HOUSING ASSISTANCE BILL 2006 Explanatory Statement

Australian Capital Territory Bills Explanatory Statements

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HOUSING ASSISTANCE BILL 2006

2006

LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL TERRITOY

HOUSING ASSISTANCE BILL 2006

EXPLANATORY STATEMENT

Circulated by authority of
Mr John Hargreaves MLA
Minister for Housing

Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au

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EXPLANATORY STATEMENT

This explanatory statement relates to the Housing Assistance Bill 2006 (the Bill) as
introduced into the ACT Legislative Assembly.

Overview
The purpose of the Bill is to replace the Housing Assistance Act 1987 (the old Act) with
new legislation, which provides a more contemporary legislative framework for the
provision of housing assistance in the ACT. It includes a definition of `housing
assistance' for the first time in ACT legislation.

The legislation is focussed on building a better system, which more clearly defines the
powers and limitations of the Commissioner for Social Housing. It includes provisions
in relation to the entering into of joint ventures, the giving of Ministerial directions,
delegation of powers and the making of regulations. Financial arrangements in relation
to payments made to the Commissioner are also clarified. The title of the
Commissioner has been changed in order to accurately reflect the position's role in
relation to both the public and community housing sectors.

The new legislative scheme also provides the Commissioner with the power to make
formal determinations under Programs established through the Act, as well as the ability
to issue operational guidelines to assist staff to interpret and implement provisions of
the Act or its programs. This places current practices with regard to the Act and its
programs on a much clearer legislative footing.

The Bill provides power for the Commissioner to seek information from the people
receiving housing assistance, and require that information to be provided. This will
ensure that the ability to effectively provide ongoing assistance and manage the housing
system as a whole is enhanced.

The legislation includes new provisions for the protection of the personal information of
entities receiving housing assistance. As the largest single landlord in the Territory, the
ACT Government has a particular responsibility to ensure that the personal details of its
tenants are not inappropriately released into the public arena or misused in any way
which may adversely affect their lives. These restrictions also apply to requests by the
Minister.

Revenue/Cost Implications
The legislation will be implemented within existing financial resources.
Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au

Notes on Clauses
PART 1
PRELIMINARY
This part includes the introductory information relating to the Act.
Clause 1
Name of Act
This clause provides that the name of this Act is the Housing Assistance Act 2006.
Clause 2
Commencement
The Act will commence on a day fixed by the Minister, unless the Minister has not
commenced the Act within 6 months of its notification day. In that case, the Act will
commence automatically on the first day after that 6-month period.
Clause 3
Dictionary
This clause provides that the dictionary of terms at the end of the Act forms part of the
Act.
Clause 4
Notes
This clause explains that notes included in the Act are for explanatory purposes only
and do not form part of the Act.
Clause 5
Offences against Act application of Criminal Code etc
This clause explains that the Criminal Code applies in relation to offences against the
Act.

PART 2
OBJECTS AND IMPORTANT CONCEPTS
This part includes information on the objectives of the Act, and provides definition of
the key term `housing assistance'.
Clause 6
Objects
The objects in the Act provide the context for the operation of the social housing system
and for decision makers within the system. They include a focus on maximising
opportunities for access to housing, focussing on those most in need of assistance,
promoting choice, seeking value for money, matching housing supply to demand, the
co-ordination of support services, the promotion of community housing and
mechanisms to involve consumers. The objects of the new Act are similar to those in
section 3A of the old Act, and are consistent with the objectives of the Commonwealth-
State Housing Agreement, through which financial assistance is provided to the ACT
for housing assistance programs.
Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au

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Clause 7
What is housing assistance?
For the first time, the term "housing assistance" has been defined in ACT legislation.
This is important as it allows for some boundaries to be drawn around the provision of
housing assistance. For the purposes of this Act, it means "services, programs, assets,
rebates and amounts, provided under an approved housing assistance program to help
entities who are eligible for assistance under the program to meet their emergency,
short-term, medium-term and long-term housing needs."
This covers the wide range of activities undertaken by the Commissioner. Including a
definition in the Act will provide much greater clarity in relation to the areas in which
housing assistance programs may be developed and in which housing assistance
services may be provided.
The definition of "entity" in the Legislation Act 2001, includes a person, corporation or
unincorporated body.
Clause 8
When is someone eligible for housing assistance?
This clause explains that an entity is eligible to receive housing assistance if they meet
the eligibility criteria outlined in an approved housing assistance program. The nature
of these criteria are a part of each program (see clause 18), and may relate to things such
as income levels or circumstances.

