Senate

Revised Explanatory Memorandum

(Circulated by authority of the Minister for Housing, Minister for Homelessness and Minister for Small Business, the Hon Julie Collins MP and the Minister for Finance, Senator the Hon Katy Gallagher)

Chapter 7: Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Housing Australia Future Fund Bill 2023

Overview

7.1 The HAFF Bill would establish the HAFF as a Commonwealth investment fund designed to support the delivery of social and affordable housing.

7.2 Disbursements from the HAFF would also be used to fund acute housing needs, including for:

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Indigenous communities;

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women and children impacted by domestic violence and older women at risk of homelessness; and

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veterans experiencing homelessness or at risk of homelessness.

Human rights implications

7.3 The HAFF Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in subsection 3(1) of the Human Rights (Parliamentary Scrutiny) Act 2011.

7.4 The HAFF Bill engages the following rights:

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Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) - the right to social security;

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Article 11(1) of the ICESCR - the right to an adequate standard of living;

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Article 12 of the ICESCR - the right to the highest attainable standard of physical and mental health;

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Article 2 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) - the elimination of all forms of discrimination against women;

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Article 14(2)(h) of the CEDAW - the right of rural women to enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications;

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Article 19 of the Convention on the Rights of the Child (CRC) - the obligation to take all appropriate legislative, administrative, social and educational measures to protect children from all forms of physical or mental violence;

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Article 27 of the CRC - the obligation to take appropriate measures to assist parents and others responsible for the child to ...in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing; and

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Article 21 of the United Nations Declaration on the Rights of Indigenous Peoples - the right of Indigenous peoples to the improvement of their economic and social conditions, including in the area of housing.

Right to an adequate standard of living, including food, water and housing

7.5 Article 11(1) of the ICESCR recognises the right to an adequate standard of living, including food, clothing and housing. States have an obligation to ensure the availability and accessibility of the resources necessary for the progressive realisation of this right.

7.6 The HAFF Bill seeks to promote this right by providing a funding source of up to $500 million per year to support affordable and social housing and to meet a range of acute housing needs including, but not limited to, housing improvements in Indigenous communities and housing services for women, children and veterans. In the HAFF's first five years, the Australia Government intends to use disbursements to build:

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20,000 homes to provide social housing- 4,000 of which would be allocated to women and children leaving or experiencing domestic and family violence and older women on low incomes who are at risk of homelessness; and

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10,000 affordable homes for frontline workers like police, nurses and cleaners who kept us safe during the pandemic.

7.7 Over the same time period, the HAFF would also provide:

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$200 million for the repair, maintenance and improvements of housing in remote Indigenous communities (noting that grants from the HAFF could also be made for housing needs in relation to non-remote Indigenous communities);

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$100 million for crisis and transitional housing options for women and children leaving or experiencing domestic and family violence and older women on low incomes who are at risk of homelessness; and

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$30 million to build housing and fund specialist services for veterans experiencing homelessness or at risk of homelessness.

7.8 The United Nations Committee on Economic, Social and Cultural Rights (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]

7.9 The HAFF Bill would promote the right to adequate housing by establishing an additional source of funding for social housing and affordable homes, with the aim to build 30,000 social and affordable homes in its first five years of operation.

7.10 The HAFF Bill would further support this right by providing a funding source for the repair, maintenance and improvement of housing in Indigenous communities, which would improve the habitability of these dwellings, another key aspect of this right identified by the Committee. ^[3] This would also enhance the right of rural women to enjoy adequate living conditions in relation to housing, as enshrined in the CEDAW. It would also promote the right of Indigenous peoples to the improvement of their economic and social conditions, including in the area of housing, contained in Article 21 of the United Nations Declaration on the Rights of Indigenous Peoples.

7.11 The Committee has indicated that States parties must 'give due priority to those social groups living in unfavourable conditions by giving them particular consideration.' ^[4] The HAFF Bill would ensure that due priority is given to groups of people in need of housing (including groups experiencing or at particular risk of homelessness) in Australia, by providing funding to address, in particular, the housing needs of those living in Indigenous communities, women and children leaving or experiencing domestic and family violence, older women at risk of homelessness, and veterans experiencing or at risk of homelessness.

Right to social security

7.12 Article 9 of the ICESCR recognises the right to social security, which requires a social security system be established in a country. It requires States parties to, within their maximum available resources, ensure access to a social security scheme that provides a minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential health care, basic shelter and housing, water and sanitation, foodstuffs, and the most basic forms of education.

7.13 The HAFF Bill promotes this right by providing funding to support social housing and affordable housing. It also seeks to prioritise groups of people in need of housing and who may otherwise face difficulties in accessing social security, including, but not limited to, those living in remote Indigenous communities, women and children leaving or experiencing domestic and family violence and older women at risk of homelessness.

