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This is a Bill, not an Act. For current law, see the Acts databases.
Housing Amendment (Community
Housing Providers) Bill 2009
No , 2009
A Bill for
An Act to amend the Housing Act 2001 to make further provision in relation to
community housing providers; and for other purposes.
Clause 1 Housing Amendment (Community Housing Providers) Bill 2009
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Housing Amendment (Community Housing Providers) 3
Act 2009. 4
2 Commencement 5
This Act commences on the date of assent to this Act. 6
Page 2
Housing Amendment (Community Housing Providers) Bill 2009
Amendment of Housing Act 2001 No 52 Schedule 1
Schedule 1 Amendment of Housing Act 2001 No 52 1
[1] Section 3 Definitions 2
Omit the definition of Department. Insert instead: 3
Department means the Department of Human Services. 4
[2] Part 9A, Division 1A 5
Insert after the heading to Part 9A: 6
Division 1A Interpretation 7
67AA Definitions 8
In this Part: 9
assets means any legal or equitable estate or interest (whether 10
present or future and whether vested or contingent and whether 11
personal or assignable) in real or personal property of any 12
description (including money), and includes securities, choses in 13
action and documents. 14
instrument means an instrument (other than this Act) that 15
creates, modifies or extinguishes rights or liabilities (or would do 16
so if lodged, filed or registered in accordance with any law), and 17
includes any judgment, order or process of a court. 18
land includes: 19
(a) a legal or equitable estate or interest in the land, or 20
(b) an easement, right, charge, power or privilege over, or in 21
connection with, the land. 22
liabilities means any liabilities, debts or obligations (whether 23
present or future and whether vested or contingent and whether 24
personal or assignable). 25
new owner, in relation to land vested by an order under this Part, 26
means the community housing provider in which the land is 27
vested by the order. 28
notice of intent to cancel registration means a notice issued 29
under section 67F (3). 30
notice of non-compliance means a notice issued under 31
section 67F (2). 32
officer of a registered community housing provider has the same 33
meaning as the term officer of a corporation has in the 34
Corporations Act 2001 of the Commonwealth. 35
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Housing Amendment (Community Housing Providers) Bill 2009
Schedule 1 Amendment of Housing Act 2001 No 52
rights means any rights, powers, privileges or immunities 1
(whether present or future and whether vested or contingent and 2
whether personal or assignable). 3
vesting date, in relation to land vested in a community housing 4
provider by an order under this Part, means the date on which the 5
vesting takes effect. 6
[3] Section 67C Register 7
Insert after section 67C (2): 8
(2A) Without limiting subsection (2), the Registrar is to include in the 9
register a copy of each notice of intent to cancel registration 10
issued to a registered community housing provider. 11
[4] Section 67F 12
Omit the section. Insert instead: 13
67F Compliance with Act and regulations 14
(1) The Registrar may take action under this section if the Registrar 15
reasonably believes that a registered community housing 16
provider is not complying with this Act or the regulations. 17
(2) The Registrar may issue to a registered community housing 18
provider a notice in writing (a notice of non-compliance) 19
identifying the matters required to be addressed in order to avoid 20
cancellation of the provider's registration and specifying a period 21
of at least 30 days in which those matters are to be addressed. 22
(3) The Registrar may issue a notice of intent to cancel registration 23
to a registered community housing provider if the Registrar is of 24
the opinion that: 25
(a) the provider has not addressed the matters identified in a 26
notice of non-compliance issued to the provider within the 27
period specified in the notice of non-compliance, or 28
(b) the provider's failure to comply with this Act or the 29
regulations is serious and requires urgent action. 30
(4) A notice of intent to cancel registration is a notice in writing that 31
identifies the matters that the Registrar considers warrant 32
cancellation of the provider's registration and states: 33
(a) that the provider's registration will be cancelled unless, 34
within the period specified in the notice (being a period of 35
at least 14 days), the provider satisfies the Registrar that its 36
registration should not be cancelled, or 37
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Housing Amendment (Community Housing Providers) Bill 2009
Amendment of Housing Act 2001 No 52 Schedule 1
(b) that the provider's registration will be cancelled unless: 1
(i) within the period specified in the notice (being a 2
period of at least 14 days), the provider appoints in 3
