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Directions/Financial as amended, taking into account amendments up to National Housing Finance and Investment Corporation Investment Mandate Amendment (New Home Guarantee) Direction 2020
Administered by: Treasury
Registered 17 Dec 2020
Start Date 06 Oct 2020

 

National Housing Finance and Investment Corporation Investment Mandate Direction 2018

 

made under the

National Housing Finance and Investment Corporation Act 2018

Compilation No. 2

Compilation date:                              6 October 2020

Includes amendments up to:            F2020L01285

Registered:                                        

  

  

  


Contents

Part 1—Preliminary                                                                                                     5

1  Name........................................................................................................................................ 5

3  Authority.................................................................................................................................. 5

4  Definitions................................................................................................................................ 5

5  Purpose of this Direction.......................................................................................................... 7

Part 2—Activities and allocation of funds                                                                  8

Division 1—Activities                                                                                              8

6  Establishment and operation of Affordable Housing Bond Aggregator................................... 8

7  Establishment and operation of National Housing Infrastructure Facility................................. 8

8  Support for capacity building................................................................................................... 8

8A  Establishment and operation of First Home Loan Deposit Scheme....................................... 8

8B  Research into housing affordability in Australia.................................................................... 8

9  No further activities.................................................................................................................. 8

10  Application of commercial discipline...................................................................................... 9

Division 2—Allocation and repayment of funds—AHBA                                      9

11  AHBA reserve....................................................................................................................... 9

12  Payment of AHBA dividends................................................................................................ 9

Division 3—Allocation and maintenance of funds—NHIF and capacity building 10

13  Establishment of Permanent Fund........................................................................................ 10

14  Minimum target value of Permanent Fund........................................................................... 10

15  Limit on grants and capacity building contracts.................................................................... 10

Part 3—Affordable housing bond aggregator                                                         11

Division 1—Financing mechanisms and eligibility                                                11

16  Eligibility for loans............................................................................................................... 11

17  Financing mechanism........................................................................................................... 11

Division 2—Criteria for lending                                                                           11

18  Purpose of the AHBA.......................................................................................................... 11

19  Matters to be considered when making lending decisions.................................................... 12

20  Benchmark return................................................................................................................. 12

21  Risk level.............................................................................................................................. 12

Part 4— National Housing Infrastructure Facility                                                  13

Division 1—Financing mechanisms and eligibility                                                13

22  Eligible project proponents................................................................................................... 13

23  Eligible projects.................................................................................................................... 13

24  Financing mechanisms......................................................................................................... 14

Division 2—Criteria for financing decisions                                                        14

25  Matters to be considered when making financing decisions................................................. 14

26  Matters to be considered when determining concessions..................................................... 15

27  Benchmark rate of return...................................................................................................... 15

28  Risk level.............................................................................................................................. 15

Part 5—Support for capacity building                                                                     17

29  Support for capacity building............................................................................................... 17

Part 5A—First Home Loan Deposit Scheme                                                            18

Division 1—Eligibility                                                                                           18

29A  Eligibility for guarantees.................................................................................................... 18

29B  Eligible lender.................................................................................................................... 18

29C  Eligible loan....................................................................................................................... 19

29D  Eligible first home buyer................................................................................................... 20

29E  Income test......................................................................................................................... 20

29F  Price cap............................................................................................................................. 21

29G  NHFIC may rely on information....................................................................................... 23

Division 2—Requirements for guarantees                                                            23

29H  Form of guarantee............................................................................................................. 23

29I Limit on guarantees in a financial year................................................................................. 24

29IA New Home Guarantees..................................................................................................... 25

29J  NHFIC must not charge fees.............................................................................................. 27

Division 3—Other matters                                                                                    28

29JA Scheme Rules................................................................................................................... 28

29K  Principles for the operation of the scheme......................................................................... 28

29L  Reporting........................................................................................................................... 29

Part 5B—Research into housing affordability in Australia                                    30

29M  Requirements relating to research..................................................................................... 30

29N  Performance of research function...................................................................................... 30

Part 6—General governance matters                                                                        31

30  Reasons for decisions........................................................................................................... 31

31  Good corporate citizenship................................................................................................... 31

32  Transparency of operations.................................................................................................. 31

33  Reputation............................................................................................................................ 32

34  Approval needed if liabilities to exceed $3 billion................................................................ 32

35  Restriction on issuing bonds in offshore markets................................................................. 32

Endnotes                                                                                                                      33

Endnote 1—About the endnotes                                                                            33

Endnote 2—Abbreviation key                                                                               34

Endnote 3—Legislation history                                                                            35

Endnote 4—Amendment history                                                                           36

 

Part 1—Preliminary

1  Name

                   This Direction is the National Housing Finance and Investment Corporation Investment Mandate Direction 2018.

3  Authority

                   This Direction is made under subsection 12(1) of the National Housing Finance and Investment Corporation Act 2018.

4  Definitions

Note:          A number of expressions used in this Direction are defined in the Act, including the following:

(a)    Board;

(aa)  guarantee liabilities;

(b)    NHFIC;

(c)    registered community housing provider.

                   In this Direction:

AHBA (for Affordable Housing Bond Aggregator) means the bond aggregator established for section 6 and Part 3.

capacity building contract means a contract made under Part 5 with a person or entity for the provision of services to a registered community housing provider.  

Commercial Financier means a private sector body that provides finance or investment into infrastructure projects.

eligible first home buyer—see section 29D.

eligible lender—see section 29B.

eligible loan—see section 29C.

FHLDS—see section 8A.

financing decision means a decision to make a loan, investment or grant.

financing proposal means a proposal made to the NHFIC seeking a loan, investment or grant.

infrastructure loan, investment or grant means a loan, investment or grant made under Part 4.

major bank means one of the following groups of entities, treated as a single entity:

                     (a)  the Australia and New Zealand Banking Group Limited (ACN 005 357 522) and its related bodies corporate;

                     (b)  the Commonwealth Bank of Australia (ACN 123 123 124) and its related bodies corporate;

                     (c)  National Australia Bank Limited (ACN 004 044 937) and its related bodies corporate;

                     (d)  Westpac Banking Corporation (ACN 007 457 141) and its related bodies corporate.

minimum target value, of the Permanent Fund—see section 14.