Protection of women and children from violence

7.14 The Committee on the Elimination of Discrimination against Women has clarified that discrimination against women includes gender-based violence (that is, violence that is directed against a woman because she is a woman or that affects women disproportionately). ^[5] The HAFF Bill would promote the right to protection from violence for women and children, contained in the CEDAW and the CRC respectively, by providing funding to build social housing, and transitional and crisis housing for women and children leaving or experiencing domestic and family violence.

7.15 In particular, in the first five years of operation the HAFF would aim to build 4,000 social housing properties that would be allocated to women and children leaving or experiencing domestic and family violence, as well as older women at risk of homelessness, who may also be at higher risk of experiencing violence. The Government intends to use the HAFF to provide $100 million for crisis and transitional housing options for those same groups of people in need of housing (including groups experiencing or at particular risk of homelessness) in its first five years.

Right to health

7.16 Article 12 of the ICESCR recognises the right of everyone to the enjoyment of the highest attainable standard 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, and extends to the underlying determinants of health, including housing. ^[6] As discussed above, the HAFF Bill would work to promote access to housing to a range of groups of people in need of housing (including groups experiencing or at particular risk of homelessness) in Australia by providing an additional funding source for social housing, affordable housing and to address a range of acute housing needs.

Conclusion

7.17 The HAFF Bill is compatible with human rights because it promotes:

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Article 9 of the ICESCR - the right to social security,

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Article 11(1) of the ICESCR - the right to an adequate standard of living,

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Article 12 of the ICESCR - the right to the highest attainable standard of physical and mental health,

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Article 2 of the CEDAW - the elimination of all forms of discrimination against women,

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Article 14(2)(h) of the CEDAW - the right of rural women to enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications,

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Article 19 of the CRC - the obligation to take all appropriate legislative, administrative, social and educational measures to protect children from all forms of physical or mental violence,

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Article 27 of the CRC - the obligation to take appropriate measures to assist parents and others responsible for the child to ...in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing, and

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Article 21 of the United Nations Declaration on the Rights of Indigenous Peoples - the right of Indigenous peoples to the improvement of their economic and social conditions, including in the area of housing.

National Housing Supply and Affordability Council Bill 2023

Overview

7.18 The Housing Council 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.

7.19 The Housing Council Bill establishes the Council as an independent statutory advisory body to inform the Commonwealth's approach to housing policy by delivering independent advice, reports and research to the Government on options to improve housing supply and affordability across the housing spectrum.

Human rights implications

7.20 Of the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, the Housing Council Bill engages and promotes, or may engage and promote, the following rights:

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Article 9 of the ICESCR - the right to social security;

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Article 11(1) of the ICESCR - the right to an adequate standard of living, including housing;

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Article 12 of the ICESCR - the right to the highest attainable standard of physical and mental health.

7.21 Article 9 of the ICESCR recognises the right to social security, requiring a social security system to be established in a country by State parties. This requirement also extends to State parties using their maximum available resources to ensure access to a social security scheme that provides a minimum essential level of benefits to all individuals and families that enables them to acquire essential health care, basic shelter and housing, water and sanitation, foodstuffs and basic education.

7.22 The work of the Council is intended to assist the government with the provision of social services, by monitoring and reporting on conditions impacting home ownership, housing supply and affordability, rental affordability and homelessness. This way, it supports and promotes the right to social services by ensuring the government is aware of housing conditions and can provide targeted social services on a needs basis.

7.23 Article 11(1) of the ICESCR states that everyone has the right to an 'adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions' and that 'appropriate steps' be taken to 'ensure the realization of this right'.

7.24 The work of the Council will assist the Government to deliver more housing options for more Australians through the provision of strategic advice, research and insight into housing supply and affordability. In this way, the work of the Council makes a positive contribution to human rights, especially with regard to the right to an adequate standard of living.

7.25 Article 12 of the ICESCR states that everyone has the right to the highest attainable standard of physical and mental health, recognising a range of socio-economic factors that promote conditions for people to lead a healthy life, including housing. The work of the Council will assist with the provision of housing, indirectly promoting the right to the highest attainable standard of physical and mental health.

Conclusion

7.26 The Housing Council Bill is compatible with human rights as it promotes the protection of human rights through positively engaging the right to an adequate standard of living and the right to social services.

Treasury Laws Amendment (Housing Measures No. 1) Bill 2023

Overview

7.27 The Amendment 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.

7.28 The Amendment Bill contains a number of Schedules each aimed at improving the affordability and accessibility of housing for Australians.

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Schedule 1 to the Amendment Bill amends the NHFIC Act by replacing references to the NHFIC in the NHFIC Act with 'Housing Australia' to reflect the NHFIC's transition to Housing Australia.

