Housing (Housing Agencies) Act 2004

Victorian Legislation and Parliamentary Documents i Housing (Housing Agencies) Act 2004 Act No. 106/2004 TABLE OF PROVISIONS Section Page 1. Purpose 1 2. Commencement 2 3. Definitions 2 4. Objects 5 5. New Parts VIII and IX inserted 5 PART VIII—THE REGISTRAR AND RENTAL HOUSING AGENCIES 5 Division 1—Introductory 5 73. Object of Part 5 Division 2—The Registrar of Housing Agencies 6 74. The Registrar of Housing Agencies 6 75. Term and conditions of appointment 6 76. Termination of appointment 7 77. Acting Registrar of Housing Agencies 7 78. Creation of Registrar as body corporate 8 79. Functions of Registrar 9 80. Registrar to be subject to direction and control of Minister 9 Division 3—Registration of Rental Housing Agencies 10 81. Application for registration 10 82. Approval for other functions 11 83. Further information 12 84. Registration 12 85. Category of registration 12 86. Refusal of registration 13 87. Change of category of registration 13 88. Application for review 13 Division 4—Register of Housing Agencies 14 89. Establishment of Register 14 90. What information is to be included in the Register? 14 91. Changes to information recorded in the Register 14 92. Searches of the Register 14 -- 1 of 67 -- Victorian Legislation and Parliamentary Documents Section Page ii Division 5—Duties and Functions of Registered Agencies 15 Subdivision 1—Performance Standards 15 93. Performance standards 15 94. What can performance standards provide for? 16 95. Registered agency to comply with performance standards 16 Subdivision 2—Dispute Resolution 17 96. Application to complaints 17 97. Registered agency to establish complaints procedure 17 98. Referral of complaints to Registrar 17 99. Investigation of complaint 18 100. Direction of Registrar 18 101. Application for review 18 Subdivision 3—Changes to Constitution, Rules or Functions of Registered Agency 19 102. Change to constitution or rules of agency 19 103. Approval of changes to functions of registered agency 19 Subdivision 4—Reports by Registered Agency 20 104. Reports by registered agency 20 105. Annual reports 20 106. Declarations by registered agency 21 Division 6—Powers of Director in relation to Registered Agency Land 22 107. Director to have interest in certain registered agency land 22 108. Registered agency to notify Director of acquisition 23 109. Consent of Director required to transfer interest in land 23 110. Interest may be recorded on title 24 111. Interest of Director to remain even if agency ceases to be registered agency 24 Division 7—Monitoring of Registered Agencies 25 112. Registrar of Housing Agencies is an inspector 25 113. Appointment of inspectors 25 114. Inspector's identity card 25 115. Production of identity card 25 116. Inspectors may require certain persons to appear, answer questions and produce documents 26 117. Inspector's powers of entry 27 118. Search warrant 29 119. Announcement before entry 31 120. Details of warrant to be given to occupier 31 -- 2 of 67 -- Victorian Legislation and Parliamentary Documents Section Page iii 121. Seizure of documents or things not mentioned in the warrant 32 122. Power of inspector to require information or documents 32 123. Functions of inspectors in relation to relevant documents 33 124. Offence—failing to comply with requirements of inspector 34 125. Protection from incrimination 35 126. Privilege 35 127. Report on investigation 36 128. Secrecy 36 Division 8—Powers of Registrar 37 129. Displacement of other laws 37 130. When powers of Registrar may be exercised 38 131. Registrar may recommend appointments to governing body of registered agency 39 132. Registrar may give instructions to registered agency 40 133. Duties of administrator 43 134. Agency to notify Registrar of intention to wind up 43 135. Registrar may indemnify certain persons 44 136. Registrar may provide financial accommodation to registered agency 44 137. Financial powers of Registrar 45 138. Delegation by Registrar 45 139. Application for review 45 140. Application for enforcement 45 Division 9—Revocation of Registration 46 141. Revocation of registration 46 142. Application for review 47 PART IX—REGULATIONS 48 143. Regulations 48 6. New Part X inserted 50 PART X—TRANSITIONAL 50 144. Power to terminate existing leases 50 7. Power to develop and manage land 51 8. Power to make grants of money 52 9. Power of delegation 52 10. Execution of documents 52 11. New section 38 substituted 53 38. Improper interest in contracts 53 12. References to officers of Ministry of Housing 53 -- 3 of 67 -- Victorian Legislation and Parliamentary Documents Section Page iv 13. Amendment of references to Public Sector Management and Employment Act 1998 54 14. New Schedules 7 and 8 inserted 54 SCHEDULE 7—Registration of Rental Housing Agencies 54 SCHEDULE 8—Register of Housing Agencies 57 15. New Schedule 9 inserted 61 SCHEDULE 9—Rental Housing Co-operatives 61 16. Amendment of Borrowing and Investment Powers Act 1987 62 17. Amendment of Transfer of Land Act 1958 62 ═══════════════ ENDNOTES 63 -- 4 of 67 -- Victorian Legislation and Parliamentary Documents 1 Housing (Housing Agencies) Act 2004† [Assented to 21 December 2004] The Parliament of Victoria enacts as follows: 1. Purpose The main purpose of this Act is to amend the Housing Act 1983 to provide a regulatory framework for non-profit rental housing agencies serving the needs of low-income tenants. Victoria No. 106 of 2004 -- 5 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 2 2. Commencement (1) This Act (except sections 6, 13 and 15) comes into operation on 1 January 2005. (2) Sections 6 and 15 come into operation on 1 July 2005. (3) Section 13 comes into operation on the day on which section 113(1) of the Public Administration Act 2004 comes into operation. 