Bill Digest No. 7, 2019–20
PDF version [645KB]
Paula Pyburne
Law and Bills Digest Section
22
July 2019
Contents
Purpose of the Bill
Background
Committee consideration
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Key issues and provisions
Concluding comments
Date introduced: 4
July 2019
House: The Senate
Portfolio: Families
and Social Services
Commencement: Sections
1–3 on Royal Assent; Schedule 1 items 1–5, 7–11, 13–16 and 18–20 on the day
after Royal Assent; all other items on the earlier of a day to be fixed by
Proclamation or 12 months after Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at July 2019.
Purpose of
the Bill
The purpose of the National Rental Affordability Scheme
Amendment Bill 2019 (the Bill) is to amend the National Rental
Affordability Scheme Act 2008 (the NRAS Act) to:
- clarify
ambiguous provisions
- specify
that the object of the NRAS Act is to be achieved by protecting tenants
in the National Rental Affordability Scheme (the Scheme), protecting investors,
providing rights to investors and recognising state and territory contributions
to the Scheme
- identifying
the Constitutional powers on which the NRAS Act is based and
- clarifying
the regulation-making powers of the NRAS Act.
Background
About the
NRAS
The Scheme is established by the National Rental
Affordability Scheme Regulations 2008 (NRAS
Regulations). It is an Australian Government affordable housing
initiative, delivered in partnership with state and territory governments. It
commenced in 2008. Under the Scheme, the Australian Government in conjunction
with the states and territories provides financial incentives to:
- increase
the supply of affordable rental housing
- reduce
the rental costs for low to moderate income households and
- encourage
the large-scale investment and innovative delivery of affordable rental
housing.[1]
Introducing the originating Bill into Parliament, then
Minister for Housing Tanya Plibersek stated:
The National Rental Affordability Scheme is a major
supply-side initiative to make rental properties more affordable by encouraging
large-scale investment in rental housing for low- and moderate-income earners.
The National Rental Affordability Scheme will create up to 50,000
new rental properties across Australia at a cost of $623 million in the first
four years.
The scheme will offer institutional investors and other
eligible bodies annual rental incentives every year for 10 years, provided the
conditions of the scheme continue to be met.
The incentive is made up of a Commonwealth contribution of
$6,000 per dwelling per year and a state or territory contribution in the form
of direct financial support or in kind contribution to the value of $2,000 per
dwelling per year.
Incentives will be indexed to the rental component of the
consumer price index.
The scheme is deliberately targeted at low- and
moderate-income households.
Incentives are only available to providers on condition that
dwellings are rented to low- and moderate-income households at 20 per cent
below the market rate.
More than 1.5 million households will be eligible for
tenancies under the scheme, including key workers: entry level police officers
and teachers, carers, apprentices, cleaners, hospitality staff and childcare
workers, for example.
The scheme provides a new opportunity for all levels of
government, the business sector and the not-for-profit organisations to work
together to increase the supply of rental housing.
The government expects the scheme will facilitate new and
creative partnerships between institutional investors, developers and community
housing providers. Involvement of both investors and the not-for-profit
charitable sector is crucial to its success.[2]
The Department of Social Services (DSS) is responsible for
the administration of the Scheme in consultation with the Australian Taxation
Office and the Departments of Treasury, and Finance and Deregulation. The
Australian Government also works closely with State and Territory governments
in the ongoing management of the Scheme.[3]
In the 2014–15 Budget, the Government announced that the
Scheme would be discontinued and that the planned final round of the scheme
would not proceed.[4]
This meant that the Scheme was capped at 38,000 allocations.[5]
The Scheme will conclude in 2026.[6]
How the
Scheme works
Much of the detail of the Scheme is set out in the in the
NRAS Regulations, rather than in the NRAS Act itself.[7]
The operation of the Scheme is set out in table 1 below.
Table 1: How the Scheme works
Step 1: the Secretary of the Department of Social
Services calls for applications for an allocation under the Scheme.
In response investors or relevant not-for-profit organisations make an
application setting out amongst other things, a proposal for one or more
projects of rental dwelling to be approved for the Scheme and describing the
size, style and special attributes of the proposed dwellings.[8]
Step 2: the Secretary must determine the
applications in accordance with the assessment criteria.[9]
Step 3: the Secretary may make offers to successful
applicants. These are called offers of allocation.[10]
The offer must specify, amongst other things, the location of each dwelling
by title reference or street address, the number of dwellings and the style,
size and special attributes of each dwelling.[11]
The successful applicants are called approved participants.
