Social Security Legislation Amendment (Public Housing Tenants' Support) Bill 2013

Bills Digest no. 139 2012–13

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WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Matthew Thomas
Social Policy Section
13 June 2013

Contents
Purpose of the Bill
Structure of the Bill
Background
Committee consideration
Position of major interest groups
Financial implications
Key issues and provisions
Concluding comments

Date introduced: 29 May 2013
House: House of Representatives
Portfolio: Families, Housing, Community Services and Indigenous Affairs
Commencement: On the day after Royal Assent.[1]

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill's home page, or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation. When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

Purpose of the Bill

The purpose of the Social Security Legislation Amendment (Public Housing Tenants’ Support) Bill 2013 (the Bill) is to amend the Social Security (Administration) Act 1999 and the A New Tax System (Family Assistance)(Administration) Act 1999 to establish the Housing Payment Deduction Scheme (HPD Scheme). The HPD Scheme will enable deductions to be made from the income support payments of public housing tenants for the payment of rental arrears, and/or outstanding household utilities payments where these are included under a tenant’s lease.

Structure of the Bill

The Bill has two parts:

  • Part 1 of the Bill inserts proposed Schedule 6 into the Social Security (Administration) Act 1999 (SS Administration Act)[2] to enable the operation of the HPD Scheme in relation to payments under social security law and
  • Part 2 of the Bill inserts proposed Schedule 1 into the A New Tax System (Family Assistance)(Administration) Act 1999 (FA Administration Act)[3] to enable the operation of the HPD Scheme in relation to payments of family tax benefit. The provisions in proposed Schedule 6 of the SS Administration Act, inserted by Part 1, are in equivalent terms to those in proposed Schedule 1 of the FA Administration Act inserted by Part 2 of the Bill.

Background

In recent years it has been Australian Government policy to move away from subsidised social housing in favour of providing rental assistance to support eligible renters in the private rental market.[4] The decline in Australian Government outlays on social housing has resulted in a decrease in Australia’s social housing stock.[5] At the same time, it has reduced the capacity of Australian governments to respond to the increased demand for social housing that is, in large part, a result of declining housing affordability.[6] This increased demand is reflected in social housing waiting lists. As at 30 June 2012, there were 164,323 applicants on waiting lists for social housing across Australia.[7]

In the absence of sufficient social housing to meet the demands of the Australian community, the existing supply is becoming residualised; that is, it is being targeted at people on low incomes and with special needs. The proportion of new allocations of social housing to households in greatest need has been increasing over recent years, with 74.2 per cent of new public housing allocations in 2011­–12 being made to households in this situation.[8] As at 30 June 2012, 97.8 per cent of all households in public housing were low income households.[9]

Public housing rents are typically subsidised for eligible low income tenants to ensure that they pay no more than 30 per cent of their gross income on rent. There are also voluntary mechanisms in place, such as the Rent Deduction Scheme and Centrepay, to help public housing tenants to pay their rent.[10] Nevertheless, some public housing tenants struggle to keep up with their rent payments, and this carries with it some risks.

According to Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) figures, in 2006–07, 1,933 people were evicted from social housing.[11] FaHCSIA claims that this figure is typical, with around 2,000 public housing tenants evicted each year.[12] Judging by Australian Housing and Urban Research Institute (AHURI) research into eviction and its causes, a significant number of those people who are evicted are likely to have been evicted for their failure to pay rent and the accumulation of rent arrears.[13] According to the Government, ‘state housing authorities have advised that there are around 600 evictions from public housing a year due to non‑payment of rent’.[14] A number of public housing tenants also vacate their housing each year owing rent.

For those tenants who are evicted, there is a high risk that they will become homeless, as public housing is most likely to be the least expensive housing option.

The Road Home

It is in recognition of this risk that in the 2008 White Paper on reducing homelessness entitled: The Road Home: A National Approach to Reducing Homelessness, the Government committed to ‘work with the states and territories to introduce compulsory rent payments from Centrelink benefits for tenants in public housing to eliminate the risk of eviction due to non-payment of rent’.[15] Similarly, the National Affordable Housing Agreement commits Australian governments to ‘providing compulsory rent deductions and improved information exchange between the Commonwealth and the states and territories to improve the operational efficiency of public housing and to reduce evictions from public housing’.[16] At the March 2013 Council of Australian Governments (COAG) Select Council on Housing and Homelessness meeting, ‘Ministers confirmed their in-principle commitment to pursuing the Housing Payment Deduction Scheme which assists in the prevention of evictions and possible homelessness of public housing tenants due to unpaid rent. It will also improve efficiency by reducing the cost of managing arrears for public housing authorities’.[17]

Consultation

The Government released an Exposure Draft of the Bill in April 2013 for public comment by 23 April 2013. Twenty-three submissions were received in relation to the draft of the Bill, many of which are available on the FaHCSIA website.[18] Meetings and a teleconference were also held with stakeholders to discuss the Bill.