3. Definitions In section 4(1) of the Housing Act 1983 insert the following definitions— ' "co-operative" has the same meaning that it has in the Co-operatives Act 1996; "Department" means the Department of Human Services established under the Public Sector Management and Employment Act 1998; "governing body", in relation to a registered agency, means— (a) the board of directors of the registered agency; or (b) the committee of management of the registered agency; or (c) any other body responsible for the management of the registered agency; "Government agency" means— (a) the Crown; (b) a Government Department; (c) a public authority; (d) the Director; (e) a municipal council; s. 2 See: Act No. 10020. Reprint No. 4 as at 24 February 2000 and amending Act No. 11/2001. LawToday: www.dms. dpc.vic. gov.au -- 6 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 3 "incorporated association" means an association incorporated under the Associations Incorporation Act 1981; "inspector", in Part VIII, means— (a) the Registrar of Housing Agencies; or (b) an inspector appointed under that Part; "non-profit body" means— (a) a corporation limited by shares or by guarantee that by its constitution is prohibited from carrying on its business for profit; or (b) a body that— (i) is not carried on for the purposes of profit or gain to its individual members; and (ii) is, by its constitution or rules, prohibited from making any distribution, whether in money, property or otherwise, to its members— but does not include a Government agency; "performance standards", in Part VIII, means performance standards determined under that Part; "prescribed registration criteria", in Part VIII, means— (a) the criteria set out in Schedule 7; and (b) any other registration criteria prescribed by the regulations for the purposes of Part VIII; "registered agency" means a registered housing association or a registered housing provider; s. 3 -- 7 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 4 "registered housing association" means a rental housing agency registered as a registered housing association under Part VIII; "registered housing provider" means a rental housing agency registered as a registered housing provider under Part VIII; "Registrar" means the body corporate established under Part VIII; "Registrar of Housing Agencies" means the Registrar of Housing Agencies appointed under Part VIII; "relevant documents" in Part VIII, means records or other documents, however compiled, recorded or stored, that relate to the incorporation and management of a registered agency, including accounts, accounting records, and documents relating to transactions, dealings, business or property of the registered agency; "rental housing agency" means— (a) a corporation limited by shares or by guarantee that is a non-profit body and that provides or is established to provide rental housing; or (b) an incorporated association or non- trading co-operative that is a non-profit body and that provides or is established to provide rental housing; "Secretary" means the Secretary to the Department;'. s. 3 -- 8 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 5 4. Objects (1) After section 6(1)(a)(i) of the Housing Act 1983 insert— "(ia) the participation of non-profit bodies in the provision of well maintained, affordable rental housing of suitable quality and location;". (2) For section 6(1)(a)(ii) of the Housing Act 1983 substitute— "(ii) the distribution, according to need, of Government housing financial assistance;". (3) After section 6(1)(e) of the Housing Act 1983 insert— "(ea) to provide a regulatory framework to encourage the development of rental housing agencies serving the housing needs of low- income tenants by providing for the registration of those rental housing agencies and the regulation and monitoring of registered agencies;". 5. New Parts VIII and IX inserted For Part VIII of the Housing Act 1983 substitute— 'PART VIII—THE REGISTRAR AND RENTAL HOUSING AGENCIES Division 1—Introductory 73. Object of Part The object of this Part is to provide a regulatory framework to encourage the development of rental housing agencies serving the housing needs of low-income tenants by providing for— s. 4 -- 9 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 6 (a) the registration of rental housing agencies; and (b) the regulation and monitoring of registered agencies. Division 2—The Registrar of Housing Agencies 74. The Registrar of Housing Agencies (1) There shall be a Registrar of Housing Agencies. (2) The Registrar of Housing Agencies is to be appointed by the Governor in Council, on the recommendation of the Minister. 75. Term and conditions of appointment (1) Subject to this Part, the Registrar of Housing Agencies is entitled to hold office for the term, not exceeding 7 years, set out in the instrument of appointment. (2) The Registrar of Housing Agencies may be re-appointed. (3) The Registrar of Housing Agencies holds office on the terms and conditions from time to time fixed by the Governor in Council. (4) The Registrar of Housing Agencies is entitled to the salary and allowances (if any) from time to time fixed by the Governor in Council. (5) The Registrar of Housing Agencies must not, during his or her continuance in office, engage directly or indirectly in any paid employment outside the duties of that office without the consent of the Governor in Council. s. 5 -- 10 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 7 (6) Despite sub-section (5), a person employed under Part 3 of the Public Sector Management and Employment Act 1998 may also hold the office of Registrar of Housing Agencies but is not entitled to any salary or allowances for holding that office. (7) The Registrar of Housing Agencies is not, in respect of that office, subject to the Public Sector Management and Employment Act 1998. (8) If the Registrar of Housing Agencies was, immediately prior to appointment to that office, an officer within the meaning of the State Superannuation Act 1988, he or she is, despite that appointment, deemed to continue to be an officer within the meaning of, and subject to, that Act. 76. Termination of appointment (1) The Governor in Council may at any time remove the Registrar of Housing Agencies from office. (2) The Registrar of Housing Agencies may resign that office by writing under his or her hand addressed to the Minister. (3) The office of Registrar of Housing Agencies becomes vacant if the Registrar of Housing Agencies becomes bankrupt. 