accordance with section 67FA a person with 4
qualifications of a kind specified in the notice as a 5
special adviser to assist the provider to address those 6
matters, and 7
(ii) within such further period specified in the notice, 8
the provider reports to the Registrar on those matters 9
and satisfies the Registrar that its registration should 10
not be cancelled. 11
(5) Any period specified in a notice under this section may be 12
extended in writing by the Registrar at the request of the 13
community housing provider concerned if the Registrar is 14
satisfied that there are good reasons for extending the period. 15
[5] Section 67FA 16
Insert after section 67F: 17
67FA Appointment of special adviser 18
(1) A special adviser is a person appointed by a registered 19
community housing provider for the purposes of a notice of intent 20
to cancel registration issued to the provider. 21
(2) A special adviser is to be appointed to assist the provider in 22
complying with this Act and the regulations and, in particular, to 23
assist the provider in addressing the matters identified in the 24
notice of intent to cancel registration. 25
(3) A special adviser is to be a person who is independent of the 26
community housing provider. 27
(4) The costs relating to the appointment of a special adviser and 28
payable to a special adviser are payable by the community 29
housing provider. 30
(5) The community housing provider is to give the special adviser 31
access to any accounts, records or other documents that the 32
special adviser considers necessary to inspect in order to carry 33
out his or her functions as special adviser. 34
[6] Section 67G Cancellation of registration 35
Insert "or to appoint a special adviser as referred to in section 67F (4) (b)" after 36
"cancelled" in section 67G (1) (d). 37
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Housing Amendment (Community Housing Providers) Bill 2009
Schedule 1 Amendment of Housing Act 2001 No 52
[7] Section 67GA 1
Insert after section 67G: 2
67GA Information to be provided to Corporation by Registrar 3
The Registrar is to give the Corporation a copy of the following: 4
(a) each notice of intent to cancel registration, 5
(b) each extension granted by the Registrar under 6
section 67F (5), 7
(c) each notice of cancellation of registration given by the 8
Registrar under section 67G (2). 9
[8] Section 67HA 10
Insert before section 67I: 11
67HA Circumstances in which Corporation is considered to have 12
interest in certain land 13
For the purposes of this Part, the Corporation is taken to have an 14
interest in land of a community housing provider in the following 15
circumstances: 16
(a) if the land is vested in, or transferred to, the community 17
housing provider by an order under this Part or in 18
accordance with an instruction given under this Part, 19
(b) if the land is acquired by the community housing provider 20
wholly or partly with funding provided by the Corporation, 21
(c) if the Corporation constructs housing or makes other 22
improvements on the land, 23
(d) if a community housing agreement with the community 24
housing provider identifies the land as being land in which 25
the Corporation has an interest. 26
[9] Section 67J Community housing agreements 27
Insert before section 67J (1): 28
(1A) The Corporation may enter into a community housing agreement 29
with a registered community housing provider: 30
(a) for the purposes of providing assistance under section 67I, 31
or 32
(b) with respect to land that has been vested in or transferred 33
to the community housing provider by order under this 34
Part or in accordance with an instruction given under this 35
Part. 36
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Housing Amendment (Community Housing Providers) Bill 2009
Amendment of Housing Act 2001 No 52 Schedule 1
[10] Sections 67K-67N 1
Insert after section 67J: 2
67K Conditions of community housing agreements relating to land in 3
which Corporation has an interest 4
A community housing agreement may include conditions 5
relating to any land of the community housing provider 6
concerned in which the Corporation has an interest, including 7
conditions that have effect if: 8
(a) the community housing provider fails to use the land for 9
the purposes contemplated by the agreement, or 10
(b) the community housing provider proposes to sell or 11
otherwise dispose of the land, or 12
(c) the registration of the community housing provider is 13
cancelled under this Act. 14
67L No dealings in land in which Corporation has an interest without 15
consent of Corporation 16
(1) A community housing provider must not transfer or otherwise 17
deal with land in which the Corporation has an interest unless: 18
(a) the Corporation consents to the transfer or other dealing, or 19
(b) the transfer or other dealing is authorised, or is of a class 20
that is authorised, by a community housing agreement with 21
that community housing provider (an exempt 22