They are usually property developers, not-for-profit organisations and
community housing providers.
Step 4: the Secretary must make an allocation for
an incentive period. The allocation is subject to mandatory
conditions being:
- the
dwelling must not have been lived in as a residence prior to the dwelling
entering the Scheme, or the dwelling was unfit for anyone to live in and
since the day it was deemed fit for living in, it has not been lived in as a
residence between that day and the day the dwelling enters into the Scheme
- the
dwelling must be tenanted by a tenant or tenants as prescribed by the NRAS
Regulations
- the
rent charged must at all times during the year be at least 20 per cent less
than the market value rent for the dwelling
- the
dwelling must not be vacant for longer than 26 weeks in an NRAS year
or vacant longer than a continuous period of 26 weeks across two NRAS years
- the
approved participant must lodge Statements of Compliance for the dwelling
with the Department in accordance with Regulations and
- each
dwelling must comply with the landlord, tenancy, building and health and
safety laws of the state or territory and local government area in which the
dwelling is located.[12]
Step 5: where the Secretary is satisfied that the
mandatory conditions have been met approved
participants are eligible to receive annual NRAS incentives
if they meet the conditions of allocation each year for a maximum of ten
years from the initial date of allocation. The incentives are either:
- a tax
offset where the investor is liable to pay tax or
- a
Commonwealth payment where the investor is not eligible to pay tax, for
example, a
not-for-profit housing body.[13]
The NRAS incentive is
paid per dwelling. The NRAS incentive is indexed according to movements in
the Rents component of the Housing Group Consumer Price Index for the year,
December quarter to December quarter as at 1 March, using the weighted
average rate of eight capital cities housing component, and is effective from
1 May.[14]
It comprises a Commonwealth component which is paid in
accordance with Part 4 of the NRAS Regulations. ‘There is also a State and
Territory contribution which is paid in accordance with an agreement between
the relevant State/Territory Government and an approved participant.’[15]
|
NRAS investors
NRAS investors are third parties that own
the rental dwellings. Neither the NRAS Act nor the NRAS Regulations refer
to NRAS investors. They can be beneficiaries of the NRAS incentive and may also
participate in the Scheme as part of a consortium or trust. NRAS investors and
approved participants generally enter into contractual arrangements where the
approved participant manages compliance with the Scheme regulatory requirements
and passes on all or part of the NRAS incentive to the NRAS investor.[16]
The Bill inserts references to investors.
Reviews of the Scheme
The Scheme was subject to Australian National Audit Office
(ANAO) performance audits in 2015[17]
and in 2016.[18]
The first of the audits found that the administration of
the application and assessment process and management of reserved allocations
for the Scheme had not been effective.[19] The second found that the effectiveness of the
Department of Social Services’ administration of NRAS allocations and incentive
claims had been mixed.[20]
The ANAO suggested that the Regulations ‘could be reviewed with the aim of
simplifying and clarifying aspects of their operation’.[21]
History of the amendments
The amendments in the Bill were originally contained in
Schedule 3 to the Social Services Legislation Amendment (Housing Affordability)
Bill 2017 (the first Bill).[22]
The first Bill was introduced into the House of
Representatives on 14 September 2017 and subsequently referred to the Senate
Standing Committee on Community Affairs (Community Affairs Committee) for
inquiry and report.[23]
The report was published on 6 December 2017.[24]
Whilst the majority Senators on the Committee recommended that the first Bill
be passed, the Australian Labor Party (Labor) Senators made dissenting comments
about certain aspects of the amendments in Schedule 3 to the first Bill.[25]
Importantly, the Government tabled its response to the Community
Affairs Committee report on 17 October 2018[26]
and subsequently moved amendments to the first Bill.[27]
Those amendments were debated and passed in the House of Representatives.[28]
Although the first Bill had been introduced into the Senate, no relevant debate
occurred. The first Bill lapsed when the 45th Parliament was prorogued.
This Bill
The amendments in this Bill are in equivalent terms to
those in Schedule 3 of the first Bill as introduced in the Senate—that is, the
Government amendments which were debated in, and passed by, the House of
Representatives are included.
