Commonwealth Numbered Regulations - Explanatory Statements

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NATIONAL RENTAL AFFORDABILITY SCHEME AMENDMENT (PROVISIONAL ALLOCATIONS AND OTHER MEASURES) REGULATION 2014 (SLI NO 137 OF 2014)

EXPLANATORY STATEMENT

Issued by the authority of the Minister for Social Services

National Rental Affordability Scheme Act 2008

National Rental Affordability Scheme Amendment (Provisional Allocations and Other Measures) Regulation 2014

General outline

The purpose of the National Rental Affordability Scheme (Provisional Allocations and Other Measures) Regulation 2014 ("the Regulation") is to:

(a)  Introduce a mechanism of provisional allocations into the National Rental Affordability Scheme Regulations 2008 ("Principal Regulations") in order to spur delivery of affordable rental housing under the National Rental Affordability Scheme ("NRAS" or "the Scheme");

(b)  Provide endorsed charitable institutions with greater flexibility around when they are able to make an election to receive NRAS incentives in the form of a tax offset certificate instead of a monetary payment; and

(c)  Make other amendments to the Principal Regulations to formalise how certain policy aspects of the scheme currently operate.

Background

The current law

Section 12 of the National Rental Affordability Scheme Act 2008 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.  Section 5 of the Act provides that "the regulations must prescribe a Scheme" to deal with certain matters listed in the Act.

For this purpose, the Principal Regulations establish the Scheme, providing for applications, assessment, allocation and eligibility for payment of incentives to certain entities (referred to in the Act and the Principal Regulations as "approved participants") to provide new rental dwellings to low and moderate income households.  Prior to becoming an approved participant under the Scheme, entities are known as "applicants" while they are engaged in making dwellings available for rent (during the construction and development phase). Approved participants hold an "allocation" (an allotment of entitlement to receive incentives) in respect of a dwelling, while applicants hold a "reservation of an allocation", which is an allocation to be made when certain conditions are fulfilled. Conditions of a reservation of an allocation typically relate to the construction of a dwelling, and its required location, style, size and rental availability date.

The Scheme is intended to increase the supply of affordable rental dwellings, and reduce rental costs for low and moderate income households, by offering incentives to invest in the dwellings.  The Scheme provides that an approved participant is entitled to an annual incentive in respect of a dwelling when the conditions of the allocation for that dwelling are satisfied. The key conditions of allocation require that a dwelling is rented to tenants whose household income is below certain thresholds, and that the rent that is charged for the dwelling is at least 20% less than market value rent. 

"Use it or lose it"

The Regulation implements a "use it or lose it" approach to NRAS reservations of allocation which addresses the fact that some applicants under the Scheme frequently do not meet agreed dates by which dwellings should be available for rent.

It also addresses the fact that the Principal Regulations have allowed applicants to request multiple changes to the agreed location, style, size, and rental availability date of dwellings proposed to be built. In practice, this has led to applicants frequently not delivering the proposed dwelling agreed to by the Secretary in the original competitive selection process. In some cases, applicants may be commercially profiting from this flexibility by requesting changes to location, style, and availability date so that a reservation of allocation can be applied to a dwelling under development which is different to what was originally agreed. An applicant may profit by charging the developers of those dwellings fees in exchange for requesting the changes.  Some developers, in certain instances, may be willing to pay fees or provide other value for the benefit of being able to on-sell properties to investors interested in the tax or financial benefits available to them.

The policy intention behind the "use it or lose it" approach is that dwellings should be delivered as originally agreed with the Secretary of the Department of Social Services (the Secretary), and should be available for rent under the Scheme by no later than 30 June 2016. 

The approach entails placing specific limitations on applicants seeking changes to dates by which dwellings are to be available for rent and changes to the locations and styles of dwellings to be built under the Scheme.  Incentive periods (the ten year period during which an approved participant may receive an annual incentive in respect of a dwelling) are strictly to start no later than 30 June 2016 or by an earlier date agreed with the Secretary, subject to new limitations on the circumstances in which a new date can be agreed. 

The amendments in the Regulation reduce the circumstances in which a request can be made to vary the location and style of dwelling to be built, and the date by which it is to be made available for rent.  Applicants are given a three month period (referred to as the "transitional period") beginning on the commencement of the Regulation to request changes under the existing law, with the additional requirement that applicants are to provide greater transparency regarding the commercial arrangements associated with a variation application. Evidence of the commercial arrangements associated with a request to vary location, style, size or rental availability date for a dwelling will assist the Secretary to assess an applicant's motivation for requesting changes. Additionally, for reservations of allocation offered following the call for applications made on 18 April 2013 (the 'Shovel Ready Round' of NRAS, which sought rapid delivery of dwellings), the latest possible rental availability date that can be agreed to is 31 July 2015.

