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2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
HELP TO BUY BILL 2023
HELP TO BUY (CONSEQUENTIAL PROVISIONS) BILL 2023
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Housing, Minister for Homelessness and
Minister for Small Business, the Hon Julie Collins MP)
Table of Contents
Glossary................................................................................................. iii
General outline and financial impact ...................................................... 1
Help to Buy - Establishing a shared equity program .... 3
Consequential matters arising from the Act ............... 23
Statement of Compatibility with Human Rights .......... 27
Glossary
This Explanatory Memorandum uses the following abbreviations and acronyms.
Abbreviation Definition
the Act The Act created on Royal Assent of the
Help To Buy Bill 2023
the Bill Help To Buy Bill 2023
Board Housing Australia Board
the Committee United Nations Committee on Economic,
Social and Cultural Rights
Consequential Provisions Bill Help To Buy (Consequential Provisions)
Bill 2023
Housing Australia Act Housing Australia Act 2018
Housing Australia Investment Mandate Housing Australia Investment Mandate
Direction 2018
Help to Buy Help to Buy shared equity program
ICESCR International Covenant on Economic,
Social and Cultural Rights
Program Directions Help to Buy Program Directions
Help To Buy Bill 2023
Help To Buy (Consequential Provisions) Bill 2023
General outline and financial impact
Help to Buy - Establishing a shared equity
program
Outline
The Bill establishes Help to Buy, a shared equity program that will assist low to middle
income earners to purchase new or existing homes by accessing an equity contribution
from the Commonwealth. These shared equity arrangements will be administered and
monitored by Housing Australia (formerly known as the National Housing Finance and
Investment Corporation) in States that have referred power for the program or adopted
the Commonwealth legislation, and in the Territories.
The Bill is supported by the Consequential Provisions Bill, which makes several
amendments to existing Commonwealth legislation to support the operation of Help to
Buy.
Date of effect
The amendments in the Bill commence on the day after the Bill receives Royal Assent.
The amendments in the Consequential Provisions Bill commence at the same time the
Bill commences, but do not commence at all if the Bill does not commence.
Proposal announced
Help to Buy was announced in the 2022-23 October Budget as part of the Safer and
More Affordable Housing measure. The Bill and the Consequential Provisions Bill
give effect to the Government's commitment to establish Help to Buy to assist
Australians on low to middle incomes access home ownership.
Financial impact
The Government's investment under the Help to Buy program to support 40,000
households to purchase or build a home would have no impact on the underlying cash
balance.
Costs incurred by Treasury and Housing Australia would have a negative impact on the
underlying cash balance.
1
General outline and financial impact
Human rights implications
The Bill and the Consequential Provisions Bill promote the protection of human rights
by positively engaging several human rights, including the right to an adequate
standard of living and the right to health. See Statement of Compatibility with Human
Rights -- Chapter 3.
Compliance cost impact
Compliance costs will be considered as part of the Policy Impact Analysis for the
Program Directions.
2
Help to Buy -
Establishing a shared equity program
Table of Contents:
Outline of chapter .................................................................................. 3
Context of amendments ......................................................................... 4
Summary of new law.............................................................................. 4
Detailed explanation of new law ............................................................ 6
Commencement, application, and transitional provisions .................... 21
Outline of chapter
1.1 The Bill gives effect to the Government's decision to establish a
Commonwealth shared equity program to assist individuals on low to middle
incomes to purchase new or existing homes by providing Housing Australia
with functions and powers to enter into and administer shared equity
arrangements (called Help to Buy arrangements) between the Commonwealth
and program participants.
1.2 The Bill empowers the Minister to give Housing Australia directions about
how it is to perform its functions in relation to Help to Buy. These directions
constitute the Program Directions.
1.3 The Bill provides that Help to Buy arrangements are to be financed from the
Consolidated Revenue Fund, and that Housing Australia must pay the
Commonwealth the value of the equity contribution that it receives when a
Help to Buy arrangement concludes.
1.4 The operation of Help to Buy will be supported by a State's referral of power
to the Commonwealth under section 51(xxxvii) of the Constitution. Help to
Buy will also operate in States that have passed legislation adopting the Act
and referred power to the Commonwealth to make amendments to the
Commonwealth legislation. Help to Buy will also operate in the Territories
from commencement of the Bill pursuant to section 122 of the Constitution.
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Help to Buy - Establishing a shared equity program
Context of amendments
1.5 Access to home ownership for Australians earning low to middle incomes has
been decreasing. According to the Grattan Institute's 2022 The Great
Australian Nightmare report, between 1981 and 2021, home ownership rates
for 25-34 year olds in the two lowest quintiles by household income fell from
57 per cent to 28 per cent. Similarly, for 45-54 year olds in the same two
quintiles, home ownership rates have declined from 71 per cent to 53 per cent.
1.6 The key barriers to home ownership are saving for a deposit and servicing a
loan. It has been increasingly difficult for homebuyers to save sufficient funds
for a deposit and, coupled with the increased costs of servicing mortgages, this
has made accessing home ownership increasingly challenging for low and
middle income earners.
1.7 Help to Buy is designed to improve housing outcomes for eligible Australians
by reducing the upfront deposit hurdle and ongoing mortgage repayments
associated with purchasing a home.
1.8 Under the program, Housing Australia will provide eligible participants a
Commonwealth equity contribution of up to 30 per cent of the purchase price
of an existing home and up to 40 per cent for a new home.
1.9 It is the Government's intention that the Bill not be enacted until one or more
States enact related legislation to refer power to the Commonwealth under
section 51(xxxvii) of the Constitution. Introduction of the Bill in advance of
state legislation having been enacted will enable Help to Buy to be available to
eligible home buyers as soon as possible after referrals are finalised. Help to
Buy will only be available in those States which refer constitutional power, as
well as in the territories. The Government will work closely with state
governments to finalise their referrals of power, as agreed in August 2023.
Summary of new law
1.10 The Bill provides the framework for Help to Buy, a Commonwealth shared
equity housing program that is administered by Housing Australia.
1.11 Part 1 of the Bill contains the object of the Commonwealth legislation and the
relevant definitions for the program, including the key concepts of 'Help to
Buy arrangement' and 'shared equity arrangement'.
1.12 Part 2 of the Bill outlines the Help to Buy functions and powers of Housing
Australia. Participation in Help to Buy is open to all States and Territories. The
part outlines the Help to Buy functions and powers of Housing Australia as
well as defining the terms 'participating States' and 'cooperating States' and
'withdrawn States'. The functions and powers of Housing Australia differ
across States depending on the status of the referral or adoption made by the
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Help To Buy (Consequential Provisions) Bill 2023
State. States that make a referral or adopt the Commonwealth legislation will
become participating States. If these States later terminate their referral or
adoption, the Bill provides that they become either a cooperating State or a
withdrawn State based on whether they terminate their referrals or adoptions.