77. Acting Registrar of Housing Agencies (1) The Minister may appoint a person to act as Registrar of Housing Agencies in the event of a vacancy (including an initial vacancy) in that office or the absence of the holder of that office. s. 5 -- 11 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 8 (2) The Acting Registrar of Housing Agencies may be appointed for a period not exceeding 6 months and may be re-appointed. (3) The Acting Registrar of Housing Agencies shall, while so acting, have all the powers and may exercise any of the functions of the Registrar of Housing Agencies as if he or she were the Registrar of Housing Agencies. (4) The Acting Registrar of Housing Agencies holds office on the terms and conditions from time to time fixed by the Minister. (5) The Acting Registrar of Housing Agencies is entitled to the salary and allowances (if any) from time to time fixed by the Minister. (6) A person employed under Part 3 of the Public Sector Management and Employment Act 1998 may also hold the office of Acting Registrar of Housing Agencies but is not entitled to any salary or allowances for holding that office. 78. Creation of Registrar as body corporate The Registrar of Housing Agencies and his or her successors in office shall, subject to this Act be a body corporate under the name of the "Registrar of Housing Agencies" and shall, by that name— (a) have perpetual succession and a corporate seal; and (b) be capable in law of suing and being sued and of acquiring, holding and disposing of real and personal property; and s. 5 -- 12 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 9 (c) be capable in law of doing and suffering all acts and things that bodies corporate may by law do and suffer. 79. Functions of Registrar The functions of the Registrar are— (a) to register rental housing agencies under this Part; (b) to establish and maintain the Register of Housing Agencies; (c) to recommend to the Minister the making of regulations for the purposes of this Part; (d) to recommend to the Minister the making of performance standards to be met by registered agencies; (e) to monitor compliance by registered agencies with the performance standards, this Part and the regulations under this Part; (f) to provide the Minister with any information and reports about the carrying out of the functions of the Registrar as the Minister may request; (g) any other functions conferred on the Registrar by this Act or the regulations. 80. Registrar to be subject to direction and control of Minister The Registrar is subject to the direction and control of the Minister in carrying out any function under this Part or the regulations. s. 5 -- 13 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 10 Division 3—Registration of Rental Housing Agencies 81. Application for registration (1) A rental housing agency may apply to the Registrar to be registered under this Part. (2) An application must be in the form approved by the Registrar. (3) An application must identify all land in which the rental housing agency has a legal or equitable interest. (4) An application must be accompanied by a copy of any existing agreement referred to in section 107(2) that relates to land of the rental housing agency. (5) An application must be accompanied by a copy of the constitution or rules of the rental housing agency. (6) An application must be accompanied by the following declarations by the rental housing agency— (a) a declaration that the rental housing agency has complied with the financial and other reporting requirements of the Act under which it is incorporated; and (b) a declaration that the rental housing agency has complied with any taxation reporting requirements of the Australian Taxation Office applicable to the agency; and s. 5 -- 14 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 11 (c) unless the Registrar has given an approval under section 82(1), a declaration that the rental housing agency does not act as a trustee for any person (other than a registered agency) in relation to any land or other assets; and (d) unless the Registrar has given an approval under section 82(2), a declaration that the rental housing agency is not a subsidiary of any body other than a registered agency. (7) A declaration under sub-section (6) must be in a form approved by the Registrar. (8) An application must be accompanied by the relevant prescribed fee (if any). 