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National Rental Affordability Scheme Amendment Bill 2019

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2019

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

 

 

 

 

NATIONAL RENTAL AFFORDABILITY SCHEME AMENDMENT BILL 2019

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by the authority of the

Minister for Families and Social Services, Senator the Hon Anne Ruston)



NATIONAL RENTAL AFFORDABILITY SCHEME AMENDMENT

BILL 2019

 

 

OUTLINE

 

Schedule 1 - National Rental Affordability Scheme Amendments

 

This Bill clarifies and corrects certain ambiguous provisions in the National Rental Affordability Scheme Act 2008 (NRAS Act), and provides further flexibility in the future administration of the National Rental Affordability Scheme so as to further the objects of the NRAS Act.

 

The Bill clarifies that the object of the NRAS Act is to be achieved in ways that include protecting tenants in NRAS, protecting investors, providing rights to investors and recognising that State and Territories contributions are complementary to NRAS.

 

The Bill expressly identifies the Constitutional powers being relied upon and giving the NRAS Act operation within the scope of those Constitutional powers.

 

The Bill also clarifies other regulation making powers including to support the making of new regulations to replace the National Rental Affordability Scheme Regulations 2008 (NRAS Regulations), which are due to sunset on 1 April 2020.

 

 

Financial impact statement

 

MEASURE

FINANCIAL IMPACT OVER THE FORWARD ESTIMATES

Schedule 1 - National Rental Affordability Scheme Amendments

Nil

 

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

The statement of compatibility with human rights appears at the end of this explanatory memorandum.

 

 

 



NATIONAL RENTAL AFFORDABILITY SCHEME AMENDMENT

BILL 2019

 

 

NOTES ON CLAUSES

 

 

 

Clause 1 sets out how the new Act is to be cited - that is, as the National Rental Affordability Scheme Amendment Act 2019.

 

Clause 2 provides a table setting out the commencement dates of the various sections in, and Schedules to, the new Act.

 

Clause 3 provides that each Act that is specified in a Schedule is amended or repealed as set out in that Schedule, and any other item in a Schedule to the Bill has effect according to its terms.



 

Schedule 1 -  National Rental Affordability Scheme Amendments

 

 

Summary

 

The purpose of this Schedule is to clarify and correct certain ambiguous provisions in the National Rental Affordability Scheme Act 2008 (NRAS Act), and to provide further flexibility in the future administration of the National Rental Affordability Scheme (NRAS) so as to further the objects of the NRAS Act.

 

The Schedule clarifies that the objects of the NRAS Act are to be achieved in ways that include protecting tenants in NRAS, protecting investors, providing rights to investors and recognising that State and Territory contributions are complementary to NRAS. The Schedule expressly identifies the Constitutional powers being relied upon and giving the NRAS Act operation within the scope of those Constitutional powers. The amendments will also allow for the Secretary to accept a voluntary written undertaking from an approved participant in relation to NRAS.

 

Background

 

 

The National Rental Affordability Scheme (NRAS) is established by the National Rental Affordability Scheme Regulations 2008 (NRAS Regulations), made under the National Rental Affordability Scheme Act 2008 (the NRAS Act). The object of the NRAS is to increase the supply of affordable rental housing for low to middle income earners, by enabling eligible individuals and families to rent NRAS dwellings at a rate that is at least 20 per cent below market value rent. NRAS also provides incentives to persons to build and rent NRAS dwellings. Under NRAS, an ‘approved participant’ may apply for an ‘allocation’ in relation to a rental dwelling, subject to certain conditions. If the conditions are satisfied, the approved participant is eligible to receive an ‘incentive’, either in the form of a monetary payment or a tax offset for a period of ten years. The ‘incentive’ is comprised of a Commonwealth component which is paid in accordance with 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.  

 

Often, an approved participant is not the owner of the rental dwelling; rather the owners are third party ‘investors’. The approved participant usually acts as a service provider to the investor by managing the compliance with the requirements under the NRAS Regulations in exchange for a fee (generally a portion of the incentive). Under NRAS, an approved participant has an obligation to pass on an incentive to an investor if there is a contractual arrangement in place to this effect (regulations 30A and 30B). 

