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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
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COMMUNITY HOUSING PROVIDERS (NATIONAL LAW) (SOUTH AUSTRALIA) BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (18:35): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

I am pleased to introduce the Community Housing Providers (National Law) (South Australia) Bill 2013 ('the Bill') to Members.

The community housing sector in South Australia has evolved significantly in scale, sophistication and services since the proclamation of the original SA Co-operative and Community Housing Act over 20 years ago. In recent years it has become broadly accepted that Australia is facing a housing shortage and particularly that there is a need for increased affordable, safe and supported housing for low-income and high-need South Australians. The State's not-for-profit sector has become an important supplier of affordable housing, now providing over 6,000 homes for households on lower incomes and it is important that we have a strong legislative and regulatory base which supports this growing sector and provides a firm basis for the future.

Jurisdictions around Australia have committed to the creation of a national system for the regulation of community housing providers. This is being introduced through template legislation to be passed in each participating jurisdiction. New South Wales passed legislation on 22 August 2012 and is hosting the system. All States and Territories have been extensively involved in the development of the National Law. South Australia confirmed its commitment to implementing the national system by signing the Inter-Government Agreement for a National Regulatory System for Community Housing Providers, on 31 August 2012.

The introduction of a national regulatory system will address a number of deficiencies which have resulted from disparate State-based systems. It also provides consistent mechanisms to assure government, tenants and applicants for housing along with private investors and other partners, that community housing providers are well governed, accountable and financially sound. This system will provide a legislative regime which is outcomes-focussed so community housing providers can operate in an autonomous fashion whilst being held to a high standard of service delivery.

Implementation of the National Regulatory System requires the repeal of any existing systems which duplicate or contradict the scope and purpose of the National Law to ensure that community housing providers are subject to consistent regulation irrespective of which jurisdiction they operate in. This Bill will therefore supersede the South Australian Co-operative and Community Housing Act 1991.

Significant consultation has been undertaken with key stakeholder organisations which expressed strong support for the introduction of the national regulatory system as well as the proposed reforms to the administration of community housing in South Australia.

This national reform presents South Australia the unique opportunity to introduce new modernised legislation to govern the community housing sector, which recognises the changing needs of the sector and provides a solid foundation for future sector development.

I turn now to key provisions of the Bill.

The Bill is essentially split into two keys parts: the provisions to introduce the National Regulatory System for Community Housing Providers, through application of the National Law; and provisions to establish and effect funding of community housing providers in South Australia previously covered by the South Australian Co-operative and Community Housing Act 1991.

The Bill recognises that community housing services are being, and will continue to be, delivered by a wider range of not-for-profit organisations than currently registered housing co-operatives and housing associations. There is no longer a need to distinguish between different types of entities delivering community housing based solely on their corporate structure but rather there is a need to align regulatory responsibilities and requirements to the scope of activities and services delivered by community housing providers. These organisational performance requirements are outlined in the National Regulatory Code at Schedule 1 of the National Law. As a result the incorporation of Housing Co-operatives and associated management requirements will in future be covered by mainstream legislation as is the case in other jurisdictions, specifically the Associations Incorporation Act 1985 or Co-operatives Act 1997.

Clause 11 provides for ministerial appointment of an independent Registrar responsible for monitoring the performance of registered community housing providers. The Registrar will be supported by an office staffed by current Housing SA employees, comparable to arrangements that have successfully operated in the New South Wales community housing sector for many years. This supports a strong view held by existing South Australian registered community housing providers, that greater separation and transparency is required between the funding and regulatory roles and responsibilities.

Existing provisions relating to the protection of government investment into community housing in South Australia are carried forward into this Bill, including the ability to register a statutory charge on the title of a community housing asset. It will also be a requirement for community housing providers to enter into a legal contract with Government, known as a community housing agreement, in order to retain existing funding and/or secure future government investment for the purpose of community housing.

New provisions have been included to ensure that tenants' rights and social housing outcomes are both protected when community housing providers seek authorisation to sell their community housing assets.