New Home Guarantee means a guarantee issued under section 29IA.

newly built dwelling means a dwelling that meets the requirements of subsection 40-75(1) of the A New Tax System (Goods and Services Tax) Act 1999, other than a dwelling that, prior to sale, has been rented or leased, or made available for rental or lease, as commercial residential premises or residential premises (as those terms are defined in that Act).

NHIF (for National Housing Infrastructure Facility) means the facility established for section 7 and Part 4.

Permanent Fund—see section 13.

price cap—see section 29F.               

project proponent means the entity responsible for a project.

related body corporate has the same meaning as in the Corporations Act 2001.

residential property has the same meaning as in the National Consumer Credit Protection Act 2009.

special purpose vehicle—see subsection 22(2).

underlying eligible member, of a special purpose vehicle—see subsection 22(2).  

unissued, in relation to guarantees that the NHFIC may issue under the FHLDS, means the difference between the number of guarantees that the NHFIC may issue in a financial year (worked out under section 29I or section 29IA), and the number of guarantees issued in the financial year.

value, in relation to a residential property, means the value assessed by the eligible lender at the time a loan is entered into, in accordance with standard lending practice in the residential mortgage market.

5  Purpose of this Direction

                   The purpose of this Direction is to give directions to the Board in relation to the performance of the NHFIC’s functions under section 8 of the Act.

Note:          This Direction, with any other directions made under subsection 12(1) of the Act, together constitute the Investment Mandate for the NHFIC.

Part 2—Activities and allocation of funds

Division 1—Activities

6  Establishment and operation of Affordable Housing Bond Aggregator

                   The NHFIC must establish a bond aggregator to provide loans to registered community housing providers (the AHBA), and operate it in accordance with Part 3.

7  Establishment and operation of National Housing Infrastructure Facility

                   The NHFIC must establish and operate a facility (the NHIF) to make infrastructure loans, investments and grants in accordance with Part 4.

8  Support for capacity building

                   The NHFIC may provide support for capacity building in accordance with Part 5.

8A  Establishment and operation of First Home Loan Deposit Scheme

                   The NHFIC must establish and operate a scheme to issue guarantees to eligible lenders in relation to eligible loans, in accordance with Part 5A (the First Home Loan Deposit Scheme or FHLDS).

8B  Research into housing affordability in Australia

                   The NHFIC must conduct research into housing affordability in Australia, in accordance with Part 5B.

9  No further activities

             (1)  The NHFIC must not spend money (including making loans, investments or grants) otherwise than:

                     (a)  for the purposes of sections 6 to 8B; or

                     (b)  to make an investment in accordance with section 59 of the Public Governance, Performance and Accountability Act 2013; or

                     (c)  for incidental purposes.

             (2)  The NHFIC must not enter into arrangements mentioned in paragraph 9(2)(b) of the Act otherwise than:

                     (a)  for the purposes of sections 6 to 8; or

                     (b)  for incidental purposes.

 Note:         Paragraph 9(2)(b) of the Act covers swaps, foreign exchange agreements, forward rate agreements, options or hedge agreements, and similar arrangements.

10  Application of commercial discipline

                   Except as provided in this Direction, the NHFIC must apply commercial discipline when making financing decisions and decisions for the purposes of the FHLDS.

Division 2—Allocation and repayment of funds—AHBA

11  AHBA reserve

             (1)  The Board must allocate to a reserve for the AHBA amounts that the NHFIC borrows from the Commonwealth, out of money appropriated by the Parliament for the purpose of the reserve.

             (2)  The Board may allocate up to $1 billion to the AHBA reserve.

             (3)  Subject to subsection (5), an amount allocated to the reserve (an allocation) must relate to a particular loan by the NHFIC to a registered community housing provider.

             (4)  Within 6 months after the day when the loan is required to be repaid to the NHFIC, or at a later time allowed by the Minister, the NHFIC must:

                     (a)  repay to the Commonwealth an amount equal to the allocation, adjusted to cover the Commonwealth’s cost of borrowing; and

                     (b)  reduce the reserve by the allocation.

             (5)  An allocation may be used by the NHFIC for a purpose other than to provide a loan to a registered community housing provider with the approval of, and in accordance with terms and conditions agreed with, the Minister and the Minister for Finance. The NHFIC must repay to the Commonwealth an amount equal to the allocation, adjusted to cover the Commonwealth’s cost of borrowing, in accordance with those terms and conditions, and reduce the reserve by the allocation.

             (6)  The NHFIC must aim to maintain the reserve in the medium to long term at no more than one third of its total liabilities in relation to the AHBA.

             (7)  The NHFIC must develop a business plan to achieve that aim, and provide a copy to the Minister by 30 June 2019.

12  Payment of AHBA dividends    

                   The Board must consider recommending the payment of a dividend under section 49 of the Act if the average return of the AHBA over the long term is substantially above the benchmark return set for the Board under section 20.

Division 3—Allocation and maintenance of funds—NHIF and capacity building

13  Establishment of Permanent Fund

             (1)  The NHFIC must establish a fund (the Permanent Fund) for the purposes of Part 4 (National Housing Infrastructure Facility), that consists at any time of:

                     (a)  any current infrastructure loans or investments; and

                     (b)  funds available for the purposes of:

                              (i)  making infrastructure loans and investments; and

                             (ii)  meeting the operating costs of the NHIF.

             (2)  The Board must allocate amounts appropriated by the Parliament for the purposes of the NHIF to the Permanent Fund.

             (3)  Any returns on infrastructure loans and investments must be returned to the Permanent Fund.

14  Minimum target value of Permanent Fund

             (1)  The Board must aim to maintain the value of the Permanent Fund in the medium to long term at no less than the minimum target value.

             (2)  For this Direction the minimum target value of the Permanent Fund at a particular time is the sum of the amounts allocated to the Fund under subsection 13(2), adjusted to cover the Commonwealth’s cost of borrowing.

15  Limit on grants and capacity building contracts

             (1)  The total value of the amounts payable by the NHFIC under infrastructure grants and capacity building contracts must not exceed $175 million.