The Territories (Australian Capital Territory, Northern Territory, Jervis Bay
Territory, Norfolk Island, Christmas Island and Cocos (Keeling) Islands) will
participate in the program from commencement of the Bill pursuant to section
122 of the Australian Constitution, which forms the constitutional basis for
Help to Buy in the Territories.
1.13 Part 3 of the Bill outlines the scope of the Minister's power to give directions
to Housing Australia on the operation of Help to Buy in the Program
Directions.
1.14 Part 4 of the Bill provides that Help to Buy arrangements are financed by
Commonwealth payments to Housing Australia from the Consolidated
Revenue Fund. In participating States and the Territories, eligible home buyers
will be able to access the program through a participating lender, that will
provide them with a home loan. Housing Australia will provide the
Commonwealth's equity contribution for the purchase of the home by way of a
shared equity arrangement secured by a second mortgage or other enforceable
right against the property. At the conclusion of these arrangements, Housing
Australia must pay the Commonwealth all amounts that it receives under a
Help to Buy arrangement.
1.15 Part 5 of the Bill provides that referrals of power from States under section
51(xxxvii) of the Constitution are intended to form the constitutional basis for
the participation of States in Help to Buy and that section 122 of the
Constitution forms the constitutional basis for the participation of Territories in
Help to Buy. This provides the most robust possible constitutional support for
Help to Buy. This includes definitions for the key concepts 'participating
State', 'cooperating State', and 'withdrawn State'. It also covers the interaction
of the Bill and other Commonwealth, State and Territory laws, and requires
States, the Australian Capital Territory and the Northern Territory to be
consulted on regulations and other legislative instruments that will be made or
amended under the Act.
1.16 Part 5 of the Bill also contains the administrative framework for Help to Buy,
including that Housing Australia must report to the Minister on an annual
basis, and that the Minister must cause a review of Help to Buy after the end of
three years from the commencement of the Bill, and that regulations for Help
to Buy may enable administrative review of Housing Australia's decisions
under the program. The part further provides a general power to make
regulations that are required or permitted by the Bill or are necessary or
convenient to give effect to the Bill.
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Help to Buy - Establishing a shared equity program
1.17 Part 6 of the Bill sets out application and transitional provisions, including
providing that consultation on legislative instruments under the Bill may occur
wholly or partly before the commencement of the Bill.
Detailed explanation of new law
1.18 The Bill sets out the legislative framework for Help to Buy.
1.19 The object of the Bill is to improve housing outcomes for Australians by
enabling Housing Australia to enter into shared equity arrangements, on behalf
of the Commonwealth, with low and middle income individuals to assist them
to purchase an existing or new residential property.
[Section 3 of the Bill]
1.20 Residential property refers to the meaning of residential property within the
National Credit Code, as defined by the National Consumer Credit Protection
Act 2009, excluding paragraphs (e) and (f) in subsection 204(1), and anything
prescribed by the regulations.
[Section 5 of the Bill]
1.21 Section 4 provides a simplified outline of the Bill and section 29 provides a
simplified outline of Part 5, Division 1. Sections 9, 14 and 19 describe the
overarching purpose of each division within Part 2. These provisions help
guide readers to understand the substantive provisions and are not intended to
be comprehensive.
[Sections 4, 9, 14, 19, and 29 of the Bill]
1.22 Thes Bill binds the Crown but does not make it liable to be prosecuted for any
offence.
[Section 8 of the Bill]
Constitutional basis
1.23 To provide a robust constitutional basis for Housing Australia to administer
Help to Buy in the States, the Bill will be supported by a referral of power by
one or more States pursuant to section 51(xxxvii) of the Constitution. The Bill
is supported by section 122 of the Constitution in its application to the
Territories. The additional constitutional basis of provisions relating to
withdrawn States is set out in section 38 of the Bill.
Primary, residual and amendment matters
1.24 The Bill sets out three types of matters related to the referral of power for Help
to Buy - primary, residual and amendment matters.
1.25 Primary matters are matters to which the referred primary provisions relate,
to the extent of making laws with respect to those matters by including the
referred primary provisions in the relevant version of this Act (see paragraph
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Help To Buy (Consequential Provisions) Bill 2023
1.30 below) and do not deal with the functions and powers of Housing
Australia in relation to cooperating States or withdrawn States. The referred
primary provisions of the Bill are the provisions of the relevant version of the
Bill, to the extent that they deal with matters that are included in the legislative
powers of the Parliaments of the States.
[Sections 30 and 32 of the Bill]
1.26 Residual matters are within the State's legislative powers and do not deal with
the functions and powers of Housing Australia in relation to participating
States and Territories or withdrawn States. The referred residual provisions of
the Bill make laws about the residual matters. Accordingly, referred residual
provisions and residual matters will only relate to cooperating States.
[Sections 30 and 33 of the Bill]
1.27 Amendment matters are certain matters over which express amendments to the
Act (once passed) can be made. The amendment matters do not include the
making of laws that would give Housing Australia the power to enter into Help
to Buy arrangements in cooperating or withdrawn States, or substantively
remove or override any provisions that enforce State consultation prior to
amendment, or substantively remove or override any provisions that ensure
State and Territory laws take precedence where there is inconsistency with the
Bill. This scope ensures that the amendment matters only cover topics which
are necessary for the future development of the Help to Buy program, but do
not allow the removal of safeguards in place for referring or adopting States.
1.28 Express amendments to the Bill (when passed) can make changes in relation
to amendment matters. This can occur through direct amendments to the text of
the Act such as through repeal, substitution, or omissions.
[Sections 30 and 34 of the Bill]
1.29 Help to Buy arrangements are subject to future express amendments of the
legislation, in relation to amendment matters referred by participating and
cooperating States.
1.30 The Bill provides that the relevant version of this Act (when passed) in
relation to a State is, if a State's referral law (which is the law that refers
amendment matters to the Commonwealth), is enacted before the Bill, the
relevant version of the Act is the Bill as originally enacted. If a State's referral
law is passed after the Bill has been enacted, it is the Bill as originally enacted
and amended, until the first provision of the State's referral law commences.
[Section 30 and subsection 31(1) of the Bill]
1.31 The primary version of this Act refers to the relevant version of this Act (when
passed) except for any provisions relating to cooperating and withdrawn States.
Similarly, the residual version of this Act refers to the relevant version of this
Act (when passed) except for any provisions relating participating States and
Territories or withdrawn States.
[Section 30 and subsections 31(2) and (3) of the Bill]
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Help to Buy - Establishing a shared equity program
Participating, cooperating and withdrawn States
1.32 It is intended that all States engaging with Help to Buy, which have referred
power to the Commonwealth Parliament, are clearly categorised. The Bill
prescribes when a State is a participating State, cooperating State, or a
withdrawn State.
1.33 A participating State is one which has either referred primary, residual and
amendment matters to the Commonwealth Parliament for the purposes of
paragraph 51(xxxvii) of the Constitution, or has adopted the primary and
residual versions of the Act (upon commencement) and referred the
amendment matters. A state is still a participating State even where a reference
or adoption will terminate in certain circumstances. Becoming a participating
State enables full participation of eligible home buyers in that State based on
the enacted legislation in addition to any future changes.
