Housing Agreement Act 1991 (SA)

South Australia Housing Agreement Act 1991 An Act to approve the execution on behalf of the State of an agreement between the Commonwealth, the States, the Northern Territory of Australia and the Australian Capital Territory relating to housing; and for other purposes. Contents 1 Short title 2 Interpretation 4 Approval of execution of agreement 5 Loans under the Agreement 6 Constitution of appellate tribunal Schedule—Form of housing agreement Legislative history The Parliament of South Australia enacts as follows: 1—Short title This Act may be cited as the Housing Agreement Act 1991. 2—Interpretation In this Act— the Agreement means the agreement between the Commonwealth, the States, the Northern Territory of Australia and the Australian Capital Territory in the form, or substantially in the form, set out in the Schedule to this Act. 4—Approval of execution of agreement (1) The execution of the Agreement on behalf of the State is approved. (2) The Treasurer is authorised to carry out the terms of the Agreement on behalf of the State. (3) Any act done by the Treasurer in anticipation of the Agreement coming into force is ratified. 5—Loans under the Agreement (1) Subject to the Agreement, any loan or grant made by the Treasurer in pursuance of the Agreement must be made on terms and conditions determined by the Treasurer and approved by the Minister. (2) Notwithstanding any other Act or law, a body or authority to which a loan or grant is made in pursuance of the Agreement is authorised to accept the loan or grant, and to expend the money lent or granted, in accordance with the terms and conditions on which the loan or grant was made. 6—Constitution of appellate tribunal The Governor may make regulations— (a) that establish, or provide for the establishment of, a tribunal to hear appeals from decisions relating to the provision of housing assistance funded under the Agreement; (b) that provide for the jurisdiction and powers of the tribunal; (c) that make provision for the proceedings of the tribunal including a provision that empowers the tribunal to make rules; (d) that make any other provisions that are necessary or incidental to the establishment or functioning of the tribunal or that are desirable for either of those purposes. Schedule—Form of housing agreement AN AGREEMENT made the day of One Thousand nine hundred and between— THE COMMONWEALTH OF AUSTRALIA of the first part, THE STATE OF NEW SOUTH WALES of the second part, THE STATE OF VICTORIA of the third part, THE STATE OF QUEENSLAND of the fourth part, THE STATE OF WESTERN AUSTRALIA of the fifth part, THE STATE OF SOUTH AUSTRALIA of the sixth part, THE STATE OF TASMANIA of the seventh part, THE NORTHERN TERRITORY OF AUSTRALIA of the eighth part, and THE AUSTRALIAN CAPITAL TERRITORY of the ninth part. WHEREAS: (A) the Commonwealth and the States of Australia have from time to time entered into agreements for the purpose of the provision by the States with financial assistance from the Commonwealth of housing; (B) by an agreement between the Commonwealth, the States of Australia and the Northern Territory of Australia dated the twenty-fifth day of October 1984, being an agreement in the form authorized to be executed on behalf of the Commonwealth by the Housing Assistance Act 1984 of the Commonwealth Parliament and being the last of the agreements referred to in Recital (A), provision was so made with respect to the ten years commencing on the first day of July 1984; (C) the Ministers of the respective governments throughout Australia who are responsible for housing have agreed upon the provision of rental housing assistance and home purchase assistance during the ten years commencing on the first day of July 1989; (D) the primary principle of this agreement is to ensure that every person in Australia has access to secure adequate and appropriate housing at a price within his or her capacity to pay by seeking to: • alleviate housing-related poverty; and • ensure that housing assistance is, as far as possible, delivered equitably to persons resident in different forms of housing tenure. In implementing this principle, assistance provided under the agreement will also reflect the following detailed principles: (a) Assistance Generally The primary consideration in delivering housing assistance under this agreement shall be the needs of people. In determining the eligibility of applicants for assistance under this agreement: • assistance shall seek to provide access to housing for those unable to obtain or maintain affordable finance for adequate and appropriate housing purchase from the private sector or from other sources outside of the agreement; • assistance provided shall be available to all sections of the community irrespective of age, sex, marital status, race, religion, disability or life situation. Persons who need support to live in the community shall be eligible for assistance. It is recognized, however, that such support is not a responsibility under this agreement; • priority in granting assistance shall be determined by the need for assistance; • any limits on eligibility for assistance shall be based primarily on financial circumstances. In determining this, the level of income, the value of relevant assets and the income from them, the number of dependent children and costs arising from disability or other special