act or State Act for the relief of bankrupt or insolvent debtors, or compounds with his creditors or makes an assignment of his salary for their benefit; or

(c) he is wilfully absent from duty for a period of fourteen consecutive days except on leave granted by the Governor-General (which leave the Governor-General is hereby authorized to grant), or becomes incapable of performing his duties; or

(d) he becomes in any way concerned or interested in any contract or agreement made by or on behalf of the Commissioner; or in any way participates or claims to be entitled to participate in the profit thereof, or in any benefit or emolument arising therefrom.

(2.) If the Commissioner or the Acting Commissioner (if any) becomes in any way concerned or interested in any such contract or agreement, or in any way participates or claims, as aforesaid, he shall be guilty of an indictable offence.

Penalty: Five hundred pounds, or imprisonment for three years, or both.

Salary of Commissioner.

13. The Commissioner shall receive such salary as the Governor-General determines.

Delegation of powers by Commissioner.

14.—(1.) The Commissioner may, in relation to any particular matter or class of matters, or to any particular State or part of the Commonwealth, by writing under his hand, delegate to any person all or any of his powers or functions under this Act (except this power of delegation) so that the delegated powers or functions may be exercised by the delegate with respect to the matter or class of matters, or the State or part of the Commonwealth, specified in the instrument of delegation.

(2.) Every delegation under this section shall be revocable at will, and no delegation shall prevent the exercise of any power or function by the Commissioner.

Staff of Commissioner.

15.—(1.) The Commissioner may appoint such officers to assist in the execution of this Act as he thinks necessary.

(2.) Officers employed under this Act shall not be subject to the Commonwealth Public Service Act 1902–1917, and shall hold office during pleasure only.

(3.) The salaries and allowances of officers employed under this Act shall be payable out of moneys standing to the credit of the War Service Homes Trust Account.

(4.) An officer of the Commonwealth Public Service or of the Public Service of a State who becomes an officer under this Act shall retain all his existing and accruing rights.

(5.) An officer of the Commonwealth Public Service who becomes an officer under this Act shall not thereby be required to resign from the Commonwealth Public Service but may be granted leave of absence for the period of his employment under this Act, and the period of leave so granted shall for all purposes be included as part of the officer’s period of service.

(6.) Upon the termination of the employment under this Act of any such officer, who has not been dismissed for misconduct, he shall be entitled to re-appointment to a position in the Commonwealth Public Service with such advancement, in status and salary, beyond those held and received by him in that Service immediately prior to his appointment under this Act, as the Public Service Commissioner in the circumstances thinks just.

(7.) In determining the status and salary to which the officer shall be advanced, the Public Service Commissioner shall take into consideration the time (if any) which the officer served as an Australian soldier and the period of his service as an officer employed under this Act.

Part III.—Acquisition of Land and Erection of Dwelling-houses.

Acquisition of land.

Cf. No. 31, 1917 s. 63.

16.—(1.) Subject to this Act, any private land, or, with the consent of the Minister, any land being Crown land of a State, road or land which has been dedicated, reserved, or set apart for any public or other purpose, whether by any State or by any private person, and whether or not such land is vacant or has dwelling-houses or other buildings already erected thereon, may be acquired by the Commissioner for the purposes of this Act.

(2.) The provisions of the Lands Acquisition Act 1906-1916 shall apply, with such modifications and adaptations as are prescribed, in relation to land acquired or to be acquired under this section.

(3.) All land acquired under this section shall be vested in the Commissioner for an estate in fee simple, and be freed and discharged from all trusts, obligations, estates, interests, contracts, licences, charges, rates and easements.

(4.) Where land acquired by the Commissioner is subdivided by him into lots for dwelling-houses and portion of the land is reserved for streets or other purposes, the Commissioner may determine the cost of each lot, having regard to its size and to its position in the subdivision, but the aggregate cost of all the lots as so determined shall be equal to the total cost of all the land including that which is reserved for streets and other purposes.

(5.) Before exercising any power under this section which involves the expenditure of more than Five thousand pounds, the Commissioner shall submit his proposal for the approval of the Minister.

Power to erect houses or enter into contracts for erection.

17. The Commissioner may erect dwelling-houses on land acquired for the purposes of this Act, or may enter into contracts for the erection of dwelling-houses on land so acquired.