PART 3
HOUSING COMMISSIONER
This part establishes the framework through which the system of housing assistance is
provided, that is the Commissioner for Social Housing. It provides details of how the
position of Commissioner is established and what they are, and are not, allowed to do.
Clause 9
Housing Commissioner - establishment
This clause creates the position of Commissioner for Social Housing and indicates that
it is a body corporate and must have a seal, which means the Commissioner has a
separate legal identity to the ACT Government. It also indicates that the Chief
Executive responsible for the administration of the Act (as named in the Administrative
Arrangements Orders, issued under the Public Sector Management Act 1994) also holds
the position of Commissioner for Social Housing. This section is similar to sections 4
and 7 of the old Act.
The title of the Commissioner has been changed to reflect the Commissioner's role in
relation to both public and community housing.
Clause 10
Housing Commissioner - powers generally
This clause gives the powers of a natural person (at common law) to the Commissioner
for Social Housing. This power provides for the Commissioner to administer the social
housing system in the ACT. These powers may include, amongst others, the power to
enter into a contract, own and dispose of property, sue and be sued. This clause is
similar to section 9 of the old Act.
Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au

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This clause also provides for the Commissioner for Social Housing to enter into
arrangements for the provision of housing assistance by entities, on her or his behalf.
Such entities may include community service organisations, charities or businesses.
Clause 11
Housing Commissioner - functions
This clause gives responsibility to the Commissioner for Social Housing for the
administration of programs and funding arrangements to deliver housing assistance in
the ACT. This assistance may be delivered through public housing, community
housing, home ownership and financial assistance. These areas are similar to those in
section 8 of the old Act. Under the Legislation Act 2001, a `function' includes an
authority, duty and power. An example of a `program' is the Public Rental Housing
Assistance Program.
The responsible Minister may also approve housing assistance services, for which the
Commissioner is responsible for administering. The notification of any such services
will be through a Notifiable Instrument on the ACT Legislation Register.
Clause 12
Housing Commissioner - no power for contracts of employment
This clause prohibits the Commissioner from employing staff. This is the same as
section 9(2) of the old Act. Those public servants responsible for administering the Act
on behalf of, or with the delegation of, the Commissioner are employed under the
Public Sector Management Act 1994.
Clause 13
Limits on Housing Commissioner - joint ventures
This clause requires the Commissioner for Social Housing to obtain the written approval
of the Minister, prior to entering into negotiations relating to a joint venture. The
written approval of the Executive is then required for the Commissioner to enter into an
agreement for a joint venture. The Executive may approve joint ventures generally or in
a specific instance, and may impose conditions or restrictions on such ventures. This
provision is a further development of section 9(1)(g)(iii) of the old Act.
Clause 14
Notice of joint ventures
This clause requires the Commissioner to provide the responsible Minister with a
written statement of the joint venture no later than two weeks after the day on which the
agreement is entered into. The statement must includes the details and reasons relating
to the joint venture. The Minister must then present that statement to the ACT
Legislative Assembly no later than six sitting days after which it is provided to the
Minister.
The statement does not need to include any information which is commercially
sensitive. However if such information is excluded, then a further statement must be
provided by the Minister to the Assembly which provides details about the general
nature of the sensitive information, and the reasons for leaving it out of the original
statement. These provisions are consistent with similar requirements which existed in
the Planning and Land Act 2002.

Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au

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Clause 15
Limit on Housing Commissioner - large contracts
This clause updates the previous requirement at section 9(3) of the old Act, with a
higher figure of $5m, which reflects the operational reality of managing a $3 billion
property portfolio, while also allowing the Minister to maintain an oversight of
significant expenditures undertaken by the Commissioner for Social Housing.
Clause 16
Housing Commissioner - ministerial directions
This clause allows the Minister to give directions to the Commissioner for Social
Housing, which are Notifiable Instruments. The functions of the Commissioner must be
exercised in accordance with any directions by the Minister. This is the same as section
8(2) of the old Act.
Clause 17
Housing Commissioner - delegation
This clause allows the Commissioner for Social Housing to delegate their functions
under this Act or any other territory law to a public servant. Under the Legislation Act
2001, a `function' includes an authority, duty and power, and a `public servant' means a
person employed in the public service. This is similar to section 10 of the old Act.

PART 4
HOUSING ASSISTANCE PROGRAMS
This part establishes the vehicle through which housing assistance is delivered, that is
housing assistance programs approved by the Minister. It also outlines the
Commissioner's powers in relation to the seeking of information from applicants or
recipients of housing assistance. This part also provides a definition of the terms
`housing assistance program' and `market rent'.
Clause 18
What is a housing assistance program?
This clause states that a housing assistance program must include the kind of assistance
to be provided, the eligibility criteria for those entities seeking assistance and how
decisions of the Commissioner for Social Housing, under the program may be reviewed.
This is similar to section 12 of the old Act. Housing assistance programs are the core of
the social housing system, as they establish the parameters of the housing assistance to
be provided, to whom and the basis on which is will be provided.
Clause 19
Approved housing assistance programs
This clause indicates that the responsible Minister may approve a housing assistance
program, and that such approvals are a Disallowable Instrument. This means that the
programs must be notified on the ACT Legislation Register and presented to the ACT
Legislative Assembly. This simplifies the process contained in section 12(9) of the old
Act.
Clause 20
Approved housing assistance programs - determinations
This clause allows an approved housing assistance program to contain a provision for
the Commissioner for Social Housing to make determinations for the program.
Determinations could, for example, relate to what is defined as income in an income test
under a program. Any such determination is a Notifiable Instrument.
Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au

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Clause 21
Approved housing assistance programs - operational guidelines
This clause allows the Commissioner for Social Housing to issue guidelines which
outline the manner in which the Act or a program should be interpreted or applied.
Such guidelines must not be inconsistent with the Act itself, and are also Notifiable
Instruments. These guidelines will provide certainty for tenants and staff in relation to
the manner in which the Act and its programs are interpreted and implemented. These
guidelines will relate specifically to housing assistance programs and are not intended to
apply to the general administration of the administrative unit responsible for the Act.
Clause 22
Approved housing assistance programs - market rent
This clause requires that housing being rented under a housing assistance program
should be charged at market rent. Market rent is the level of rental payment which a
willing lessor to a willing tenant, if they had acted at arm's length and without
compulsion. A housing assistance program may provide for a rebate of rent in
accordance with the program. This is similar to section 15 of the old Act.
Clause 23
Approved housing assistance programs - rent review
This clause requires the Commissioner for Social Housing to review the level of market
rent at least once a year. This is similar to section 15(3) of the old Act.
Clause 24
Housing assistance applicants - requirement for further
information
This clause allows the Commissioner for Social Housing to require an entity which has
applied for housing assistance to give the Commissioner further information in order to
reasonably decide on the application for assistance. Such a power is necessary in
relation to the need for complete information to be provided by an applicant prior to
their application for housing assistance being properly assessed.
If the Commissioner has in writing, required further information and provided at least
seven days for that information to be provided and the information has not been
provided, then the Commissioner may refuse the application for housing assistance.
This will allow the Commissioner to close off those applications which are incomplete
and where the required further information has not been provided, rather than keep them
open as active applications for an indefinite period.
Clause 25
Housing assistance recipients - requirement for information
This clause allows the Commissioner for Social Housing to require that an entity
receiving housing assistance provide stated information that the Commissioner
reasonably needs to provide or review the assistance being provided, for the good
management of the housing assistance program or assets or to otherwise exercise their
functions. This will, for instance, allow the Commissioner to collect information from
market renters in relation to the financial circumstances, which has not been possible.
If the Commissioner has in writing, required further information and provided at least
seven days for that information to be provided and the information has not been
provided, then the Commissioner may suspend or cancel the housing assistance by
written notice. The written notice must indicate that the housing assistance has been
Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au