82. Approval for other functions (1) The Registrar may approve the registration of a rental housing agency that acts as trustee if the Registrar is satisfied that the role of trustee will not adversely affect the ability of the agency to comply with the prescribed registration criteria and the performance standards. (2) The Registrar may approve the registration of a rental housing agency that is a subsidiary of a body other than a registered agency if the Registrar is satisfied that its status as a subsidiary will not adversely affect the ability of the agency to comply with the prescribed registration criteria and the performance standards. s. 5 -- 15 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 12 83. Further information (1) The Registrar may require a rental housing agency to provide any further information that the Registrar considers appropriate to an application by that agency. (2) The Registrar may refuse an application for registration if the rental housing agency does not provide the further information required within a reasonable time after the requirement is made. 84. Registration The Registrar may register a rental housing agency if the Registrar is satisfied that— (a) the application complies with this Part; and (b) the relevant prescribed fee (if any) has been paid; and (c) having regard to the prescribed registration criteria and any other relevant matter, registration is appropriate. 85. Category of registration (1) The Registrar may register a rental housing agency as a registered housing association or a registered housing provider. (2) The Registrar must have regard to the prescribed registration criteria in determining the category of registration appropriate for the rental housing agency. s. 5 -- 16 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 13 86. Refusal of registration (1) If the Registrar is not satisfied that the requirements for registration in section 84 have been met, the Registrar must refuse to register the rental housing agency. (2) The Registrar must give the rental housing agency a written statement of the reasons for the decision to refuse to register the rental housing agency under this Part. (3) A statement of reasons may be given personally or by post. 87. Change of category of registration (1) The Registrar may change the category of registration of a registered agency if the circumstances of the registered agency change. (2) The Registrar must give written notice to a registered agency of any change in its category of registration under this Part. (3) The notice must include a written statement of the reasons for the decision to change the category of registration of the rental housing agency. (4) The notice may be given personally or by post. 88. Application for review (1) A rental housing agency may apply to VCAT for review of a decision by the Registrar to refuse to register it or to change its category of registration under this Part. s. 5 -- 17 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 14 (2) An application for review under this section must be made within 28 days after the day on which the statement of reasons is given under section 86 or the notice is given under section 87. Division 4—Register of Housing Agencies 89. Establishment of Register The Registrar must establish a Register of Housing Agencies. 90. What information is to be included in the Register? The Registrar must include in the Register of Housing Agencies in respect of each registered agency— (a) the relevant information required by Part 1 of Schedule 8; and (b) any other information that is prescribed for the purposes of this section. 91. Changes to information recorded in the Register A registered agency must notify the Registrar in writing within 14 days if there is any change to the information recorded in the Register of Housing Agencies in respect of the registered agency. Penalty: 10 penalty units. 92. Searches of the Register (1) The Registrar must make prescribed information in the Register of Housing Agencies available to any person on payment of the prescribed fee (if any). s. 5 -- 18 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 15 (2) The prescribed information is— (a) the information set out in Part 2 of Schedule 8; and (b) any other information that is prescribed for the purposes of this section. Division 5—Duties and Functions of Registered Agencies Subdivision 1—Performance Standards 93. Performance standards (1) The Minister may from time to time determine performance standards to be met by registered agencies. (2) The Minister may determine different performance standards for different categories of registered agencies. (3) The Minister must ensure that each performance standard is published in the Government Gazette. (4) A performance standard takes effect— (a) on the day that is 30 days after the day that the performance standard is published in the Government Gazette; or (b) if a later day is specified in the determination, on that later day. (5) The Minister may, by determination published in the Government Gazette, amend or revoke a performance standard. s. 5 -- 19 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 16 (6) A determination of an amendment or revocation of a performance standard takes effect— (a) on the day that is 30 days after the day that the determination is published in the Government Gazette; or (b) if a later day is specified in the determination, on that later day. 94. What can performance standards provide for? Performance standards may be made in respect of any matter relating to the operation of registered agencies including, but not limited to— (a) governance of the agency; (b) management of the agency; (c) probity; (d) financial viability; (e) tenancy management; (f) housing management and maintenance; (g) allocation of housing; (h) affordability of rents; (i) risk management. 95. Registered agency to comply with performance standards A registered agency must comply with the relevant performance standards applicable to that agency. s. 5 -- 20 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 17 Subdivision 2—Dispute Resolution 96. Application to complaints (1) This Subdivision applies to complaints by tenants or prospective tenants of a registered agency who are affected by decisions of the registered agency on matters relating to rental housing. (2) This Subdivision does not apply to a complaint that may be referred to VCAT under the Residential Tenancies Act 1997. 