transaction), or 23
(c) a community housing agreement with the community 24
housing provider provides that this section does not apply 25
to the land concerned. 26
(2) The Corporation must not unreasonably withhold consent under 27
subsection (1) (a). 28
(3) The Registrar-General must, on application by the Corporation, 29
make a recording in the Register kept under the Real Property Act 30
1900 to signify that the land specified in the application is subject 31
to this section. 32
(4) The application is to provide details of any exempt transactions. 33
(5) If a recording under subsection (3) has been made by the 34
Registrar-General, the Registrar-General is not to register under 35
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Housing Amendment (Community Housing Providers) Bill 2009
Schedule 1 Amendment of Housing Act 2001 No 52
the Real Property Act 1900 a transfer of that land or any other 1
dealing that is otherwise registrable under that Act unless: 2
(a) the consent of the Corporation to the transfer or other 3
dealing has been endorsed on the transfer or other dealing, 4
or 5
(b) the transfer or other dealing is an exempt transaction (as 6
notified to the Registrar-General by the Corporation), or 7
(c) the recording has ceased to have effect (as recorded by the 8
Registrar-General under subsection (6)). 9
(6) The Registrar-General must, on the application of the 10
Corporation, make in the Register a recording to signify that a 11
recording made under subsection (3) has ceased to have effect. 12
(7) An application by the Corporation under this section is to be 13
made in an approved form under the Real Property Act 1900 and 14
is to be accompanied by such fee, if any, as may be prescribed by 15
the regulations under that Act. 16
(8) If the Corporation makes an application under this section, the 17
Registrar-General is not to inquire into whether the Corporation 18
has an interest in the land concerned or into the terms of any 19
community housing agreement. 20
(9) This section does not affect the operation of any other prohibition 21
or restriction relating to transfers or other dealings in land. 22
67M Creation of charge in agreement 23
(1) A community housing agreement may provide that land of a 24
community housing provider that is a party to a community 25
housing agreement is to be charged with the payment of money 26
that is or may become payable under the agreement. 27
(2) If the land is land to which the Real Property Act 1900 applies, 28
section 56 of that Act applies in respect of any such charge. 29
67N Agreements binding on community housing providers 30
(1) A community housing agreement is binding on the community 31
housing provider to which it relates. 32
(2) The Corporation may monitor the activities of a community 33
housing provider to determine whether it is complying with the 34
terms and conditions of a community housing agreement. 35
Page 8
Housing Amendment (Community Housing Providers) Bill 2009
Amendment of Housing Act 2001 No 52 Schedule 1
[11] Part 9A, Divisions 4-6 1
Insert before Part 10: 2
Division 4 Vesting of Corporation land in registered 3
community housing providers 4
67O Vesting of Corporation land in registered community housing 5
provider 6
(1) The Governor may, by order published in the Gazette, vest land 7
owned by the Corporation in a registered community housing 8
provider that is a company registered under the Corporations Act 9
2001 of the Commonwealth. 10
(2) Land is authorised to be included in an order under this section 11
even if the land is subject to other interests. 12
(3) The vesting of the land in the registered community housing 13
provider takes effect: 14
(a) on the day specified in the order, or 15
(b) if no day is specified in the order or the day specified in the 16
order occurs before the order is published in the Gazette, 17
on the day on which the order is published in the Gazette. 18
(4) Subject to the other provisions of this section, land may be vested 19
by order under this section despite any requirement of any other 20
Act or law that relates to dealing with or disposing of the land. 21
67P Effect of vesting of land 22
(1) On the vesting date relating to land vested by order under this 23
Division, the land vests in the new owner for an estate in fee 24
simple: 25
(a) without the need for any further conveyance, transfer, 26
assignment or assurance, and 27
(b) subject to any trusts, estates, interests, dedications, 28
conditions, restrictions and covenants to which the land 29
was subject immediately before the vesting date. 30
(2) On the vesting date relating to land vested by order under this 31
Division, the following provisions have effect: 32
(a) the rights or liabilities of the Corporation in relation to the 33
land become by virtue of this section the rights or liabilities 34
of the new owner, 35
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Housing Amendment (Community Housing Providers) Bill 2009