[Sections 5 and 35 of the Bill]
1.34 A State is no longer a participating State where that State has terminated its
referral of either primary, residual or amendment matters to the
Commonwealth Parliament, or terminates its adoption of the primary or
residual versions of this Act or terminates its reference of the amendment
matters. If this occurs, a participating State will become a cooperating State or
a withdrawn State.
[Subsection 35(4) of the Bill]
1.35 A cooperating State is a State that was a participating State and has terminated
its reference of the primary matters but has not terminated its reference of the
residual and amendment matters. Further, a cooperating State is also classed as
such if it was a participating State and terminated its adoption of the primary
version of the Act but has not terminated its adoption of the residual version of
the Act and relevant amendments (if any) and has not terminated its reference
of the amendment matters. If any of these remaining referrals or adoptions are
terminated, a State is no longer classed as a cooperating State.
[Sections 5 and 36 of the Bill]
1.36 A participating State may choose to become a cooperating State if it does not
wish for new participants in that State to be able to purchase a residential
property with the assistance of Help to Buy but wants to ensure that existing
participants from that State can continue to be supported by the Help to Buy
program, which refers to the Act, regulations, Program Directions and any
other legislative instruments made under the Act.
[Section 5 of the Bill]
1.37 If a State has stopped being a participating State and is also not a cooperating
State, because it has either stopped being one or because it never became a
cooperating State, it is classed as a withdrawn State. A withdrawn State ceases
to apply the Help to Buy legislation. No new participants from that State can
join the program and existing participants are only able to continue in the
program to the extent an existing contractual arrangement is in place at the
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Help To Buy (Consequential Provisions) Bill 2023
time the State becomes a withdrawn State. Program changes that are made by
the Commonwealth once the State becomes a withdrawn State do not apply to
program participants from that State.
[Sections 5 and 37 of the Bill]
1.38 A withdrawn State is a State which has terminated its adoption of the residual
version of the Act or at least one of its references of the residual matters or
amendment matters. As a result, the constitutional basis of any provisions in
the Bill or the Housing Australia Act that relate to withdrawn States are
supported by the Commonwealth's legislative powers (other than the power
under paragraph 51(xxxvii) of the Constitution) with respect to the
Commonwealth's executive power or matters incidental to the execution of
Parliament's legislative powers.
[Section 38 of the Bill]
1.39 Help to Buy will operate in the Territories pursuant to section 122 of the
Constitution from the date of commencement of the Bill. This will apply to the
Northern Territory, the Australian Capital Territory, Jervis Bay Territory,
Norfolk Island, Christmas Island and Cocos (Keeling) Islands.
Interaction with other Commonwealth Laws
1.40 The Housing Australia Act established the body, Housing Australia, which
administers several housing programs, in addition to Help to Buy. This
provision establishes that the Act does not impose any limitations on the
Housing Australia Act. In practice, all necessary functions of Housing
Australia in relation to Help to Buy are contained in this Act to ensure a clear
separation between this Act and the Housing Australia Act.
[Section 39 of the Bill]
1.41 The Lands Acquisition Act 1989 does not apply in relation to anything done
under the Act, for the purpose of administering Help to Buy. This ensures that
Housing Australia and any interests it acquires under Help to Buy are
exempted from the procedures necessary under the Lands Acquisition Act
1989.
[Section 40 of the Bill]
Concurrent operation of State and Territory Laws
1.42 The Bill is not intended to exclude or limit the operation of a law of a State or
Territory that is capable of operating concurrently with the Bill. However, in
all circumstances where the Act and a State or Territory law can operate
concurrently, they are intended to do so.
1.43 In particular, there are currently several State or Territory home buyer
schemes in existence. These are the schemes, programs or arrangements
established, by a State or Territory, that help individuals to purchase residential
property through monetary or non-monetary assistance. The Bill is not
intended to exclude or limit the operation of these State or Territory home
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Help to Buy - Establishing a shared equity program
buyer schemes to the extent that the State or Territory home buyer scheme
law, which relates to the State or Territory home buyer scheme, can operate
concurrently with the Bill.
[Sections 5 and 41 of the Bill]
1.44 In practice, Help to Buy will not limit or interfere with the operation of State
and Territory home buyer schemes, as these can run concurrently. It is intended
that the eligibility criteria addressed in the Program Directions will clarify that
a person is not eligible to participate in Help to Buy if they are receiving
housing assistance from a State or Territory in the form of a loan, or housing
assistance under a governmental or private shared equity scheme or housing
assistance through Housing Australia's Home Guarantee Scheme.
[Sections 25 and 41 of the Bill]
1.45 However, where there is a direct inconsistency between a provision in the Help
to Buy program and a State or Territory law that deals primarily with
residential property or taxation, and concurrent operation is not possible, the
inconsistent provision in the Act will not operate. A direct inconsistency will
arise if a provision in the Help to Buy program would alter, impair or detract
from the operation of the State and Territory law that deals primarily with
residential property or taxation. To support the continued operation of Help to
Buy, where a provision of the Help to Buy program is inconsistent with a
provision of a relevant State or Territory law, the Minister may, by legislative
instrument, modify the operation of the Help to Buy program.
1.46 Where there is a direct inconsistency and the relevant State or Territory law
prevails, this displacement of all or part of the application of the Help to Buy
program does not have any impact on Housing Australia's entitlement under a
Help to Buy arrangement to a return on a contribution made under the Help to
Buy arrangement, nor does it have any impact on any security taken by
Housing Australia to secure the entitlement (such as by means of a mortgage or
other right relating to a residential property). In other words, Housing Australia
is entitled to a return on an equity contribution made under a Help to Buy
arrangement, and this entitlement will remain recoverable and any security
taken will remain preserved despite the inconsistency.
1.47 While the provision enables delegated legislation to alter or override the
operation of the primary law, the scope for any delegated legislation created
pursuant to the provision is strictly confined to matters that address the
inconsistency. The key intent of this broad displacement provision is to provide
the Minister with the ability to enable Help to Buy to operate concurrently with
State and Territory laws predominately dealing with residential property or
taxation, which is an important objective both for the Commonwealth and the
States and Territories.
1.48 The Minister's legislative power has been appropriately confined as any
instrument made under this provision will be subject to State review and the
Minister cannot:
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Help To Buy (Consequential Provisions) Bill 2023
• create an offence or civil penalty;
• provide powers of arrest or detention, or entry, search or seizure;
• impose a tax;
• set an amount to be appropriated from the Consolidated Revenue Fund
under an appropriation in the Act; or
• directly amend the text of the Act.
1.49 Further, any legislative instrument made by the Minister is disallowable by
Parliament, which ensures that there is appropriate Parliamentary scrutiny and
oversight of any exercise of legislative power under this provision by the
Minister.