circumstances, shall be taken into account; and • to ensure consistency in the application of these eligibility principles, limits of eligibility shall be reviewed at appropriate intervals of time. In the delivery of housing assistance, as far as is possible, people should be given an equal choice between the different forms of housing assistance programmes under this agreement. Housing assistant programmes developed under this agreement shall be designed so that maximum social benefit is derived from previous investment in housing. Assistance shall be provided in a co-ordinated and flexible manner to meet the changing employment and other needs and circumstances of people receiving assistance. To this end and where appropriate: • housing assistance provided under this agreement should be co-ordinated with housing and accommodation assistance programmes outside this agreement; • the provision of assistance for people shall be co-ordinated between the specific purpose programmes within the agreement and general housing assistance under the agreement; and • assistance shall facilitate the portability of waiting times for applicants for assistance, and the transfer of tenants, between regions and forms of assistance within a State, and, where practicable, between States. (b) Rental Housing The provision of rental housing is a key element of this agreement. People in rental housing shall have security of tenure. Subject to fulfilment by the tenant of the tenancy conditions, this principle of security of tenure shall operate in a State in accordance with this Recital to ensure that: • tenants are not to be forced to leave their home because of actions inconsistent with this agreement by a State. Where a tenant is required to move from one dwelling to another by a State, a choice of dwellings and locations appropriate to the tenant's needs is to be provided; • a physical and locational environment appropriate to the tenant's needs is provided; and • recognition is accorded to the rights of applicants and tenants and other users of assistance. Programmes and funding arrangements under this agreement should seek to develop the public housing sector as a viable and diversified form of housing choice and refrain from discrimination. Programmes and funding arrangements under this agreement shall be developed so as to increase progressively the availability of rental housing to a level commensurate with the need for it in the community. Rental housing should reflect general community housing standards and should be accessible to community and other services. Poor location of dwellings, an inadequate range of choice of dwellings, and stigmatisation of the status of rental housing tenants should be avoided to the maximum extent practicable. Rental housing stock should, as far as possible, be designed to cater for the needs and preferences of current and likely future applicants. The design, style and siting of rental housing will, to the maximum extent practicable: • reflect the need for access to employment opportunities and services; • reflect the need for accessibility and suitability for habitation by people with disabilities, Aboriginals, youth, the elderly or other identified groups; and • support the energy conservation policies of the governments. (c) Income Related Assistance to Tenants Assistance measures in the public rental sector should be co-ordinated with assistance to private tenants and should recognize the income support nature of the assistance and the inter-relationship of this assistance with Commonwealth assistance to pensioners and other beneficiaries under the Social Security Act 1947. (d) Implementation States will be able to exercise maximum autonomy and flexibility in developing the administrative arrangements necessary to achieve these principles; (E) the Ministers referred to in Recital (C) recognise the relationship between the principles and policies reflected in this agreement and the need to co-ordinate these with those affecting home purchasers and tenants including tenants in private housing and in emergency and supported accommodation; (F) it is proposed that in order to implement the agreement of the Ministers, the Commonwealth will grant to the States financial assistance under Section 96 of the Commonwealth of Australia Constitution and like assistance to the Northern Territory of Australia and the Australian Capital Territory and that the terms and conditions on which the grant of financial assistance should be made are those set out in this agreement; (G) the Commonwealth and the States have decided that the agreement referred to in Recital (B) shall, save as provided for by subclause 1(3) of this agreement, cease to operate on and from the first day of July, 1989; and (H) the Parliament of the Commonwealth has authorized the execution by and on behalf of the Commonwealth of this agreement and the provision of financial assistance to the States in accordance with its provisions. NOW IT IS HEREBY AGREED as follows: PART I—OPERATION OF AGREEMENT 1. — (1) This agreement shall be deemed to have come into effect on 1 July, 1989, in respect of the Commonwealth and of a State when it is signed on behalf of the Commonwealth, and— (a) where the laws of a State require that its Parliament authorize the execution of or approves, the agreement, when it has been signed on behalf of the State with the authority of the