In summary, the key aims of the Bill are to: introduce a nationally consistent approach to regulation of registered community housing providers; provide a platform for registered community housing providers to operate more easily across jurisdictions; secure Government's financial and non-financial interests in community housing assets; clearly establish the separation of Government's dual roles of funding and regulation; and to provide greater public and commercial confidence in the capacity and professionalism of registered community housing providers.

I conclude by highlighting that this Government has seven key priorities for action where we can make the most difference to the lives of everyday working people and the most difference to the future prosperity of our State. One of these seven priorities is 'An affordable place to live' ensuring that South Australians have access to affordable housing choices.

The introduction of this Bill is a major step forward in fulfilling this Government's commitment to the creation of an integrated multi-provider housing and homelessness system, improving choice and quality of service for those people who are disadvantaged in our community.

A nationally consistent system of regulation will provide greater confidence that community housing is delivered by robust, accountable and socially responsible organisations. Providers will be held to a high standard of governance and financial viability and will be accountable for the quality of services delivered such as tenancy management, community engagement, and asset stewardship.

Greater public and commercial confidence in the community housing sector, stimulated by this once-in-a-generation national reform, will further encourage innovative public/private partnerships as well as third party investment in and charitable contributions to the sector. This in turn will maximise Government investment and help create more affordable housing choices for South Australians.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause is formal.

2—Commencement

This measure will commence on a date to be fixed by proclamation.

3—Interpretation

This clause sets out the interpretation of certain terms used in the local application provisions of this measure (those provisions of this measure, other than the South Australian Community Housing Providers National Law).

Terms used in both the local application provisions of this measure and in the Community Housing Providers National Law (South Australia) have the same meaning unless otherwise indicated.

Part 2—Application of Community Housing Providers National Law

4—Application of Community Housing Providers National Law

This clause applies the text set out in Schedule 1 of the measure (the Community Housing Providers National Law) as a law of South Australia and states that in so applying may be referred to as the Community Housing Providers National Law (South Australia).

This clause also provides that if the National Law (as passed by the New South Wales Parliament) is amended by that Parliament, then a corresponding amendment may be made to the Community Housing Providers National Law (South Australia) (as set out in Schedule 1 of this measure) by regulation. These regulations may make additional provision including a modification of an amendment made by the New South Wales Parliament, or to provide for related or transitional matters, that may be necessary to ensure the amendment has proper effect in South Australia.

5—Meaning of certain terms in Community Housing Providers National Law for the purposes of this jurisdiction

This clause sets out the meaning of certain terms used in the Community Housing Providers National Law for the purposes of this jurisdiction. This includes Appeal Tribunal which is defined to mean the Housing Appeal Panel established under the South Australian Housing Trust Act 1995.

6—Exclusion of legislation of this jurisdiction

This clause disapplies the Acts Interpretation Act 1915 to the Community Housing Providers National Law (South Australia). (Clause 4(3) of the National Law provides that it is to be interpreted in accordance with the Interpretation Act 1987 of New South Wales.)

7—Community housing legislation

This clause declares the provisions of this measure that are to be taken to be 'community housing legislation' for the purposes of the National Law.

8—Community housing assets

This clause provides that for the purposes of the Community Housing Providers National Law (South Australia), a 'community housing asset', in addition to the meaning given to the term by the National Law, also includes an asset identified as such in an agreement between a community housing provider and a Housing Agency, or any asset or class of assets declared by the regulations to be a 'community housing asset'. The Minister may also by notice in the Gazette, exclude an asset or class of assets from the ambit of the definition of 'community housing asset' for the purposes of this jurisdiction.

9—Housing Agency

This clause provides that for the purposes of the Community Housing Providers National Law (South Australia), the Minister or the South Australian Housing Trust (SAHT) is declared to be a 'Housing Agency'.

10—Relevant Minister

For the purposes of the Community Housing Providers National Law (South Australia), the 'relevant minister' will be the Minister responsible for the administration of this measure.