[Section 42 of the Bill]
Help to Buy functions and powers of Housing Australia
Participating States and the Territories
1.50 The Bill sets out the functions of Housing Australia when administering Help
to Buy in participating States and the Territories. On behalf of the
Commonwealth, Housing Australia can enter into a shared equity arrangement
with an eligible purchaser of residential property located in a participating
State or a Territory and determine the terms and conditions of that
arrangement.
1.51 A shared equity arrangement for the purposes of the Bill is related to
residential property and involves a contract with one or more individuals and
Housing Australia who, on behalf of the Commonwealth:
• contributes a portion of the purchase price for a residential property;
• is entitled to a return on this contribution based on the value of the
relevant property; and
• has security over the relevant property through a mortgage or right.
[Section 5 and subsections 7(1) of the Bill]
1.52 Where Housing Australia enters into a shared equity arrangement on behalf of
the Commonwealth, the arrangement is known as a Help to Buy arrangement,
which is distinct from any arrangements relating to residential property that are
entered into under the Housing Australia Act. Housing Australia is responsible
for administering and monitoring compliance with Help to Buy arrangements.
This includes terminating arrangements or determining consequences of
non-compliance. To ensure Housing Australia has appropriate scope to
administer Help to Buy arrangements, Housing Australia can do anything
incidental or conducive to the performance of its functions relating to
participating States as outlined in the Bill or regulations. For clarity, terms and
11
Help to Buy - Establishing a shared equity program
conditions determined by Housing Australia when entering into Help to Buy
arrangements include terms and conditions that relate to the provision of
information to Housing Australia, the termination of such arrangements or any
consequences that may result from non-compliance with the arrangements.
[Section 5, 6 and subsections 10(1) and (2) of the Bill]
1.53 The Bill requires that Housing Australia must act in a proper, efficient, and
effective manner in performing its Help to Buy functions in participating States
and the Territories and take all reasonable steps to comply with the Program
Directions. This will ensure that Housing Australia carries out its functions
appropriately and ensures the object of the Bill is achieved.
[Subsection 10(3) of the Bill]
1.54 Housing Australia also has the power to do all things necessary or convenient
to be done for or in connection with the performance of its Help to Buy
functions. Housing Australia will have the power to enter any arrangement or
contract with the Commonwealth, State or Territory, an authority of the
Commonwealth, State or Territory or any other body. An authority of the
Commonwealth includes Commonwealth companies and entities within the
Public Governance, Performance and Accountability Act 2013.
[Sections 5 and 11 of the Bill]
1.55 For the avoidance of doubt, the Bill does not limit Housing Australia's powers
under the Housing Australia Act.
1.56 To ensure that Housing Australia has sufficient flexibility to adapt to changed
circumstances, the Bill provides that Housing Australia may vary a shared
equity arrangement. An example of a permissible variation would be changing
the parties to the Help to Buy arrangement in circumstances where there has
been a change in the original party's relationship status.
[Subsections 7(3) to (6) of the Bill]
1.57 Entering into a shared equity arrangement is a separate concept to varying a
shared equity arrangement in the Bill. In circumstances where the variation
changes the residential property in which the shared equity arrangement is
entered into, the Bill will apply to the variation as if it were entering into a
shared equity arrangement. Accordingly, entering into Help to Buy
arrangements is only permitted in participating States and the Territories.
[Section 5 and subsections 7(3) to (6) of the Bill]
1.58 Housing Australia cannot enter a Help to Buy arrangement in a participating
State or a Territory unless the Program Directions are in force.
[Section 12 of the Bill]
Cooperating States
1.59 The Bill also sets out the functions of Housing Australia for administering the
Help to Buy program in a cooperating State. While Housing Australia will not
be able to enter shared equity arrangements with participants located in
cooperating States, it will continue to administer and monitor compliance with
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Help To Buy (Consequential Provisions) Bill 2023
Help to Buy arrangements which were entered into while the State was still a
participating State, and do anything incidental to these functions for
cooperating States.
1.60 Similar to participating States, Housing Australia has an obligation to act
properly, efficiently and effectively and has the power to do anything
necessary or convenient in connection with the performance of its functions for
cooperating States. Further, Housing Australia may enter into arrangements
and contracts, either on behalf of the Commonwealth or in its own right with
any person or entity in order to perform its function in cooperating States.
Notably, this excludes entering new Help to Buy arrangements in cooperating
States, as the powers only permit actions to be undertaken for Help to Buy
arrangements which have been entered into prior to the State becoming a
cooperating State.
[Sections 15, 16 and 17 of the Bill]
1.61 As part of administering the Help to Buy arrangements, Housing Australia has
the power to vary a shared equity arrangement. Variations can include changes
to the parties to the arrangement. As discussed above at paragraphs 1.56 and
1.57, a varied Help to Buy arrangement does not enable a different property to
be covered under the arrangement with an existing participant of the Help to
Buy program, which is considered entering into a new arrangement.
[Subsections 7(4) and (5) of the Bill]
Withdrawn States
1.62 The Bill also sets out the functions of Housing Australia for administering the
Help to Buy program in a withdrawn State. Housing Australia will not be able
to enter or vary shared equity arrangements with participants located in
withdrawn States. However, Housing Australia will continue to administer the
Help to Buy arrangements of existing program participants. Consistent with
participating and cooperating States, the Bill requires that Housing Australia
must act in a proper, efficient, and effective manner in performing its Help to
Buy functions in withdrawn States.
[Subsections 20(1) and (2) of the Bill]
1.63 When administering a Help to Buy arrangement in a withdrawn State, Housing
Australia has the power to do anything that the Help to Buy arrangement
permits or requires Housing Australia or the Commonwealth to do, and
anything necessary or convenient in connection with the performance of its
functions for withdrawn States.
[Section 21 of the Bill]
1.64 As noted at paragraph 1.56, Housing Australia also cannot enter into shared
equity arrangements in withdrawn States, which includes varying the relevant
residential property for existing Help to Buy arrangements. In addition to this
limitation, Housing Australia is also not permitted to make any further
contributions under Help to Buy arrangements in withdrawn States. This
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Help to Buy - Establishing a shared equity program
stipulation clarifies that when a State has withdrawn their referrals or ongoing
adoptions, Housing Australia is also unable to make any new or further
financial contributions to new or existing participants of the program from that
State.
[Section 22 of the Bill]
Help to Buy Program Directions
1.65 The Minister may give the Housing Australia Board, as defined in section 5 of
the Housing Australia Act, directions about the performance of Housing
Australia's Help to Buy functions for participating and cooperating States by
legislative instrument. The directions together constitute the Program
Directions. The Program Directions are the key vehicle for the Government to
set out its expectations for Housing Australia's implementation and
administration of Help to Buy and, as such, the Minister must give at least one
such direction.
[Sections 5 and 24 of the Bill]
1.66 In giving a direction under the Program Directions, the Minister must consider
the objects of the Bill and any other matters the Minister considers relevant.