The Government has made substantial changes to the Exposure Draft version of the Bill, in response to issues raised by stakeholders in the consultation process. These changes are summarised both in a table on the FaHCSIA website[19] and in the Explanatory Memorandum.

Committee consideration

The Bill has not been referred to Committee for inquiry and report.

Senate Standing Committee for the Scrutiny of Bills

At the time of writing this Bills Digest the Senate Standing Committee had not published any comments in relation to the Bill.

Parliamentary Joint Committee on Human Rights

At the time of writing this Bills Digest the Joint Parliamentary Committee on Human Rights had not published any comments in relation to the Bill.

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act.[20] The Government considers that the Bill is compatible.

Position of major interest groups

Issues raised by stakeholders in relation to the Exposure Draft of the Bill are discussed in the ‘Key issues and provisions’ section, below.

Financial implications

According to the Explanatory Memorandum,[21] assuming that the scheme commences in early 2014, the cost for its delivery will be as follows:

Total resourcing

A majority of the funding for 2013–14 ($3.7 million) is earmarked for establishing the necessary Information Technology (IT) infrastructure, with ongoing delivery costs anticipated to be around $1.4 million a year.[22]

Federal Government costs will be offset to a degree by a transaction fee to be charged to the states and territories for their use of the scheme.[23] It is to be assumed that these transaction fees will be recouped by the states and territories through rent and household utilities arrears that might otherwise be lost to them.

The states and territories would also stand to benefit from a reduction in the costs associated with eviction. Zaretzky et al, note that published data are not available to determine either the cost of eviction, or its prevalence. Nevertheless, based on information provided to them by the relevant Departments of Housing in each state, they have estimated that, taking into account the value of cost offsets, the average cost of an eviction event is around $4,800.[24] While Zaretzky et al, stress that this figure is indicative only, if there are close to 2,000 evictions a year, then this equates to a total of $9.6 million per annum. Of course, the proposed scheme would not see a total elimination of all evictions, but there is clearly potential for considerable cost savings through preventing evictions for non-payment of rent.

It is to be hoped that the HPD Scheme will prove successful in helping to reduce the incidence of homelessness. Should this be the case then, given the significant costs of homelessness, the whole‑of-government budgetary savings could be substantial over time.[25]

Key issues and provisions

Given that the amendments to each Act are essentially the same, this section of the Bills Digest deals only with the amendments to the SS Administration Act. The comments made may be read as applying equally to the amendments made to the FA Administration Act.

Income management

In principle, income support payments made under the Social Security Act 1991,[26] the A New Tax System (Family Assistance) Act 1999[27] and the Veterans’ Entitlements Act 1986[28] are inalienable. This means that, so long as a person is eligible for a payment, that payment must be made to them and may not be withheld or paid to another person.[29] In recent years, exceptions have increasingly been made to this rule.

In 2007, the Howard Government introduced the Northern Territory Emergency Response (NTER) following claims of widespread child sexual abuse and neglect in Northern Territory Indigenous communities.[30] A scheme of income management was introduced as a part of the intervention, under which the Government quarantines a specified amount of a person’s welfare payments for the priority needs of that person, their partner and their children. Priority needs include food, housing, clothing, education and health care.[31] Payments quarantined under income management may not be spent on alcohol, tobacco, pornography or gambling.[32]

In 2009, the Rudd Government replaced the income management scheme for prescribed Northern Territory Indigenous communities with a broader scheme targeted at ‘vulnerable regions’ and ‘individuals at risk’.[33]

Subsection 60(1) of the SS Administration Act puts beyond doubt that a social security payment is absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise. Subsection 60(2) provides exceptions to this general rule. Items 1 and 2 of Part 1 of this Bill amend subsection 60(2) of the SS Administration Act to add references to proposed section 238A and proposed Schedule 6 to the list of exceptions to the inalienability rule. Proposed section 238A, inserted by item 5 of Part 1 of the Bill, provides that deductions and payments to public housing lessors may be made in accordance with proposed Schedule 6. As mentioned above, proposed Schedule 6 of the SS Administration Act, inserted by item 9 of Part 1 of the Bill, enables the operation of the HPD Scheme in relation to payments under social security law.