Committee
consideration
Selection of
Bills Committee
On 4 July 2019, the Senate Standing Committee for
Selection of Bills deferred consideration of the Bill to its next meeting.[29]
Senate
Standing Committee for the Scrutiny of Bills
At the time of writing this Bills Digest the Senate
Standing Committee for the Scrutiny of Bills had made no comment in relation to
the Bill.
Policy
position of non-government parties/independents
At the time of writing this Bills Digest, no comments
which are specific to this Bill had been made by non-government parties or
independents. However the comments made in relation to the first Bill where
relevant, are discussed under the heading ‘Key issues and provisions’ below.
Position of
major interest groups
At the time of writing this Bills Digest, no comments
which are specific to this Bill had been made by stakeholder groups. However
the comments made in relation to the first Bill where relevant, are discussed
under the heading ‘Key issues and provisions’ below.
Financial
implications
According to the Explanatory Memorandum to the Bill the
measures will have nil financial impact over the forward estimates.[30]
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. The
Government considers that the Bill is compatible.[31]
Parliamentary
Joint Committee on Human Rights
At the time of writing this Bills Digest the Parliamentary
Joint Committee on Human Rights had made no comment in relation to the Bill.
Key issues
and provisions
Updating the
objects of the NRAS Act
The object of the NRAS Act is to encourage
large-scale investment in housing by offering an incentive to participants in
the Scheme so as to:
- increase
the supply of affordable rental dwellings and
- reduce
rental costs for low and moderate income households.[32]
Item 2 of the Bill inserts proposed subsection
3(2) into the objects section to make clear that the object of the NRAS Act
is to be achieved in ways that include:
- protecting
tenants of rental dwellings covered by allocations
- protecting investors
- providing
rights to investors and
- recognising
the contributions, in cash or in kind, made by states and territories to
participants in the Scheme.
Item 5 of the Bill inserts the definition of the
term investor, into section 4 of the NRAS Act. An investor
in relation to a rental dwelling covered by an allocation is a person who is
the legal or beneficial owner of the rental dwelling and who is not an approved
participant in relation to the rental dwelling.
Constitutional
basis of the NRAS Act
The Commonwealth has no specific power under the Constitution
to make laws in respect of housing or housing affordability. At the time that
the NRAS Act was enacted, neither the Act itself nor the Explanatory
Memorandum to the originating Bill specified the Constitutional powers on which
it was based.[33]
What the
Bill does
Item
3 of the Bill inserts proposed section 3A into the NRAS
Act to outline formally its Constitutional basis. The NRAS Act is
based primarily on section 51(ii) of the Constitution—being the power to
make laws with respect to taxation; but so as not to discriminate between states
or parts of states.[34]
Proposed subsections 3A(3), 3A(4) and 3A(6)
provide additional and severable Constitutional bases for the operation of NRAS
Act. According to the Explanatory Memorandum to the Bill the purpose of
these provisions is to ensure:
... that if a court finds that the Commonwealth’s legislative
power does not support the Act, a particular provision or multiple provisions
of the Act or the
Income Tax Assessment Act 1997, the Act will still be valid to the
extent to which it is based on other legislative powers.[35]
These alternative powers are:
- section
51(xxix), the external affairs power, specifically to give effect to
Australia’s rights and obligations under paragraph 1 of Article 2 and
Article 11 of the International
Covenant on Economic, Social and Cultural Rights done at New York on
16 December 1966, as in force for Australia from time to time
- section
51(xx) (called the corporations power) which refers to foreign corporations and
trading or financial corporations, formed within Australia. Essentially, to be
considered a trading or financial corporation, an entity must be first,
incorporated and second, engaged in ‘substantial’[36]
trading[37]
or financial[38]
activities. To that end, the NRAS Act will have effect in relation to:
- the
regulation of activities, functions, relationships or business of an investor or
approved participant that is a constitutional corporation[39]
- the
creation of rights or privileges belonging to an investor or approved
participant that is a constitutional corporation[40]
- the
imposition of obligations on an investor or approved participant that is a
constitutional corporation[41]
- the
regulation of the conduct of persons or entities through which the
constitutional corporation acts[42]
and
- the
regulation of persons or entities whose conduct affects or is capable of
affecting the activities, functions, relationships or business of an investor
or an approved participant that is a constitutional corporation.[43]
- section
122 (called the Territories power) which will allow the NRAS Act to
apply to:
- a
rental dwelling that is located in a Territory
- an
approved participant or investor who is a resident of a Territory
- an
approved participant or investor that is a body corporate, incorporated in a
Territory; a body corporate that is taken to be registered in a Territory;[44]
a trust, if the proper law of the trust and the law of the trust’s
administration are the law of a Territory; or an entity, where the core or
routine activities of the entity are carried out in or in connection with a
Territory.