Total cost of land and dwelling-house.

18. The total cost to the Commissioner of any dwelling-house acquired or erected in pursuance of this Part together with the cost of the land on which it is erected, shall not exceed Seven hundred pounds.

Part IV.—Sale of Homes on Rent-Purchase System.

Sale of dwelling-houses.

19.—(1.) Subject to this Act, the Commissioner may sell to any eligible person, who is not the owner of a dwelling-house within Australia or elsewhere, a dwelling-house acquired or erected in pursuance of the last preceding Part, together with the land on which it is erected.

(2.) The sale may be upon such terms and subject to such conditions as are prescribed or are fixed by the Commissioner.

(3.) The price shall not exceed the capital cost to the Commissioner of the dwelling-house and land.

(4.) With the approval of the Commissioner, a dwelling-house, together with the land on which it is erected, may be sold to an eligible person without a deposit.

(5.) The purchaser shall be permitted to occupy the dwelling-house and land as a weekly tenant, and shall pay therefor a rental sufficient to cover interest at the prescribed rate, not exceeding Five pounds per centum per annum, on the capital cost of the property, together with insurance, rates (if any), repairs, and such sum in reduction of the purchase money as the Commissioner thinks fit.

(6.) At any time after the purchaser has paid in reduction of the purchase money a sum amounting to not less than one-fifth of the purchase money, and has paid to the Commissioner the amount due by him up to that time by way of instalments, and has complied

to the satisfaction of the Commissioner with the conditions contained in the contract of sale relating to the land, he may, if he so desires, upon giving to the Commissioner the prescribed notice in writing of his intention so to do, execute in favour of the Commissioner a mortgage in the prescribed form for the balance of the purchase money, and thereupon he shall be entitled to obtain from the Commissioner a transfer of the land; but except as in this sub-section provided he shall not be entitled to obtain from the Commissioner a transfer of the land.

(7.) For the purposes of the last preceding sub-section the amount standing to the credit of the purchaser by way of deposits paid in pursuance of sub-section (2.) of section twenty-nine of this Act, and of interest accumulated thereon, shall be deemed to be money paid in reduction of the purchase money.

(8.) The cost and expense of any transfer or mortgage executed in pursuance of this section shall be borne by the purchaser.

(9.) In this section “Capital cost” includes the price paid for the land and dwelling-house, and such sum as the Commissioner determines as sufficient to cover the cost of acquisition and subdivision, together with interest on expenditure for purchase of the land and purchase or erection of the dwelling-house up to the time of the sale of the dwelling-house.

Part V.—Advances on Mortgage fob Purposes of Homes.

Advances to acquire land, &c.

20. Subject to this Act, the Commissioner may, upon application in writing, make an advance to any eligible person on the prescribed security, for the purpose of enabling him—

(a) to erect a dwelling-house on land owned by him;

(b) to purchase land and erect thereon a dwelling-house;

(d) to complete a partially erected dwelling-house owned by him;

(e) to enlarge a dwelling-house owned by him; or

(f) to discharge any mortgage, charge, or encumbrance already existing on his holding.

Maximum advance.

21.—(1.) The amount of the advance which may be made to any applicant under this Part shall be the amount (not exceeding ninety per centum of the total value of the property in respect of which the advance is made) which the Commissioner considers necessary in order to give effect to the purpose for which the advance is made, but the amount of the advance shall not in any event exceed the sum of Seven hundred pounds.

(2.) For the purposes of this section “the total value of the property” means such sum as, in the opinion of the Commissioner, will be the total value of the land and dwelling-house upon the completion of the work for which the advance is applied for.

Advance may be in instalments.

22. Any advance may be made by such instalments and subject to such conditions as are prescribed.

Advance for purposes of home only to person not already an owner.

23. No advance shall be made to any applicant unless the Commissioner is satisfied that—

(a) the dwelling-house in respect or for the purposes of which the advance is applied for is intended to be used by the applicant as a home for himself and his dependants; and

(b) neither the applicant nor his wife (if any) is the owner of any other dwelling-house.

Conditions of grant of advance.