Following the transitional period, applicants are no longer able to apply for variations to the location and style of a dwelling. They are only able to apply for one further change to the date a dwelling must be made available for rent, which must not be later than three months after the agreed rental availability date, and the new date must be no later than 30 June 2016 (except for reservations of allocations from the Shovel Ready Round, for which 31 July 2015 continues to apply as the latest possible rental availability date that can be agreed to). An exception will apply where there is a natural disaster that affects development of the dwelling.

A new concept of a "provisional allocation" is inserted into the Principal Regulations to apply in circumstances where an approved participant does not make a dwelling available by the date agreed with the Secretary. Following the transitional period, if an applicant does not make a dwelling available for rent by the agreed date, the Secretary must make a provisional allocation in respect of the dwelling. The effect of this is that the 10 year incentive period during which an approved participant is able to meet conditions of allocation under the Scheme in order to receive an annual incentive will commence on that date. However, in such cases, an annual incentive will be only able to be received once the dwelling is actually available for rent and other conditions of allocation have been fulfilled. This will ensure applicants are motivated to deliver dwellings on time and as agreed, as any delays in the dwelling being made available for rent will reduce the period for which an annual incentive can actually be received for the dwelling.

Other changes

Other changes are made in the Regulation to:

• clarify the operation of existing terms in the Principal Regulations by introducing some new definitions;

*         clearly prescribe the conditions of allocation required by section 7 of the Act (in other words, the conditions of eligibility for payment of incentives), which were previously only dealt with by a note in regulation 16 of the Principal Regulations;

*         clarify that the condition of allocation about complying with landlord, tenancy, building and health and safety laws in subregulation 16(2) of the Principal Regulations must be met both at the time a dwelling is first available for rent and subsequently;

*         ensure that an approved participant is required to lodge a Statement of Compliance regarding an NRAS year (short for National Rental Affordability Scheme year, 1 May-30 April) for which they wish to receive an incentive by 30 June of the following NRAS year;

• allow for certain applications (for transfers or substitutions of allocations or dwellings) can be made under a clear agency relationship, and ensure they can only be made in a form approved by the Secretary;

• ensure that reservations of allocation or allocations can be withdrawn or revoked where an applicant or approved participant provides false or misleading information or fails to include information that the applicant or approved participant ought to have known was relevant in certain applications under the Scheme;

• provide greater flexibility for endorsed charitable institutions to elect to receive incentives either as tax offset certificate rather than as monetary payments;

• provide that a proportionate incentive can be issued where an approved participant meets the conditions of allocation for only part of an NRAS year; and

• clarify the compounding effect of indexation on the amount of an incentive as introduced by the National Rental Affordability Scheme Amendment Regulations 2011 (No. 1).

Consultation

The Regulation is unlikely to have a direct, or a substantial indirect, effect on business, or restrict competition.  Accordingly, no consultation of the kind required under section 17 of the Legislative Instruments Act 2003 has occurred. 

Nonetheless, the Minister for Social Services has informed the housing sector of his stated desire to improve administration of NRAS at conferences, through media releases and speeches.  In doing so, the Minister has invited feedback and input from States and Territories and stakeholders.

The Treasury and the Departments of Finance and of the Prime Minister and Cabinet have been consulted about the key proposed amendments--namely, introduction of greater flexibility for endorsed charitable institutions to elect whether they receive incentives under the Scheme as a refundable tax offset certificate or as a monetary payment, and the introduction of the "use it or lose it" approach in respect of reserved allocations.

Regulation Impact Statement

Following consultation in relation to the Regulation, the Office of Best Practice Regulation ("OBPR") has advised the Department of Social Services that a Regulation Impact Statement is not required (OBPR reference number 17302).

Explanation of the provisions

Section 1 - Name of regulation

Section 1 provides that the title of the Regulation is the National Rental Affordability Scheme Amendment (Provisional Allocations and Other Measures) Regulation 2014.