Parliament of the State or, having been signed on behalf of the State without the authority is approved by the Parliament of the State; or (b) where the laws of the State do not require that its Parliament authorize the execution of, or approve, the agreement, when it has been signed on behalf of the State. (2) Notwithstanding that in this agreement all the States are named as parties, this agreement shall operate as an agreement between the Commonwealth and the party or parties in respect of which it comes into force as fully and effectually as if the party or parties in respect of which it comes into force were the only party or parties so named other than the Commonwealth. (3) Subject to obligations arising under Part VIII of the agreement referred to in Recital (B) and unperformed prior to the first day of July, 1989, that agreement shall be deemed to have ceased to operate on and from that date. PART II—PARTIES 2. — (1) A reference in this agreement to a State shall, except where the contrary intention appears and according to the requirements of the context, be deemed to include a reference to the Northern Territory of Australia and to the Australian Capital Territory. (2) In this agreement, subject to this clause and except where the context otherwise indicates— (a) "the Commonwealth" means the Commonwealth of Australia; (b) each State, including the Northern Territory of Australia and the Australian Capital Territory, named as a party in respect of which this agreement comes into force is referred to as a "State" and, except where the context otherwise indicates, "the States" means all of those States; and (c) "the Australian Capital Territory" means the body politic established under the Crown by that name by section 7 of the Australian Capital Territory (Self-Government) Act 1988. PART III—INTERPRETATION 3. — (1) In this agreement— "the Minister" means the Minister of State of the Commonwealth for the time being responsible for the administration of this agreement for the Commonwealth: "State Minister" means the Minister of State of a State for the time being responsible for the administration of this agreement for the relevant State. (2) A reference in this agreement to— (a) a Minister includes the Minister or other member of the Federal Executive Council; or (b) a State Minister includes a Minister of the relevant State or other member of the State Executive Council, acting on behalf of, or for the time being acting for, the Minister or State Minister referred to. 4. In this agreement unless the contrary intention appears or the context otherwise requires— "direct costs" means costs and fees generally accepted in the private sector as related to the production or purchase of rental housing: (a) including relevant overheads and administration costs; and (b) excluding stamp duties of the State: "dwelling" means a dwelling-house or flat includes such fences, outbuildings and other improvements and such connections for sewerage, drainage, water, electricity, gas and other services as provided or are reasonably required to be provided for the dwelling-house or flat: "existing housing agreements" means both the agreements referred to in the first Schedule to the form of agreement scheduled to the Housing Assistance Act 1984 and the agreement dated the twelfth day of March, 1985, in the form scheduled to that Act ("the 1984 Agreement"): "Family Allowance Supplement" means the Family Allowance Supplement for which Part IX of the Social Security Act 1947 provides: "home purchases" means— (a) a person including a participant in a shared ownership scheme purchasing with assistance under Part VIII housing including rental housing; or (b) a person who is a rental purchaser: "housing" means residential housing including dwellings and other forms of residential accommodation: "person" includes a body, co-operative, group or other organization whether incorporated or not: "previous housing arrangements" means the provisions in relation to housing— (a) that were made: (i) by the existing housing agreements; (ii) by the States Grants (Housing) Act 1971, the Housing Assistance Act 1973, the Housing Assistance Act 1978, the States (Works and Housing) Assistance Act 1982, the States (Works and Housing) Assistance Act 1983, the Housing Assistance Act 1984, the States (Works and Housing) Assistance Act 1984 and 1985, the Housing Assistance Amendment Act 1987 and the States (Works and Housing) Assistance Act 1988; (iii) under any arrangements entered into special Employment-related Programs Act 1982; and (b) that are made by legislation passed hereafter by the Commonwealth Parliament under which financial assistance is made available to the State for housing, but on terms and conditions specified in this agreement: "rental housing" means housing for rental which has been provided under the previous housing arrangements or is provided under this agreement and "rental dwelling" means a dwelling that is included in rental housing: "rental purchase" means a purchase under a terms contract of sale: "rental purchaser" means a person purchasing under a terms contract of sale: "shared ownership" means the ownership of a share in a dwelling: "the Commonwealth Act" means the legislation of the Commonwealth Parliament by which an agreement substantially in this form is authorized to be executed by or on behalf of the Commonwealth: "upgrading" means