24. No advance shall be made for any of the purposes specified in paragraphs (a), (b), (c), (d), and (e) of section twenty of this Act, unless the Commissioner is satisfied that—

(a) the dwelling-house when erected will be substantial and durable;

(b) the plans and specifications of the dwelling-house comply with the prescribed conditions and have been approved by the Commissioner; and

(c) having regard to the locality in which the dwelling-house is erected, or proposed to be erected, the risk is a reasonable risk for him to undertake.

Mortgage required to secure advance.

25. No advance shall be made except upon the security of a mortgage to the Commissioner of the estate and interest of the borrower in his holding including the improvements already thereon, and the improvements (if any) for the purpose of which the advance is made, and such additional security (if any) as the Commissioner requires.

No advance on encumbered property.

26. No advance shall be made on any property which is encumbered by any previous mortgage or charge, other than a mortgage or charge under this Act, unless the advance is applied for the purpose of discharging the previous mortgage or charge.

Action where money advanced not properly expended.

27.—(1.) If at any time, in the opinion of the Commissioner, any money advanced under this Act has not been applied for the purpose for which it was advanced, or has not been carefully and economically expended, the Commissioner may refuse to pay any further instalment of the proposed advance, and may by notice in writing at once call in the whole or part of the amount already advanced.

(2.) If the Commissioner in pursuance of this section calls in the whole or part of the amount already advanced, the borrower shall forthwith repay the same, and in default the Commissioner shall have the same remedies for the recovery of the amount called in, or such part thereof as remains unpaid, as are provided by this Act or the Regulations thereunder for the recovery of sums payable by the borrower.

Part VI.—Conditions of Contracts of Sale and Advances.

Discretion of Commissioner as to making of advances &c.

28. The Commissioner may, at his discretion, refuse to enter into a contract for the sale of any land or land and dwelling-house to, or make an advance to, any eligible person, unless he is satisfied that the person has a reasonable prospect of carrying out the terms of the contract of sale or advance.

Purchase money or advance, how payable or repayable.

29.—(1.) Payment of purchase money or repayment of an advance shall be made in equal weekly, fortnightly or monthly instalments, in accordance with the contract entered into or mortgage executed at the time of the purchase or advance, provided that in no case shall the period over which such instalments are repayable exceed—

(a) in the case of a dwelling-house composed of brick stone or concrete—thirty-seven years; and

(b) in the case of a dwelling-house composed of wood or iron—twenty years; and

(c) in the case of a dwelling-house composed partly of brick stone or concrete and partly of wood or iron—such period (not being more than thirty-seven years) as is determined by the Commissioner.

(2.) In addition to making any payment in accordance with the contract, the purchaser or borrower may deposit with the Commissioner any sum, not being less than One pound, and any sum so deposited shall be credited to the purchaser or borrower with compound interest calculated yearly at the same rate as is charged upon the purchase money or advance.

(3.) Deposits and interest accumulated to the credit of a purchaser or borrower under this section shall be available for payment of any instalments, or arrears of instalments, due to the Commissioner by the purchaser or borrower.

Rate of interest chargeable on purchases or advances.

30. The rate of interest to be charged to any purchaser or borrower in respect of any purchase money or advance in accordance with this Act shall be such rate as is prescribed, but not exceeding the rate of Five pounds per centum per annum.

Property to be kept in repair until payment in full.

31.—(1.) Every purchaser and every borrower shall, until the whole amount of purchase money or advance due by him has been paid or repaid, keep in good and tenantable repair, to the satisfaction of the Commissioner, all buildings, fences, fixtures, and improvements upon the land comprised in the contract of sale, mortgage or other security.

(2.) If, after notice in writing by the Commissioner, any purchaser or borrower has not complied with the requirements of this section—

(a) the Commissioner may enter upon the property and effect all repairs which the Commissioner deems necessary, and the expenses thereby incurred, together with interest at the same annual rate as that which is payable on the purchase money or advance, as the case may be, shall be paid to the Commissioner by the purchaser or borrower on demand, and until repayment shall be a charge under the contract of sale or mortgage or other security upon the property, notwithstanding that the amount of the purchase money or advance is thereby increased to more than Seven hundred pounds; or

(b) the Commissioner may enter upon and take possession of the land or land and dwelling-house, as the case may be, and thereupon he shall be entitled to exercise, in respect of the land or land and dwelling-house, all the powers conferred upon him by section thirty-six of this Act, in the case of non-payment of an instalment or money payable in respect of a contract of sale or advance under this Act, and the provisions of that section shall apply accordingly.