11—Registrar

The National Law allows for each jurisdiction to appoint a registrar for the purposes of the Community Housing Providers National Law as it applies in that jurisdiction. This clause provides that for the purposes of the Community Housing Providers National Law (South Australia), the Minister may appoint a public service employee as Registrar. The functions of the Registrar set out in section 10 of the Community Housing Providers National Law (South Australia) are limited to exercising those functions in relation to the administration and operation of the National Law.

12—Delegation of functions by Registrar

Section 11 of the National Law allows for the declaration of persons or class of persons to whom functions of the Registrar may be delegated for the purposes of this jurisdiction. This clause provides that for the purposes of the Community Housing Providers National Law (South Australia), this may be a person employed by the Department, an authorised officer or a person prescribed by the regulations.

13—Fees

This clause provides that the fees for an application for registration as a community housing provider are to be prescribed by regulations.

14—Appeal Tribunal—related matters

This clause provides for appeals to be made to the Appeal Tribunal (the Housing Appeal Panel established under the South Australian Housing Trust Act 1995) for the purposes of an appeal under the Community Housing Providers National Law (South Australia). The clause sets out the powers of the Appeal Tribunal and procedural matters in relation to such an appeal. A party to proceedings before the Appeal Tribunal, may with the permission of the Supreme Court, appeal to the Court against a decision of the Appeal Tribunal under this clause on a question of law.

Part 3—Additional South Australian provisions relating to community housing

Division 1—Interpretation

15—Interpretation

This clause sets out the meaning of terms such as 'community housing agreement' that are used in the additional provisions that apply in South Australia in relation to community housing, as set out in this Part.

Division 2—Administration

16—Functions and powers of Minister

This clause sets out the functions and powers of the Minister in relation to community housing. These have been adapted from the current South Australian Co-operative and Community Housing Act 1991 to take into account the national registration scheme for community housing providers. These include to support the activities and promote the best interests of community housing providers (so far as appropriate), to promote the development of community housing in South Australia, and to oversee the activities of community housing providers in connection with the administration of this measure.

17—Power of Minister to delegate

This clause provides that the Minister may delegate his or her functions under this measure to the SAHT, to a particular person or body, or to a person holding a particular position or office.

18—Functions and powers of SAHT

This clause sets out the functions of the South Australian Housing Trust (SAHT) in relation to this measure. These have been adapted from the current South Australian Co-operative and Community Housing Act 1991 and take into account the national registration scheme for community housing providers. These functions include to assist the Minister in relation to the administration of this measure, to report to the Minister on matters relating to community housing providers and to manage funds that come under SAHT's control in connection with this measure.

19—Power of SAHT to delegate

This clause provides that SAHT may delegate any of its functions and powers under this measure.

Division 3—Community housing agreements, property and financial matters

20—Community housing agreements

This clause provides that SAHT may require a registered community housing provider to enter into an agreement (a community housing agreement) where SAHT provides funding, land or other property to the community housing provider, or SAHT provides assistance in relation to the acquisition, construction, development or improvement of land for the benefit of a community housing provider. A community housing agreement may include provisions requiring a community housing provider to meet certain standards and targets in relation to community housing services and programs, and ensuring that funding, land, property or other assistance is used for the purpose for which it is provided. An agreement may also cover the sale of land in which SAHT has an interest by the community housing provider, and provide for the imposition of a charge or other security over land to secure money that may be payable under the agreement. An agreement may also set out conditions or other requirements that must be complied with on the cancellation of the registration of the provider under the National Law. If a community housing provider fails to comply with the agreement, the agreement is voidable at the option of SAHT (in which circumstance SAHT may take steps to enforce any relevant charge over the land and recover any outstanding funds). This clause also provides that the regulations may make provision in relation to community housing agreements including the terms and conditions that must be included.

21—Community housing agreement binding on community housing providers

This clause provides that a community housing agreement is binding on the community housing provider whether or not that provider remains registered.