             (2)  The total value of the amounts payable by the NHFIC under capacity building contracts must not exceed $1.5 million.

 

 

 

 

 

 

 

 

 

 

 

Part 3—Affordable housing bond aggregator

The affordable housing bond aggregator

The AHBA operates by the NHFIC making loans to registered community housing providers, using money borrowed from the Commonwealth (see section 11) and by raising finance by the issue of bonds on the commercial market. The mechanism will allow money to be raised on a larger scale and on different terms to those that would be possible for the individual providers; the savings will be passed on to the providers in the form of lower interest loans and reduced refinancing risks, enabling them to improve housing outcomes for their clients.

 

Division 1—Financing mechanisms and eligibility

16  Eligibility for loans

             (1)  The NHFIC must not provide loans through the AHBA to an entity other than a registered community housing provider.

             (2)  The NHFIC may provide a loan in relation to a mixed tenure development only if it is satisfied that any profits from the development will be applied to support affordable housing outcomes.

             (3)  The NHFIC may specify eligibility criteria that must be satisfied by registered community housing providers, or classes of providers. 

17  Financing mechanism

                   The NHFIC must obtain security from providers for any loan, at a level that is appropriate having regard to the risk to the NHFIC and the Commonwealth.

Division 2—Criteria for lending

18  Purpose of the AHBA

                   The Board must aim to provide loans to registered community housing providers at the lowest cost and most appropriate tenor possible, after recovering operational and financing costs and building capital reserves in accordance with this Division. Where appropriate, different loan products should be offered to meet the varying needs of registered community housing providers.

19  Matters to be considered when making lending decisions

                   In deciding whether to make a particular loan, and in setting its conditions, the Board must have regard to the following matters:

                     (a)  the purpose for which the loan is being sought and the extent to which that purpose supports affordable housing outcomes;

                     (b)  the credit-worthiness of the registered community housing provider;

                     (c)  the terms on which any private sector finance would be available to the registered community housing provider;

                     (d)  the likelihood that the NHFIC will receive a return from the loan and the likely extent of that return;

                     (e)  the quality of any security available from the registered community housing provider;

                      (f)  the expected price of funds raised by the NHFIC bonds during the life of the loan;

                     (g)  whether the loan would complement, leverage or support other Commonwealth, State or Territory finance or activities;

                     (h)  the object of the Act and the limits set in the Act.

20  Benchmark return

                   The Board must target an average return on its loans to registered community housing providers that allows it to:

                     (a)  cover the operating costs of the AHBA; and

                     (b)  build an adequate capital reserve in accordance with subsection 48(1) of the Act.

21  Risk level

             (1)  In targeting the benchmark return for the AHBA, the NHFIC must seek to develop a portfolio that in aggregate has an acceptable but not excessive level of risk, having regard to the terms of the Act and the purpose of the AHBA.

             (2)  Within 6 months of the commencement of this Direction, the Board must agree a suitable investment risk evaluation process to assess the AHBA risk, and must advise the Minister of the process chosen.

 

Part 4— National Housing Infrastructure Facility

The National Housing Infrastructure Facility

The purpose of the NHIF is to overcome impediments to the provision of housing that are due to the lack of necessary infrastructure. It does this by providing finance for eligible infrastructure projects that would not otherwise have proceeded, or that would only have proceeded at a much later date or with a lesser impact on new affordable housing.

 

Division 1—Financing mechanisms and eligibility

22  Eligible project proponents

             (1)  To be eligible for finance under the NHIF, a project proponent must be:

                     (a)  a State or Territory; or

                     (b)  a local governing body as defined in section 4 of the Local Government (Financial Assistance) Act 1995; or

                     (c)  a local government-owned investment corporation or utility provider that is a corporation to which section 51(xx) of the Constitution applies; or

                     (d)  a State government-owned utility provider that forms part of the State or that is a corporation to which section 51(xx) of the Constitution applies; or

                     (e)  a Territory government-owned utility provider; or

                      (f)  a registered community housing provider; or

                     (g)  an entity that is a special purpose vehicle.

             (2)  For this section:

                     (a)  an entity is a special purpose vehicle if:

                              (i)  it has a purpose of undertaking housing-enabling infrastructure projects; and

                             (ii)  at least one of its members is an underlying eligible member; and

                     (b)  a member of a special purpose vehicle is an underlying eligible member if it is an entity mentioned in paragraphs (1)(a) to (f).

23  Eligible projects

                   Finance under the NHIF must be provided for a project only if the project:

                     (a)  would provide critical infrastructure to support new housing, particularly new affordable housing, including (but not limited to):

                              (i)  new or upgraded infrastructure for services such as water, sewerage, electricity, telecommunications or transportation; or

                             (ii)  site remediation works including the removal of hazardous waste or contamination; and

                     (b)  would not itself provide housing; and

                     (c)  would not provide community infrastructure, such as parks, day-care centres or libraries; and

                     (d)  would be unlikely to proceed, or would be likely to proceed only at a much later date, or with a lesser impact on new affordable housing, without finance under the NHIF.

24  Financing mechanisms

             (1)  Eligible projects may be funded through any combination of loans, investments and grants.

Loans

             (2)  The NHFIC may provide, but is not limited to, the following loan concessions:

                     (a)  longer loan tenor than offered by Commercial Financiers;

                     (b)  lower interest rates than offered by Commercial Financiers;

                     (c)  extended periods of capitalisation of interest beyond construction completion;

                     (d)  deferral of loan repayments or other types of tailored loan repayment schedules;

                     (e)  lower or different fee structures than those offered by Commercial Financiers.

             (3)  For a project proponent other than a State or Territory, the NHFIC must obtain security for any loan, at a level that is appropriate having regard to the risk to the NHFIC and the Commonwealth.

Investments

             (4)  The NHFIC may make an investment in relation to a project by acquiring an equity interest in the project proponent.

Grants

             (5)  Grant proposals seeking other forms of financing from the NHIF as part of a blended financing arrangement are to be preferred. 

