Registrars have enforcement powers to ensure tenants and community housing property is protected in the event that a provider does not comply with the National Law (including the National Regulatory Code).
Registrars participating in the National Regulatory System for Community Housing (NRSCH) may take enforcement action if the Registrar believes a registered provider is not complying with the community housing legislation of a participating jurisdiction (section 17 of the National Law).
The purpose of this policy is to explain possible action where the provider has not demonstrated compliance with the National Law or the Regulatory Code following a compliance assessment or investigation.
This policy has been agreed and adopted by all jurisdictions participating in the National Regulatory System for Community Housing (NRSCH).
Enforcement action is designed to achieve one of a number of outcomes. The outcome should be clear in pursuing action. Some of these outcomes maybe to:
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:
Performance and assessment data is used to inform a risk-based assessment of all registered providers to determine compliance with the National Law and the National Regulatory Code. This determines the nature of regulatory engagement and, where necessary, action.
The preferred approach to non-compliance is for a Registrar to choose the most appropriate enforcement tool from within an escalating tool set. In some cases this may mean a sequence of escalating responses depending on the outcome sought and the level of egregious behaviour. Whilst a staged and escalated approach is the preferred response, a Registrar may move to any level of enforcement response permitted by the National Law, if circumstances warrant it. For instance, the appointment of a statutory manager can occur before the Notice of intent to cancel registration has been issued (Section 21.2 of the National Law).
If the matter is not serious or urgent, the Registrar will endeavour to work cooperatively to encourage the provider to remedy non-compliance before a Registrar takes enforcement action. The enforcement action and escalating approach is depicted in Figure1.
This is a review that seeks to ensure ongoing compliance with the National Regulatory Code and constitutes the minimum level of oversight that will be applied. The Registrar may also seek input from other relevant parties, such as the housing agency for the relevant jurisdiction or other Registrars in the case of a multi-jurisdictional provider. The Registrar uses the information in the compliance return and in the supporting documents to prepare a compliance assessment report. This report sets out the outcome of the assessment on tier and compliance, findings on performance and the reasons for the determination.
The compliance determination report will state whether the provider is compliant or non-compliant overall with the National Regulatory Code.
An investigation may be initiated in response to new information received from the provider or other individuals or agencies that indicate that the provider may no longer be compliant. An investigation can be a useful enforcement action in its own right; however is often a necessary foundation process to taking more significant enforcement action.
Before taking enforcement action, the Registrar will consider:
There are degrees of non-compliance and a view about its seriousness will determine the enforcement action. The following factor may influence the decision in relation to the appropriate enforcement action to be taken:
A registered provider can request an internal review if it disagrees with a decision made by the Registrar. Decisions that will be reviewed are those that, according to the Community Housing Providers National Law, can be appealed to an external appeal tribunal. A request for an internal review must be made to the Primary Registrar within the ‘relevant appeal period’ following receipt of the original decision.
Visit the Internal reviews and appeals page for more information.
21 Jul 2022
We acknowledge Aboriginal people as the First Nations Peoples of NSW and pay our respects to Elders past, present and future. We acknowledge the ongoing connection Aboriginal people have to this land and recognise Aboriginal people as the original custodians of this land.