22—Creation of charge

This clause provides for the imposition of a charge over real property by SAHT by notice to the Registrar-General, who must, on receipt of the notice (along with any required documents or instruments) enter the appropriate notation in the Register Book. While a charge exists over real property, the Registrar-General must not register an instrument that affects the property unless the instrument was executed before the charge was created, or the instrument is of a prescribed type, or SAHT consents to its registration or the instrument relates to the transfer or sale of real property in relation to the enforcement of a charge under clause 23.

23—Enforcement of charge

This clause sets out the process for enforcing a charge if a community housing provider fails to comply with the terms of a community housing agreement. Steps to enforce a charge under this clause must not be commenced until any process that is set out in the community housing agreement to resolve the matter are complied with. Under this clause, SAHT must give the community housing provider written notice of the breach to be remedied. If the breach is not remedied in the time specified (which must be at least 1 month), SAHT may apply to the Minister for an order that steps be taken to transfer the property to another registered community housing provider. However, if the Minister considers that this is not reasonably practicable or appropriate, then the Minister may order that steps be taken to transfer the property to SAHT or to sell the property on the open market. It is an offence for the community housing provider to fail to comply with an order within reasonable time, and failure to act may result in the Minister taking such steps as may be necessary to give effect to the order. If property is transferred under an order to another community housing provider or to SAHT (which will be taken to be at market value), then any amount that is payable to the community housing provider under the community housing agreement on account of assets or money provided by that provider must be paid to the provider. If the property is sold on the open market, the proceeds of sale must be applied in the order of precedence as set out in this clause.

24—Dealings with land in which SAHT has an interest

Under this clause, a community housing provider must not sell, transfer, assign, mortgage or otherwise deal with land in which SAHT has an interest, or that is subject to a charge under this measure, unless it has the consent of SAHT. SAHT must not unreasonably withhold consent. However, consent may be withheld if SAHT is not satisfied that the net proceeds of the dealing with the land will be applied to the further acquisition or development of community housing. SAHT must also be satisfied that significant detriment will not be suffered by any tenants of the property as a result of the dealing. SAHT may require that money obtained from the dealing with the land to which it has consented be paid to SAHT, but subject to the terms of a community housing agreement, any prescribed principles and following the discharge of any encumbrance that may rank ahead of any relevant charge under this measure.

25—Appeals

A community housing provider that is aggrieved by a decision of the Minister to issue an order under clause 23 or a decision of SAHT to withhold consent to a dealing with the land under clause 24, may appeal to the District Court.

Division 4—Transfer of property etc

26—Transfer of property etc

This clause provides that the Minister may with the agreement of the Treasurer, by notice in the Gazette, transfer an asset, right or liability of the Minister to SAHT. Similarly, an asset, right or liability of SAHT maybe transferred to the Minster, the Crown or another agent or instrumentality of the Crown or another prescribed body in prescribed circumstances.

Part 4—Miscellaneous

27—Appointment of authorised officers

This clause provides for the appointment of authorised officers for the purposes of this measure, as the Minister thinks fit.

28—Powers of authorised officers

Authorised officers may exercise the powers set out in this clause for the purpose of investigating a prescribed matter. A prescribed matter is defined to mean any matter relevant to ascertaining whether the provisions of this measure or the Community Housing Providers National Law (South Australia) have been complied with. It also includes any matter that in the opinion of the Minister, SAHT or the Registrar requires investigation for the proper exercise or performance of a power or function under this measure or the Community Housing Providers National Law (South Australia). It also includes any matter that relates to the operation or enforcement of the terms or conditions of a community housing agreement or any other matter prescribed by the regulations. The powers of an authorised officer include requiring a person to furnish relevant information, to answer questions, or produce relevant books, documents or records. An authorised officer may examine, copy or take extracts from, or take possession of, any such books, documents or records or information produced. It is an offence to hinder an authorised officer or to refuse to comply with a requirement.