Section 2 - Commencement

Section 2 provides for the introductory provisions in sections 1-4 of the Regulation to commence on the day after registration.  The provisions in Part 1 of Schedule 1 will also commence on the day after registration, as these amendments are to apply during a three month transitional period.  The provisions in Part 2 of Schedule 1 will apply after the transitional period, and will deal with the rules that are required following the transitional period.  The rule in Part 3 of Schedule 1 will be taken to have commenced on 1 May 2010, which is the same time that the National Rental Affordability Scheme Amendment Regulations 2011 (No. 1) commenced, to clarify a technical ambiguity in the compounding indexation rules as introduced by that regulation.  As described below, the rule in Part 3 of Schedule 1 is declaratory in operation and does not limit rights or impose liabilities contrary to subsection 12(2) of the Legislative Instruments Act 2003.

Section 3 - Authority

This section states that the principal legislation enabling the Regulation is the National Rental Affordability Scheme Act 2008.

Section 4 - Schedules

This provision clarifies that the items in Schedule 1 amend the National Rental Affordability Scheme Regulations 2008 (the Principal Regulations), and otherwise have effect according to their terms.

Schedule 1 - Part 1 - Amendments commencing day after registration

Item 1 inserts new definitions for "agreed rental availability date" and "applicant" to avoid any ambiguity about the use of these terms.  Prior to these amendments, regulation 14(2) of the Principal Regulations implied the ability to agree to a new date by which a dwelling is to be made available for rent. This amendment helps support the new rules in this Regulation which clearly prescribe a power to agree to a new date.  Prior to these amendments, the term "applicant" was used to refer to both unsuccessful applicants during a selection process under regulation 7 of the Principal Regulations, and successful applicants who accepted offers of reservations of allocation, in the period before those applicants had made dwellings available for rent.  The new definition retains and clarifies this meaning by prescribing a definition of the term "applicant" in the definitions provision.

Items 2 and 3 insert definitions of "approved participant" and "approved rental dwelling" in the definitions provision, addressing the fact that, prior to these amendments, various subregulations in different locations within the Principal Regulations defined these terms (particularly subregulations 14(4), 20(2) and 21(2)).

Item 4 introduces definitions for "conditions of the allocation" as distinct from "conditions of the reservation" of an allocation to clarify the two different kinds of conditions that applicants and approved participants are subject to under the Scheme.  The first kind of conditions, "conditions of allocation", apply under regulation 16 during an incentive period, and "conditions of the reservation" of an allocation are imposed under regulation 13 and apply while an applicant is still arranging for a dwelling to be made available for rent under the Scheme.  There are also definitions for "tax offset certificate" (as a signpost to the reference to this term in the Act) and the "transitional period", being the three month period following commencement of Part 1 of Schedule 1.

Item 5 repeals a spent subregulation that was only required in relation to applications made for allocations at the advent of the Scheme in 2008.

Item 6 inserts a new Division heading before regulation 10: "General".  This new heading is required because a new Division 2 is inserted by item 20.

Item 7 makes a minor technical amendment related to the new definition of "conditions of the reservation" inserted by Item 4.

Item 8 replaces paragraphs 14(2)(a) and (b) of the Principal Regulations, to remove the implied ability to agree to a new dates by which a dwelling is to be made available for rent. The new provisions instead provide that a reservation of allocation may be withdrawn when the dwelling is not available, or the Secretary is satisfied that the dwelling will not be available, for rent by the agreed rental availability date.  The power to agree to dates by which dwellings are available for rent will be moved into Division 2 of Part 3 of the Principal Regulations, as inserted by item 20, to sit clearly alongside other changes that can be agreed to during the period prior to a dwelling being made available for rent.

Item 9 inserts provisions that allow a reservation of an allocation to be withdrawn (and therefore prevented from ever becoming an allocation) where the initial application for the reservation of an allocation, or an application under new Division 2 of Part 3 of the Principal Regulations, contained or contains information that is false or misleading, or where the application ought to have included information that was reasonably relevant.  Although this provision will apply to applications that were made prior to commencement, the effect of this provision will be purely prospective because it will only enable prospective withdrawal of reservations of allocations.  This provision is therefore consistent with subsection 12(2) of the Legislative Instruments Act 2003.

Item 10 repeals an unnecessary subregulation which is now replaced by the definitions inserted by items 2 and 3, noted above.

Items 11 and 12 replace the note at the beginning of regulation 16 of the Principal Regulations.  Prior to these amendments the Principal Regulations relied solely on a note to prescribe the matters now set out in item 12.  These amendments prescribe these matters clearly as substantive provisions.  These amendments are declaratory and are proposed to reduce any ambiguity about whether these conditions are clearly prescribed as conditions of allocation under the Scheme as required by section 7 of the Act.