97. Registered agency to establish complaints procedure (1) A registered agency must establish a procedure for dealing with complaints by individuals who are tenants or prospective tenants of the registered agency who are affected by decisions of the registered agency on matters relating to rental housing. (2) A registered agency must take all reasonable steps to resolve a complaint referred to in sub-section (1) within 30 days after the complaint is made to the registered agency. (3) A registered agency must— (a) maintain a register of complaints made to it; and (b) make that register available for inspection by the Registrar. 98. Referral of complaints to Registrar (1) An individual who is a tenant or prospective tenant of a registered agency and who has made a complaint to a registered agency may refer the complaint to the Registrar for investigation if the complaint is not resolved within 30 days after it is made. s. 5 -- 21 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 18 (2) The Registrar may refuse to investigate a complaint unless the complaint is referred to the Registrar within a reasonable time after the end of that 30 day period. 99. Investigation of complaint (1) The Registrar may appoint an employee of the Department to investigate the complaint. (2) A registered agency must co-operate with an investigation conducted in relation to it under this section. (3) Nothing in this section prevents the exercise by an inspector of any power under Division 7. 100. Direction of Registrar (1) If an investigation under this section upholds a complaint against a registered agency, the Registrar may in writing direct the registered agency to remedy the matter complained of or to take other action to reduce the likelihood of future complaints. (2) The direction may be given personally or by post. (3) A registered agency must comply with a direction of the Registrar under this section. 101. Application for review (1) A registered agency may apply to VCAT for review of a direction by the Registrar under section 100. (2) An application for review under this section must be made within 28 days after the day on which the direction is given under section 100. s. 5 -- 22 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 19 Subdivision 3—Changes to Constitution, Rules or Functions of Registered Agency 102. Change to constitution or rules of agency (1) A registered agency must give at least 28 days' notice to the Registrar before making any change to its constitution or to its rules. (2) Sub-section (1) does not apply to a change of a kind declared by the Registrar under this section to be a minor change. (3) The Registrar may, by notice published in the Government Gazette, declare changes of a specified kind or specified kinds to the constitutions and rules of registered agencies to be minor changes for the purposes of this section. 103. Approval of changes to functions of registered agency (1) The Registrar may approve a registered agency acting as trustee if the Registrar is satisfied that the role of trustee will not adversely affect the ability of the agency to— (a) comply with the prescribed registration criteria and the performance standards; or (b) carry out its function of providing affordable housing to people on low incomes. (2) The Registrar may approve a registered agency being a subsidiary of a body other than a registered agency if the Registrar is satisfied that its status as a subsidiary will not adversely affect the ability of the agency to— s. 5 -- 23 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 20 (a) comply with the prescribed registration criteria and the performance standards; or (b) carry out its function of providing affordable housing to people on low incomes. (3) An approval under this section must be in writing. Subdivision 4—Reports by Registered Agency 104. Reports by registered agency (1) A registered agency must provide reports on its operations to the Registrar— (a) annually in accordance with section 105; and (b) at any other time required by the Registrar. Penalty: 10 penalty units. (2) A report must be in a form approved by the Registrar. 105. Annual reports (1) The reports to be provided annually by a registered agency are— (a) a report setting out its performance against the relevant performance standards; (b) a report containing its financial statements and accounts in accordance with a direction under this section. (2) The Minister may give directions in relation to the contents of financial statements and accounts to be provided by registered agencies. s. 5 -- 24 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 21 (3) The Minister must cause a direction under this section to be published in the Government Gazette. (4) The reports must be provided to the Registrar in each year not more than 28 days after the annual general meeting of the registered agency. 