Matters to
be contained in regulations
As stated above, the NRAS Act contains a broad
power for regulations to prescribe the Scheme.[45]
The Bill contains a number of amendments to more clearly articulate the nature
and extent of matters to be prescribed.
Obligations
of existing participants
Currently paragraph 5(a) of the NRAS Act requires
regulations to be made about the approval of participants in the Scheme. However,
as set out above and in the Explanatory Memorandum to the Bill ‘allocations are
no longer being made under NRAS’.[46]
Item 6 of the Bill repeals and replaces paragraph
5(a) so that the regulations must prescribe the obligations of participants
that have been approved by the Secretary. As no new approvals are being made,
the amendment ensures that the regulations apply to existing approved
participants only.
Approved
participant passing on incentive to investor
Currently, section 6 of the NRAS Act provides that
the Scheme may include additional matters—for instance, the assessment criteria
for an allocation and the amount of an incentive.[47]
Items 7–10 of the Bill amend section 6 to expand those matters.
Item 7 inserts proposed paragraph 6(ca) into
the NRAS Act to allow the Scheme to provide for the adjustment, in
certain circumstances, of the amount of an incentive that is to be provided or
has previously been provided, to an approved participant. The Community Affairs
Committee report highlighted concerns by some stakeholders that approved participants
had, in some cases, failed to pass on an incentive to an investor.[48]
The NRAS does not require an approved participant to own the
rental dwelling for which they hold an allocation. Many rental dwellings are
owned by a third party investor. A common arrangement is for the investor and
the approved participant to have a contractual arrangement where the approved
participant manages compliance with the NRAS regulatory requirements and passes
the incentive on to the investor, usually after deducting a fee.[49]
In 2017, the Regulations were amended to impose new
obligations on an approved participant to pass on an incentive to an investor.[50]
This amendment to the NRAS Act acknowledges that the adjustment of an
incentive paid (or payable) may be required where an approved participant has
failed to pass on the incentive to the investor.
Passing state/territory
contributions to investors
The Scheme is a national program which is supported by a
state and/or territory co-contribution. The Australian Government provides 75
per cent of the funding to approved participants, with the state and territory
governments contributing the balance.[51]
According to the Explanatory Memorandum:
There have been instances where approved participants have
failed to pass on this State/Territory contribution to investors. However, it
is not clear that the NRAS Act currently permits regulations to be made
relating to the circumstances in which the State/Territory contribution must be
passed on to investors. [52]
To address this problem, item 8 of the Bill inserts
proposed paragraph 6(cb) into the NRAS Act to allow the Scheme to
provide for the passing on of contributions made by states and territories, or
their monetary equivalent, by approved participants in certain circumstances.
Item 10 of the NRAS Act inserts proposed
paragraphs 6(e) to 6(g) so that the Scheme may also make provision in
relation to:
- the
protection of tenants of rental dwellings covered by allocations
- the
protection of investors and
- the
rights of investors.[53]
Clarify existing
conditions
Under the NRAS Act once applications were assessed,
offers of allocations or reserved allocations were made to successful
applicants:
An offer of allocations was made to applicants where eligible
dwellings were available for rent, while reserved allocations are a conditional
offer for dwellings that are expected to become available at a later date. The
conditions pertaining to reserved allocations generally related to the
location, style, size and expected timeframe for the delivery of each
associated dwellings.[54]
Existing subsection 7(1) of the NRAS Act states
that the Scheme must provide for the Secretary to make an allocation for an
incentive period in respect of a rental dwelling:
- on
the conditions set out in subsection 7(2)[55]
- on
the condition that an incentive may be offset or recouped in the circumstances
provided for by the Scheme and
- on
any other conditions provided for by the Scheme.[56]
Calculating
rent
Items 11–13 of the Bill amend subsection 7(2) to clarify
existing conditions.