Further, as required by the Act, new subregulation 16(1D) clearly specifies, as a condition of allocation, a 26 week period of vacancy (whether within an NRAS year or across consecutive years) longer than which a dwelling cannot be vacant.  Like other conditions of allocation, failure to meet this condition will result in an approved participant not being able to receive an incentive.

Item 13 clarifies that the condition about complying with landlord, tenancy, building and health and safety laws in subregulation 16(2) of the Principal Regulations must be met at the time a dwelling is first available for rent and at all times subsequently.  This is intended to ensure, in particular, that there is no doubt that approved participants are required to ensure that a dwelling is suitable for occupancy from the first time tenants are able to live in a dwelling under the Scheme.

Item 14 ensures that approved participants are required to give evidence to the Secretary (as well as answer queries, as had been the case under the previous law) about any of the matters covered in the conditions of allocation under regulation 16, such as, for example, information and documentary evidence regarding a certificate of occupancy with respect to compliance with subregulation 16(2).

Items 15 and 16 ensure that an approved participant is required to lodge a Statement of Compliance for a dwelling in relation to each NRAS year for which they wish to receive an incentive for the dwelling by 30 June of the following NRAS year. 

Item 17 replaces the rules about an approved participant being able to request a transfer of an allocation between entities or a substitution of one existing dwelling for another with rules that allow such transfers and substitutions, but which clearly specify that a person can apply on an approved participant's behalf, under a clear agency relationship.  Further, this item will ensure that applications for transfers and substitutions must be made in a form approved by the Secretary. These amendments reflect the commercial reality that some applications for the matters dealt with by regulations 20 and 21 of the Principal Regulations are made by an entity acting under a relationship of agency with an approved participant, and ensure that there is consistency in the form of application used to apply for transfers and substitutions.

Item 18 repeals regulation 21A of the Principal Regulations, which is to be replaced by the new provisions in Division 2 of Part 3, as inserted by item 20.

Item 19 replaces subregulation 22(1) of the Principal Regulations (about revoking allocations) to insert a new basis on which an allocation can be revoked.  This is where the initial application for the allocation contained information that is false or misleading or where the application ought to have included information that was reasonably relevant.  Although this provision is able to apply to applications that were made prior to commencement, the effect of this provision will be purely prospective in that it only enables prospective withdrawal of reservations of allocations.  This provision is therefore consistent with subsection 12(2) of the Legislative Instruments Act 2003.

Item 20 inserts a new Division 2 into Part 3 of the Principal Regulations.  New regulation 23A deals with application for variation of conditions of reservation of an allocation.  This provision makes clear that (during the transitional period) an applicant is able to apply for a change to the conditions of reservation relating to: the location of a dwelling; the style of a dwelling; the size of a dwelling; the special attributes (if any) of a dwelling; and the agreed rental availability date of a dwelling.  New regulation 23A also ensures that such applications must be in a form approved by the Secretary, and clearly set out the commercial arrangements associated with the proposed variation and the monetary value or consideration that the applicant is likely to benefit from in connection with the agreed change.  There is also a requirement for documents to be provided evidencing the commercial arrangements associated with the variation and, where the application is made because of a natural disaster, evidence of the natural disaster and why the disaster has affected the agreed rental availability date.  There is also a power for the Secretary to request specific evidence in relation to an application.  The intention behind this amendment is to provide a mechanism to ensure that only genuine requests for changes are made and that applicants do not inappropriately profit from changing the arrangements initially agreed when they applied for allocations pursuant to a call for applications under the Scheme.

New regulation 23B prohibits an application to vary a rental dwelling's location or style from being made after the transitional period.  There is an exception relating to genuine natural disasters that affect an applicant's ability to deliver a dwelling as agreed.

New regulation 23C ensures that an agreed rental availability date cannot be after 30 June 2016. For reservations of allocation offered as a result of the call for applications that was made on 18 April 2013, known as the 'Shovel Ready Round' of NRAS and intended for dwellings which could be delivered quickly, the agreed rental availability date cannot be after 31 July 2015. It also provides that, after the transitional period, an applicant may only make one application to vary the agreed rental availability date.  Such applications can only be made to vary the date by three months or less (unless there is a genuine natural disaster).