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Schedule 2 to the Amendment Bill amends the Housing Australia Act to simplify the functions and constitutional basis of the Act, improving the readability and operation of these provisions. This Schedule also introduces an annual review mechanism to allow the Government to closely monitor the activities of the National Housing Investment Facility (NHIF) and assess the effectiveness of these activities in furthering the Government's objectives of increasing and accelerating the supply of new social and affordable housing.

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Schedule 3 to the Amendment Bill amends the Housing Australia Act to implement the Government response to Recommendation 6 of the NHFIC Review, extending the Commonwealth guarantee of the liabilities of Housing Australia to apply to contracts entered into until 30 June 2028 and providing that the Commonwealth guarantee cannot be revoked earlier than 1 July 2028.

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Schedule 4 to the Amendment Bill deals with consequential matters arising from the enactment of the HAFF Act. This includes the following amendments:

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amendments to the Future Fund Act to give the Future Fund Board functions in relation to the HAFF;

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amendments to the ATSILSFF Act, the DCAF Act, the DRF Act, the FDF Act, the Future Fund Act and the MRFF Act to allow amounts to be transferred between the HAFF and the Future Fund to allow for proper apportioning of common expenses incurred by the Future Fund Board in managing the ATSILSFF, the DCAF, the DRF, the FDF, the Future Fund, the HAFF and the MRFF; and

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amendments to the COAG Reform Fund Act and the Housing Australia Act to allow the COAG Reform Fund and the Housing Australia Special Account to channel funds from the HAFF Special Account.

Human rights implications

7.29 Schedule 1 of the Amendment Bill contains amendments that are machinery in nature and do not directly advance or limit a human right or freedom.

7.30 Of the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, Schedule 2 and Schedule 3 of the Amendment Bill engage the right to an adequate standard of living, including housing, as referred to in Article 11.1 of the International Covenant on Economic, Social and Cultural Rights.

7.31 Article 11.1 of the International Covenant on Economic, Social and Cultural Rights states that everyone has the right to an 'adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions' and that 'appropriate steps' be taken to 'ensure the realization of this right'.

7.32 Schedule 2 of the Amendment Bill intends to improve the operation of the Housing Australia Act, while also introducing an annual review mechanism to allow the Government to closely monitor the activities of the National Housing Investment Facility (the NHIF) and assess the effectiveness of these activities to further the Government's objectives of increasing and accelerating the supply of new social and affordable housing in addition to financing critical housing-enabling infrastructure. As such, this Schedule positively engages the right to an adequate standard of living by introducing a review mechanism to ensure the NHIF is meeting the Government's objectives in increasing and accelerating the supply of new and social affordable housing.

7.33 Schedule 3 of the Amendment Bill amends the Housing Australia Act to implement the Government response to Recommendation 6 of the NHFIC Review announced on 16 December 2021. This Schedule extends the Commonwealth guarantee of the liabilities of Housing Australia to apply to contracts entered into until 30 June 2028 and provides that the Commonwealth guarantee cannot be revoked earlier than 1 July 2028, in order to improve housing outcomes for Australians. This Schedule recognises the importance of the Bond Aggregator and Housing Australia (formerly the NHFIC)'s role in continuing to offer community housing providers low-cost and longer tenor finance.

7.34 The Bond Aggregator improves the efficiency of financing for CHPs, enabling them to improve housing outcomes for their clients. CHPs are non-government, generally not-for-profit, organisations, which provide subsidised housing for people on a very low, low or moderate income or for people with additional needs.

7.35 The extension of the Commonwealth guarantee recognises the importance of the Bond Aggregator and Housing Australia's role in continuing to offer CHPs low-cost and longer tenor finance. The extended guarantee also supports investor appetite to invest in affordable housing bonds issued by Housing Australia as part of its administration of the Bond Aggregator. As such, this Schedule positively engages the right to an adequate standard of living by strengthening Australia's ability to improve housing outcomes, furthering developing the market for social and affordable housing and offering community housing providers low-cost finance.

7.36 Schedule 4 of the Amendment 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.

7.37 To the extent these amendments facilitate the establishment of the HAFF, these amendments may indirectly engage the human rights or freedoms engaged by the HAFF Bill. The HAFF Bill is compatible with Human Rights as it provides an additional funding source to support social housing, affordable housing and acute housing needs. It also seeks to prioritise groups of people in need of housing and who may otherwise face difficulties in accessing social security, for example those experiencing or at particular risk of homelessness. These objectives promote the right to an adequate standard of living and the right to social security as outlined in the Statement of Compatibility with Human Rights for the HAFF Bill.

Conclusion

7.38 The Amendment Bill is compatible with human rights as it promotes the protection of human rights through positively engaging the right to an adequate standard of living.