 

Sections 1 to 3 and the majority of Schedule 1 will commence on the day after the Act receives Royal Assent. Items 6, 12, 17 and 21 of Schedule 1 are to commence on a single day to be fixed by Proclamation.

 

 

 

 

Explanation of the changes

 

Item 1 amends section 3 to insert subsections in order to clarify the object of the NRAS Act.

 

Item 2 inserts a new subsection 3(2) which clarifies that the object of the NRAS Act is to be achieved in ways that include the matters mentioned in new paragraphs 3(2)(a) to (d).

 

Paragraph 3(2)(a) provides for protecting tenants of rental dwellings that are rented during an NRAS year. Section 5 of the NRAS Act provides that the regulations that prescribes NRAS must provide for certain matters that further the objects of the NRAS Act.  Together with the amendments made by item 10, this item will ensure that regulations can be made in respect of protecting tenants in NRAS.

 

Paragraph 3(2)(b) provides that protecting investors of an NRAS rental dwelling is also a way in which the object of the NRAS Act is to be achieved.

 

Since NRAS began in 2008, there have been instances where approved participants have failed to pass on incentives to investors. Approved participants and investors usually enter into a contract to facilitate this, outside of the Department’s scope, as investors are not defined under the Act. Investors provide a significant proportion of properties in NRAS, and if they are not supported, investors are likely to withdraw their properties from NRAS, which would reduce the number of rental properties in NRAS and likely impact low to moderate income households. Therefore, the inclusion of investors in this amendment will clarify that the purpose of NRAS is also to protect investors.

 

Paragraph 3(2)(c) provides that the object of the Act is to be achieved by providing rights to investors in NRAS. If investors’ rights are not protected, they may be out of pocket and may seek to remove their properties out of NRAS, which would lead to a decline of available affordable housing for low and moderate income households.

 

Paragraph 3(2)(d) makes clear that there are separate contributions, in cash or in kind, made by States and Territories, to approved participants in NRAS.

 

Item 3 inserts a new section 3A.

 

Section 3A provides that NRAS is supported by a variety of Constitutional powers. The effect of this section is 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 shall nevertheless be valid to the extent to which it is supported by other legislative powers.

 

Subsections 3A(1) and (2) are provisions relating to the severable operation of the Act.  Subsections 3A(3) to (6) set out additional and severable heads of legislative power under the Constitution which support the Act.

 

Subsection 3A(3) provides that the Act has the effect it would have if its operation were expressly confined 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 (ICESCR) to which paragraph 51(xxix) of the Constitution applies. NRAS and its goal to provide for more affordable housing is a suitable method for Australia to comply with its international obligations under the ICESCR.

 

Subsection 3A(4) provides that the Act has the effect it would have if its operation were expressly confined to:

(a)   the regulation of activities, functions, relationships or business of an investor or approved participant that is a constitutional corporation;

(b)   the creation of rights or privileges belonging to an investor or approved participant that is a constitutional corporation;

(c)   the imposition of obligations on an investor or approved participant that is a constitutional corporation;

                    (i)         in respect of the matters mentioned in paragraphs (a) to (c), the regulation of the employees or shareholders of the constitutional corporation;

(d)   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.

 

Subsection 3A(5) provides that the Act has the effect it would have if its operation were expressly confined to determining the tax liability of a person.

 

Subsection 3A(6) provides that the Act has the effect it would have if its operation were expressly confined to apply in relation to the following:

(a)   an approved rental dwelling located in a Territory;

(b)   an approved participant or investor who is a resident in a Territory; or

(c)   an approved participant or investor that is:

                    (i)          a body corporate that is incorporated in a Territory; or

                  (ii)         a body corporate that is taken to be registered in a Territory under section 119A of the Corporations Act 2001 ; or

                 (iii)         a trust, if the proper law of the trust and the law of the trust’s administration are the law of a Territory; or

                 (iv)         an entity, the core or routine activities of which are carried out in or in connection with a Territory.

 

Item 4 amends the definition of ‘allocation’ to substitute ‘an approved rental’ with ‘a rental’. This amendment is required as ‘approved rental dwelling’ is a defined term in the NRAS Regulations and is not defined in the NRAS Act.