Where a request is received under the HPD Scheme in respect of a public housing tenant who is already having their income managed, proposed subsection 123YA(2A) of the SS Administration Act[34] operates so that the request is actioned under the existing income management regime in Part 3B of the SS Administration Act, which allows the Secretary to make a compulsory deduction from a person’s income support payment to meet their priority needs.

The HPD Scheme is separate from the income management regime in Part 3B of the SS Administration Act and is set out in proposed Schedule 6.

Compulsory income management, such as the proposed HPD Scheme allows for, is highly controversial. Most welfare organisations are opposed in principle to any policies or initiatives that compulsorily withhold income support recipients’ payments or a part of their payments. They argue that such policies and schemes not only offend against the dignity of income support recipients, but are also self-defeating in that they take away these people’s autonomy and ability to manage their own affairs.[35] As John Falzon states in the St Vincent de Paul submission on the HPD Scheme:

Autonomy and liberty are core elements of participation in a liberal democracy. We believe that forcibly reducing people’s autonomy, by restricting how they spend their income, will only decrease self‑determination and resilience, and increase social exclusion. Compulsory quarantining of income is vastly different to voluntary repayment schemes, such as the Rent Deduction Scheme, or Centrepay, which support individual decision-making and empowerment.[36]

That said, most of Australia’s welfare organisations concede that such interventions may be acceptable, but only when there is a real risk of eviction and homelessness, and, for some, when a range of other voluntary measures, have been exhausted.

Hence, Falzon goes on to say:

We believe that the right to determine how one’s income is spent free from discrimination can and should only be abrogated by the state as a last resort when that person’s right to housing is at severe risk of being compromised.[37]

The Government is likely to have reduced stakeholder concerns with the Bill in this respect with changes that focus the scheme on people with current rent owing. The scheme no longer includes in its ambit people who are deemed to be ‘at risk’ of not paying their rent, as was the case in the Exposure Draft of the Bill.

Items 6–8 of Part 1 of the Bill insert new definitions into the Dictionary in Schedule 1 of the SS Administration Act for the terms divertible welfare payment, household utilities and public housing lessor. These definitions are consistent with those used in proposed Schedule 6.

Objects of the HPD Scheme

Item 9 of the Bill inserts proposed Schedule 6—Deductions for payment for public housing into the SS Administration Act.

Subclauses 1(1) and 1(2) of proposed Schedule 6 set out the object of the Schedule—that is, to reduce the risk of person who received certain welfare payments and lease public housing becoming homeless because they are evicted from, or abandon housing for failure to make the payments required by their leases—and how the object is to be achieved through the HPD scheme.

Stakeholders were critical of the Exposure Draft of the Bill for being too concerned with the recovery of public housing lessor debts at the expense of a focus on preventing evictions and reducing homelessness. This was reflected in the (now deleted) second objective which was to ‘make management of public housing more efficient’. In response to these criticisms, the stated objective of the Bill is ‘now more clearly focused on the prevention of homelessness due to non‑payment of rent only after other reasonable recovery action has been taken’.[38] This, when combined with a number of other substantive changes made to the Bill, aligns it more closely with the narrowly defined objective in the White Paper on homelessness.[39]

Who may request a deduction under the HPD Scheme?

Subclause 5(1) of proposed Schedule 6 sets out the conditions under which a public housing lessor may request the Secretary to make a deduction from a tenant’s income support payment (referred to in the Bill as a divertible welfare payment).

Clause 3 contains the definition of public housing lessor. Subclauses 3(1) and (2) operate so that the Minister may, by legislative instrument, specify that a state or territory, an authority of a state or territory, or a person is a public housing lessor. Before so specifying, the Minister is obliged to ensure that the relevant public housing lessor has in place appropriate processes for reviewing decisions made with regard to rent owed and for dealing with lessees in matters relating to their leases.[40] Subclauses 3(4) and 3(5) of proposed Schedule 6 of the SS Administration Act contain non‑exhaustive lists of matters to which the Minister must have regard in making his, or her, decision about whether the required processes are in place.