Division 2—Criteria for financing decisions

25  Matters to be considered when making financing decisions

             (1)  The NHFIC must be satisfied of the following in order to provide finance under the NHIF:

                     (a)  the project proponent is eligible under section 22;

                     (b)  the project is eligible under section 23;

                     (c)  the risk that any loan will not be repaid does not exceed an acceptable level.

             (2)  In making a financing decision, the NHFIC must have regard to the following:

                     (a)  the likely effect of the project on the supply and ongoing availability of affordable housing;

                     (b)  the extent of any concession that it would be appropriate to offer;

                     (c)  the quality of the security available from the project proponent;

                     (d)  the credit-worthiness of the project proponent;

                     (e)  whether finance under the NHIF is needed to encourage private sector participation in financing the project;

                      (f)  whether finance under the NHIF would complement, leverage or support other Commonwealth, State or Territory finance or activities;

                     (g)  the object of the Act and the limits set in the Act;

                     (h)  where the project proponent is a special purpose vehicle—the extent to which its underlying eligible members will be involved in the project over its duration.

26  Matters to be considered when determining concessions

             (1)  In determining any concession to be granted in making a financing decision, the NHFIC must have regard to the following:

                     (a)  the extent and mix of all concessions necessary for the proposal to proceed;

                     (b)  the extent of any public benefit that would result from the housing-enabling infrastructure;

                     (c)  the object of the Act.

             (2)  The NHFIC must limit the concessions offered to the minimum that it considers are needed for the proposal to proceed in the proposed timeframe.

             (3)  The NHFIC may propose contract terms to ensure that the NHIF is not providing greater concessions than it considers are needed.

27  Benchmark rate of return

                   The Board is to target an average return that allows it to at least maintain the minimum target value set under section 14.

28  Risk level

             (1)  In targeting the benchmark return for the NHIF, the NHFIC must seek to develop a portfolio that in aggregate has an acceptable but not excessive level of risk, having regard to the terms of the Act and the purpose of the NHIF.

             (2)  Within 6 months of the commencement of this Direction, the Board must agree a suitable investment risk evaluation process to assess the NHIF risk, and must advise the Minister of the process chosen.

 

Part 5—Support for capacity building

Capacity building

The NHFIC may provide support for capacity building under this Part to assist registered community housing providers to further develop their financial and management capabilities. This support would be provided by the NHFIC entering into contracts with persons or entities to provide services to registered community housing providers for this purpose.

 

29  Support for capacity building

                   The NHFIC may enter into contracts with persons or entities to provide services to registered community housing providers for the purpose of developing their financial and management capabilities.

Part 5A—First Home Loan Deposit Scheme

The First Home Loan Deposit Scheme

The purpose of the FHLDS is to facilitate first home buyers entering into the housing market sooner. It does this by allowing the NHFIC to issue up to 10,000 guarantees each financial year for loans to first home buyers with a deposit of between 5 and 20 per cent of the property’s value.

New Home Guarantee

The New Home Guarantee is a part of the FHLDS that specifically relates to building a new dwelling or purchasing a newly built dwelling. The purpose of the New Home Guarantee is to support jobs in the residential construction sector and promote home ownership. It does this by allowing the NHFIC to issue up to 10,000 guarantees in the 2020-21 financial year under the FHLDS for loans to first home buyers to purchase a newly built dwelling or build such a dwelling. Any unissued New Home Guarantees can be rolled over into the 2021-22 financial year at the discretion of the responsible Minister.

Division 1—Eligibility

29A  Eligibility for guarantees

                   The NHFIC must not issue a guarantee to an entity other than an eligible lender, in relation to an eligible loan.

29B  Eligible lender      

             (1)  An eligible lender, in relation to a guarantee issued during a particular financial year, is an entity approved by the NHFIC, for the purposes of this section, as an eligible lender for the financial year during which the NHFIC approved the issue of the guarantee.

             (2)  The NHFIC must establish criteria and processes for the approval of entities as eligible lenders.

             (3)  The criteria for the approval of entities as eligible lenders must include criteria which are directed at assessing all of the following matters:

                     (a)  an entity’s standards of customer care, including treatment of borrowers in financial hardship;

                     (b)  the competitiveness of loan products offered by an entity, including interest rates and other fees;

                     (c)  the quality of an entity’s loan origination processes and the associated level of financial risk to the Commonwealth;

                     (d)  the reputation of an entity;

                     (e)  the extent to which approval of an entity would promote competition in lending markets and related markets;

                      (f)  the extent to which the entities approved for a financial year, considered together, can undertake credit activities across Australia (including through other entities providing credit services).

             (4)  The NHFIC must not approve more than 2 major banks as eligible lenders for a financial year.

             (5)  In this section:

credit activities has the same meaning as in the National Consumer Credit Protection Act 2009.

credit service has the same meaning as in the National Consumer Credit Protection Act 2009.

29C  Eligible loan

             (1)  A loan is an eligible loan if:

                     (a)  subsection (2) or (4) applies; and

                     (b)  any criteria and processes established by the NHFIC for the approval of eligible loans are satisfied.

             (2)  Subject to subsection (2A), this subsection applies to a loan for which all of the following are satisfied at the time the loan agreement is entered into:

                     (a)  the loan is made by an eligible lender;

                     (b)  there are no more than two borrowers under the loan agreement;

                     (c)  where there are two borrowers under the loan agreement—each borrower is the spouse or de facto partner of the other borrower;

                     (d)  each borrower under the loan agreement is an eligible first home buyer;

                     (e)  the loan is for the purchase of residential property;

                      (f)  if the loan relates to the purchase of an interest in land on which a dwelling is not affixed, the loan also relates to the construction of a dwelling on the land;

                     (g)  the value of the residential property does not exceed the price cap for the area in which the property is located;

                     (h)  the residential property that is the subject of the loan is to be owner-occupied;

                      (i)  the loan-to-value ratio is between 80 and 95 per cent;

                      (j)  subject to subsection (3), the terms of the loan agreement require scheduled repayments of the principal of the loan for the full period of the agreement;

                     (k)  the loan agreement has a term of no more than 30 years.

          (2A)       For a New Home Guarantee, the requirements in paragraphs (2)(a) to (g) must instead be satisfied at the time the borrower or borrowers make an application for a loan, or when the contract to which the loan agreement relates is entered into (as relevant).