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suspended or cancelled, when the action takes effect and, if suspended, for what period
of time the suspension will last.
Clause 26
Requirements for information - AAT review
This clause allows the applicants or entities referred to in Clause 24 and 25 to apply to
the Administrative Appeals Tribunal for a review of the decision to refuse an
application for, or suspend or cancel, housing assistance.
Clause 27
Requirements for information - Notice of reviewable decisions
This clause requires the Commissioner for Social Housing to give written notice of a
decision to decision to refuse an application for, or suspend or cancel, housing
assistance, under Clauses 24 or 25, and requires that such a notice be in accordance with
the code of practice issued under the Administrative Appeals Tribunal Act 1989.

PART 5
PROTECTION OF INFORMATION
This part outlines the manner in which the personal information of applicants and
recipients of housing assistance and housing assistance properties is to be protected
from inappropriate public release. Consequential amendments at Schedule 1, part 1.2
also amend the Freedom of Information Act 1989 to apply protections to similar
documents held by other agencies.
Clause 28
Meaning of protected information
This clause defines what is protected information under this Act. Protected information
includes information which identifies an entity as an applicant, recipient or previous
recipient of housing assistance, or would identify a housing assistance property or the
personal details of a housing assistance recipient (including telephone number or
address), or something which would allow this information to be worked out.
Clause 29
FOI Act exemption - documents containing protected information
This clause exempts information referred to as personal information in clause 28 and in
the possession of the Commissioner for Social Housing, from release under the
Freedom of Information Act 1989. However, this exemption does not apply if the
personal information relates to the same person who is making the request. This
recognises the special position of the ACT Government as the largest single landlord in
the Territory.

PART 6
COMMONWEALTH-TERRITORY FUNDING AGREEMENTS
This part outlines what a Commonwealth-Territory funding agreement is and outlines
what must occur if one is entered into. This part includes a definition of the term
`Commonwealth-Territory funding agreement'.

Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au

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Clause 30
What is a Commonwealth-Territory funding agreement?
This clause outlines the definition of a Commonwealth-Territory funding agreement, to
mean an agreement between the Australian Government and the ACT Government for
financial assistance to be provided by the former to the latter, for the purposes of
housing assistance or to promote the objects of the Act (as outlined at clause 6). This is
similar to section 11A of the old Act.
Clause 31
Notification of Commonwealth-Territory funding agreements
This clause requires that any Commonwealth-Territory funding agreement, or
amendment to such an agreement, is notified on the ACT Legislation Register. This is
similar to section 11A(2) of the old Act.

PART 7
MISCELLANEOUS
This part addresses various matters, including the arrangements in relation to unleased
land, information provision to the Minister, financial arrangements and fees, forms and
regulations, the protection of officials from liability, the amendment of other Acts and
the repeal of the old Act. This part includes definitions of the terms `existing tenancy',
`unleased territory land' and `official'.
Clause 32
Placing unleased land under housing commissioner's control
This clause allows the Executive to direct the ACT Planning and Land Authority to
place unleased Territory land under the control of the Commissioner for Social
Housing. Such land may be subject to an existing tenancy and the Commissioner may
exercise their powers in relation to such tenancies. The provision of such land is
notifiable on the ACT Legislation Register. This is similar to sections 16 and 17 of the
old Act.
Clause 33
Unleased land placed under housing commissioner's control -
powers
This clause outlines the powers of the Commissioner for Social Housing in relation to
unleased land. These powers include managing or using the land, authorising people to
enter the land, arranging leases or licences in relation to the land, transferring the lease
into the name of the Commissioner. This is similar to section 16 of the old Act.
Clause 34
Unneeded land may be returned
This clause allows the Commissioner for Social Housing to surrender control of land
which isn't needed to the ACT Planning and Land Authority. The surrender of such
land is notifiable on the ACT Legislation Register.
Clause 35
Information to Minister
This clause requires the Commissioner for Social Housing to provide the responsible
Minister with information on any matter relating to the Commissioner's operations.
This includes personal information as outlined in clause 28, which may be required for
the Minister to respond to contact from tenants to his office seeking assistance. This is
similar to section 20 of the old Act.
Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au

