Section 17 of the National Law allows a Registrar to take enforcement action when they reasonably believe a provider is not meeting the community housing legislation of a participating jurisdiction.
Registrars use enforcement powers to protect tenants and community housing assets when a provider does not comply with the National Law, including the National Regulatory Code.
The preferred approach is to help providers identify and fix non-compliance early. This means providers should regularly self-assess their performance, and Registrars should raise potential issues as soon as they are identified. Early action supports a strong culture of compliance and helps reduce the need for formal enforcement action.
When there is non-compliance, Registrars can use a range of enforcement powers under the National Law. These powers are applied using the principles of good regulation:
When a provider is not meeting one or more regulatory requirements, a Registrar will usually take a staged approach to help the provider return to compliance. This means the Registrar will start with the least intrusive response that is appropriate to the level of risk. The aim is to resolve issues early, openly and cooperatively wherever possible.
If the matter is not serious or urgent, the Registrar will generally work with the provider first. This may include using regulatory measures, such as discussing the issue, requesting information, agreeing on actions, or monitoring progress.
If the provider cannot, or does not, address the non-compliance adequately, the Registrar may take stronger action. This may also occur where the non-compliance is significant or creates a higher level of risk. In these cases, the Registrar may use enforcement powers to require the provider to return to compliance or, in serious cases, to cancel the provider’s registration.
The preferred approach is progressive escalation. This means the Registrar increases the response only when needed, based on the provider’s actions, the seriousness of the issue and the level of risk. However, the Registrar does not have to follow each step in order. The Registrar may use any enforcement response available under the National Law if the circumstances justify it.
For example, if the risk is serious or urgent, the Registrar may move directly to a notice of intent to cancel the provider’s registration.
Figure 1 shows how the staged approach to non-compliance may escalate from cooperative regulatory measures to stronger enforcement action.
Section 15(2) of the National Law sets out conditions of registration for community housing providers. These conditions allow a Registrar to request information, arrange meetings or inspect relevant records when needed to assess whether a provider is complying with the National Law. Providers may be asked to:
A Registrar will not ask for information that identifies a person living in residential premises unless there is a lawful reason to do so. A Registrar will also not enter residential premises occupied by a person unless that person gives consent.
Any information collected by a Registrar must be handled in line with relevant information and privacy laws. This helps protect personal and sensitive information.
A Registrar’s request must relate to assessing whether the provider is complying with the National Law. The Registrar should explain why the information, inspection or meeting is needed. This explanation may be included in the request or refer to published reasons.
The National Law gives Registrars broad enforcement powers. This allows a Registrar to choose an enforcement response that is proportionate, targeted and based on the seriousness and impact of a provider’s non-compliance.
The triggers and scope of enforcement action described below are examples only. They show how the principles of good regulation may be applied in practice. They do not cover every situation, because the need for enforcement action will depend on the facts, risks and circumstances of each case.
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.
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