Schedule 1 Amendment of Housing Act 2001 No 52
(b) all proceedings relating to the land commenced before the 1
vesting date by or against the Corporation or a predecessor 2
of the Corporation and pending immediately before the 3
vesting date are taken to be proceedings pending by or 4
against the new owner, 5
(c) any act, matter or thing done or omitted to be done in 6
relation to the land before the vesting date by, to or in 7
respect of the Corporation is (to the extent to which that 8
act, matter or thing has any force or effect) taken to have 9
been done or omitted by, to or in respect of the new owner, 10
(d) the new owner has all the entitlements and obligations of 11
the Corporation in relation to those assets, rights and 12
liabilities that the Corporation would have had but for the 13
order, whether or not those entitlements and obligations 14
were actual or potential at the time the order took effect, 15
(e) a reference in any Act, in any instrument made under any 16
Act or in any document of any kind to the Corporation or 17
a predecessor of the Corporation is (to the extent that it 18
relates to that land or those rights or liabilities but subject 19
to the regulations) to be read as, or as including, a 20
reference to the new owner. 21
(3) Regulations may be made for or with respect to the conversion of 22
references to the Corporation in any document or class of 23
document to references to the new owner as a consequence of any 24
vesting of land under this Division. 25
Division 5 Provisions to protect Corporation's interest 26
in land 27
67Q Director-General may require information from registered 28
community housing provider 29
(1) The Director-General may, by notice in writing, require a 30
registered community housing provider or an officer of a 31
registered community housing provider to do one or more of the 32
following things: 33
(a) provide, in accordance with directions in the notice, such 34
information relating to the assets and liabilities of the 35
community housing provider or any financial matter 36
relating to the community housing provider as is specified 37
in the notice, 38
(b) produce, in accordance with directions in the notice, such 39
records relating to the assets and liabilities of the 40
community housing provider or any financial matter 41
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Housing Amendment (Community Housing Providers) Bill 2009
Amendment of Housing Act 2001 No 52 Schedule 1
relating to the community housing provider as are 1
specified in the notice and permit examination of the 2
records, the taking of extracts from them and the making 3
of copies of them, 4
(c) authorise a person described in the notice to comply with a 5
requirement of the kind referred to in paragraph (a) or (b), 6
(d) furnish to the Director-General such authorisations and 7
consents as the Director-General requires for the purpose 8
of enabling the Director-General to obtain information 9
(including financial and other confidential information) 10
from other persons relating to the assets and liabilities of 11
the community housing provider or any financial matter 12
relating to the community housing provider. 13
(2) A person who complies with a requirement of a notice under 14
subsection (1) does not on that account incur a liability to another 15
person. 16
(3) A person who is the subject of a notice under subsection (1) must 17
comply with a requirement of the Director-General contained in 18
the notice. 19
Maximum penalty: 20 penalty units. 20
(4) A reference in this section: 21
(a) to an asset of a registered community housing provider 22
extends to an asset that was previously owned by the 23
community housing provider but has been disposed of, and 24
(b) to a registered community housing provider includes a 25
reference to a community housing provider whose 26
registration has been cancelled. 27
67R Instructions to community housing provider in relation to land in 28
which Corporation has an interest 29
(1) The Corporation may take action under this section in respect of 30
a community housing provider that holds land in which the 31
Corporation has an interest if: 32
(a) the provider's registration under this Part is cancelled, or 33
(b) the provider has become insolvent, or 34
(c) the land was vested in or transferred to the provider by 35
order under this Part or in accordance with an instruction 36
given under this Part and the provider failed to enter into a 37
community housing agreement with the Corporation with 38
respect to the land before the expiration of the period of 39
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Housing Amendment (Community Housing Providers) Bill 2009
Schedule 1 Amendment of Housing Act 2001 No 52
40 days after that vesting or transfer or the expiration of 1
such other period as may be prescribed by the regulations. 2
(2) The Corporation may give instructions to a community housing 3