 

Item 5 inserts new definitions.

 

A new definition of ‘constitutional corporation’ is inserted to mean a corporation to which paragraph 51(xx) of the Constitution applies.  New section 3A will include references to an investor or approved participant that is a constitutional corporation. It is therefore necessary to define ‘constitutional corporation’.

 

A new definition of ‘investor’, similar to the definition in the NRAS Regulations, is also inserted to mean a person who is the legal or beneficial owner of a rental dwelling covered by an allocation and who is not an approved participant in relation to the rental dwelling.

 

A number of other amendments to Schedule 1 to the Bill will result in provisions of the NRAS Act including references to investors.  It is therefore necessary to define ‘investor’.

 

Investors are the owners of rental dwellings covered by an allocation in NRAS who are not approved participants themselves. This amendment will ensure that investors are acknowledged as being part of NRAS.

 

‘Tax law provisions’ is defined to mean item 23 of the table in section 67-23 and provisions of Division 380 of the Income Tax Assessment Act 1997 .

 

New section 3A will include references to tax law provisions. It is therefore necessary to define ‘tax law provisions’.

 

Item 6 repeals paragraph 5(a) and substitutes a new paragraph.

 

Current paragraph 5(a) states that the regulations must prescribe a Scheme about the approval of participants by the Secretary. However, allocations are no longer being made under NRAS and as such, the Secretary is no longer approving new approved participants. Given this, it should be possible for future regulations not to include provisions relating to the approval of participants.

 

Therefore, this item amends the NRAS Act to state that the NRAS Regulations must prescribe a Scheme about the obligations of existing approved participants.

 

Item 7 inserts new paragraph 6(ca). 

 

Section 6 sets out matters for which NRAS, contained in regulations, may provide. New paragraph 6(ca) allows for regulations to be made in relation to the adjustment, in certain circumstances of the amount of an incentive that:

(i)             is to be provided to an approved participant; or

(ii)           has previously been provided to an approved participant;

 

Approved participants are entitled to an incentive if they satisfy the conditions of allocations, set out in the NRAS Regulations, for an NRAS year.  The adjustment of an incentive paid and payable may be required in circumstances where an approved participant has failed to pass on the incentive to the investor.

 

 

Item 8 inserts new paragraph 6(cb). 

 

Section 6 sets out matters for which NRAS, contained in regulations, may provide.  New paragraph 6(cb) provides that regulations may be made in relation to the passing on of State and Territory contributions, or their monetary equivalent, by approved participants in certain circumstances.

 

Under NRAS, an approved participant that satisfies the conditions of allocation is entitled to a Commonwealth incentive payment.  The relevant State and Territory Government also pays an additional contribution, either through a cash payment or through an in-kind payment.  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.  New paragraph 6(cb) will clearly allow for such regulations to be made.

 

Item 9 inserts ‘covered by an allocation’ after ‘dwelling’.

 

Section 6 sets out matters for which NRAS, contained in regulations, may provide. Currently, paragraph 6(d) states that NRAS may provide for how the market value rent of a rental dwelling for an NRAS year is to be determined. This current wording appears to be broad and these amendments are a technical amendment because ‘rental dwelling’ is defined in a general way not connected to NRAS.

 

 

Item 10 inserts new paragraphs 6(e), (f) and (g). 

 

Section 6 sets out matters for which NRAS, contained in regulations, may provide. New paragraphs 6(e), (f) and (g) provide that regulations may be made in relation to the protection of tenants of rental dwellings in NRAS that are rented during an NRAS year, the protection of investors and the rights of investors.

 

Item 11 inserts a heading ‘Conditions imposed by Secretary under the Scheme’ to clarify that the provisions following it relate to conditions imposed by Secretary under NRAS.

 

Item 12 repeals and substitutes subparagraph 7(2)(b)(ii) of the NRAS Act. The new subparagraph inserted by this item clarifies that the NRAS Regulations must provide that a condition of allocation is that each and every time rent is charged for a dwelling (whether that be on a weekly, fortnightly, monthly or other basis), that rent must be at least 20 per cent below the market value rent.