In particular, item 12 repeals and replaces
subparagraph 7(2)(b)(ii) so that the NRAS Regulations must provide that it is a
condition of approval that each charge of rent for the rental dwelling
during the year is at least 20 per cent less than the market value rent for the
dwelling. This means that ‘every time rent is charged, whether this is weekly,
fortnightly, monthly or on any other basis, that rent must be at least 20 per
cent below the market value rent’.[57]
This amendment is intended to address stakeholder comments
to the Community Affairs Committee that ‘there is some ambiguity ... in that the
below market rate could be determined by averaging rents of the course of the
whole year’.[58]
In its submission to the Community Affairs Committee, the Housing Industry
Association stated that it would be:
... entirely counter to the objective of NRAS to provide
affordable housing to those otherwise in housing stress if the provider were
able to charge above the rental discount level at any stage during the year.[59]
Item 14 inserts proposed subsection 7(5)
into the NRAS Act to balance the effect of that amendment. Under proposed
subsection 7(5) the Secretary may decide in certain circumstances that the
requirement that rent is, at all times during the year, at least 20 per cent
less than the market value rent does not apply—provided that the Secretary is
satisfied that such a decision will not result in an increase in rental costs
for low and moderate income households.
The Labor Senators on the Community Affairs Committee
which inquired into the first Bill acknowledged that some submitters to the
inquiry:
... raised a practical problem that can arise in circumstances
where an unintentional overcharge of rent occurs due to a market rent valuation
on the NRAS property which results in a rent reduction in order to keep the
rent at least 20 percent below market rent.[60]
The submission to the Community Affairs Committee by the National
Affordable Housing Providers Ltd explains the problem:
Rent reductions are not uncommon following an MRV [market
rent valuation]. A significant number of NRAS properties were built in those
now declining mining communities precisely to deal with the lack of affordable
housing several years ago. In other communities, even a small market downturn can
result in a slight decrease in an MRV and any reduction in rent, even a few
dollars, must be implemented immediately.[61]
According to the Explanatory Memorandum to the Bill:
The Secretary will only be able to use the discretion [in
proposed subsection 7(5)] in relation to a specific charge for rent, for a
specific allocation, where the overcharging of rent was inadvertent and the
tenant had been compensated.[62]
Dwellings
not rented
Under existing paragraph 7(2)(c), the Secretary may make
an allocation for an incentive period in respect of a rental dwelling that is
not rented during an NRAS year[63]
that falls within the incentive period as long as the dwelling is not vacant:
- for
longer than the period prescribed by the regulations and
- for
longer than a continuous period prescribed by the regulations that begins in
the previous NRAS year and ends in the first-mentioned NRAS year.[64]
A Scheme dwelling can be vacant for a period up to 91 days
(13 weeks), cumulatively or continuously within a single NRAS year or
continuously across two NRAS years, without incurring any financial penalty.
For any vacancy in excess of this period, the value of the incentive payable is
proportionally reduced. Where a dwelling is vacant for more than 182 days, no
incentive is payable.[65]
Item 13 repeals and replaces paragraph 7(2)(c). Under
proposed paragraph 7(2)(c) the Secretary may make an allocation for an
incentive period in respect of a rental dwelling that is not rented during an NRAS
year that falls within the incentive period provided that the dwelling is not
vacant for longer than a period prescribed by the regulations.
This amendment addresses stakeholder concerns reflected in
the Community Affair Committee’s report into the first Bill.
... approved providers were unduly disadvantaged when a vacancy
period spanned two NRAS years, because even if there was a minimal crossover of
the vacancy period to the second NRAS year, the approved provider would receive
nil incentive payment for both years.[66]
Variation,
transfer or revocation of allocation
Currently, section 8 of the NRAS Act states that
the Scheme may provide for the variation, transfer or revocation of an
allocation in certain circumstances and the manner in which the variation,
transfer or revocation is to be made.
Proposed subsection 7(6) (inserted by item 14)
provides that the Scheme may:
- vary
a condition of an allocation or impose a condition of an allocation[67]
and
- set
out the circumstances (if any) in which the condition is varied or imposed.