Note:          The requirements in paragraphs (2)(h) to (k) must be satisfied at the time the loan agreement is entered into.

             (3)  For paragraph (2)(j), if the loan relates both to the purchase of an interest in land on which a dwelling is not affixed and to the construction of a dwelling on the land, the loan may be an eligible loan even if the terms of the loan agreement permit interest-only repayments for a specified period.

             (4)  This subsection applies to a loan if:

                     (a)  the loan (the refinancing loan) is for the sole purpose of fully satisfying the obligations of a borrower or borrowers under an existing loan; and

                     (b)  the NHFIC has previously issued a guarantee under this Part relating to the existing loan; and

                     (c)  no claim has been made in respect of the guarantee; and

                     (d)  the guarantee remains in force until the refinancing loan is entered into.

29D  Eligible first home buyer

             (1)  Subject to subsection (2), a person is an eligible first home buyer in relation to a loan if, at the time the loan agreement is entered into:

                     (a)  the person has never held:

                              (i)  a freehold interest in real property in Australia; or

                             (ii)  a lease of land in Australia (including a renewal or extension of such a lease) as described in paragraph 104-115(1)(b) of the Income Tax Assessment Act 1997; or

                            (iii)  a company title interest (within the meaning of Part X of the Income Tax Assessment Act 1936) in land in Australia; and

                     (b)  the person is at least 18 years of age and an Australian citizen; and

                     (c)  the person satisfies the income test.

             (2) For a New Home Guarantee, the requirements in subsection (1) must instead be satisfied at the time the person makes an application for a loan, or when the contract to which the loan agreement relates is entered into (as relevant).

29E  Income test

                   A person satisfies the income test at the time of entering into a loan agreement if:

                     (a)  where there is more than one borrower under the loan agreement—the combined taxable income (within the meaning of the Income Tax Assessment Act 1997) of the borrowers in the preceding income year did not exceed $200,000; or

                     (b)  otherwise—the taxable income of the person (within the meaning of the Income Tax Assessment Act 1997) in the preceding income year did not exceed $125,000.

Note:          Under paragraph 29C(2)(b), an eligible loan may not have more than two borrowers under the loan agreement.

29F  Price cap

             (1)  For the purposes of paragraph 29C(2)(g), for a loan that is not subject to a New Home Guarantee, the price cap for the area in which a residential property is located is the amount set out in the following table.

 

Price Cap for an area

Item

Area

Price cap

1

New South Wales—capital city and regional centre

$700,000

2

New South Wales—other

$450,000

3

Victoria—capital city and regional centre

$600,000

4

Victoria—other

$375,000

5

Queensland—capital city and regional centre

$475,000

6

Queensland—other

$400,000

7

Western Australia—capital city

$400,000

8

Western Australia—other

$300,000

9

South Australia—capital city

$400,000

10

South Australia—other

$250,000

11

Tasmania—capital city

$400,000

12

Tasmania—other

$300,000

13

Australian Capital Territory

$500,000

14

Northern Territory

$375,000

15

Jervis Bay Territory and Norfolk Island

$450,000

16

Christmas Island and Cocos (Keeling) Islands

$300,000

             (2)  As soon as practicable after the end of each 1 year period commencing on 1 January 2020, the NHFIC must recommend to the Minister what adjustments (if any) it considers should be made to the price caps in subsection (1).

Note:          The NHFIC may provide recommendations to the Minister at other times, at its discretion.

          (2A) For the purposes of paragraph 29C(2)(g), for a loan that is subject to a New Home Guarantee, the price cap for the area in which a residential property is located is the amount set out in the following table.

 

Price Cap for an area

Item

Area

Price cap

1

New South Wales—capital city and regional centre

$950,000

2

New South Wales—other

$600,000

3

Victoria—capital city and regional centre

$850,000

4

Victoria—other

$550,000

5

Queensland—capital city and regional centre

$650,000

6

Queensland—other

$500,000

7

Western Australia—capital city

$550,000

8

Western Australia—other

$400,000

9

South Australia—capital city

$550,000

10

South Australia—other

$400,000

11

Tasmania—capital city

$550,000

12

Tasmania—other

$400,000

13

Australian Capital Territory

$600,000

14

Northern Territory

$550,000

15

Jervis Bay Territory and Norfolk Island

$600,000

16

Christmas Island and Cocos (Keeling) Islands

$400,000

             (3)  In this section:

capital city, in relation to a State, means the Greater Capital City Statistical Area in that State, within the meaning of the Australian Statistical Geography Standard (ASGS): Volume 1 - Main Structure and Greater Capital City Statistical Areas, July 2016, published by the Australian Bureau of Statistics, as existing at the time this section commences (the ASGS).

regional centre, in relation to a State listed in the following table, means one of the Statistical Area Level 4 areas in that State, within the meaning of the ASGS, indicated in the table.

 

Item

State

Regional Centre

1

New South Wales

Newcastle and Lake Macquarie

Illawarra

2

Victoria

Geelong

3

Queensland

Gold Coast

Sunshine Coast

29G  NHFIC may rely on information

                   The NHFIC may rely on information supplied by an eligible lender, a borrower, or a third party, that has a relevant role in the issue and administration of a guarantee under this Part.

Division 2—Requirements for guarantees

29H  Form of guarantee

When guarantee becomes payable

             (1)  A guarantee issued by the NHFIC may only cover a payment where there is a balance owing on the guaranteed loan following the application of the proceeds of sale by the lender that was as a consequence of the default by the borrower under the terms of the loan contract.

Limit on amount of guarantee

             (2)  Where subsection (1) applies, the amount payable under a guarantee issued by NHFIC is an amount equal to the lesser of:

                     (a)  the money owed to the lender under the loan agreement after the proceeds of the sale of the residential property that is the subject of the loan have been applied; and

                     (b)  the amount worked out using the following formula:

                   A – B

                   where:

A is 20 per cent of the value of the residential property that is the subject of the eligible loan.

B is the deposit paid by the borrower or borrowers under the loan agreement.

