The National Law gives Registrars the power to take enforcement action if the Registrar reasonably believes a provider is not complying with the community housing legislation of a participating jurisdiction (section 17 of the National Law).
Registrars have enforcement powers to ensure that tenants and community housing property are protected in the event that a provider does not comply with the National Law (including the National Regulatory Code).
The enforcement approach is based on a spirit of encouraging providers to remedy non-compliance, before a Registrar takes enforcement action. Providers self-assessing and Registrars identifying potential non-compliance early is encouraged to promote a culture of compliance as industry best practice.
Where there are issues of non-compliance, the National Law gives Registrars a range of enforcement powers based on the following principles of good regulation:
Registrars encourage compliance by providing guidance on the performance and legal requirements that providers must meet under the National Law and the National Regulatory Code.
When a risk or series of risks result in non-compliance, a Registrar will use a staged and escalated approach to bringing the provider back to compliance, where the Registrar considers this approach to be appropriate. This recognises that early, open and cooperative enforcement can bring about the quickest and most effective return to compliance in the majority of cases, and is least intrusive into the affairs of independent providers.
If the matter is not serious or urgent, a Registrar will endeavour to work cooperatively with the provider to address issues of non-compliance in the first instance; that is, through regulatory measures.
Where a provider is unable or unwilling to sufficiently address issues of non-compliance, or where the non-compliance is significant, a Registrar may use enforcement powers to bring the provider back to compliance or cancel its registration.
The preferred approach is for a Registrar to progressively escalate the Registrar’s responses until a provider returns to compliance. While this is the preferred response, a Registrar may move to any level of enforcement response permitted by the National Law, if the circumstances warrant it.
For example, there may be situations where it is appropriate for the Registrar to move straight to a notice of intent to cancel the provider’s registration.
The escalating approach to non-compliance is depicted in Figure 1.
Under a provider’s conditions of registration set out in section 15 (2) of the National Law, a Registrar may require the provider to do any or all of the following:
A Registrar will not require information that identifies anyone who lives in residential premises, or require entry to residential premises occupied by a person, unless that person consents.
A Registrar will ensure all information is collected and handled in accordance with applicable information and privacy laws.
A Registrar will ensure that requests to a provider to supply information, or to inspect records or premises, relate to its assessment of whether the provider is complying with the National Law. In making such requests, a Registrar will document or refer to published reasons as to why the Registrar needs the information to make an assessment of compliance.
The enforcement powers in the National Law are framed broadly to allow Registrars to undertake proportionate and targeted action based on their judgement of the consequences of a provider’s non-compliance with the National Law.
The triggers and scope of enforcement action described in the following section are intended to be illustrative of how the principles of good regulation are applied but are not exhaustive because it is not possible to identify all possible situations where enforcement action may be justified.
The situations in which a Registrar could consider issuing a notice of non-compliance include, but are not limited to, situations where the provider has failed to comply with the community housing legislation and either:
When issuing a notice of non-compliance, a Registrar must:
Where the provider is willing and able to remedy the non-compliance, the Registrar may issue subsequent notices of non-compliance providing an extended period to address the matters of non-compliance. The situations in which a Registrar could consider issuing subsequent notices of noncompliance include, but are not limited to, situations where remedial action by the provider is well underway but not complete, or where remedial action by the provider relies on the action of a third party that is underway but not complete.
A Registrar may give written instructions to a provider about the way the provider should address any matter that is the subject of a notice of non-compliance issued to the provider.
The situations in which a Registrar could consider giving Binding Instructions include, but are not limited to, situations where either:
Binding Instruction require action to rectify a matter identified in a notice of non-compliance either previously given to the provider, or given to the provider at the same time as the Binding Instructions. For example, Binding Instructions may:
Consistent with the principles of good regulation, a Registrar will try to avoid unnecessary prescriptions and impositions on how providers organise their business, provided that this does not limit the Registrar’s ability to require action that will significantly improve the ability of the provider to rectify non-compliance.
A Registrar may issue a Notice of Intent to Cancel Registration where :
When issuing a Notice of Intent to Cancel Registration, a Registrar must:
A Registrar may extend a notice of intent to cancel, at the request of the provider, if there are good reasons for doing so. This may include situations where remedial action by the provider is well underway but not complete, and the provider has demonstrated the willingness and capacity to pursue the remedial action.
The situations in which a Registrar can appoint a statutory manager are where:
In appointing a statutory manager, a Registrar is attempting to protect tenants and/or community housing assets in circumstances where the provider lacks the willingness or capacity to bring itself back to compliance or to manage its affairs in an orderly way before its registration is cancelled. Examples of where a provider will be considered to lack this willingness or capacity are where:
Consistent with the principles of good regulation, and the National Law, appointing a statutory manager should avoid any unnecessary prescriptions and impositions on the affairs and activities of the provider that do not relate to the community housing activities and assets of the provider in undertaking functions necessary to protect tenants and community housing assets.
The Registrar will usually specify an initial period of appointment for the statutory manager. The Registrar can amend the period of appointment for the statutory manager. While there is discretion in the period of appointment, it is expected that in ordinary circumstances a statutory manager would be appointed for between three and six months, and in complex circumstances for no more than 12 months.
A statutory manager’s expenses while conducting the affairs and activities of a registered community housing provider are payable by the provider.
A Registrar may issue a Notice of Cancellation of Registration where:
If the notice of cancellation of registration follows a notice of intent to cancel registration, a Registrar will list the reasons for cancellation and the date of effect of cancellation.
A Registrar will only cancel the registration of a provider once all tenancies and each community housing asset of the entity in each participating jurisdiction has been transferred or otherwise dealt with in accordance with the community housing legislation of a participating jurisdiction that applies to the tenancies and asset.
Registrars generally take enforcement action if non-compliance is significant and requires more than regulatory engagement to ensure change is made and compliance is achieved.
Before taking enforcement action, the Registrar will consider, and balance, the interests of:
Consistent with the principles of good regulation, a Registrar will not take enforcement action that is likely to leave the provider less able to comply with the National Law or less able to remedy the compliance issues identified by the Registrar.
A matter will be serious and requires urgent action where the provider’s failure to comply creates a risk that is likely or certain to crystallise and is significant or severe in its consequences for community housing tenants or assets.
A serious and urgent matter requires the Registrar to take enforcement action to ensure that tenants and community housing assets are appropriately protected.
A matter that is serious and requires urgent action includes, but is not limited to:
A Registrar may also consider other matters are serious and urgent based on a risk assessment that considers the consequences of failing to take enforcement action.
The seriousness and urgency of non-compliance is considered according to a risk matrix to determine the appropriate enforcement action, as illustrated in Figure 2.
A Registrar must record the following enforcement action on the National Register of Community Housing Providers
Registrars may record the issue of a Notice of non-compliance on the National Register under Section 12 (2)(j) of the Community Housing Providers National Law.
09 Aug 2022
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