improvements, excluding repairs and other maintenance, relating to a rental dwelling which is so identified in State housing authority published accounts: "year" means a period of twelve months commencing on the first day of July. 5. In this agreement unless the contrary intention appears— (a) a reference to a Part or to a clause is to a Part or to a clause of this agreement, as the case may be; (b) a reference to a subclause is, unless otherwise indicated, to the relevant subclause of the clause in which the reference appears; (c) the Schedule referred to is the Schedule to the agreement; (d) words importing a gender include every other gender; (e) words in the singular number include the plural and vice versa; and (f) a reference to a date on or by which a thing is to be done shall, if that date falls on a Saturday, Sunday, public holiday or bank holiday in the place in which the thing is to be done, be read and construed as if the reference was the day immediately preceding that day which is not a Saturday, Sunday, public holiday or bank holiday in that place. PART IV—OBJECTIVE OF AGREEMENT 6. The objective of this agreement is the provision by the States, with financial assistance from the Commonwealth, of housing assistance for rental housing and for home purchase in accordance with, and in fulfilment of, the principles set out in Recital (D). PART V—FINANCIAL ASSISTANCE 7. — (1) In order to assist the States in the achievement of the objective of this agreement, the Commonwealth will, upon the subject to the provisions of this agreement, out of moneys appropriated by Parliament for the purpose, provide to the States during the years of this agreement, financial assistance for housing purposes (hereinafter in this agreement referred to as "financial assistance") by way of interest free non-repayable grants ("grants"). (2) The years of this agreement shall be the ten years commencing on the first day of July in the years 1989, 1990, 1991, 1992, 1993, 1994, 1995, 1996, 1997 and 1998. 8. The Commonwealth will provide financial assistance— (a) in respect of the first year of the agreement— (i) to the States, excluding the Australian Capital Territory, totalling one thousand and ten million four hundred and four thousand dollars ($1 010.404 million) consisting of— (A) two hundred and thirty three million one hundred and fifty four thousand dollars ($233.154 million) by way of specific housing assistance under Part XII; and (B) seven hundred and seventy seven million two hundred and fifty thousand dollars ($777 250 million) by way of untied assistance; and (ii) to the Australian Capital Territory, of seventeen million seven hundred and seventy two thousand dollars ($17.772 million) by way of specific housing assistance and untied assistance; and (b) in respect of each of the second year, the third year and the fourth year of the agreement— (i) to the States, excluding the Australian Capital Territory, being an amount equal to the first amount specified in subparagraph 8(a)(i); and (ii) to the Australian Capital Territory being an amount equal to the amount specified in subparagraph 8(a)(ii), by way of specific housing assistance and untied assistance; and (c) in respect of— (i) any of the second year, the third year or the fourth year of the agreement for which the Minister determines additional financial assistance; and (ii) each of the remaining years of the agreement—an amount determined by the Minister for each of those years, in writing signed by the Minister. 9. The Commonwealth may provide to the States out of moneys appropriated by the Commonwealth Parliament for the purpose, financial assistance for home purchase assistance, rental housing assistance and, in accordance with Part XII, specific housing assistance. 10. In and for the purpose of this agreement— (a) the following grants shall be known as "specific housing assistance grants"— (i) financial assistance under sub-subparagraph 8(a)(i)(A); (ii) so much of financial assistance provided subparagraph 8(a)(ii) as is authorized for expenditure under clause 30; (iii) so much of financial assistance provided under paragraph 8(b) as is authorized for expenditure under clause 30; and (iv) so much of other financial assistance authorized for expenditure under clause 30; and (b) financial assistance to be provided other than specific housing assistance grants shall be known as "untied assistance". 11. Financial assistance shall be allocated between the States in such manner as is provided by the Commonwealth Act and it shall be a condition with respect to the provision of untied assistance that a State will match the amount of that financial assistance from its own resources in accordance with Part IV. 12. A State shall, as agreed by the Minister and State Minister, include in material for use by persons seeking or receiving housing assistance from the State funded under this agreement, particulars to be provided by the Minister sufficient to indicate that that housing assistance is provided in whole or in part with financial assistance from the Commonwealth. PART VI—STATE MATCHING FUNDS 13. — (1) In relation to untied assistance a State will provide from its own resources and apply funds ("matching funds") in accordance with this Part. (2) Subject to the subclause 13(3), the amount of matching funds to be provided in respect of a year in accordance with this Part shall be an