Where the Minister ceases to be satisfied that such conditions are being met, then he, or she, is able to revoke the legislative instrument giving the public housing lessor status.[41]

Clause 3 of the Bill responds to criticisms that the Exposure Draft of the Bill contained insufficient safeguards for tenants. While the addition of the above conditions improves, on paper, the procedural fairness of the HPD Scheme, much will depend on the degree to which these procedures are actually followed by public housing lessors. It should also be noted that, as observed by the Commonwealth Ombudsman, people, and especially disadvantaged people, ‘do not always access their review rights or complaints mechanisms’.[42]

That said, any legislative instrument which is made under subclause 3(2) of proposed Schedule 6 to the SS Administration Act, must be tabled in each House within six sitting days following registration on the Federal Register of Legislative Instruments.[43] Unless laid before each House within this time limit, the legislative instrument will cease to have effect.[44] As the legislative instrument is a disallowable instrument, a Senator or Member of the House of Representatives may move a motion of disallowance within 15 sitting days of the day that the instrument is tabled. The motion to disallow must be resolved or withdrawn within a further 15 sitting days of the day that the notice of motion is given. However, it should be noted that if there is no notice of motion to disallow the instrument, then there is no debate about its contents.[45]

Making a request

A public housing lessor may request the Secretary to make a deduction from a divertible welfare payment in two circumstances. (See the discussion about clauses 6 and 7 below). The payments which are divertible welfare payments are listed in clause 2 of proposed Schedule 6 to the SS Administration Act.

Importantly, subclause 5(2) of proposed Schedule 6 makes it clear that it does not matter:

  • when the lease was entered into—so that the Bill, when enacted, will apply to every existing lease by a public housing lessor
  • whether the person in respect of whom a request for deductions is made is the only lessee or joint lessee of the accommodation and
  • whether or not the accommodation is also accommodation for others.

Clause 6 of proposed Schedule 6 specifies the two conditions that must be satisfied before an original request for deduction may be made by a public housing lessor. First, there must be an amount due and payable for rent and/or household utilities under the lease which is more than the minimum which has been prescribed by the Minister in a legislative instrument.[46]

Second, the public housing lessor must have taken reasonable to recover the amount. Subclause 6(4) of proposed Schedule 6 specifies what constitutes the reasonable action that must be undertaken by a public housing lessor to recover debts owed by tenants, before making a request under the scheme.

This section of the Bill has been included in response to stakeholder criticism that there were insufficient safeguards for tenants in the Exposure Draft of the Bill. For example, the National Welfare Rights Network called for the legislation to ‘set out the range of acceptable activities that would be deemed to be reasonable action’ to recover debts from public housing tenants.[47]

Clauses 7 and 10 of proposed Schedule 6 of the SS Administration Act operate so that a public housing lessor may request that a person who is no longer in arrears for rent and/or utilities continue to have amounts deducted from their income support payment for rent and/or utilities for up to 12 months. Before making a request under clause 7, the public housing lessor must have taken reasonable action to inform the person that it is proposed to make such a request, and have given the person reasonable opportunity to make representations to the lessor about the proposal.

The stated intent of these provisions is that this extended period on the scheme should act as ‘a safety net to allow the tenant to stabilise their tenancy’.[48] The Government has indicated that this is a compromise for having gotten rid of the ‘at risk’ criteria from the Exposure Draft of the Bill. These criteria would have allowed lessors to request deductions from a tenant’s income support payment where they thought there was a risk that the tenant would not pay their rent and other commitments in the future. This, stakeholders argued, would have resulted in the scheme including a far greater number of tenants than those in danger of eviction.

It might be argued that the Government’s compromise, which it claims was proposed by the welfare sector, meets with the White Paper’s goal of early intervention—working to eliminate the risk of eviction due to non-payment of rent.[49] However, it might also be argued that, in the absence of the criteria that must be considered by the Secretary in reaching a decision, it effectively reinstates a broad ‘at risk’ category in another form.

Content of a request

Under subclause 5(3) of proposed Schedule 6 to the SS Administration Act, the public housing lessor’s request must specify the maximum amount to be deducted from a tenant’s income support payment. This amount must not, however, exceed the cap specified in paragraph 9(1)(c). (See further comments about the cap below). Subclause 5(4) allows the public housing lessor to amend the request to vary the amount to be deducted in accordance with changes in rent and utility amounts, so long as the lessor takes reasonable action to inform the tenant of the amendment and gives them an opportunity to make representations to the lessor about the proposed change (subparagraph 5(4)(b)(ii)).