New regulation 23D provides power to the Secretary to assess an application under new Division 2, using the same assessment criteria as applied to the original application for the allocation under regulation 8, and either agree or not agree to it.  Relevant considerations that the Secretary may take into account include the information provided under subregulations 23A(3) and (4), whether the change would bring the Scheme into disrepute, and whether the change would be inconsistent with the objects set out in section 3 of the Act.  The new regulation also ensures that the Secretary must be satisfied of a causal connection between a natural disaster and a change where the application is made because of a natural disaster.

Item 21 replaces regulation 25 of the Principal Regulations to clarify that in order for there to be an entitlement to receive an incentive for a dwelling for a particular NRAS year, the conditions of the allocation need to be met in that year.  This terminology reflects new paragraph 28(2)(d) which provides that proportionate incentives can be received where an approved participant meets all conditions in an NRAS year, but not necessarily for the entirety of that NRAS year.

Item 22 makes a minor technical amendment to remove the ambiguous phrase about a dwelling being made available "to the Scheme", with terminology making clear that the rule in that paragraph applies following a dwelling being made available for rent in a particular NRAS year.

Item 23 inserts new paragraph 28(2)(d) to provide that a reduced, proportionate incentive is able to be received for an NRAS year where an approved participant meets all conditions of allocation in regulation 16 for a dwelling, but only for part of the NRAS year. 

Item 24 replaces regulation 28A of the Principal Regulations and provides greater flexibility to allow approved participants, who are endorsed charitable institutions for a whole NRAS year, to be able to elect to receive incentives as tax offset certificates.  It also enables endorsed charitable institutions to revert to receiving incentives as a payment by revoking an election to receive an incentive as a tax offset certificate.  New regulation 28A requires an election to be made by 31 December in a particular NRAS year, but provides flexibility to make an election at a later date where an approved participant becomes an endorsed charitable institution following 31 December in a particular NRAS year.  There is a note to clarify that, if an election is made following an entity becoming an endorsed charitable institution, the election will only have effect in relation to the first whole NRAS year during which the entity remains an endorsed charitable institution.

Item 24 also inserts new regulation 28AA to provide power to the Secretary to agree or not agree to an election made under regulation 28A, subject to regulation 29 (which is about the effect of an election being in place).  

Item 25 replaces subregulation 29(1) of the Principal Regulations to include a simpler table about the form of an incentive that is to be made to an approved participant whether or not they have made or are able to make an election that is agreed.  The table continues the current policy that approved participants who are not endorsed charitable institutions may only receive incentives as tax offset certificates and not as payments.  It also clarifies that an endorsed charitable institution that has made an election may only receive an incentive for an NRAS year as a tax offset certificate where the entity is an endorsed charitable institution for the whole of the NRAS year in relation to which the incentive relates.

Item 26 introduces a new Part 6 into the Principal Regulations to deal with some necessary transitional rules. 

New regulations 34 and 35 clarify that applications to change a rental availability date or changes to location or type (style, size and any special attributes) of a dwelling before the commencement of the provisions in Part 1 of Schedule 1 to this Regulation are to be considered subject to the law in place at the time of the application (essentially the law in place prior to the amendments made by this Regulation).  The exception to this is that for reservations of allocation offered in the call for applications that was made on 18 April 2013 (the 'Shovel Ready Round'), the Secretary cannot agree to a rental availability later than 31 July 2015.

New regulation 36 deals with elections that were in place prior to commencement of Part 1 of Schedule 1 to this Regulation and clarifies that such elections, upon commencement, are deemed to have been agreed under regulation 28AA.  This is effectively a saving provision to preserve the effect of those elections.  Such elections will remain effective even after the repeal effected by new regulation 37 by virtue of already having been deemed to be agreed under regulation 28AA.

Regulation 37 is intended to repeal the provisions in Part 6 once they are spent in their operation and is intended to ensure that the Principal Regulations do not contain unnecessary rules that are inoperative.  The repeal will occur 12 months after the day the Regulation is registered to provide ample time for the applications dealt with by regulations 34 and 35 to be decided upon by the Secretary.

Schedule 1 - Part 2 - Amendments commencing 3 months after day after registration

Item 27 inserts a new term that will be required once this Part commences: "provisional allocation".  This definition refers to new subregulation 14(2C) and is a term that will apply to allocations made as a result of an applicant not making a dwelling available for rent by the agreed rental availability date.  The concept is required because an applicant, in these circumstances, will no longer hold a reservation of allocation, they will instead hold an allocation with respect to which the 10 year incentive period has already begun.  Provisional allocations, however, will not enable an approved participant to actually be paid an incentive until the dwelling is available for rent and other conditions of allocation are met.