amount equal to the amount of untied assistance provided to the State in respect of that year, determined as follows: (a) at least half ("grant matching funds") shall be grants paid by the State into the Rental Capital Account; (b) the balance shall be met from the value of home loans provided under Part VIII through home purchase assistance programs agreed between the Minister and State Minister; and (c) an amount determined by the Minister under paragraph 36(b) shall be deemed to remain "untied assistance" for the purpose of this Part. (3) In respect of the first four years the level of grant matching funds otherwise to be applied to the Rental Capital Account will be phased in as follows: (a) in the first year the State will match on a $3:$12 basis; (b) in the second year the State will match on a $4:$12 basis; (c) in the third year the State will match on a $5:$12 basis; and (d) in the fourth year the State will match on a $1:$2 basis. (4) A State may, as agreed by the Minister and State Minister, count as grant matching funds in a year, amounts provided by it in the previous year in accordance with paragraph 13(2)(a) in excess of the level of matching funds required in subclause 13(3) for that year, up to a limit of 10 per cent of the funds so required to be provided in that previous year. (5) A State will have to pay no more in matching funds relating to the first $1 028.176 million of financial assistance provided— (a) in any of the years referred to in subclause 13(3) than would have been paid had the allocation and matching fund requirements to apply for the said fourth year been applied in any of those years; and (b) in any year than would have been required had the level of untied assistance been $792.931 million. (6) Except as to the first year, for which proposals shall be agreed by the Minister and State Minister by the thirty first day of December, a State shall, by the thirty first day of March preceding the second and each succeeding year of this agreement, furnish of the Commonwealth, in a reasonable form to be determined by the Minister after consultation with the State Minister, proposals for agreement by the Minister for the provision of matching funds during that year. (7) Grant matching funds shall be— (a) paid into the Rental Capital Account by regular monthly instalments or as otherwise agreed between the Minister and State Minister; and (b) separately identified in State budget documents or otherwise identified as agreed between the Minister and State Minister. (8) Matching funds will not include— (a) funds which have been used to match financial assistance provided by the Commonwealth otherwise than under this agreement; (b) funds already paid into the Rental Capital Account; (c) proceeds from the sale after the first day of July 1984 of rental housing and land acquired under previous housing arrangements and this agreement; (d) any funds transferred from the Home Purchase Assistance Account to the Rental Capital Account; or (e) surpluses generated on rental housing operations. 14. Where a State in a year expends a specific housing assistance grant in accordance with the Commonwealth/State plan for that year, this expenditure shall not increase the level of matching funds required to be provided by the State in that year. PART VII—FINANCIAL ASSISTANCE ARRANGEMENTS 15. — (1) Financial assistance in respect of a year of this agreement shall be made available to a State during that year by regular monthly instalments unless otherwise agreed between the Minister and State Minister. (2) If, following consultation with a State Minister, the Minister is of the opinion that it is appropriate to do so, the Minister may withhold a payment of financial assistance to a State which fails to comply with subclause 13(6), or clause 38 until the State remedies that failure. PART VIII—HOME PURCHASE ASSISTANCE 16. The Home Purchase Assistance Account of each State, for the continuance of which clause 24 of the 1984 Agreement provided, shall continue to operate. The Australian Capital Territory shall open an Account by the name within the first year of this agreement. Each of those Accounts and related Accounts are in this Part referred to as "the Account" and elsewhere as "the Home Purchase Assistance Account". 17. This Account shall be— (a) credited with— (i) moneys received by the State in the course of home purchase assistance program operations; (ii) payments referred to in paragraph 23(2)(f); and (iii) any other funds, not being Commonwealth financial assistance or State grant matching funds, which the State decides to apply to home purchase assistance programs under this agreement; and (b) debited with management costs and other outgoings, including repayments and payments under paragraphs 20(1)(a) and 20(1)(b), in respect of home purchase assistance program operations. 