106. Declarations by registered agency (1) A registered agency must make the following declarations to the Registrar annually— (a) a declaration that the registered agency has complied with the financial and other reporting requirements of the Act under which it is incorporated in the previous financial year; and (b) a declaration that the registered agency has complied with any taxation reporting requirements of the Australian Taxation Office applicable to the registered agency in the previous financial year; and (c) unless the Registrar has given an approval under section 82(1) or 103(1), a declaration that the registered agency is not a trustee for any person (other than a registered agency) in relation to any land or other assets; and (d) unless the Registrar has given an approval under section 82(2) or 103(2), a declaration that the registered agency is not a subsidiary of any body other than a registered agency. s. 5 -- 25 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 22 (2) The declarations must be provided to the Registrar in each year not more than 28 days after the annual general meeting of the registered agency. Division 6—Powers of Director in relation to Registered Agency Land 107. Director to have interest in certain registered agency land (1) The Director is deemed to have an interest in all land of a registered agency that is declared by notice published in the Government Gazette to be land to which this section applies. (2) The Director may publish a notice under sub- section (1) in relation to land of a rental housing agency that is a registered agency if— (a) the Director and the rental housing agency have agreed in writing (before or after the agency is registered under this Part) that this section should apply to the land because the land has been purchased or developed with funds provided by the Director; or (b) the land was transferred to the rental housing agency by the Director (before or after the agency was registered under this Part). s. 5 -- 26 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 23 108. Registered agency to notify Director of acquisition (1) A registered agency must give notice in writing to the Director— (a) within 14 days after acquiring any interest in land; and (b) without delay after the registered agency becomes aware that the owner of land, in which both the registered agency and the Director have an interest, intends to dispose of that land. (2) A notice must be in a form approved by the Director. 109. Consent of Director required to transfer interest in land (1) A registered agency or former registered agency must not transfer, sell, lease, mortgage, charge or otherwise deal with land in which the Director has an interest under this Division unless the Director consents in writing to that transfer, sale, lease, mortgage, charge or other dealing. (2) This section does not apply to— (a) a tenancy agreement under the Residential Tenancies Act 1997; or (b) a dealing of a class declared by the Minister to be exempt. (3) A declaration under this section must be published in the Government Gazette. (4) A consent under sub-section (1) must not be unreasonably withheld. s. 5 -- 27 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 24 110. Interest may be recorded on title (1) The Director may apply to the Registrar of Titles to record in the Register kept under the Transfer of Land Act 1958 its interest under this Division in land. (2) On an application under sub-section (1), the Registrar of Titles must make a recording of the interest in the Register. (3) The Director may apply to the Registrar of Titles to cancel a recording made in the Register of an interest under this Division. (4) On an application under sub-section (3), the Registrar of Titles must cancel the recording of the interest in the Register. (5) An application may be made under this section without production of the certificate of title. Note: Section 76 of the Transfer of Land Act 1958 requires creditors of a registered agency to serve notice on the Director as well as the registered agency in the event of a default affecting land of a registered agency in which the Director has an interest that is recorded on the Register under that Act. 111. Interest of Director to remain even if agency ceases to be registered agency If a body ceases to be a registered agency, any interest that the Director held in land of the body immediately before it ceased to be a registered agency continues as if the body had continued to be a registered agency. s. 5 -- 28 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 25 Division 7—Monitoring of Registered Agencies 112. Registrar of Housing Agencies is an inspector The Registrar of Housing Agencies is an inspector for the purposes of this Part. 113. Appointment of inspectors (1) The Registrar may appoint persons to be inspectors for the purposes of this Part. (2) The appointment must be in writing and must specify the terms and conditions on which the person is appointed. (3) A person must not be appointed as an inspector under this section unless the person has completed appropriate training or qualifications as determined by the Registrar. 114. Inspector's identity card (1) The Registrar must issue an identity card to each inspector. (2) An identity card issued to an inspector must— (a) contain a photograph of the inspector to whom it is issued; and (b) state the full name of the person; and (c) state that the person is an inspector for the purposes of this Part. 115. Production of identity card An inspector must produce his or her identity card for inspection— (a) before exercising a power under this Division other than a requirement made by post; and s. 5 -- 29 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 26 (b) at any time during the exercise of a power under this Division, if asked to do so. Penalty: 10 penalty units. 