Items 28 and 29 are technical amendments consequential upon the new concept of provisional allocations.  Item 29, in particular, removes a rule that says that a reservation of allocation becomes an allocation only when all conditions of the reservation of the allocation are met.  Provisional allocations can be made before those conditions are met, if the applicant is not able to, or chooses not to, arrange for a dwelling to be available for rent by the latest agreed date.

Item 30 makes clear that a provisional allocation is made where the agreed rental availability date arrives and the relevant dwelling is not actually available for rent.  Where the dwelling is available for rent by the agreed rental availability date, an allocation is made that is not a provisional allocation.  These rules, together with a new subregulation 16(11A) ensure that where a dwelling is not available by the agreed date, the 10 year incentive period can begin, however the approved participant is not able to receive an incentive until the dwelling becomes available for rent and other conditions of allocation are also met.

Item 31 inserts new subregulation 16(11A) to provide that any conditions of the reservation of allocation (such as the location, style and size of a dwelling to be built) that remain unsatisfied at the time a provisional allocation is made become conditions of the allocation (except the condition that the dwelling must be available by the agreed rental availability date, because that date will have already occurred as a result of new subregulation 14(2C)).  The effect of this is that these former conditions of the reservation remain required to be fulfilled for provisional allocations, and an approved participant subject to a provisional allocation will still need to meet these conditions.  This will mean that approved participants with provisional allocations will still need to deliver a dwelling as agreed before they are able to receive an incentive for an NRAS year or a part of an NRAS year.

Items 32, 33, 34 and 35 are amendments consequential upon the introduction of provisional allocations and ensure that approved participants are not able to apply to transfer or to substitute dwellings while they are subject to a provisional allocation (because they have not made dwellings available for rent by the agreed date).

Items 36, 37 and 38 ensure that the existing grounds on which an allocation can be revoked only apply to allocations that are not provisional allocations.  New subregulation 22A contains grounds upon which the Secretary can revoke a provisional allocation.  These grounds cover the grounds in regulation 22 as well as the grounds under which a reservation of allocation was able to have been withdrawn under the amendments made in Part 1 of Schedule 1 prior to a provisional allocation being made.  This amendment is made so that approved participants who are subject to provisional allocations are still able to lose their status under the Scheme where inappropriate advertisements are placed, including those that are misleading, or where other false or misleading evidence is provided in support of applications.

Item 39 is a declaratory amendment to clarify the effect of the National Rental Affordability Scheme Amendment Regulations 2011 (No. 1).  Under that regulation, compounding indexation was introduced without clarifying the effect of the indexation which had already occurred for the 2009-10 NRAS year under the law already in force.  This amendment ensures that the reference in paragraphs 26(1)(b) and 27(1)(b) of the Principal Regulations to the incentive amount for that year includes a reference to the indexation applied under the law that pre-existed the National Rental Affordability Scheme Amendment Regulations 2011 (No. 1).  This amendment commences on the day that the National Rental Affordability Scheme Amendment Regulations 2011 (No. 1) commenced.  Although the amendment is retrospective, it is declaratory in operation and does not limit rights or impose liabilities contrary to subsection 12(2) of the Legislative Instruments Act 2003.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

National Rental Affordability Scheme Amendment (Provisional Allocations and Other Measures) Regulation 2014

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

Overview of the Bill/Legislative Instrument

The purpose of this Regulation is to:

(a)  Introduce a mechanism of provisional allocations into the National Rental Affordability Scheme Regulations 2008 (Principal Regulations) in order to spur delivery of affordable rental housing under the National Rental Affordability Scheme (NRAS);

(b)  Provide endorsed charitable institutions with greater flexibility around when they are able to make an election to receive NRAS incentives in the form of a tax offset certificate instead of a monetary payment; and

(c)  Make other amendments to the Principal Regulations to formalise how certain policy aspects of the scheme currently operate.

Human rights implications

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 legislative instrument 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 legislative instrument is consistent with furthering the right to an adequate standard of living, including housing, as it aims to spur delivery of affordable rental dwellings by introducing measures to spur applicants and approved participants to make dwellings available for rent for low and moderate income households under NRAS within the timeframes and in the locations agreed with the Secretary of the Department of Social Services under the Scheme.

Kevin Andrews

Minister for Social Services

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