18. The money in this Account shall be made available for use for home purchase assistance in accordance with this Part. 19. A State shall develop and administer home purchase assistance programs, in accordance with Recital (D), having regard to the following principles: (a) the Account is to act as a basis and support for future home purchase. To this end a State shall ensure— (i) funds made available for use under clause 18 are to be used in a way which at least maintains their real value; and (ii) that funds paid into the Account in accordance with paragraph 23(2)(f) are included in funds available for use in subparagraph 19(a)(i); and (iii) that the amount of the funds available for use under paragraph 19(a)(i) are reduced by the payments made under subparagraph 20(1)(j); (b) the efficient use of the Account. To this end— (i) a State shall maximise the use of funds from sources outside the agreement for loans to home purchasers; (ii) subsidy assistance is to be restricted to those who require it and for the period of their need and recovered except in cases of individual hardship. Where subsidy assistance is provided, the capacity of home purchasers to repay loans to the State is to be reviewed at least triennially with repayments to be adjusted or other action to be taken where necessary. In any year other than one in which there is a review, repayments are to be indexed by the Consumer Price Index or other appropriate indicator; and (iii) where a State wishes to provide subsidy assistance other than in accordance with subparagraph (ii), it may do so from funds provided by the State under subparagraph 17(a)(iii); (c) a State shall maximise the effectiveness of assistance provided. To this end— (i) the amount of a loan shall take into account market conditions, including house prices, incomes and the size of a deposit; and (ii) loan repayments are to be related to the income of home purchasers, and to be affordable to those home purchasers. To this end, repayment ratios operating in the private market are to be taken into account. A State may reschedule repayments by a home purchaser in the event of individual hardship; (d) a State shall ensure maximum choice of assistance. To this end— (i) no class of persons, including single persons, shall be excluded from consideration; (ii) home purchase schemes are to be accessible to existing public tenants; (iii) where appropriate, shared ownership and rental purchase schemes are to be offered; and (iv) schemes developed under this principle shall be consistent with the provisions in clause 27 of this agreement; and (e) home purchase assistance under the agreement is to be related to other home purchase assistance programs operated by the Commonwealth and States. 20. — (1) Subject to subclause 20(2), a State may use moneys in the Account in accordance with the principles set out in Recital (D) and clause 19 for— (a) making repayments of principal and payments of interest falling due in the then current year in respect of loan assistance by the Commonwealth to the State under previous housing arrangements which has been allocated for home purchase assistance under those arrangements; (b) making repayments of principal and payments of interest in respect of any State funds borrowed for the purpose of this Part allocated for home purchase assistance; (c) meeting expenditure by the State in providing and administering home purchase assistance; (d) facilitating borrowings of private bodies for home purchase assistance under this agreement, including participation in joint ventures and mortgage funds such as secondary mortgage market trusts; (e) making loans and grants to: (i) terminating building societies or co-operative housing societies; (ii) a lending authority of the State approved by the State Minister; (iii) registered co-operative organisations including permanent building societies approved by the State Minister; (iv) such other class or classes of bodies or organisations as are from time to time agreed upon between the Minister and State Minister; and (v) a class or classes of home purchasers, for the provision of home purchase assistance; (f) financing the construction and purchase of dwellings, including the purchase of dwellings from the home purchasers, and financing purchases by home purchasers who are borrowers; (g) purchasing housing, including private housing, for sale to rental purchasers and financing such sales; (h) the acquisition by the State of replacement housing of a value equal to the amount for which the State sells rental housing to home purchasers; (i) urban renewal, housing advisory services and research and policy development in relation to matters not funded by the Australian Housing Research Council; (j) making payments into the Rental Capital Account; (k) making loans to participants in shared ownership schemes; (l) such other purposes as are from time to time agreed upon by the Minister and State Minister. (2) Moneys paid into the Account under paragraph 23(2)(f) are to be used only for home purchase assistance programs approved by the Minister for public tenants and persons eligible for rental housing, with preference to be given to shared ownership schemes. PART IX—RENTAL HOUSING ASSISTANCE 21. A State will establish a Rental Capital Account (in this Part referred to as "the Account" and elsewhere as "the Rental Capital Account") which shall be operated by the State in accordance with this Part. All moneys in the Account are to be fully expended or committed in the year in which they are credited to the Account. 22. A State will pay into the Account— (a) in each year of this agreement— (i) all untied assistance paid by the Commonwealth to the State under this agreement during that year; (ii) an amount of specific housing assistance grants as agreed by the Minister and State Minister; (iii) grant matching funds; (iv) such part of the cash surplus of revenue over outgoings arising from rental op