Conditions operative so long as money owing to Commissioner.

32.—(1.) As between the Commissioner and the purchaser or borrower with respect to the land or land and dwelling-house forming the subject of a contract of sale, mortgage or other security, the following condition shall be imposed, so long as any money due to the Commissioner under the contract of sale, mortgage or other security remains unpaid, namely—

the land or land and dwelling-house, as the case may be, shall not be let sublet or mortgaged by the purchaser or borrower without the consent in writing of the Commissioner; and

every lease, sublease, mortgage or agreement entered into or made in contravention of the provisions of this section shall be void and of no effect.

(2.) If the purchaser or borrower lets sublets or mortgages the land or land and dwelling-house, or any part thereof, in contravention of the provisions of this section, the Commissioner may—

(a) in the case of a purchaser, cancel the contract of sale, and, in his discretion, forfeit the instalments previously paid by the purchaser; and

(b) in the case of a borrower, sell the estate and interest of the borrower in the land or land and dwelling-house.

Sale where borrower insolvent.

33. When the borrower’s title to any land or land and dwelling-house, over which the Commissioner holds a mortgage in pursuance of this Act, is divested from him under any law relating to bankruptcy or insolvency, the Commissioner may cause his estate and interest in the land or land and dwelling-house to be sold at such time and place, in such manner and on such terms and conditions as he thinks fit.

Application of s. 36 to sales under ss. 32, 33.

34. The provisions of section thirty-six of this Act as to the sale of any land or of land and a dwelling-house and the application of the proceeds of the sale shall apply to any sale made in pursuance of either of the last two preceding sections.

Land, &c., not to be transferred, &c., while subject to mortgage, &c.

35.—(1.) So long as any land or land and dwelling-house is subject to a contract of sale, mortgage or other security in accordance with this Act, a transfer of that land or land and dwelling-house or of any estate or interest therein shall not have any force or effect unless it—

(a) arises through the operation of any law relating to bankruptcy or insolvency; or

(b) is made to a devisee by a person acting in the capacity of executor or administrator of the purchaser as borrower; or

(2.) Consent to the transfer of land or of land and dwelling-house or of any estate or interest therein shall not be granted by the Commissioner in pursuance of this section except in the following cases and subject to the following conditions:—

(a) where the proposed transferee is an eligible person—such conditions as are prescribed; and

(b) where the proposed transferee is not an eligible person—

(i) in the case of a transfer within five years after the making of the advance—where it is proved to the satisfaction of the Commissioner that the refusal thereof would inflict great hardship; and

(ii) in the case of a transfer after the expiration of five years after the making of the advance—such conditions as are prescribed.

(3.) In dealing with applications for consent to any transfer, the Commissioner shall, as between two alternative transferees, one of whom is an eligible person and the other is not, give preference, as far as reasonably practicable, to the former.

(4.) In this section “transfer” includes conveyance, assignment and surrender.

Action on instalments being overdue.

36.—(1.) If at any time any instalment or money payable in respect of any contract of sale or advance under this Act, or any part of such instalment or money, is unpaid for three calendar months next after the time appointed for the payment thereof, then, although no legal demand has been made for payment, the Commissioner may enter upon and take possession of the land or land and dwelling-house with respect to which the contract of sale was entered into or the advance was made, and may—

(a) in the case of a purchaser, cancel the contract of sale, and, in his discretion, forfeit the instalments previously paid by the purchaser; and

(b) in the case of a borrower, sell the estate and interest of the borrower in the land or land and dwelling-house, either by private sale or public tender or auction, and subject to such conditions of sale as he thinks expedient, and after giving to the borrower such notice of the time, place, terms and conditions of sale, as he thinks just and expedient, transfer the land or land and dwelling-house to the person who has purchased it and give a good and valid title thereto.

(2.) The Commissioner shall apply the proceeds derived from any sale made in pursuance of this Part, in payment, in the first instance, of all moneys due in respect of the land or land and dwelling-house, and in the payment or repayment of any amount charged thereon in favour of the Commissioner, or of so much thereof