provider or an officer of a community housing provider 4
requiring: 5
(a) the transfer of land in which the Corporation has an interest 6
so that it vests in the Corporation or in a specified 7
registered community housing provider, or 8
(b) that a term or condition of a community housing 9
agreement that is binding on the community housing 10
provider be complied with. 11
(3) A community housing provider or officer of a community 12
housing provider to whom an instruction is given under this 13
section must comply with the instruction. 14
(4) Before giving an instruction under this section, the Corporation 15
is to have regard to the following matters: 16
(a) the interests of any tenants of the community housing 17
provider who may be affected, 18
(b) the interests of any creditors of the community housing 19
provider who may be affected. 20
(5) This section applies to land in which the Corporation has an 21
interest only if the interest has been recorded under 22
section 67L (3). 23
67S Displacement of Corporations Act 2001 (Cth) and other relevant 24
legislation 25
(1) Sections 67Q and 67R are declared to be Corporations legislation 26
displacement provisions for the purposes of section 5G of the 27
Corporations Act 2001 of the Commonwealth in relation to the 28
provisions of that Act generally. 29
Note. Section 5G of the Corporations Act 2001 of the Commonwealth 30
enables a State to displace the operation of the provisions of the 31
Corporations legislation of the Commonwealth in favour of provisions of 32
State laws that are declared under State law to be Corporations 33
legislation displacement provisions for the purposes of that section. See, 34
in particular, section 5G (4), (5) and (11) of the Corporations Act 2001 of 35
the Commonwealth in relation to the displacement effected by this 36
section. 37
(2) Sections 67Q and 67R prevail to the extent of any inconsistency 38
with the Associations Incorporation Act 1984, the Associations 39
Incorporation Act 2009 and the Co-operatives Act 1992. 40
Page 12
Housing Amendment (Community Housing Providers) Bill 2009
Amendment of Housing Act 2001 No 52 Schedule 1
Division 6 Miscellaneous 1
67T Provisions relating to operation of Divisions 4 and 5 2
(1) Compensation is not payable to any person or body in connection 3
with the operation of Division 4 or 5. 4
(2) The operation of Division 4 or 5 is not to be regarded: 5
(a) as a breach of contract or confidence or otherwise as a civil 6
wrong, or 7
(b) as a breach of any contractual provision prohibiting, 8
restricting or regulating the assignment or transfer of 9
assets, rights or liabilities, or 10
(c) as giving rise to any remedy by a party to an instrument, or 11
as causing or permitting the termination of any instrument, 12
because of a change in the beneficial or legal ownership of 13
any asset, right or liability. 14
(3) The operation of Division 4 or 5 is not to be regarded as an event 15
of default under any contract or other instrument. 16
(4) No attornment to a person in whom property is vested or to whom 17
property is transferred under Division 4 or 5 by a lessee of the 18
previous owner of the property is required. 19
(5) The operation of Division 4 or 5 includes the making of an order 20
under Division 4, the giving of instructions under Division 5 and 21
the taking of any action in compliance with such instructions. 22
67U No duty payable in relation to vestings or transfers under Act 23
Duty under the Duties Act 1997 is not chargeable for or in respect 24
of: 25
(a) a vesting or transfer of property effected under Division 4 26
or 5, or 27
(b) anything certified by the Minister as having been done in 28
consequence of such a vesting or transfer. 29
67V No compensation payable by Crown 30
(1) Compensation is not payable by or on behalf of the Crown in 31
connection with the operation of this Part. 32
(2) Without limiting subsection (1), compensation is not payable by 33
or on behalf of the Crown arising directly or indirectly from any 34
of the following: 35
(a) the publication in the register kept under section 67C of 36
any notice of intent to cancel registration, 37
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Housing Amendment (Community Housing Providers) Bill 2009
Schedule 1 Amendment of Housing Act 2001 No 52
(b) the appointment of a special adviser under section 67FA, 1
(c) the exercise by any person of any function of a special 2
adviser under section 67FA or a failure by any person to 3
exercise any such function. 4
(3) In this section: 5
compensation includes damages or any other form of monetary 6
compensation. 7
the Crown means the Crown within the meaning of the Crown 8
Proceedings Act 1988, and includes an officer, employee or agent 9
of the Crown. 10
[12] Schedule 3 Savings, transitional and other provisions 11
Insert at the end of clause 1 (1): 12
Housing Amendment (Community Housing Providers) Act 2009 13
Page 14
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