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Clause 36
Financial arrangements
This clause clarifies financial arrangements in relation to funds payable, paid or owing
to the Commissioner for Social Housing. Any such amounts paid to or by the
Commissioner must be into or out of a banking account within the meaning of the
Financial Management Act 1996. Any amount owed to or paid to the Commissioner
are amounts owed to or paid to the Territory. This is similar to section 18 of the old
Act.
Clause 37
Protection of officials from liability
This clause protects the Commissioner for Social Housing and anyone else exercising a
function under the Act from liability resulting from anything done or omitted in the
exercise of a function under the Act or in the exercise of a function under the Act, as
long as it was done honestly and without recklessness. Any such liability attaches to the
Territory instead. This is similar to section 11 of the old Act.
Clause 38
Determination of fees
This clause allows the Minister to determine fees for the Act. Any such determination
of fees is a Disallowable Instrument. This means that they must be notified on the ACT
Legislation Register and presented to the ACT Legislative Assembly.
Clause 39
Approved forms
This clause allows the Commissioner for Social Housing to approve forms for the Act.
Any such approved forms must be used for that purpose. Any such forms are notifiable
on the ACT Legislation Register.
Clause 40
Regulation-making power
This clause allows the Executive to make regulations for the Act.
Clause 41
Legislation Amended - sch 1
This clause indicates that the legislation in Schedule 1 is amended as outlined. These
amendments are as a consequence of the changes made in this Act, from the old Act.
Clause 42
Legislation repealed
This clause repeals the Housing Assistance Act 1987 and all associated legislative
instruments.

Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au

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PART 10
TRANSITIONAL - HOUSING ASSISTANCE ACT 1987
This part includes the legislative provisions necessary to transition from the Housing
Assistance Act 1987 to the Housing Assistance Act 2006. It includes definitions of `old
Act', `old housing assistance program' and `ACT legislation register'.
Clause 100
Definitions - pt 10
This clause defines the `old Act' as the Housing Assistance Act 1987 and an `old housing
assistance program' as a program made under that Act, for the purposes of the part.
Clause 101
Transitional - rights and liabilities under old Act
This clause preserves any rights or liabilities which an entity may have had under the old
Act, until they are amended or ended under this or another Act. The repeal of the old Act
does not affect any rights or liabilities. This clause is subject to clauses 102 and 109.
Clause 102
Transitional - corresponding housing assistance programs and things
This clause allows the Commissioner for Social Housing to declare that a housing
assistance program or a thing in that program under the old Act corresponds with a
housing assistance program or a thing in that program under the new Act. It addresses
how such declarations shall be dealt with and allows the Commissioner to give directions
about how such declarations shall be applied. Any such declaration is notifiable on the
ACT Legislation Register.
Clause 103
Transitional - uncompleted applications for AAT review
This clause allows for uncompleted Administrative Appeals Tribunal reviews to continue,
provided that they have not yet ended, and that they relate to a declared new thing under
Clause 102.
Clause 104
Transitional - sensitive information under old Act
This clause ensures the protection of personal information (as defined in clause 28)
received under the old Act.
Clause 105
Transitional - notification of existing Commonwealth-Territory
funding agreements
This clause allows for the notification on the ACT Legislation Register of any
Commonwealth-Territory funding agreement in force immediately before the
commencement of this section.
Clause 106
Transitional - land placed under control of housing commissioner
under old Act
This clause ensures that the treatment of unleased land placed under the control of the
Commissioner under the old Act, is treated in accordance with this Act.

Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au

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Clause 107
Transitional - standard residential tenancy terms, cl 36
This clause updates the terms `commissioner for housing' and `Housing Assistance Act
1987', which may be in use in residential tenancy agreements made under the Residential
Tenancies Act 1997, with the new terms of `housing commissioner' and `Housing
Assistance Act 2006', respectively.
Clause 108
Transitional - outdated references to old Act
This clause ensures that any reference to the `Housing Assistance Act 1987' in an Act,
instrument made under an Act, document or reference to anything to which this Act
applies, is a reference to the new Act. A reference to a thing which no longer exists
because of the repeal of the old Act, but where there is a corresponding thing in the new
Act, is taken to be a reference to the new thing where appropriate and if the context
allows.
Clause 109
Transitional regulations
This clause allows regulations to be made which prescribe transitional matters necessary
or convenient because of the enactment of this Act. This section is particularly important,
as it has been difficult to back-capture all of the exact details relating to the amendment of
housing assistance programs, dating back to before self-government, and therefore
unanticipated issues may arise which require a prompt resolution.
Clause 110
Expiry - pt 10
This clause expires this part one year after the day on which it commences.

SCHEDULE 1
CONSEQUENTIAL AMENDMENTS
This Schedule is given effect by Clause 41, and relates to the amending of legislation, the
need for which has arisen because of this new Act.
Part 1.1
Duties Act 1999
Amendment 1.1 updates the title of the Commissioner in section 64(1)(a).
Part 1.2
Freedom of Information Act 1989
Amendment 1.2 inserts a new section 6AA into the Freedom of Information Act 1989,
which provides a general exemption for documents which are, or contain lists of housing
assistance properties which may be in the possession of ACT Government agencies.
Amendment 1.3 renumbers the new and existing sections.
Amendment 1.4 inserts a new note in part 4 of the Freedom of Information Act 1989 in
relation to the exemption of documents containing personal information, as referred to in
clause 29.

Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au

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Part 1.3
Land (Planning and Environment) Act 1991
Amendment 1.5 updates the title of the Commissioner and the Act in section
159A(1)(c)(ii).
Part 1.4
Land (Planning and Environment) Regulation 1992
Amendment 1.6 updates the title of the Commissioner in section 19.
Amendment 1.7 updates the title of the Commissioner in section 19(1)(a).
Amendment 1.8 updates the title of the Commissioner in section 22(2)(b).
Amendment 1.9 updates the title of the Commissioner in section 30.
Amendment 1.10 updates the title of the Commissioner in section 30(a).
Part 1.5
Land Tax Act 2004
Amendment 1.11 updates the title of the Commissioner and the Act in section 10(1)(c).
Part 1.6
Legislation Act 2001
Amendment 1.12 removes the former definition of the Commissioner from the Dictionary.
Amendment 1.13 inserts a new definition of the housing commissioner in the Dictionary.
Part 1.7
Magistrates Court Act 1930
Amendment 1.14 restructures section 147B and updates the title of the Commissioner.
Amendment 1.15 restructures section 154 and updates the title of the Commissioner.
Part 1.8
Residential Tenancies Act 1997
Amendment 1.16 updates references to the Act and approved housing assistance programs,
in section 107A(6).
Amendment 1.17 updates references to the Act and approved housing assistance programs,
in section 127A(3).
Amendment 1.18 restructures clause 36 of Schedule 1 and updates the title of the
Commissioner and the Act.
Amendment 1.19 updates the title of the Commissioner in sections 10(5), 15(5), 15(6),
107C(2) and 127A(2).
Part 1.9
Supreme Court Act 1933
Amendment 1.20 updates the title of the Commissioner in section 49A(3).
Part 1.10
Uncollected Goods Act 1996
Amendment 1.21 updates the title of the Commissioner in sections 13(c) and 27A.
Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au

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Part 1.11
Victims of Crime (Financial Assistance) Act 1983
Amendment 1.22 updates the title of the Commissioner in section 63.

Dictionary
This section includes definitions of the following key terms used in the Act:
Those already defined throughout the Act - approved housing assistance program;
Commonwealth-Territory funding agreement; eligible; housing assistance; housing
assistance program; housing commissioner; and protected information.
Those not elsewhere defined in the Act - community housing; housing; and information.
Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au

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