[Subsection 24(3) of the Bill]
1.67 In performing its Help to Buy functions, Housing Australia must take all
reasonable steps to comply with the Program Directions. This ensures that
Housing Australia focuses on achieving the activities and outcomes for which
it is responsible.
[Paragraph 10(3)(b), section 13, paragraph 15(2)(b), section 18 and section
23 of the Bill]
1.68 The Program Directions will be a legislative instrument that is not subject to
disallowance under the Legislation Act 2003 as it forms part of a class of
legislative instruments to which disallowance does not apply. Specifically, the
Program Directions will be made for the purposes of paragraph 44(2)(b) of the
Legislation Act 2003. Item 2 of section 9 of the Legislation (Exemptions and
Other Matters) Regulation 2015 provides for class exemptions from
disallowance if the instrument is a direction by the Minister to any person or
body. In this case, the directions will be directions by the Minister to Housing
Australia.
1.69 The Government considers it appropriate that the Program Directions will not
be subject to disallowance. The exemption recognises that executive control is
intended in this instance where a ministerial direction is made to Housing
Australia. Section 46 of the Bill requires that amendments to the Program
Directions must be consulted on and must not be objected to by the
participating State(s) and cooperating State(s) and the Australian Capital
Territory and Northern Territory. This also provides for scrutiny of any
amendments to the Program Directions as any amendment requires
consultation with participating and cooperating States and the Australian
14
Help To Buy Bill 2023
Help To Buy (Consequential Provisions) Bill 2023
Capital Territory and the Northern Territory, and their unanimous agreement to
the amendment (or amendments).
1.70 Exemption from disallowance will provide the necessary certainty to Help to
Buy participants and partners (such as lending institutions) about the operation
of the program as they will be contractually committing to engagement with
the program on a long term basis and therefore any uncertain about the making
of the Program Directions or amendments to it would undermine this objective.
Again, this certainty is integral given that amending the Program Directions
already requires the approval of all participating States and cooperating States
and the Australian Capital Territory and the Northern Territory.
1.71 Further, exemption from disallowance is consistent with the frameworks for
investment mandates and program directions for Commonwealth entities,
including the Housing Australia Investment Mandate, which covers the
Affordable Housing Bond Aggregator, the National Housing Infrastructure
Facility, and the Home Guarantee Scheme programs.
1.72 Further, the Program Directions, once enacted, cannot be amended to include a
direction that is inconsistent with the Bill or the Housing Australia Act,
including the objects of both.
1.73 Due to the long-term scope of operation of the Program Directions and the
significant effect it has on participants, the current approach to amending the
Program Directions to ensure that it remains fit for purpose is to review and
update discrete sections of the Program Directions from time-to-time, as
required, to enable the effective administration of Help to Buy.
1.74 The Program Directions will be exempt from the sunsetting regime set out in
Part 4 of Chapter 3 of the Legislation Act 2003 as a result of regulations made
for the purposes of paragraph 54(2)(b) of the Act. Item 3 of the table under
section 11 of the Legislation (Exemptions and Other Matters) Regulation
2015 provides for class exemptions from sunsetting if an instrument is a
direction by the Minister to any person or body. The Program Directions will
be a direction from the Minister to Housing Australia, and therefore will be
exempt from sunsetting. Sunsetting is not appropriate for the Program
Directions which underpin long term contractual arrangements and once
enacted are intended to remain in place until revoked by the Minister.
1.75 The Government considers that it is appropriate that the Program Directions
are not subject to sunsetting. The process for setting the Program Directions
has been designed to ensure that it remains relevant over the long-term, subject
to appropriate revisions to consider changing circumstances. Exempting the
Program Directions from sunsetting ensures that the directions remain in force
on a long term basis, regardless of when they were issued. It is in the interest of
Help to Buy participants to have a consistent and stable legislative basis for
Housing Australia to rely upon to effectively implement and administer Help
to Buy given the potential length of Help to Buy arrangements.
15
Help to Buy - Establishing a shared equity program
Matters covered by the Help to Buy Program Directions
1.76 The Program Directions may include directions from the Minister about the
following:
• strategies and policies that Housing Australia must adhere to for the
effective performance of its functions under the Bill;
• decision-making criteria used in the performance of
Housing Australia's Help to Buy functions including entering into
Help to Buy arrangements;
• limits on entering Help to Buy arrangements;
• internal review of decisions made by Housing Australia in performing
its Help to Buy functions;
• Housing Australia's internal handling of complaints related to the
performance of its Help to Buy functions;
• reporting on matters related to the performance of Housing Australia's
Help to Buy functions;
• matters relating to Help to Buy arrangements such as the period of time
within which Housing Australia may enter into Help to Buy
arrangements, the number and kinds of residential properties in relation
to which Housing Australia may enter into Help to Buy arrangements,
and the amount that Housing Australia may contribute under the
arrangements; and
• other matters concerning the Help to Buy program that the Minister
considers are important.
[Section 25 of the Bill]
1.77 Similar to all other Housing Australia programs where the operational matters
are contained in the Housing Australia Investment Mandate, the operational
matters for Help to Buy are intended to be included in the Program Directions.
The inclusion of these details in the Program Directions provides flexibility to
allow Housing Australia's operations to respond to the needs of the program,
whilst still ensuring there is sufficient scrutiny and consultation prior to
making amendments.
1.78 Additionally, as discussed above at paragraph 1.69, this approach ensures
executive control over this process. Additionally, all participating States,
cooperating States, the Australian Capital Territory and Northern Territory
must be notified before the making or amending of the Program Directions,
regulations and any other legislative instruments under the Bill. These States
and Territories will have the opportunity to object prior to the Program
Directions being made and, as such, will have oversight on any details included
in the Program Directions or amendments to these in the future.
16
Help To Buy Bill 2023
Help To Buy (Consequential Provisions) Bill 2023
Limits on the Help to Buy Program Directions
1.79 The Bill provides several limitations on the direction making power to ensure
the independence of Housing Australia. The Bill requires that a direction
cannot be inconsistent with the Bill or the Housing Australia Act, including the
objects of these Acts, to avoid any part of the directions being held invalid due
to a conflict with these Acts.
[Subsection 26(1) of the Bill]
1.80 A Ministerial direction cannot require that specific individuals or lenders
participate in Help to Buy. This is consistent with the similar limitation that
applies to directions under the Housing Australia Investment Mandate and
ensures that Housing Australia acts independently to assess qualifying
individuals and engage appropriate lenders for Help to Buy.
1.81 Accordingly, the Minister must not give a direction concerning the Program
Directions that, directly or indirectly, has the purpose or effect of requiring
Housing Australia:
• to enter into a particular Help to Buy arrangement;
• to enter a Help to Buy arrangement in relation to a certain residential
property or with a specific person;
• to enter into a Help to Buy arrangements with a particular individual or
individuals; or
• to take, or not take, particular action relating to a Help to Buy
arrangement.