Making the deduction

Subclause 8(1) of proposed Schedule 6 to the SS Administration Act specifies when a deduction may be made under the HPD Scheme. Subclause 8(2) specifies that deductions may not be made in relation to people who are subject to income management or who have been specified in a legislative instrument as being excluded from the HPD Scheme (subclause 8(3)).

Clause 9 specifies the maximum amount that can be deducted from a tenant’s income support payment under the HPD Scheme in response to a public housing lessor’s request. This amount cannot exceed the amount requested by the lessor; or the amount of the income support recipient’s actual payment, taking into account all deductions and reductions; or 35 per cent of what the person’s payment would have been apart from any reductions or deductions made under Commonwealth legislation (for example, deductions under section 238 of the SS Administration Act for amounts owing to the Australian Taxation Office or the Child Support Registrar), but taking into account deductions for penalties under Division 3A of Part 3 of the SS Administration Act (which relates to participation payments) and for payment of social security debts, which may occur, for example, when a person has been overpaid. Under subclause 9(2) of proposed Schedule 6 to the SS Administration Act, the Secretary is able to specify by legislative instrument components of payments that may be excluded from the calculation of the 35 per cent cap. This effectively allows the Secretary to reduce the amount that the 35 per cent is calculated against, allowing a tenant to retain more of their payments for living expenses.

The 35 per cent cap is arguably the most controversial aspect of the Bill. Most of the submissions on the Exposure Draft of the Bill were highly critical of the level of the cap, both on the grounds that it was set too high and that there was no indication as to the circumstances under which a lower percentage reduction would be considered.

The submissions point out that a majority of state and territory public housing rent calculation policies set the percentage of gross assessable income paid on rent at around 25 per cent, with NSW currently having a 25 to 30 per cent limit.[50] There are a number of different definitions and indicators of housing stress. However, most of these definitions have it that where households are spending more than 30 per cent of their income on housing, they are in housing stress. While spending more than 30 per cent of their income on housing is likely to have a minimal impact on higher income households, for lower income households—basically, anybody in public housing—this leaves them with relatively few resources to spend on their other, non-housing related living expenses. Hence, the Public Interest Law Clearing House (PILCH) has argued that ‘if public housing households’ already limited incomes are put under further pressure, there is a risk that these households will be unable to meet their living expenses and less likely to sustain their housing. This is contrary to the stated aims of the Deduction Scheme’.[51]

The Government has argued that the 35 per cent cap:

… represents a balance between stakeholder opinions (either too high and therefore may cause hardship in individual cases; or too low to cover both rent and arrears, resulting in deeper into debt). Given tenants pay up to 25 per cent in rent already, the 35 per cent cap allows and would be contributing 10 per cent to paying off rent arrears.[52]

While the cap may prevent some public housing tenants from being evicted, it may compromise other tenants’ ability to manage their finances and meet basic living expenses, and create a situation in which they are at risk of tenancy failure in the longer term. As Homelessness Australia puts it, ‘all that the [Housing Payment Deduction Scheme] may achieve is delay in eviction’.[53]

The 35 per cent cap would impact differently on different households according to their levels and types of income and other circumstances. And, in the absence of relevant data, it is difficult to determine just how much of a problem the 35 per cent cap level is likely to pose. UnitingCare has called on the Government to release information that would enable a clearer understanding of the cap’s potential merits. Such information would include:

The impact of cap level deductions on different categories of Centrelink payment recipients;

The methodology used by FaHCSIA to determine that the amount of income remaining following cap level deductions is ‘sufficient’ for tenants to meet their other costs and why ‘sufficiency’ varies according to payment or benefit type due to the selection of a fixed percentage cap; and

Circumstances in which the cap level deductions will apply and in which the deduction level may be varied.[54]

Stakeholders have not only raised concerns about the lack of publicly available data and modelling relevant to the scheme. They have also expressed disappointment at the limited time available to stakeholders to respond to the Exposure Draft of the Bill. Given that the scheme will be applied to some of the most disadvantaged people in the nation, and has serious implications for these people, these concerns are acute.