 

This amendment is made for the sake of clarity to remove any ambiguity about the operation of subparagraph 7(2)(b)(ii), and to protect eligible tenants from being subject to higher rent at any time during the year.

 

Item 13 repeals and substitutes paragraph 7(2)(c) of the NRAS Act. Vacancy periods will continue to be prescribed by the NRAS Regulations, but the substituted provision provides greater flexibility in how maximum vacancy periods are prescribed, including how the vacancy periods may be calculated, or what form they may take.  This is necessary to ensure that approved participants are not subject to excessive penalties as a result of vacancy periods, while ensuring that NRAS continues to meet its objective of increasing the stock of affordable rental dwellings.

 

Item 14 inserts new subsections 7(4) to (6).

 

Current section 7 sets out matters for which NRAS, contained in the NRAS Regulations, must provide.

 

New subsection 7(4) clarifies that the NRAS Regulations made for the purposes of subparagraph 2(b)(i) may provide for the Secretary to make a legislative instrument prescribing matters relating to the income of eligible tenants under NRAS.

 

Item 1 of Schedule 1 to the Bill will repeal subparagraph 7(2)(b)(ii) of the Act, and substitute a new subparagraph which has the effect that the NRAS Regulations must provide for the Secretary to make an allocation on the condition that each charge of rent for the rental dwelling is at least 20% less than the market value rent for the dwelling.

 

Evidence given to the Senate Community Affairs Legislation Committee’s inquiry on the Bill suggested that it is possible for a tenant to be overcharged rent inadvertently in a number of circumstances. While the Government’s policy is for each charge of rent to be at least 20 per cent below the market rent, it is appropriate for the NRAS Regulations to be able to set out circumstances in which this rule should not apply.

 

New subsection 7(5) empowers the NRAS Regulations to provide that in certain circumstances, the Secretary may decide that the condition mentioned in subparagraph 7(2)(b)(ii) does not apply if it will not result in an increase in rental costs for low and moderate income households. The NRAS Regulations will confine the Secretary’s power to disapply the condition to very limited circumstances.  The Secretary will only be able to use the discretion 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.

 

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.

 

New subsection 7(6) provides express legislative authority for NRAS to impose a new condition or vary conditions of an existing allocation. If the NRAS Regulations provide, the new or varied condition could automatically apply to all existing allocations by force of law, without any further action required by the Department to individually vary those allocations. However, this subsection does not apply to a condition that is varied or imposed by the Secretary (such as special conditions made by the Secretary).

 

New subsection 7(7) provides that subsection 7(6) has effect despite anything in the Act or the NRAS Regulations.

 

Item 15 inserts new paragraphs 8(ba) and 8(bb).

 

In some circumstances, approved participants engage in undesirable conduct in relation to a large number of allocations. This item inserts a new paragraph 8(ba) that makes clear that the NRAS Regulations may provide for the transfer of all of an approved participant’s allocations to another approved participant, in certain circumstances.

 

New paragraph 8(bb) confirms that NRAS may provide for the circumstances in which an allocation can be transferred from one rental dwelling to another rental dwelling. This ability is necessary in instances where a dwelling is sold and the new owner does not wish to participate in NRAS.

 

Without this discretion, numerous allocations would fall out of NRAS where the owners of the dwellings no longer wish to participate. This would lead to a significant reduction in the stock of affordable housing provided for under NRAS.

 

Item 16 inserts new sections 10A and 10B.

 

The conduct of some approved participants towards investors has at times, been unacceptable. Approved participants have sent incorrect or misleading communications to investors, failed to perform their contractual obligations to investors and taken action to require investors to use particular property management services.

 

This item inserts new sections that allows an approved participant to voluntarily provide a written undertaking to the Secretary in relation to any conduct relating to NRAS.  In appropriate cases, the acceptance of an enforceable undertaking by an approved participant to remedy prior undesirable conduct, or to not engage in the undesirable conduct in the future, may avoid the need for the Secretary to respond to the conduct in another way, for example, by transferring an allocation.