[Subsection 26(2) of the Bill]
Finance
1.82 Help to Buy will be financed through appropriations directly from the
Commonwealth to Housing Australia. This funding will be used to assist
eligible participants of the Help to Buy program purchase a new home by
providing up to 40 per cent of the property's purchase price or an existing
dwelling by providing up to 30 per cent of the purchase price. The
Commonwealth's equity contribution will be recognised as a second mortgage
or other right secured against the property.
1.83 The Bill provides that the Commonwealth must pay Housing Australia
necessary amounts to enable Housing Australia to make the equity
contributions on behalf of the Commonwealth under the Help to Buy
arrangements. This is the only purpose for which Housing Australia may use
these funds.
[Subsections 27(1) to (3) of the Bill]
1.84 The Commonwealth will provide the funds through appropriations from the
Consolidated Revenue Fund. This will provide certainty to Housing Australia
17
Help to Buy - Establishing a shared equity program
and Help to Buy participants that funds will be available in a timely manner.
[Subsection 27(4) of the Bill]
Payment of returns to Commonwealth
1.85 When an individual repays part or all of a Help to Buy arrangement, Housing
Australia is required to pay the Commonwealth all amounts it receives in
relation to the Commonwealth's initial equity contribution and any other
expenditure under Help to Buy arrangements, as soon as reasonably
practicable. Separate to the capital loss or gain on the Commonwealth's equity
contribution, other expenditure that is captured includes any other fees
received by Housing Australia such as enforcement costs paid due to
non-compliance.
[Paragraph 28(a) of the Bill]
1.86 Housing Australia is also required to pay to the Commonwealth any interest it
earns while performing its functions, as soon as reasonably practicable.
[Paragraph 28(b) of the Bill]
Review by Administrative Appeals Tribunal
1.87 A regulation making power is provided to enable prescribed decisions of
Housing Australia under the Bill to be reviewed by the Administrative Appeals
Tribunal. This provides a mechanism to ensure that there is an independent
review process of certain administrative decisions to be made by
Housing Australia. The Commonwealth Ombudsman is also able to consider
complaints about Help to Buy, thereby ensuring there are appropriate
mechanisms for scrutiny of the administration of the program.
[Section 43 of the Bill]
1.88 This avenue for review is only available for program participants in
participating States and cooperating States and the Territories. Decisions made
by Housing Australia in withdrawn States will be automatic or mandatory and,
as such, are unsuitable for merits review. Program participants in a withdrawn
State will still be able to seek review through an internal complaints
mechanism that will be provided by Housing Australia, or externally through
the Commonwealth Ombudsman.
Annual Reporting
1.89 The Board will be required to prepare an annual report to provide to the
Minister in accordance with section 46 of the Public Governance, Performance
and Accountability Act 2013. The content of the annual report must include
any changes to the Program Directions during the reporting period and the
impacts of the change on the operation of Housing Australia. The Minister will
have the power to direct the content to be included in the report, through the
Program Directions. This is to enable the Minister to receive a complete
18
Help To Buy Bill 2023
Help To Buy (Consequential Provisions) Bill 2023
understanding of the administration and implementation of Help to Buy by
Housing Australia.
[Subsection 44 of the Bill]
Review of operation of Help to Buy program
1.90 The Bill requires the Minister to ensure that a review of the operation of
Help to Buy must commence as soon as possible after three years from the
commencement of the Bill.
[Subsection 45(1) of the Bill]
1.91 Following the review, a written report must be provided to the Minister.
However, the report must not include commercially sensitive information or
personal information (within the meaning of the Privacy Act 1988) as the
report is intended to be made public.
[Subsection 45(2) of the Bill]
1.92 The Minister must arrange for the report of the review to be tabled in each
House of the Parliament within 15 sitting days of each House after the report is
given to the Minister. This ensures appropriate public and Parliamentary
transparency concerning the findings of the review and Help to Buy's
operations.
[Subsection 45(3) of the Bill]
Approval of States and Territories required for regulations and other
legislative instruments
1.93 The Bill provides that the Governor-General or Minister must be satisfied of
the following before regulations or other legislative instruments (such as the
Program Directions or other amending instruments) can be made under the
Act:
• participating States, cooperating States, the Australian Capital
Territory and the Northern Territory must each have received written
notification of the proposal to make the regulations or the legislative
instrument;
• the relevant consultation period has ended; and
• none of those States and Territories provided written objection to the
making of the regulations or legislative instrument.
[Subsections 46(1) and (2) of the Bill]
1.94 There are two types of consultation periods that may apply - the minimum
consultation period or the extended consultation period.
1.95 The minimum consultation period begins when the State or Territory first
receives written notification of the proposal and ends on the 20th business day
after receipt. Business day is a day that is not a Saturday, Sunday, or a public
19
Help to Buy - Establishing a shared equity program
holiday in the Australian Capital Territory.
[Section 5 and subsection 46(3) of the Bill]
1.96 The extended consultation period provides additional time where amendments
are made to other regulations or legislative instruments, and the participating or
cooperating State, the Australian Capital Territory or the Northern Territory
gave written notice to the Minister within 10 business days of receiving
notification from the Commonwealth of potential amendments that they
require a further 15 business days to consider. Where applicable, the extended
consultation period begins when the State or Territory first receives written
notification of the proposal and ends on the 35th business day after receipt.
[Section 5 and subsections 46(4) and (5) of the Bill]
1.97 These provisions ensure that all participating and cooperating States, the
Australian Capital Territory and the Northern Territory, are notified of any
changes to subordinate legislation enabled under this Act, which includes the
Program Directions, and provides them sufficient time to consider the changes
and object, if necessary. This also ensures that a consultation process for
subordinate legislation will be similar to the process necessary for this Act, as a
result of the referral.
1.98 Where an objection is not provided in written format, or any laws of the State
or Territory in relation to objections were not followed, the Minister will
disregard the objection.
[Subsection 46(6) of the Bill]
1.99 Section 17 of the Legislation Act 2003, which requires the rule-makers of
legislative instruments to be satisfied that appropriate and practical
consultation is undertaken before instruments are made, still applies regardless
of section 46. These additional consultation requirements are included to
ensure sufficient scrutiny of any legislative instruments by interested
stakeholders included participating States, cooperating States, the Australian
Capital Territory and the Northern Territory and to ensure full transparency of
the operation of Help to Buy.
[Subsection 46(7) of the Bill]
1.100 Notice in relation to regulations or a legislative instrument being made or
amended can occur before commencement of this Act.
[Section 48 of the Bill]
Regulations
1.101 The Bill provides a general power to make regulations that are required or
permitted by the Bill or are necessary or convenient to give effect to the Bill.
[Subsection 47(1) of the Bill]
1.102 The Bill clarifies that despite subsection 14(2) of the Legislation Act 2003,
which prohibits certain legislative instruments from incorporating other
instruments, any regulations made under the Bill may apply, adopt or
20
Help To Buy Bill 2023
Help To Buy (Consequential Provisions) Bill 2023
incorporate any matter contained in the Program Directions as in force or
existing from time to time. This ensures that any regulations that are made can
operate consistently with the Program Directions despite being a disallowable
legislative instrument. This is appropriate as any regulations made will support
the operation of a direction by the Minister to Housing Australia for the
administration of Help to Buy.