Cessation of guarantee

             (3)  Subject to subsection (4), the terms of a guarantee issued by the NHFIC under this Part must provide for the guarantee to cease when the balance of the loan becomes less than 80 per cent of the value of the residential property.

             (4)  However, subsection (3) does not require the guarantee to cease where the proceeds of the sale by the lender that was as a consequence of default by the borrower are applied against the loan resulting in the balance of the loan being 80 per cent or less than the value of the residential property.

 

29I Limit on guarantees in a financial year

Limit on guarantees in a financial year

             (1) For each financial year, the NHFIC must not issue more than the number of guarantees worked out under subsection (2).

             (2)  The limit on the number of guarantees for a financial year is the sum of:

                     (a)  10,000; and

                     (b)  the number of unissued guarantees from the previous financial year determined by the Minister under subsection (3).

             (3)  The Minister may determine, in a written notice given to the NHFIC, that any unissued guarantees covered by subsection (5) in a financial year may be issued in the following financial year.

             (4)  The power in subsection (3) applies to unissued guarantees from the 2019-20 financial year.

             (5)  For subsection (3), the unissued guarantees in a financial year are the number of unissued guarantees from the limit set out in paragraph (2)(a).

             (6)  In making a determination under subsection (3), the Minister must take into account the performance of the FHLDS, and any unique circumstances influencing the uptake of guarantees under the FHLDS.

             (7)  The total number of guarantees issued to major banks in a financial year must not exceed:

                     (a)  5,000; and

                     (b)  if a determination has been made under subsection (3)—50 per cent of the guarantees covered by that determination.

The NHFIC must notify Minister

             (8)  On the 100th day after the end of a financial year (or as otherwise directed by the Minister in writing), the NHFIC must notify the Minister, in writing, of the number of guarantees that were unissued in the financial year.

             (9)  The notice under subsection (8) must include a detailed breakdown of the unissued guarantees as assessed at the time of the notice, including:

                     (a)  the number that were unissued; and

                     (b)  whether the unissued guarantees related to a major bank or other eligible lender; and

                     (c)  whether the unissued guarantees are reserved, or lapsed or expired; and

                     (d)  any other information requested in writing by the Minister.

Counting of guarantees

           (10)  For the purposes of this section:

                     (a)  subject to subsection (11), a guarantee is issued in the financial year during which its issue is approved by the NHFIC, even if the arrangement relating to the guarantee is entered into in a later financial year; and

                     (b)  a guarantee issued in relation to a loan that satisfies subsection 29C(4) is disregarded.

           (11)  Paragraph (10)(a) does not apply to unissued guarantees that are the subject of a determination under subsection (3).

Guarantees may not be rolled over other than under subsection (3)

           (12)  To avoid doubt, unissued guarantees from a financial year may not be rolled over to a future financial year, other than as determined by the Minister under subsection (3).

29IA New Home Guarantees

Additional guarantees for the 2020-21 financial year

             (1)  In addition to the guarantees that the NHFIC may issue under section 29I, the NHFIC may issue up to an additional 10,000 guarantees (New Home Guarantees) in the 2020-21 financial year, in relation to loans that meet the requirements of subsection (3) (as the case requires).

             (2)  The total number of New Home Guarantees issued to major banks in the 2020-21 financial year must not exceed 5,000.

Requirements for New Home Guarantees

             (3)  For subsection (1), the following requirements (as relevant) must be satisfied at the time the loan agreement is entered into:

                     (a)  the loan relates to the building or purchase of a newly built dwelling; and

                     (b)  where the loan relates to the purchase of an interest in land and the construction of a newly built dwelling on the land:

                              (i)  if it is more than 90 days after the eligible lender gave notice of approval by the NHFIC for the issue of a guarantee—the borrower or borrowers have entered into a construction contract; and

                             (ii)  if it is more than 6 months after the date the construction contract was entered into—the construction of the dwelling has commenced; and

                            (iii)  if it is more than 24 months after construction commenced—construction of the dwelling has been completed.

                     (c)  where the loan relates to the purchase of a newly built dwelling that is off-the-plan:

                              (i)  if it is more than 90 days after the eligible lender gave notice of approval by the NHFIC for the issue of a guarantee—the borrower or borrowers have entered into a contract of sale; and

                             (ii)  if construction of the dwelling had not commenced on or before the date that the contract of sale was entered into (the contract date), and it is more than 6 months after the contract date—construction of the dwelling has commenced; and

                            (iii)  if subparagraph (ii) applies, and it is more than 24 months after construction commenced—construction of the dwelling has been completed; and

                            (iv)  if construction of the dwelling commenced on or before the contract date, and it is more than 24 months after the contract date—construction of the dwelling has been completed.

Note 1:       The requirements in subsection (3) relate to the issue of a New Home Guarantee by the NHFIC. These requirements (as relevant) must be satisfied at the time the loan agreement is entered into and the New Home Guarantee is issued. Each requirement must only be satisfied to the extent that it applies in a particular case. The requirements do not affect the validity of a New Home Guarantee once issued (for example, if a requirement that had not arisen before entering into a loan agreement fails to be satisfied after the guarantee is issued).

Note 2:       Guarantees may also be issued under section 29I for loans that meet the requirements of paragraph (a) and paragraph (b) or (c) (see subsections (14) and (15)). However, New Home Guarantees are subject to a different price cap (see subsection 29F(2A)).

Roll-over to 2021-22 financial year

             (4)  The Minister may determine, in a written notice given to the NHFIC, that any unissued New Home Guarantees in the 2020-21 financial year, other than those to which subsection (5) applies, may be issued in the 2021-22 financial year.

             (5)  This subsection applies to guarantees that have been approved by the NHFIC relating to loans where, at the relevant time, all relevant requirements in paragraphs (3)(b) and (c) have been satisfied.

             (6)  In making a determination under subsection (4), the Minister must take into account the performance of the New Home Guarantee, and any unique circumstances influencing the uptake of New Home Guarantees.

             (7)  The total number of New Home Guarantees issued to major banks in the 2021-22 financial year must not exceed 50 per cent of the New Home Guarantees issued in the year.