Request ceases to be in force

Subclause 10(1) of proposed Schedule 6 to the SS Administration Act specifies the circumstances under which a request for deductions to be made is no longer in force. Subclause 10(2) provides that a request may be revoked by the public housing lessor giving notice to the Secretary in the approved form. Where a person ceases to lease accommodation from a public housing lessor or where no amount is due and payable by a person to a public housing lessor under a lease, subclause 10(4) obliges the public housing lessor to notify the Secretary as soon as practicable of those circumstances.

Other provisions

Clauses 11–14 of proposed Schedule 6 to the SS Administration Act set out how the deductions made by the Secretary under the HPD Scheme are to be treated.

Subclause 15(2) of proposed Schedule 6 to the SS Administration Act provides for an amount paid in excess of the deduction to the public housing lessor to be repaid to the Commonwealth.

Where a deduction is made that exceeds the amount that should have been deducted, and the public housing lessor refuses to repay this excess to the lessee, subclause 16(2) provides that the lessor must pay this amount to the Commonwealth.

Subclause 16(3) provides that, irrespective of whether or not the excess is recovered by the Commonwealth, the Secretary must pay this amount to the lessee, so long as the amount does not exceed their income support payment, less the amount of deduction under the HPD Scheme. This is to ensure that lessees are not out of pocket.

Concluding comments

Australia’s welfare sector is opposed in principle and for some practical reasons to compulsory deductions being made from income support recipients’ payments. Nevertheless, most welfare organisations concede that there is a place for a measure such as the scheme, which could potentially prevent the build-up of rental arrears and eviction resulting in homelessness. Perhaps the main concern with the scheme is that setting the cap for repayments at 35 per cent of the person’s income could actually undermine the main objective of the scheme. That is, it could put into housing stress already disadvantaged people and result in their eviction being merely postponed.

The Exposure Draft of the Bill was changed to address a number of stakeholder concerns, and especially concerns that there should be improved protections and procedural fairness for scheme participants. However, it is not clear that these changes are sufficient or extensive enough to alleviate stakeholders’ disquiet with the scheme as a whole.

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.


[1].     Note that although the Social Security Legislation Amendment (Public Housing Tenants’ Support) Act 2013 will commence on the day after Royal Assent, it will not have effect until the Minister specifies, by legislative instrument, a public housing lessor.

[2].     Social Security (Administration) Act 1999, accessed 11 June 2013.

[4].     A Morris, ‘Public housing in Australia: a case of advanced urban marginality?’, The Economic and Labour Relations Review, 24(1), pp. 80–96, accessed 7 June 2013.

[5].     This decline has been slowed by the actions of the Rudd-Gillard Government. On gaining office in 2007, the Rudd Government made a commitment to tackle Australia’s housing affordability problem through the new National Affordable Housing Agreement (which replaced the previous Commonwealth-State Housing Agreement (CSHA)). Within this agreement, the National Partnership Agreement on Social Housing was established largely as a means to facilitate the implementation of the Social Housing Growth Fund. This fund was to significantly increase the supply of social housing in Australia, with around 15,400 new social housing dwellings having been built and a further 3,800 under construction as at 2011. Australian Institute of Health and Welfare (AIHW), Housing assistance in Australia 2012, cat. no. HOU266, AIHW, Canberra, 2012, p. 8, accessed on 7 June 2013.

        While the Government has clearly made a significant contribution to reversing the decline in Australia’s social housing stock, some commentators have questioned whether or not the investment is sufficient. For example, in its 2010 state of supply report the National Housing Supply Council stated that the increase in the share of social and subsidised housing resulting from the Government’s investment will not be maintained without continued investment. National Housing Supply Council, 2nd state of supply report 2010, Commonwealth of Australia, Canberra, 2010, p. 88, accessed on 7 June 2013.

[6].     S Kahn, ‘An introduction to Australia’s housing affordability problem: causes and solutions’, Parity, 9(2), April/May 2011, accessed on 7 June 2013.

[7].     Productivity Commission, Report on government services 2013, Health, Community Services, Housing and Homelessness, Commonwealth of Australia, Canberra, 2013, 2, chapter 16, table 16A.5, accessed 7 June 2013.