29—False information

Under this clause, it is an offence to provide information that a person knows is false or misleading or to provide or produce any document that the person knows is false or misleading in a material particular, in connection with a requirement under this measure or the Community Housing Providers National Law (South Australia).

30—General power to grant extensions and exemptions

This clause provides the Minister with the ability, on the application of a community housing provider, to extend any limitation of time under this measure, or to exempt a community housing provider from the obligation to comply with a provision of this measure.

31—Evidentiary provision

This clause provides that a document purporting to be a copy of any document registered or lodged under this measure and certified by the Minister as a true copy, is to be accepted in any legal proceedings as a true copy of that document in the absence of proof to the contrary.

32—Continuing offences

If, after a person is convicted of an offence against this measure, the person continues in the act or omission that constituted the offence, the person is guilty of a further offence and liable to an additional penalty for each day on which the act or omission continues of an amount not exceeding one tenth of the maximum penalty for the offence of which the person was convicted.

33—General defence

It is a general defence for an offence against this measure for the defendant to prove that in the circumstances, there was no failure on the part of the defendant to take reasonable care to avoid the commission of the offence.

34—Remission from taxes etc

This clause provides that a registered community housing provider that is liable for the payment of rates charged with respect to community housing owned by the provider, is entitled to claim a remission of rates under the Rates and Land Tax Remission Act 1986 equal to any remission of rates under that Act that a tenant or resident occupying the premises could claim in respect of those premises if he or she were the owner. Under this clause the Treasurer may, by notice in the Gazette, exempt SAHT in connection with any matter or circumstance arising under this measure, or instruments to which the Minister, SAHT or a community housing provider is a party from a tax, duty or other impost.

35—Service

This clause provides for the methods of service in relation to a notice or document required or authorised by or under this measure.

36—Fees in respect of lodging documents

This clause provides that a document will not be taken to have been lodged under this measure if any fee required is not paid. However, the Minister has the power to waive or reduce fees and refund in whole or in part, any fee payable under this measure.

37—Regulations

This clause provides that the Governor may make regulations in relation to the local application provisions of this measure, or in relation to any matter that the Community Housing Providers National Law (South Australia) requires or permits to be prescribed by the regulations.

Schedule 1—Community Housing Providers National Law

This Schedule sets out the provisions of the Community Housing Providers National Law. These provisions may be summarised as follows:

Clause 1 sets out the name (also called the short title) of the National Law.

Clause 2 provides for the commencement of the National Law in a participating jurisdiction to be as provided for by an Act of that jurisdiction.

Clause 3 provides for the objects of the National Law.

Clause 4 defines certain terms for the purposes of the National Law, including community housing which means housing for people on a very low, low or moderate income or for people with additional needs that is delivered by non-government organisations. Primary Registrar, in relation to a particular unregistered entity or registered community housing provider, is defined as the Registrar for the primary jurisdiction of the entity or provider.

Clause 5 defines primary jurisdiction in relation to an unregistered entity or a registered community housing provider. Generally, this will be the participating jurisdiction in which the unregistered entity or registered community housing provider provides (or intends to provide) the majority of its community housing. The Registrars of the participating jurisdictions may agree to a different primary jurisdiction in relation to a particular unregistered entity or registered community housing provider.

Clause 6 provides for the Register established under the National Law to operate as a single National Register.

Clause 7 provides for the extraterritorial operation of the National Law.

Clause 8 provides that the National Law binds the Crown in right of a participating jurisdiction.

Clause 9 requires there to be a Registrar appointed for each participating jurisdiction.

Clause 10 sets out the functions of the Registrar which include maintaining the Register of community housing providers, registering entities as community housing providers and monitoring compliance of registered community housing providers with the National Law and the other provisions of the jurisdiction declared to be community housing legislation.

Clause 11 enables the Registrar of a jurisdiction to delegate the Registrar's functions under the National Law to other Registrars or to persons specified in the community housing legislation of the jurisdiction.

Clause 12 establishes the National Register of Community Housing Providers and specifies the information that is to be recorded on it.