[Subsection 47(2) of the Bill]
Commencement, application, and transitional
provisions
1.103 The amendments in the Bill commence on the day after Royal Assent to enable
Housing Australia to establish the Help to Buy program and prepare to receive
applications. However, the timing of the entry into Help to Buy arrangements
Housing Australia can only occur in a participating State or a Territory once
the Program Directions are in force.
[Sections 2 and 12 of the Bill]
1.104 The Bill sets application provisions in relation to section 46, which requires
participating States, cooperating States, the Australian Capital Territory and
Northern Territory to be consulted prior to making legislative instruments
under the Bill. This consultation can occur wholly or partly before the
commencement of the Bill to ensure that consultation can be completed to
allow the timely making of legislative instruments such as the
Program Directions, which support the operation of the Bill.
[Section 48 of the Bill]
21
Consequential matters
arising from the Act
Table of Contents:
Outline of chapter ................................................................................ 23
Context of amendments ....................................................................... 23
Summary of new law............................................................................ 23
Detailed explanation of new law .......................................................... 24
Commencement provisions ................................................................. 26
Outline of chapter
2.1 Schedule 1 to the Consequential Provisions Bill deals with consequential
matters arising from the enactment of the Bill to enable Housing Australia to
effectively operate Help to Buy in addition to its existing functions and powers
relating to housing.
Context of amendments
2.2 The Consequential Provisions Bill is necessary to support the establishment of
Help to Buy. Consequential amendments are required as Help to Buy is
established by separate legislation to the Housing Australia Act.
Summary of new law
2.3 The Consequential Provisions Bill provides for the interaction between
Housing Australia's existing functions and powers in the Housing Australia
Act and its new functions and powers provided for in the Bill to ensure that
Help to Buy can be appropriately administered by Housing Australia.
2.4 The Consequential Provisions Bill makes a number of consequential
amendments to the Housing Australia Act relating to Housing Australia's
general structure and administration that have incidental or ancillary impact on
23
Consequential matters arising from the Act
Housing Australia's performance of its Help to Buy functions. The
amendments to the Housing Australia Act clarify how the existing Board,
staffing and other administrative arrangements in that Act interact with the new
function provided to Housing Australia to administer Help to Buy under the
Bill.
Detailed explanation of new law
Amendments to the Housing Australia Act 2018
2.5 Schedule 1 to the Consequential Provisions Bill deals with consequential
matters arising from the enactment of the Bill to enable Housing Australia to
effectively operate Help to Buy in addition to its existing functions and
powers. The schedule makes a number of consequential amendments to the
Housing Australia Act relating to Housing Australia's general structure and
administration that have incidental or ancillary impact on Housing Australia's
performance of its Help to Buy functions.
2.6 The note added to a simplified outline in the Housing Australia Act clarifies
that Housing Australia has functions under the Act (Help to Buy functions) in
addition to Housing Australia's functions under the Housing Australia Act.
Some provisions in the Housing Australia Act will also apply in relation to the
Help to Buy functions to ensure the effective operation of Help to Buy.
[Item 1, section 4 of the Housing Australia Act]
2.7 New definitions are inserted into the definitions section of the
Housing Australia Act to support Help to Buy and improve the clarity of the
provisions throughout the Housing Australia Act. These definitions are:
• Help to Buy functions - the amendment provides that the term means
Housing Australia's functions under the Act, to the extent these
functions are not also conferred on Housing Australia by the Housing
Australia Act or any other Commonwealth law; and
• Help to Buy Program Directions - the amendment provides that the
term has the same meaning as in the Act.
[Item 2, section 5 of the Housing Australia Act]
2.8 In addition to Housing Australia's existing financing, guarantee and capacity
building functions, the amendments insert that Housing Australia has Help to
Buy functions and any other functions conferred on Housing Australia by the
Housing Australia Act or any other Commonwealth law (other than the Act
and Help to Buy functions). The Help to Buy functions provide Housing
Australia with sufficient scope for it to undertake its activities to effectively
operate Help to Buy. However, where Housing Australia can do anything
incidental to their existing functions, its Help to Buy functions do not have this
24
Help To Buy Bill 2023
Help To Buy (Consequential Provisions) Bill 2023
option as they are limited to the functions conferred in the Act, Housing
Australia Act or any other Commonwealth law.
[Items 3 to 5, section 8 of the Housing Australia Act]
2.9 In performing the Help to Buy functions, Housing Australia must have regard
to subsections 10(3), 15(2) and 20(2) of the Act but not subsection 8(3) of the
Housing Australia Act. These provisions in the Act require that
Housing Australia must act in a proper, efficient and effective manner when
undertaking its functions in participating, cooperating and withdrawn States.
Similarly, section 9 of the Housing Australia Act can be disregarded as
Housing Australia's powers in relation to the Help to Buy functions are set out
in sections 11, 16 and 21 of the Act. This distinction makes clear the functions
and powers of Housing Australia that relate to Help to Buy and are set out in
the Act, and those that relate to other functions are set out in the
Housing Australia Act.
[Items 6 and 7, subsections 8(4) and 9(3) of the Housing Australia Act]
2.10 The Minister can only give the Board directions about the Help to Buy
functions under the Help to Buy Program Direction, as detailed in Part 3 of the
Act. Accordingly, the Minister cannot give the Board directions on these
functions under subsection 12(1) of the Housing Australia Act (directions
which comprise the Housing Australia Investment Mandate). This distinction
makes clear that the Program Directions are the vehicle for the Government to
set out its expectations for Help to Buy and direct Housing Australia on the
performance of the Help to Buy functions. Comparatively, the Housing
Australia Investment Mandate is the vehicle for the Government to set out its
expectations for functions other than Help to Buy functions and direct Housing
Australia on the performance of Housing Australia's functions other than the
Help to Buy functions. Minor editorial amendments are also made to account
for added Notes and subsections.
[Items 8 to 11, sections 12 and 14 of the Housing Australia Act]
2.11 Further to these amendments, the Board's function of deciding strategies and
policies that Housing Australia must adhere to must be within the scope of the
Housing Australia Investment Mandate and the Program Directions. Similarly,
the CEO is to act in accordance with the Board's written directions, which
must not be inconsistent with any direction given to the Board under the
Housing Australia Investment Mandate or the Program Directions.
[Items 12 and 13, sections 16 and 36 of the Housing Australia Act]
2.12 An editorial update has been made to the Housing Australia Special Account to
repeal paragraphs that are redundant as they refer to prior year credits, and to
provide that amounts credited to the Special Account are repayments of money
debited or other money lent by the Commonwealth to Housing Australia,
which are made in accordance with the Housing Australia Investment
Mandate. Amendments inserted to this section note that the payments made by
Housing Australia to the Commonwealth are not credited to the Special
Account. This includes any amounts that must be repaid as a result of Help to
25
Consequential matters arising from the Act
Buy arrangements and any interest received by Housing Australia as a result of
undertaking Help to Buy functions.