[8].     Productivity Commission, op. cit., p. 16.20. Households are classified as being in greatest need ‘if they are homeless or find themselves in circumstances that are adversely affecting their health or place their life or safety at risk, are in housing that is inappropriate to their needs, or have very high rental housing costs relative to their income’. Australian Institute of Health and Welfare (AIHW), National housing assistance data dictionary, version 3, Housing assistance data development series, cat. no. HOU 147, AIHW, Canberra, 2006, accessed 7 June 2013.

[9].     Productivity Commission, op. cit., p. 16.43. Low income households are defined as those in the bottom 40 per cent of equivalised gross household incomes (that is, the bottom two income quintiles).

[10].   For details on the Rent Deduction Scheme see the Department of Human Services website. According to Centrelink these voluntary mechanisms are used by around 70 per cent of public housing tenants. Australian Government, The road home: a national approach to reducing homelessness, Commonwealth of Australia, Canberra, 2008, p. 26, accessed 7 June 2013. Details on Centrepay are provided on the Department of Human Services website.

[11].   See Australian Government, The road home: a national approach to reducing homelessness, op. cit., p. 7.

[12].   Ibid., p. 26.

[13].   A Beer et al, ‘Evictions and housing management’, Australian Housing and Urban Research Institute, iss. 73, June 2006. Beer et al’s study found that failure to pay rent and the accumulation of rent arrears was the reason for 49 per cent of private tenant evictions and 36 per cent of public tenant evictions.

[14].   Explanatory Memorandum, Social Security Legislation Amendment (Public Housing Tenants’ Support) Bill 2013, p. 1, accessed 11 June 2011.

[15].   Australian Government, The road home: a national approach to reducing homelessness, op. cit., p. 36. It is important to note, however, that this commitment was made ‘as part of a suite of recommendations aimed at preventing homelessness’. Public Interest Law Clearing House (PILCH) Homeless Persons’ Legal Clinic, Housing Payment Deduction Scheme, p. 5, accessed on 7 June 2013. There are a range of other early intervention programs and initiatives that can be drawn upon to help prevent evictions and homelessness.

[16].   Council of Australian Governments (COAG), National Affordable Housing Agreement, COAG, p. 7, accessed on 7 June 2013.

[17].   See Department of Families, Housing, Community Services and Indigenous Affairs, COAG Select Council on Housing and Homelessness, Communiqué, COAG, 28 March 2013, accessed 7 June 2013.

[18].   See Department of Families, Housing, Community Services and Indigenous Affairs, Housing Support, Exposure Draft – Public Housing Tenants’ Support Bill 2013 Housing Payment Deduction Scheme, accessed 11 June 2013.

[20].   The Statement of Compatibility with Human Rights can be found at the end of the Explanatory Memorandum to the Bill.

[21].   Explanatory Memorandum, Social Security Legislation Amendment (Public Housing Tenants' Support) Bill 2013, op. cit., p. 2.

[22].   Ibid.

[23].   Clause 19 of proposed Schedule 6 to the Social Security (Administration) Act 1999, inserted by item 9 of Part 1 of the Bill and clause 18 of proposed Schedule 1 to the A New Tax System (Family Assistance) (Administration) Act 1999, inserted by item 15 of Part 2 of the Bill.

[24].   K Zaretzky et al, The cost of homelessness and the net benefit of homelessness programs: a national study, AHURI final report, 205, Australian Housing and Urban Research Institute, Melbourne, 2013, p. 37, accessed 7 June 2013.

[25].   For the most recent assessment of the costs of homelessness in Australia see ibid.

[26].   Social Security Act 1991, accessed 11 June 2013.

[28].   Veterans’ Entitlements Act 1986, accessed 11 June 2013.

[29].   Section 60 of the Social Security (Administration) Act 1999 states that social security payments ‘are absolutely inalienable’. This means that, subject to express legislative exemptions, ‘they cannot be sold, transferred to a third party, legally charged or be subject to bankruptcy proceedings. This gives legal force to the intention that payments are designed to provide income support. A recipient's right to receive a payment or benefit CANNOT be transferred to another person either by a voluntary act or by the operation of the law’. See ‘8.4.3 Protection of Payment’, Guide to Social Security Law, Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA), accessed 13 May 2013.

[30].   K Magarey et al, Northern Territory National Emergency Response Bill 2007, Bills Digest, 28, 2007–08, Parliamentary Library, Canberra, 2007, accessed 7 June 2013.