The purpose of this amendment is to allow the Scheme to
provide for the variation of a condition of allocation, including an allocation
already made. While there is currently scope in the NRAS Act to attach
conditions to allocations, there is no express authority to vary the conditions
of allocations once made. The Explanatory Memorandum sets out the rationale for
the amendment as follows:
The ability to implement new and varied conditions of
allocations is important to further the objects of NRAS, and to protect
eligible tenants and ensure the safety and viability of dwellings. For example,
new conditions of allocation may be imposed to deal with certain emerging
safety issues, such as a requirement to use certain non-flammable materials, or
replace existing dangerous materials.[68]
The Labor members of the Community Affairs Committee which
inquired into the first Bill noted:
Representatives of NRAS approved participants who made
submissions [to the Community Affairs Committee] raised concerns over the
breadth and lack of particularity of the discretion to vary conditions that the
new subsection would provide to the Secretary.[69]
The amendment is drafted in broad terms. Importantly, it
does not limit the variation of a condition to circumstances which specifically
mitigate risk or to ‘emerging safety issues’. In relation to a similar
amendment in the first Bill, the Labor members of the Community Affairs
Committee recommended that the Bill should provide that the legislative
authority to vary conditions attached to allocations is confined to
circumstances where a variation is necessary to mitigate an emerging risk to:
- a
tenant of an NRAS dwelling
- an
NRAS approved participant
- an
NRAS investor or
- the
integrity of the Scheme.[70]
Item 15 of the Bill inserts proposed paragraphs 8(ba)
and 8(bb) so that the NRAS may also provide for:
- the
transfer of all allocations made to an approved participant to another approved
participant or other approved participants in certain circumstances
- the
transfer of an allocation to another rental dwelling in certain circumstances.
According to the Explanatory Memorandum to the originating
Bill:
It is also envisaged that transfer of an allocation to
another approved participant in the Scheme in certain circumstances may be
desirable. For example, this could occur in circumstances where a rental
dwelling is sold to another approved participant in the Scheme who will
continue to provide the property for rent in accordance with the Scheme
requirements.[71]
Despite there being an expectation that Scheme allocations
may need to be transferred from one dwelling to another, the NRAS Act as
enacted did not enlarge on the nature of the power. The amendments made by item
15 address this.
Enforcement
Item 16 of the Bill inserts proposed sections 10A and
10B into the NRAS Act.
Proposed
subsection 10A(1) will empower the Secretary to accept a written
undertaking given by an approved participant in relation to the Scheme. The
approved participant may withdraw or vary the undertaking at any time—but only
with the written consent of the Secretary.[72]
The Secretary may cancel the undertaking by sending a notice to that effect in
writing to the approved participant.[73]
Proposed
subsection 10B(1) of the NRAS Act provides that the Secretary
may apply to the Federal Court of Australia for an order that the approved
participant has breached an enforceable undertaking.
If the Court is satisfied that is the case, it may make
any or all of the following orders:
- an
order directing the approved participant to comply with the undertaking
- an
order directing the approved participant to pay to the Commonwealth an amount of
any financial benefit that he or she obtained directly or indirectly and that
is reasonably attributable to the breach
- any
order that the Court considers appropriate directing the approved participant
to compensate any other person who has suffered loss or damage as a result of
the breach and
- any
other order that the Court considers appropriate.[74]
Concluding
comments
The amendments in the Bill will
‘flesh out’ the legal authority for the Scheme which is contained in the NRAS
Regulations.
The report of the inquiry into the
first Bill by the Community Affairs Committee states:
The committee was concerned to receive evidence from some
submitters regarding some NRAS approved participants potentially acting
contrary to the intent of NRAS, and to the detriment of NRAS investors and
their property managers.[75]
That being the case, the inclusion of the enforcement
provision is likely to be welcomed.
[1]. NRAS
Act, section 3.
[2]. T
Plibersek (Minister for Housing), ‘Second
reading speech: National Rental Affordability Scheme Bill 2008’, House of
Representatives, Debates, 24 September 2008, p. 8360.
[3]. Department
of Social Services (DSS), ‘About
the National Rental Affordability Scheme (NRAS)’, DSS website.
[4]. Australian
Government, Budget
measures: budget paper no. 2: 2014–15, 2014, p. 205; K Andrews (Minister
for Social Services), Budget
2014: Round 5 of flawed National Rental Affordability Scheme not proceeding,
media release, 13 May 2014.
[5]. K
Andrews (Minister for Social Services), Transcript:
Bush Telegraph, ABC Radio National, 20 May 2014; Department of
Social Services (DSS), ‘About
the National Rental Affordability Scheme (NRAS)’, op. cit.
[6]. Department
of Social Services (DSS), ‘About
the National Rental Affordability Scheme (NRAS)’, op. cit.
[7]. NRAS
Act, sections 5 and 12.
[8]. NRAS
Regulations, regulations 7 and 8. Note that there were four calls for
applications under the NRAS and no further calls will be made.
[9]. NRAS
Regulations, regulation 12.
[10]. NRAS Regulations,
regulations 13 and 14.