[Item 14, section 47B of the Housing Australia Act]
2.13 The Board must ensure, according to sound commercial principles, that the
capital and reserves of Housing Australia at any time are sufficient to meet the
likely liabilities of Housing Australia and to make adequate provision for
default in the repayment of principal, or in the payment of interest or other
charges, in connection with loans made by Housing Australia. To ensure the
effective operation of Help to Buy, this requirement does not extend to
liabilities or defaults under Help to Buy arrangements (within the meaning of
the Act) which are subject to specific funding arrangements with the
Commonwealth.
[Item 15, subsection 48(4) of the Housing Australia Act]
2.14 Housing Australia's dividends for a financial year must not exceeds its profits
for the same year. To recognise the separation in functions between Help to
Buy and Housing Australia's existing housing functions, any profit or loss in
relation to Help to Buy should be disregarded when determining the profit for
the purposes of this provision.
[Item 16, subsection 49(4A) of the Housing Australia Act]
2.15 Housing Australia can borrow or raise money under section 50 or Division 1 of
the Housing Australia Act. Additionally, Housing Australia can borrow or raise
money under Part 4 of the Act, which details the financial arrangements for
Help to Buy. For clarity, Housing Australia must not borrow or raise money
other than under these provisions.
[Item 17, subsection 50(5) of the Housing Australia Act]
2.16 Housing Australia is also empowered to delegate all or any of its functions
under the Housing Australia Act or the Act, in writing under seal, to a Board
member or to the CEO. This promotes the efficient operation of the
Housing Australia Act and the Act and ensures timely administration of
Housing Australia including its Help to Buy functions and functions other than
Help to Buy.
[Item 18, subsection 53(1) of the Housing Australia Act]
Commencement provisions
2.17 The amendments in the Consequential Provisions Bill commence at the same
time the Bill commences, but do not commence at all if the Bill does not
commence.
26
Statement of
Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Table of Contents:
Help To Buy Bill 2023 .......................................................................... 27
Overview ....................................................................................... 27
Human rights implications ............................................................. 28
Conclusion .................................................................................... 29
Help To Buy (Consequential Provisions) Bill 2023 ............................... 29
Overview ....................................................................................... 29
Human rights implications ............................................................. 30
Conclusion .................................................................................... 30
Help To Buy Bill 2023
Overview
3.1 The Bill is compatible with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011.
3.2 The object of the Bill is to establish Help to Buy to improve housing outcomes
for Australians by assisting low income and middle income individuals to buy
homes through an equity contribution from the Commonwealth provided by
Housing Australia. This is part of the Government's Safer and More
Affordable Housing plan in the October 2022-23 Budget. The Bill gives effect
to the Government's commitment to establish Help to Buy.
3.3 Help to Buy will reduce the upfront deposit hurdle and ongoing mortgage
repayments associated with purchasing a home. Under the program,
Housing Australia will provide eligible participants a Commonwealth equity
27
Statement of Compatibility with Human Rights
contribution of up to 30 per cent of the purchase price of an existing home and
up to 40 per cent for a new home.
3.4 Up to 10,000 places per year are available in Help to Buy, meaning that up to
40,000 households will benefit from the program.
Human rights implications
3.5 The Bill is compatible with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011.
3.6 The Bill engages the following rights:
• Article 11(1) of the ICESCR - the right to an adequate standard of
living; and
• Article 12(1) of the ICESCR - the right to health.
Right to an adequate standard of living, including food, water and housing
3.7 The Bill engages the right to an adequate standard of living, including food,
water and housing under Article 11 of the ICESCR.
3.8 The right to an adequate standard of living provides that Australia must take
appropriate steps towards the realisation of this right in its jurisdiction, and that
the relevant standard must be continuously improving.
3.9 The Bill seeks to improve housing outcomes for Australians. The Help to Buy
program will assist low to middle income earners to purchase a home.
3.10 The Committee has stated that the 'right to adequate housing, which is thus
derived from the right to an adequate standard of living, is of central
importance for the enjoyment of all economic, social and cultural rights'.1 The
Committee has highlighted the importance of housing affordability as part of
this right:
'Personal or household financial costs associated with housing should
be at such a level that the attainment and satisfaction of other basic
needs are not threatened or compromised ... States parties should
establish housing subsidies for those unable to obtain affordable
housing, as well as forms and levels of housing finance which
adequately reflect housing needs.'2
3.11 The Bill facilitates access to housing by lowering the upfront deposit hurdle
and ongoing mortgage repayments. This will reduce housing costs for
participants, thus allowing Australians to meet an adequate standard of housing
1
UN Committee on Economic, Social and Cultural Rights, General comment No. 4: The right
to adequate housing (art. 11(1) of the Covenant), paragraph 1
2
As above, paragraph 8(c)
28
Help To Buy Bill 2023
Help To Buy (Consequential Provisions) Bill 2023
and supporting the attainment and satisfaction of their other needs. The Bill
therefore promotes the right to an adequate standard of living, including food,
water and housing.
Right to health
3.12 The Bill engages the right to health under Article 12 of the ICESCR.
3.13 Article 12 of the ICESCR protects the right of all individuals to enjoy the
highest attainable standards of physical and mental health. The Committee has
stated that the right to health embraces a wide range of socio-economic factors
that promote conditions in which people can lead a healthy life, which includes
housing.
3.14 The Bill improves the right to health by promoting home ownership. By
providing equity contributions to eligible participants this will reduce the
deposit required by these participants, and lower their ongoing mortgage
repayments, thus enabling low to middle income earners who enter the
program to access housing. By improving access to home ownership and safe
shelter, the Bill provides the conditions for people to live a healthy life through
alleviating the physical and mental stress associated with the housing and
rental affordability crisis. The Bill therefore improves the right to health.
Conclusion
3.15 The Bill is compatible with human rights as it supports the right to an adequate
standard of living, and the right to health.
3.16 The Bill does not raise any other human rights issues.
Help To Buy (Consequential Provisions) Bill
2023
Overview
3.17 The Consequential Provisions Bill contains amendments that are machinery in
nature and do not directly advance or limit a human right or freedom.
3.18 The object of the Consequential Provisions Bill is to make a number of
consequential amendments to the Housing Australia Act.
3.19 The amendments to the Housing Australia Act clarify how the existing Board,
staffing and other administrative arrangements in that Act interact with the new
function provided to Housing Australia to administer Help to Buy under the
Bill.
29
Statement of Compatibility with Human Rights
Human rights implications
3.20 This Consequential Provisions Bill does not engage any of the applicable rights
or freedoms.
3.21 This Consequential Provisions Bill contains consequential amendments that
are administrative or machinery in nature. None of these amendments directly
advance or limit a relevant human right or freedom.
Conclusion
3.22 This Consequential Provisions Bill is compatible with human rights as it does
not raise any human rights issues.
30