116. Inspectors may require certain persons to appear, answer questions and produce documents (1) For the purpose of ascertaining whether the provisions of this Part, the regulations under this Part or the performance standards have been complied with, an inspector may by notice in a form approved by the Registrar— (a) require a registered agency to produce to the inspector, at a time and place specified in the notice, specified relevant documents relating to the registered agency; and (b) require any person who is involved in the activities of a registered agency to produce to the inspector, at a time and place specified in the notice, specified relevant documents relating to the registered agency; and (c) require any person who is involved in the activities of a registered agency— (i) to attend before the inspector at a time and place specified in the notice; and (ii) to answer any questions put to the person by the inspector relating to the promotion, formation, membership, control, transactions, dealings, business or property of the registered agency. s. 5 -- 30 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 27 (2) A person is to be considered to be involved in the activities of a registered agency if the person— (a) is or has been a member of the governing body of the registered agency, an officer or employee of the registered agency or an agent, banker, legal practitioner, auditor, accountant, book-keeper or other person acting in any capacity for, or on behalf of, the registered agency (including a registered agency that is in the course of being wound up or has had its incorporation cancelled); or (b) is a person who has any relevant documents relating to the registered agency in his or her possession or control; or (c) is a person who was a party to the creation of any relevant documents relating to the registered agency. (3) A person is not subject to any liability by reason of complying with a requirement made or purportedly made under this section. 117. Inspector's powers of entry (1) An inspector may enter any place (other than a residence) and may search for and seize any relevant documents or anything that the inspector believes on reasonable grounds to be connected with a failure to comply with this Part, the regulations under this Part or the performance standards that is found on or in the place, if the entry, search and seizure are made— s. 5 -- 31 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 28 (a) with the consent of the occupier after the inspector has— (i) informed the occupier of the purpose of the search; and (ii) informed the occupier that anything seized during the search may be used by the Registrar in carrying out its powers and duties under this Part or in evidence in a court or before VCAT; and (iii) informed the occupier that the occupier may refuse to give consent to the entry and search; and (iv) produced his or her identity card for inspection; or (b) in accordance with a warrant issued under section 118. (2) If an occupier consents to an entry and search, the inspector who requested consent must ask the occupier to sign an acknowledgment stating— (a) that the occupier has been informed of the purpose of the search and that anything seized during the search may be used by the Registrar in carrying out its powers and duties under this Part or in evidence in a court or before VCAT; and (b) that the occupier has been informed that he or she may refuse to give consent to the entry and search; and s. 5 -- 32 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 29 (c) that the occupier has consented to such an entry and search; and (d) the date and time that the occupier consented. (3) An occupier who signs an acknowledgment must be given a copy of the signed acknowledgment immediately. (4) If, in any proceeding, an acknowledgment is not produced to the court or VCAT, it must be presumed, until the contrary is proved, that the occupier did not consent to an entry and search. 118. Search warrant (1) An inspector may apply to a magistrate for the issue of a search warrant in relation to a particular place if— (a) a registered agency or person does not comply with a requirement of an inspector under section 116 within the time specified in the notice; or (b) there are reasonable grounds for suspecting that there may be at that place any document or thing that may be evidence of a failure by a registered agency to comply with this Part or the regulations under this Part or the performance standards. (2) The magistrate may issue the search warrant if the magistrate is satisfied by the evidence on oath, whether oral or by affidavit, of an inspector that there are reasonable grounds for suspecting that there is, or may be within the next 28 days, at that place— (a) a relevant document; or s. 5 -- 33 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 30 (b) a document or thing that may be evidence of a failure by the registered agency to comply with this Part or the regulations under this Part or the performance standards. (3) A search warrant under this section authorises the inspector named in the warrant and any assistants the inspector considers necessary— (a) to enter the place specified in the warrant, if necessary by force; and (b) to search for and seize— (i) a relevant document named or described in the warrant; or (ii) a document or thing named or described in the warrant and which the inspector believes on reasonable grounds to be connected with a failure by the registered agency to comply with this Part, the regulations under this Part or the performance standards. (4) A search warrant issued under this section must state— (a) the purpose for which the search is required and the nature of the non- compliance suspected; and (b) any conditions to which the warrant is subject; and (c) whether entry is authorised to be made at any time of the day or night or during stated hours of the day or night; and s. 5 -- 34 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 31 (d) a day, not being later than 28 days after the issue of the warrant, on which the warrant ceases to have effect. (5) A search warrant must be issued in accordance with the Magistrates' Court Act 1989. (6) Except as provided by this Part, the rules to be observed with respect to search warrants mentioned in the Magistrates' Court Act 1989 extend and apply to warrants under this section. 