[11]. NRAS
Regulations, regulation 13.
[12]. NRAS
Regulations, regulation 16.
[13]. NRAS Regulations, Part
4; DSS, ‘National
Rental Affordability Scheme - Frequently asked questions’, DSS website; R
Webb, P Hicks and S Scully, National
Rental Affordability Scheme Bill 2008, Bills Digest, 49, 2008–09,
Parliamentary Library, Canberra, 2008.
[14]. Department
of Social Services (DSS), ‘About
NRAS’, DSS website.
[15]. Explanatory
Memorandum, National Rental Affordability Scheme Amendment Bill 2019, p. 3.
[16]. Department
of Social Services (DSS), ‘About
NRAS’, DSS website.
[17]. Australian
National Audit Office (ANAO), Administration
of the National Rental Affordability Scheme, Audit report, 8, 2015–16,
ANAO, Barton, ACT, 2015.
[18]. Australian
National Audit Office (ANAO), National
Rental Affordability Scheme—Administration of allocations and incentives,
Audit report, 23, 2016–17, ANAO, Barton, ACT, 2016.
[19]. Australian
National Audit Office (ANAO), Administration
of the National Rental Affordability Scheme, op. cit., p. 12.
[20]. M
Thomas, Social
Services Legislation Amendment (Housing Affordability) Bill 2017, Bills
digest, 63, 2017–18, Parliamentary Library, Canberra, 2018, p. 4.
[21]. Australian
National Audit Office (ANAO), National
Rental Affordability Scheme—Administration of allocations and incentives,
op. cit., p. 8.
[22]. Parliament
of Australia, ‘Social
Services Legislation Amendment (Housing Affordability) Bill 2018 homepage’,
Australian Parliament website.
[23]. The
terms of reference, submissions to the Community Affairs Committee, and the
Committee's final report are available on the inquiry
homepage.
[24]. Senate
Standing Committee on Community Affairs, Social
Services Legislation Amendment (Housing Affordability) Bill 2017 [Provisions],
6 December 2017, Senate, Canberra.
[25]. Labor
Senators, Dissenting
report, Senate Standing Committee on Community Affairs: Inquiry into the
provisions of the Social Services Legislation Amendment (Housing Affordability)
Bill 2017, The Senate, Canberra, pp. 29–38.
[26]. Government
response to the Senate Standing Committee on Community Affairs, Inquiry
into the provisions of the Social Services Legislation Amendment (Housing
Affordability) Bill 2017, 17 October 2018.
[27]. P
Fletcher (Minister for Families and Social Services), ‘Consideration
in detail: Social Services Legislation Amendment (Housing Affordability) Bill
2017’, House of Representatives, House Hansard, 28 November 2018, p.
11776.
[28]. The
amendments were incorporated in the Bill as read in the House of
Representatives for a third time.
[29]. Senate
Standing Committee for Selection of Bills, Report, 2, 2019, Senate, 4
July 2019.
[30]. Explanatory
Memorandum, National Rental Affordability Scheme Amendment Bill 2019, p. 1.
[31]. The
Statement of Compatibility with Human Rights can be found at page 13 of the Explanatory
Memorandum to the Bill.
[32]. NRAS
Act, section 3.
[33]. Parliament
of Australia, ‘National
Rental Affordability Scheme Bill 2008 homepage’, Australian Parliament
website.
[34]. NRAS
Act, proposed subsections 3A(1) and (5).
[35]. Explanatory
Memorandum, National Rental Affordability Scheme Amendment Bill 2019, p. 4.
[36]. See R v Federal
Court of Australia: Ex parte WA National Football League (1979) 143 CLR
190, [1979]
HCA 6.
[37]. Trading refers to the
business of buying, selling, exchanging or bartering goods or services, or
being engaged in the business of commerce.
[38]. Financial
dealings are acts such as borrowing, lending, banking or insurance and the
provision of management and advisory services in relation to financial matters.
[39]. NRAS
Act, proposed paragraph 3A(4)(a).
[40]. NRAS
Act, proposed paragraph 3A(4)(b).
[41]. NRAS
Act, proposed paragraph 3A(4)(c).
[42]. NRAS
Act, proposed paragraph 3A(4)(d).
[43]. NRAS
Act, proposed paragraph 3A(4)(e).
[44]. Corporations Act
2001, section 119A.
[45]. NRAS
Act, section 5.