[31].   Subsection 123TH(1) of the Social Security (Administration) Act 1999 contains a complete list of priority needs. ‘Household utilities’ are currently included in this list at paragraph 123TH(1)(h), which provides that this term includes electricity, gas, water, sewerage, garbage collection and fixed-line telephone. At present, this term is only used in the part of the Social Security (Administration) Act 1999 that deals with the income management regime (Part 3B), and it is therefore appropriate to be defined in that part. However, as the term is also used in proposed Schedule 6 of the Act, it will be appropriate for it to be defined in the Dictionary at Schedule 1 to the Social Security (Administration) Act 1999. Accordingly, item 3 of Part 1 of the Bill repeals and replaces paragraph 123TH(1)(h) so that it refers simply to ‘household utilities’, with no included examples and item 7 of Part 1 of the Bill inserts a definition of ‘household utilities’ into subclause 1(1) of Schedule 1 of the Social Security (Administration) Act 1999, which reproduces the definition at current paragraph 123TH(1)(h). No substantive change is made to section 123TH.

[32].   For a comprehensive overview of income management in Australia, see L Buckmaster, C Ey and M Klapdor, Income management: an overview, Background note, Parliamentary Library, Canberra, 21 June 2012, accessed 7 June 2013.

[33].   Ibid.

[34].   Inserted by item 4 of Part 1 of the Bill.

[35].   For a brief summary of the main arguments for and against income management, see L Buckmaster et al, Social Security and Other Legislation Amendment (Welfare Reform and Reinstatement of Racial Discrimination Act) Bill 2009, Bills Digest, 94, 2009–10, Parliamentary Library, Canberra, 2010, pp. 20–34, accessed 7 June 2013.

[36].   St Vincent de Paul Society, Submission on the Housing Payment Deduction Scheme, p. 3, accessed 7 June 2013.

[37].   Ibid., p. 5.

[38].   Explanatory Memorandum, Social Security Legislation Amendment (Public Housing Tenants’ Support) Bill 2013, p. 2, accessed 11 June 2011.

[39].   Australian Government, The road home: a national approach to reducing homelessness, op. cit., p. 36.

[40].   Subclause 3(3) of Schedule 6 of the SS Administration Act.

[41].   See the note after subclause 3(6) of Schedule 6.

[42].   Commonwealth Ombudsman, Submission regarding the Social Security Legislation Amendment (Public Housing Tenants’ Support) Bill 2013, 23 April 2013, p. 3, accessed 7 June 2013.

[43].   Section 38 of the Legislative Instruments Act 2003.

[44].   See BC Wright ed., House of Representatives practice, sixth edn, Department of the House of Representatives, Canberra, 2012, pp. 410–18, accessed 3 June 2013,

[45].   Section 42 of the Legislative Instruments Act 2003.

[46].   Subclauses 6(1) and 6(2) of Schedule 6. The legislative instrument is a disallowable instrument. See the comments in relation to subclause 3(2) above.

[48].   Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA), ‘Housing Payment Deduction Scheme (HPDS): issues raised by stakeholders and response, FaHCSIA website, accessed 7 June 2013.

[49].   For example, John Falzon recommended in the St Vincent de Paul Society submission that ‘to prevent “churn”, where the same tenant cycles through order after order against them, the ‘at risk’ category could be reintroduced as a category of people who have, in the last 12 months, been put onto the scheme three or more times. Under this approach, if someone has failed to pay their rent, and the Secretary has been satisfied on multiple occasions that they are at imminent risk of homelessness, then it may be acceptable to quarantine their payments not only until their rent has been repaid but for a future period’. St Vincent de Paul Society, op. cit., p. 6.

[50].   New South Wales Government, Family and Community Services Housing NSW, ‘Charging rent policy, website, accessed 11 June 2013.

[51].   Public Interest Law Clearing House (PILCH) Homeless Persons’ Legal Clinic, ‘Housing Payment Deduction Scheme, p. 7, accessed 7 June 2013.

[52].   Department of Families, Housing, Community Services and Indigenous Affairs, ‘Housing Payment Deduction Scheme (HPDS): issues raised by stakeholders and response’, op. cit.

[53].   Homelessness Australia, Submission on the proposed ‘Housing Payment Deduction Scheme’, April 2013, p. 4, accessed 7 June 2013.

[54].   UnitingCare Children, Young People and Families, Submission to: Social Security Legislation Amendment (Public Housing Tenants’ Support) Bill 2013, 22 April 2013, p. 3, accessed 7 June 2013.

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