The NHFIC must notify Minister

             (8)  On the 100th day after the end of the 2020-21 financial year (or as otherwise directed by the Minister in writing), the NHFIC must notify the Minister, in writing, of the number of New Home Guarantees that were unissued in the financial year.

             (9)  The notice under subsection (8) must include a detailed breakdown of the unissued New Home Guarantees as assessed at the time of the notice, including:

                     (a)  the number that were unissued; and

                     (b)  whether the unissued guarantees related to a major bank or other eligible lender; and

                     (c)  whether the unissued guarantees are reserved, or lapsed or expired; and

                     (d)  the details of any guarantees to which subsection (5) applies; and

                     (e)  any other information requested in writing by the Minister.

Counting of New Home Guarantees

           (10)  For the purposes of this section:

                     (a)  subject to subsection (11), a New Home Guarantee is issued in the financial year during which its issue is approved by the NHFIC, even if the arrangement relating to the guarantee is entered into in a later financial year; and

                     (b)  a New Home Guarantee issued in relation to a loan that satisfies subsection 29C(4) is disregarded.

           (11)  Paragraph (10)(a) does not apply to unissued guarantees that are the subject of a determination under subsection (4).

Guarantees may not be rolled over other than under subsection (4)

           (12)  To avoid doubt, unissued New Home Guarantees from the 2020-21 financial year may not be rolled over to the 2021-22 financial year, other than as determined by the Minister under subsection (4)

New Home Guarantees cannot be issued after the 2021-22 financial year

           (13)  The NHFIC must not issue any New Home Guarantees after the 2021-22 financial year.

Interaction with section 29I

           (14)  This section does not limit the types of guarantees that may be issued under section 29I.

           (15)  In circumstances where a guarantee could be issued under either section 29I or this section, the NHFIC may determine which section the guarantee is issued under.

Note:          A guarantee could be issued under either section 29I or this section where the loan meets the requirements of subsection (3), and the value of the residential property is below the price cap for the relevant area in subsection 29F(1).

29J  NHFIC must not charge fees

                   The NHFIC must not charge fees for the issue of a guarantee under this Part.

Division 3—Other matters

29JA Scheme Rules

             (1)  The NHFIC must, in writing, make rules and policies (the scheme rules) for the operation of the FHLDS, including separately providing for the operation of the New Home Guarantee.

             (2)  The NHFIC must consult the Minister before making or amending the scheme rules.

             (3)  For the purposes of consulting the Minister, the NHFIC must provide a copy of the proposed scheme rules to the Minister at least 15 business days (or a shorter period notified by the Minister to the NHFIC in writing) before the earlier of the rules:

                     (a)  coming into effect; or

                     (b)  being publicly released.

             (4)  If the NHFIC fails to consult the Minister before making or amending the scheme rules in accordance with subsections (2) and (3), the Board of the NHFIC must, within 30 days following the period set out in subsection (3), provide a written explanation to the Minister setting out the reasons for the failure to consult with the Minister.

Note:          The criteria and processes referred to in paragraph 29C(1)(b) include the scheme rules.

29K  Principles for the operation of the scheme

             (1)  The NHFIC must operate the FHLDS in a manner that seeks to:

                     (a)  maximise the integrity of the FHLDS; and

                     (b)  prevent residential properties from being used other than as owner‑occupied residences, other than where a person cannot use a residential property as an owner-occupied residence because of a posting required in the course of the person performing their duties as a member of the Australian Defence Force, other than as a member of the Reserves, as those terms are defined in the Defence Act 1903; and

                     (c)  encourage and incentivise borrowers to repay loans as soon as possible; and

                     (d)  ensure that eligible first home buyers have used the maximum amount of their savings as a deposit, subject to the credit policies of their eligible lenders; and

                     (e)  minimise the quantum of payouts under guarantees issued under the FHLDS, in accordance with industry best practice (including practices applied to loans with parental guarantees); and

                      (f)  monitor the status of guaranteed loans to identify when there is a significant likelihood of a borrower defaulting on their obligations under a loan; and

                     (g)  minimise the cost of guaranteed loans to borrowers.

             (2)  Subsection (1) does not limit the powers of the NHFIC to administer the FHLDS in a responsible and commercial manner, consistently with the requirements of this Part.

29L  Reporting

             (1)  As soon as practicable after the end of each successive 6 month period commencing on 1 January 2020, the NHFIC must report to the Minister on:

                     (a)  the status of each guarantee issued under the FHLDS; and

                     (b)  the operating costs of the FHLDS; and

                   (ba)  the NHFIC’s operating expenses for the FHLDS (including New Home Guarantees), including itemised details of expenditure on:

                              (i)  its directors; and

                             (ii)  its employees; and

                            (iii)  its consultants; and

                            (iv)  information technology systems; and

                             (v)  other significant expenditure; and

                   (bb)  the performance of loans in relation to which a guarantee has been issued, including information on:

                              (i)  the number of loans in arrears, and the amount of those arrears; and

                             (ii)  repayment progress; and

                            (iii)  applicable interest rates; and

                     (c)  the total value of guarantees issued under the FHLDS; and

                     (d)  any other information requested by the Minister.

             (2)  A report under subsection (1) must separately include the matters listed in paragraphs (a), (b), (ba), (bb) and (c) in relation to New Home Guarantees.

 

 

Part 5B—Research into housing affordability in Australia

Research into housing affordability in Australia

The NHFIC’s research function will support the monitoring of housing demand, supply and affordability in Australia. It will do this by highlighting current and potential future gaps between housing supply and demand, while also complementing existing housing-related research.

29M  Requirements relating to research

                   The NHFIC must:

                     (a)  conduct comprehensive research into housing demand, supply and affordability in Australia, including current and potential future gaps between housing supply and demand; and

                     (b)  complement existing research, reflecting on the adequacy of construction rates and land supply to meet future needs.

29N  Performance of research function

                   In undertaking research under this Part, the NHFIC may do any of the following:

                     (a)  undertake research on its own initiative;

                     (b)  undertake specific research requested by the Minister;

                     (c)  publish results of its research;

                     (d)  liaise with relevant stakeholders, including State and Territory bodies, Federal and State government agencies, research institutions, market participants and the housing sector.