 

Whilst this Bill has not adopted the enforceable undertakings provisions as provided for under Part 6 of the Regulatory Powers (Standard Provisions) Act 2014 , the provisions are similar. These provisions are broader that the Regulatory Powers (Standard Provisions) Act 2014 as it allows the Secretary to enforce broader conduct, not in an Act or a legislative instrument, in relation to NRAS. Through these provisions, the Secretary may accept a voluntary undertaking from an approved participant relating to any conduct connected with NRAS (including the approved participant’s dealings with investors) and then enforce that undertaking, if necessary in the Federal Court. 

 

Subsection 10A(1) enables the Secretary to accept a written undertaking given by an approved participant, committing them to particular action (or inaction) in order to prevent or respond to an undesirable conduct committed by an approved participant in relation to NRAS.

 

Undertakings provide a remedy other than financial sanctions to past or prospective conduct committed by an approved participant in relation to NRAS.

 

Subsection 10A(2) states that the undertaking must be expressed to be an undertaking under this section.

 

Subsection 10A(3) states that the approved participant may withdraw or vary the undertaking at any time, but only if the Secretary provides written consent to the withdrawal or variation.

 

Subsection 10A(4) states that the consent of the Secretary is not a legislative instrument. This is to assist readers to understand the status of consent given under this clause; it does not meet the meaning of legislative instrument under subsection 8(1) of the Legislation Act 2003 , and is not intended as an exemption from that Act.

 

Subsection 10A(5) provides that the Secretary may cancel the undertaking by providing a written notice to the approved participant.

 

Subsection 10B(1) states that the Secretary may apply to the Federal Court of Australia for an order of enforceable undertaking if an approved participant has been given an undertaking under section 10A, the undertaking has not been withdrawn or cancelled, and the Secretary considers that the approved participant has breached the undertaking.

 

Subsection 10B(2) provides the list of orders the Federal Court of Australia may impose to remedy a breach of an undertaking. This includes the ability to make orders to comply with the undertaking, to pay a pecuniary penalty to the Commonwealth, to compensate other people, or to make any other orders the court sees fit, if it is satisfied that the approved participant has breached the undertaking.

 

Item 17 repeals subsection 11(1) and substitutes a new subsection.

 

Current subsection 11(1) states that the Secretary may, by written instrument, delegate their power to approve a participant, to approve a rental dwelling and to decide whether to make an allocation under NRAS, to an SES employee in the Department. However, allocations are no longer being made under NRAS and as such, the Secretary is no longer approving new approved participants or deciding whether to make an allocation. Given this, new delegation instruments are no longer required for the purposes of approving a participant or making an allocation under NRAS.

 

This item substitutes a new subsection to state that the Secretary may still, by written instrument, delegate the Secretary’s power to approve a rental dwelling for the purposes of NRAS, to an SES employee in the Department.

 

Item 18 sets out six application provisions.

 

Subitem 18(1) provides that paragraph 5(a) of the Act ‘obligations of approved participants’ applies to an obligation that arose before, or arises on or after, the day this item commences as the NRAS Regulations already includes matters relating to the obligations of approved participants.

 

Subitem 18(2) provides that paragraph 6(ca) applies to an incentive provided before, on or after the day this item commences. This would allow the NRAS Regulations to provide for the adjustment of an incentive paid and payable in relation to an allocation in a past period. This would assist investors to recover incentives which had not been passed on to them from past periods.

 

Subitem 18(3) provides that paragraph 6(cb) applies to a contribution made by a State or Territory before, on or after the day this item commences.

 

Subitem 18(4) provides that paragraphs 6(f) and (g) applies in relation to an investor, whether the person becomes an investor in NRAS, before, on or after the day this item commences. In other words, the NRAS Regulations may be made to provide for the protection of investors, including existing ones.

 

Subitem 18(5) provides that subsections 7(5), (6) and (7) apply in relation to an allocation that exists on the day this item commences. This is because no new allocations can be made and all allocations would have already been made on the day this item commences.

 

Subitem 18(6) provides that paragraphs 8(ba) and (bb) apply in relation to an allocation that exists on the day this item commences. This is because no new allocations can be made and all allocations would have already been made on the day this item commences.