Clause 13 enables an entity that provides or intends to provide community housing to apply to the primary Registrar for registration as a community housing provider under the National Law or a variation of registration. If the application is made to a Registrar who is not the primary Registrar, the Registrar to whom the application has been made must refer it to the primary Registrar.

Clause 14 requires the primary Registrar to approve an application for registration if satisfied that the application has been duly made and the requirements of the National Law and the community housing legislation of participating jurisdictions (including the conditions of registration) will be complied with.

Clause 15 requires a registered community housing provider to comply with the conditions of registration and sets out those conditions. The conditions include that the provider must comply with any applicable requirements of the community housing legislation of a participating jurisdiction in relation to the transfer of, or other dealing with, any community housing assets of the provider and that the provider must have provision in its constitution for all its remaining community housing assets in a participating jurisdiction on its winding up to be transferred to another registered community housing provider or to a Housing Agency in the jurisdiction in which the assets are located. There are also conditions relating to the provision of information to a Registrar, compliance with certain provisions of the National Regulatory Code set out in Schedule 1 to the National Law and the keeping of a list of all of the community housing provider's community housing assets.

Clause 16 enables the primary Registrar for a registered community housing provider to cancel the provider's registration if the provider applies for cancellation or it has been wound up or has otherwise ceased to exist. The primary Registrar may also cancel the registration of a registered community housing provider if the primary Registrar has issued a notice of intent to cancel registration, has not been satisfied by the provider that the registration should not be cancelled and has notified the provider of the proposed cancellation.

Clause 17 provides that action may be taken under the proposed Part by a primary Registrar for a registered community housing provider if the Registrar reasonably believes that the provider is not complying with the community housing legislation of a participating jurisdiction.

Clause 18 enables the primary Registrar for a registered community housing provider to issue a notice of non-compliance to the provider identifying the matters that are to be addressed and the period for doing so to avoid cancellation of the provider's registration.

Clause 19 enables the primary Registrar for a registered community housing provider to issue written instructions to the provider specifying the manner in which the provider is to address any matters that are the subject of a notice of non-compliance.

Clause 20 enables the primary Registrar for a registered community housing provider to issue a notice of intent to cancel registration if the provider has not addressed the matters identified in a notice of non-compliance or in the written instructions within the required period or if the failure to comply is serious and requires urgent action.

Clause 21 provides that the primary Registrar may appoint a statutory manager of a registered community housing provider to conduct specified affairs and activities of the provider that relate to the community housing assets of the provider. That action may be taken only after the issue of a notice of intent to cancel registration or if the Registrar forms the opinion that the failure to comply is serious and requires urgent action.

Clause 22 contains provisions relating to the appointment of, and exercise of functions by, a statutory manager.

Clause 23 declares proposed sections 19 and 21 to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act 2001 of the Commonwealth. The effect of the declaration is to enable those proposed sections to prevail despite any inconsistencies with the Commonwealth Act.

Clause 24 provides that there is no compensation payable by or on behalf of a State (which includes the Crown in right of a participating jurisdiction) in connection with the operation of the proposed Part.

Clause 25 provides a right of appeal against certain decisions of a Registrar under the National Law.

Clause 26 imposes a duty on a Registrar and any delegate of a Registrar not to disclose information obtained in the course of the administration of the National Law except in specified circumstances.

Schedule 1 contains certain requirements relating to the conduct and management of the affairs of a registered community housing provider.

Schedule 2—Internal disputes

This Schedule sets out provisions in relation to procedures for dealing with internal disputes between registered community housing providers and tenants and members in particular circumstances.

Schedule 3—Repeal, related amendments and transitional provisions

This Schedule repeals the South Australian Co-operative and Community Housing Act 1991, makes related amendments and sets out the transitional provisions in relation to the measure and the application of the National Law in this jurisdiction.

Debate adjourned on motion of Hon. J.S.L. Dawkins.


At 18:36 the council adjourned until Thursday 26 September 2013 at 11:00.


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