Treasury Laws Amendment (National Housing and Homelessness Agreement) Bill 2017 - Commentary on Ministerial Responses [2017] AUSStaCSBSD 420 (6 December 2017)

• Treasury Laws Amendment (National Housing and Homelessness Agreement) Bill 2017
• Parliamentary scrutiny—section 96 grants to the States116

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Treasury Laws Amendment (National Housing and Homelessness Agreement) Bill 2017

Purpose	This bill seeks to amend the Federal Financial Relations Act 2009 to introduce new funding arrangements for Commonwealth support for housing and address homelessness and repeal the National Special Purpose Payment for Housing Services.
Portfolio	Treasury
Introduced	House of Representatives on 25 October 2017
Bill status	Before House of Representatives
Scrutiny principle	Standing order 24(1)(a)(v)

2.287 The committee dealt with this bill in Scrutiny Digest No. 13 of 2017. The Minister responded to the committee's comments in a letter dated 5 December 2017. Set out below are extracts from the committee's initial scrutiny of the bill and the Treasurer's response followed by the committee's comments on the response. A copy of the letter is available on the committee's website.^[115]

Parliamentary scrutiny—section 96 grants to the States^[116]

Initial scrutiny – extract

2.288 With respect to primary and supplementary housing agreements, proposed section 15C sets out a number of terms and conditions under which financial assistance will be payable to a state or territory. These conditions include that the State must have and make publicly accessible both a housing strategy and a homelessness strategy; match the financial assistance provided by the Commonwealth in relation to homelessness; and provide relevant information to the Minister.^[117]

2.289 However, in contrast, proposed subsection 15D(4) states that financial assistance is payable subject only to such additional terms and conditions, if any, as are set out in the designated housing agreement itself. The explanatory memorandum states that designated housing agreements will not be contingent on a primary or supplementary housing agreement, but does not further explain the decision not to include any terms and conditions applicable to designated agreements in the bill.

2.290 The committee notes that the bill also contains no provisions that would require the Minister to table in Parliament, or publish on the internet, primary, supplementary or designated housing agreements made under the new funding arrangements.

2.291 The committee takes this opportunity to highlight that the power to make grants to the States and to determine terms and conditions attaching to them is conferred on the Parliament by section 96 of the Constitution.^[118] Where the Parliament delegates this power to the executive, the committee considers that it is appropriate that the exercise of this power be subject to at least some level of parliamentary scrutiny, particularly noting the terms of section 96 of the Constitution and the role of Senators in representing the people of their State or Territory. While some information in relation to grants to the States is publicly available, the committee has previously noted that effective parliamentary scrutiny is difficult because the information is only available in disparate sources.

2.292 Noting this, and the fact that the terms and conditions of financial assistance made available under a designated housing agreement may be of significance to housing and homelessness policy generally, the committee suggests it may be appropriate for the bill to be amended to:

• include some high-level guidance as to the terms and conditions that States will be required to comply with in order to receive payments of financial assistance under a designated housing agreement; and

• include a legislative requirement that any primary, supplementary or designated housing agreements are:

- tabled in the Parliament within 15 sitting days of being made, and

- published on the internet within 30 days of being made.

2.293 The committee seeks the Minister's advice in relation to the above.

Treasurer's response

2.294 The Treasurer advised:

Guidance on Designated Housing Agreements
As noted by the Committee in its Digest, proposed section 15D of the Federal Financial Relations Act 2009 provides for designated housing agreements between the Commonwealth and States or Territories (States). These could be either a multi-party or bilateral agreement. I note that, consistent with the proposed amendment to section 4, a designated housing agreement (DHA) must relate to any or all of: housing, homelessness and housing affordability matters.
This provides the flexibility for the Commonwealth and States to enter into other housing and homelessness agreements as may be needed from time to time. Funding is only payable if it is spent by the State in accordance with the DHA. Including additional guidance on terms and conditions that States would be required to comply with may unduly limit the Commonwealth's ability to provide financial assistance in the future and the States' ability to respond flexibly to jurisdiction-specific circumstances.
Tabling and publication of Agreements
I note the suggestion by the committee in its Digest, to include a requirement to table Agreements in Parliament and publish them on the internet. All agreements under the Federal Financial Relations framework are available publicly on the Council on Federal Financial Relations website.

Committee comment

2.295 The committee thanks the Treasurer for this response. The Committee notes the Treasurer's advice that designated housing agreements could be either multi-party or bilateral agreements and that they must relate to housing, homelessness or housing affordability matters. The committee also notes the Treasurer's advice that these agreements provide flexibility for the Commonwealth and the States to enter into other housing and homelessness agreements from time to time, and that including additional guidance as to the terms and conditions that States would be required to comply with may unduly limit the Commonwealth's ability to provide financial assistance and the ability of the States to respond to jurisdiction-specific circumstances. The committee finally notes the Treasurer's advice that all agreements made under the Federal Financial Relations Framework are publicly available on the Council of Federal Financial Relations website.

2.296 The committee reiterates that the power to make grants to the States and to determine terms and conditions attaching to them is conferred on the Parliament by section 96 of the Constitution.^[119] Where the Parliament delegates this power to the executive, the committee considers that it is appropriate that the exercise of this power be subject to at least some level of parliamentary scrutiny, particularly noting the terms of section 96 of the Constitution and the role of Senators in representing the people of their State or Territory.

2.297 It remains unclear to the committee why the inclusion of high-level guidance as to the terms and conditions that States will be required to comply with in order to receive funding under a designated housing agreement would inappropriately hamper the freedom of the Commonwealth and the States to enter into such agreements.

2.298 In addition, while the committee welcomes the fact that agreements made under the Federal Financial Relations Framework will be publicly available, the committee notes that there is no legislative requirement that the agreements be published and emphasises that the process of tabling documents in Parliament alerts parliamentarians to their existence and provides opportunities for debate that are not available where documents are only published online. As such, it remains unclear to the committee why it is not appropriate to include a legislative requirement that housing and homelessness agreements be tabled in Parliament within 15 sitting days of being made and published on the internet within 30 days of being made.

2.299 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of delegating to the executive government the Parliament's power under section 96 of the Constitution to make grants to the States, and to determine terms and conditions attaching to them, without any statutory guidance as to the types of terms and conditions that States and Territories will be required to comply with or a statutory requirement that the relevant agreements be tabled in the Parliament and published on the internet.

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[115] See correspondence relating to Scrutiny Digest No. 15 of 2017 available at: www.aph.gov.au/senate_scrutiny_digest

[116] Schedule 1, item 4. The committee draws Senators’ attention to this provision pursuant to principle 1(a)(v) of the committee’s terms of reference.

[117] Schedule 1, item 4, proposed subsections 15C(4) to (8)

[118] Section 96 of the Constitution provides that: 'the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit'.

[119] Section 96 of the Constitution provides that: '...the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit.'