 

Item 19 is an application provision providing that subsection 7(4) as inserted by item 13 applies to all allocations, including those made before, on or after the day the Schedule commences. New subsection 7(4) provides that subject to some exceptions, the NRAS Regulations can vary conditions of allocation from time to time. The purpose of this application provision is to ensure that any future variation of conditions of allocation will apply to conditions that were in effect before, on or after the commencement of this Schedule, which will mean that different allocations cannot be subject to different conditions.

 

Item 20 sets out the Transitional provisions in relation to the variation of condition relating to charges of rent.

 

This item provides an exception to paragraph 7(6)(a) of the Act so that the NRAS Regulations may vary the condition of an allocation mentioned in subparagraph 7(2)(b)(ii) of the Act for the purposes of the amendment made by item 12 of this Schedule.

 

This would allow the NRAS Regulations to vary existing allocations with the condition that ‘the rent that is charged is at all times during the year at least 20% less than the market value rent for the dwelling’ to the condition that ‘each charge of rent for the rental dwelling during the year is at least 20% less than the market value rent for the dwelling’.

 

Item 21 sets out the transitional provisions for delegations.

 

Subsection 11(1) allows the Secretary to delegate their powers to an SES employee in the Department, through a written instrument. This item clarifies that any existing delegation instrument made under subsection 11(1) of the Act that has been in force before the amendment of subsection 11(1) continues to be in force.

 

This clarifies that despite the repeal of the current subsection 11(1), all existing delegation instruments still continue to be in force.

 

 



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

Prepared in accordance with Part 3 of the

Human Rights (Parliamentary Scrutiny) Act 2011

SCHEDULE 1 - NATIONAL RENTAL AFFORDABILITY SCHEME AMENDMENTS

 

This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Schedule

The Bill expands and clarifies the objects of the National Rental Affordability Scheme Act 2008 (NRAS Act) and the Constitutional powers that support the NRAS Act.  The Bill also expands and clarifies the power to make regulations under the NRAS Act. The National Rental Affordability Scheme (NRAS) is prescribed in the National Rental Affordability Scheme Regulations 2008.  These amendments made by the Bill are technical in nature and do not impact the rights or freedoms of any person.

 

The Bill includes provisions enabling the Secretary of the Department to accept an enforceable undertaking from an “approved participant” in NRAS.  There are 130 approved participants who have allocations in NRAS associated with rental dwellings, who are entitled to receive an annual incentive for 10 years if the conditions of allocation are satisfied. Some approved participants contract with investors, who own rental dwellings, to make the dwellings available to rent as part of NRAS.  The behaviour of some approved participants to investors is undesirable.  For example, some approved participants delay or fail to pass on incentives to investors or make misleading statements to investors.  Under NRAS, investors may request the Secretary to transfer the allocation associated with their rental dwelling in certain circumstances.  Enforceable undertakings are voluntary and will only be given by an approved participant if the approved participant wishes to do so.  An approved participant cannot be required to give an enforceable undertaking.  However, where an enforceable undertaking is given, the Secretary will be able to enforce the undertaking if the Secretary considers that the undertaking has been breached.

 

Enforceable undertakings will provide a further flexible mechanism to enable the Secretary of the Department to act to protect the interests of investors.  The use of enforceable undertakings may reduce the need to transfer allocations in some circumstances.  For example, if the Secretary accepts an enforceable undertaking from an approved participant not to send particular communications to investors that are misleading, the Secretary may decide not to transfer an allocation to another approved participant, even if previous misleading conduct by the approved participant means that a ground for transfer exists.

Human rights implications

This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Of the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights at section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 , this Schedule engages the right to an adequate standard of living, including housing, as referred to in Article 11.1 of the International Covenant on Economic, Social and Cultural Rights (done at New York on 16 December 1966 ([1976] ATS 5)).

This Schedule supports the right to adequate housing, as it is addresses areas of the NRAS Act that lack clarity. This is a beneficial measure as it will enable improvements to be made to the Scheme that can only be realised through changes to the NRAS Act, thereby providing a clear legislative framework for approved participants in the Scheme to continue to deliver more affordable rental accommodation to tenants.

Conclusion

This Schedule is compatible with human rights because it supports the protection of the right to adequate housing.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[Circulated by the authority of the Minister for Families and Social Services, Senator the Hon Anne Ruston]