Part 6—General governance matters

30  Reasons for decisions

             (1)  This section applies when an entity has made a financing proposal to the NHFIC.

             (2)  Where it is practicable to do so, the NHFIC should provide reasons to the entity for making a financing decision, or a decision not to provide finance, in respect of the proposal.  

31  Good corporate citizenship

             (1)  The NHFIC must have regard to Australian best practice government governance principles, and Australian best practice corporate governance for Commercial Financiers, when performing its functions, including developing and annually reviewing policies with regard to:

                     (a)  environmental issues; and

                     (b)  social issues; and

                     (c)  governance issues.

             (2)  The NHFIC must ensure as far as practicable that financing decisions, and decisions not to provide finance, are made in a timely way so as to minimise costs to the project proponent.

32  Transparency of operations

             (1)  The NHFIC must publish the following guidance on its website:

                     (a)  the format in which a financing proposal under the AHBA or NHIF is to be provided to the NHFIC;

                     (b)  the process the NHFIC will follow when making financing decisions;

                     (c)  any other matters the NHFIC considers necessary.

             (2)  Within 6 months of making a financing decision under the NHIF, the NHFIC must publish the following information relating to the decision on the NHFIC’s website, subject to commercial confidentiality:

                     (a)  the name of the project proponent;

                     (b)  the goods or services involved;

                     (c)  the location of the project;

                     (d)  the financing mechanism used;

                     (e)  the amount of the financing mechanism.

33  Reputation

                   The NHFIC must not act in a way that is likely to cause damage to the Australian Government’s reputation, including its reputation in Australian and international financial markets.

34  Approval needed if liabilities to exceed $3 billion

             (1)  The Board must not enter into a transaction which would result in the sum of:

                     (a)  the total guaranteed liabilities of the NHFIC; and

                     (b)  the current value of the AHBA reserve;

exceeding the cap.

             (2)  In this section:

cap means $3 billion or a higher amount approved by the Minister and the Minister for Finance.

total guaranteed liabilities of the NHFIC, at a particular time, means the sum of the current values of all amounts that are, or can as a consequence of current liabilities of the NHFIC (other than guarantee liabilities) be expected to be:

                     (a)  payable to a person other than the Commonwealth; and

                     (b)  guaranteed by the Commonwealth under section 51 of the Act.

35  Restriction on issuing bonds in offshore markets

                   The NHFIC must not issue bonds in an offshore market before 1 July 2023.

 

Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.

 

Endnote 2—Abbreviation key

 

ad = added or inserted

o = order(s)

am = amended

Ord = Ordinance

amdt = amendment

orig = original

c = clause(s)

par = paragraph(s)/subparagraph(s)

C[x] = Compilation No. x

    /sub‑subparagraph(s)

Ch = Chapter(s)

pres = present

def = definition(s)

prev = previous

Dict = Dictionary

(prev…) = previously

disallowed = disallowed by Parliament

Pt = Part(s)

Div = Division(s)

r = regulation(s)/rule(s)

exp = expires/expired or ceases/ceased to have

reloc = relocated

    effect

renum = renumbered

F = Federal Register of Legislation

rep = repealed

gaz = gazette

rs = repealed and substituted

LA = Legislation Act 2003

s = section(s)/subsection(s)

LIA = Legislative Instruments Act 2003

Sch = Schedule(s)

(md) = misdescribed amendment can be given

Sdiv = Subdivision(s)

    effect

SLI = Select Legislative Instrument

(md not incorp) = misdescribed amendment

SR = Statutory Rules

    cannot be given effect

Sub‑Ch = Sub‑Chapter(s)

mod = modified/modification

SubPt = Subpart(s)

No. = Number(s)

underlining = whole or part not

 

    commenced or to be commenced

 

Endnote 3—Legislation history

Name

Registration

Commencement

Application, saving and transitional provisions

National Housing Finance and Investment Corporation Investment Mandate Direction 2018

3 Jul 2018 (F2018L00994)

4 July 2018 (s 2)

National Housing Finance and Investment Corporation Investment Mandate Amendment (First Home Loan Deposit Scheme) Direction 2019

11 Nov 2019 (F2019L01436)

12 Nov 2019 (s 2)

National Housing Finance and Investment Corporation Investment Mandate Amendment (New Home Guarantee) Direction 2020

6 Oct 2020 (F2020L01285)

6 Oct 2020, immediately after 7:32pm Australian Eastern Daylight Time (s 2)

 

 

 

 

                                                

Endnote 4—Amendment history

 

Provision affected

How affected

Part 1

 

s 2.............................................

rep LA s 48D

s 4.............................................

am F2019L01436; F2020L01285

Part 2

 

s 8A..........................................

ad F2019L01436

s 8B..........................................

ad F2019L01436

s 9.............................................

am F2019L01436

s 10...........................................

rs F2019L01436

Part 5A

 

Part 5A......................................

ad F2019L01436

 

am F2020L01285

Division 1 (Part 5A)

 

Division 1.................................

ad F2019L01436

s 29A........................................

ad F2019L01436

s 29B........................................

ad F2019L01436

s 29C........................................

ad F2019L01436

 

am F2020L01285

s 29D........................................

ad F2019L01436

 

am F2020L01285

s 29E........................................

ad F2019L01436

s 29F.........................................

ad F2019L01436

 

am F2020L01285

s 29G........................................

ad F2019L01436

Division 2  (Part 5A)

 

Division 2.................................

ad F2019L01436

s 29H........................................

ad F2019L01436

s 29I.........................................

ad F2019L01436

 

rs F2020L01285

s 29IA.......................................

ad F2020L01285

s 29J.........................................

ad F2019L01436

Division 3  (Part 5A)

 

Division 3.................................

ad F2019L01436

s 29JA.......................................

ad F2020L01285

s 29K........................................

ad F2019L01436

 

am F2020L01285

s 29L........................................

ad F2019L01436

 

am F2020L01285

Part 5B

 

Part 5B......................................

ad F2019L01436

s 29M.......................................

ad F2019L01436

s 29N........................................

ad F2019L01436

Part 6

 

s 34...........................................

am F2019L01436; F2020L01285