[46]. Explanatory
Memorandum, National Rental Affordability Scheme Amendment Bill 2019, p. 6.
[47]. NRAS
Act, paragraphs 6(b) and (c) respectively.
[48]. Senate
Standing Committee on Community Affairs, Social
Services Legislation Amendment (Housing Affordability) Bill 2017 [Provisions],
op. cit., p. 26.
[49]. Explanatory
Statement, National Rental Affordability Scheme Amendment (Approved
Participant Obligations) Regulations 2017.
[50]. National Rental
Affordability Scheme Amendment (Approved Participant Obligations) Regulations
2017.
[51]. Australian
National Audit Office (ANAO), Administration
of the National Rental Affordability Scheme, op. cit., p. 36.
[52]. Explanatory
Memorandum, National Rental Affordability Scheme Amendment Bill 2019, p. 7.
[53]. Note
that the National
Rental Affordability Scheme Amendment (Investor Protections) Regulations 2019
were made in March 2019 to address some of the problems faced by investors
who have not received incentive payments from approved participants.
[54]. Australian
National Audit Office (ANAO), Administration
of the National Rental Affordability Scheme, op. cit., p. 41.
[55]. Note
that item 14 of the Bill inserts proposed subsection 7(4) into
the NRAS Act so that regulations will permit the Secretary to make a
legislative instrument prescribing matters relating to the income of a tenant
or tenants as a condition of making an allocation for an incentive period in
respect of a rental dwelling.
[56]. The
allocation is subject to conditions which are set out in regulation 16 of the
NRAS Regulations.
[57]. Senate
Standing Committee on Community Affairs, Social
Services Legislation Amendment (Housing Affordability) Bill 2017 [Provisions],
op. cit., p. 23.
[58]. Ibid.
[59]. Housing
Industry Association (HIA), Submission
to the Standing Committee on Community Affairs, Inquiry into the Social
Services Legislation Amendment (Housing Affordability) Bill 2017, 25
October 2017.
[60]. Labor
Senators,
Dissenting report, Senate Standing Committee on Community Affairs, Inquiry
into the provisions of the Social Services Legislation Amendment (Housing
Affordability) Bill 2017, op. cit., p. 34.
[61]. National
Affordable Housing Providers Ltd (NAHP), Submission
to the Standing Committee on Community Affairs, Inquiry into the Social
Services Legislation Amendment (Housing Affordability) Bill 2017, November
2017, p. 4.
[62]. Explanatory
Memorandum, National Rental Affordability Scheme Amendment Bill 2019, p. 8.
[63]. NRAS
Act, section 4 defines the term NRAS year as (a) the period
beginning on 1 July 2008 and ending on 30 April 2009; and (b) the year
beginning on 1 May 2009 and later years beginning on 1 May.
[64]. NRAS
Regulations, subregulation 16(1D) provides that the dwelling must not be vacant
for either a period of more than 26 weeks during the relevant NRAS year
(whether or not the period is continuous) or a continuous period of more
than 26 weeks that begins no more than 26 weeks before the end of the previous
NRAS year and ends in the relevant NRAS year.
[65]. NRAS
Regulations, regulation 28.
[66]. Senate
Standing Committee on Community Affairs, Social
Services Legislation Amendment (Housing Affordability) Bill 2017 [Provisions],
op. cit., pp. 24–25.
[67]. A
condition mentioned in paragraph 7(2)(a) which relates to the rental dwelling
not being lived in or subparagraph 7(2)(b)(ii) which is about the calculation
of rent for the rental dwelling cannot be varied under proposed paragraph
7(6)(a).
[68]. Explanatory
Memorandum, National Rental Affordability Scheme Amendment Bill 2019, p. 8.
[69]. Labor
Senators, Dissenting
report, Senate Standing Committee on Community Affairs, Inquiry into the
provisions of the Social Services Legislation Amendment (Housing Affordability)
Bill 2017, op. cit., p. 36.
[70]. Ibid.,
p. 38.
[71]. Explanatory
Memorandum, National Rental Affordability Scheme Bill 2008, p. 7.
[72]. NRAS
Act, proposed subsection 10A(3).
[73]. NRAS
Act, proposed subsection 10A(5).
[74]. NRAS
Act, proposed subsection 10B(2).
[75]. Senate
Standing Committee on Community Affairs, Social
Services Legislation Amendment (Housing Affordability) Bill 2017 [Provisions],
op. cit., p. 27
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