119. Announcement before entry (1) On executing a search warrant, the inspector executing the warrant must announce that he or she is authorised by the warrant to enter the place and, if the inspector has been unable to obtain unforced entry, must give any person at the place an opportunity to allow entry to the place. (2) An inspector need not comply with sub- section (1) if he or she believes on reasonable grounds that immediate entry to the place is required to ensure the safety of any person or that the effective execution of the search warrant is not frustrated. 120. Details of warrant to be given to occupier If the occupier or another person who apparently represents the occupier is present at premises where a search warrant is being executed, the inspector must— (a) identify himself or herself to that person; and (b) give to the person a copy of the warrant. s. 5 -- 35 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 32 121. Seizure of documents or things not mentioned in the warrant If, in the course of executing a search warrant, an inspector finds a document or thing that he or she believes on reasonable grounds to be— (a) connected with the failure to comply with this Part, the regulations under this Part or the performance standards, although not the document or thing named or described in the warrant; or (b) connected with another failure by the registered agency to comply with this Part, the regulations under this Part or the performance standards— and the inspector believes, on reasonable grounds, that it is necessary to seize that document or thing in order to prevent its concealment, loss or destruction, the warrant is deemed to authorise the inspector to seize the document or thing. 122. Power of inspector to require information or documents An inspector who exercises a power of entry under this Division and produces his or her identity card for inspection by a person may, to the extent that it is reasonably necessary to determine compliance with this Part, the regulations under this Part or the performance standards require the person— (a) to give information to the inspector, orally or in writing; and s. 5 -- 36 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 33 (b) to produce documents to the inspector; and (c) to give reasonable assistance to the inspector. 123. Functions of inspectors in relation to relevant documents (1) An inspector has the following powers in relation to relevant documents produced to the inspector pursuant to a requirement made under this Division— (a) power to take possession of the documents or secure them against interference; (b) power to make copies, or take extracts from, the documents; (c) power to require any person who was party to the creation of the documents to make a statement providing any explanation that the person is able to provide as to any matter relating to the creation of the documents or as to any matter to which the documents relate; (d) power to retain possession of the documents for such reasonable period as is necessary to enable the documents to be inspected, and copies of, or extracts from, the documents to be made or taken. (2) While an inspector retains possession of a document, the inspector must permit a person who would be entitled to inspect the document were it not in the possession of the inspector to inspect the document at any reasonable time and make a copy of, or take extracts from, the document. s. 5 -- 37 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 34 (3) If an inspector takes possession of or secures against interference any relevant document and a person has a lien on the document, the inspector's actions do not prejudice the lien. (4) An inspector must not take possession of a document apparently in the possession or custody of a person unless the inspector makes out and tenders to the person a written receipt— (a) identifying the document; and (b) stating the name of the inspector and the reason why the document is being seized. 124. Offence—failing to comply with requirements of inspector (1) A person must not refuse or fail, without reasonable excuse, to comply with a requirement of an inspector under this Division to produce relevant documents or to give reasonable assistance to the inspector. Penalty: 60 penalty units. (2) A person must not— (a) give information to an inspector that the person knows to be false or misleading in a material particular; or (b) produce a document that the person knows to be false or misleading in a material particular without indicating the respect in which it is false or misleading and, if practicable, providing correct information. Penalty: 60 penalty units. s. 5 -- 38 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 35 (3) A person must not without reasonable excuse obstruct or hinder an inspector exercising functions under this Division. Penalty: 60 penalty units. 125. Protection from incrimination A person may refuse or fail to give information, produce a document or do any other thing that the person is required to do by or under this Division if the giving of the information, the production of the document or the doing of that other thing would tend to incriminate the person. 126. Privilege (1) A legal practitioner is entitled to refuse to comply with a requirement under section 116 or 122 relating to a relevant document if— (a) the document contains a privileged communication made by or on behalf of or to the legal practitioner in his or her capacity as a legal practitioner; or (b) the legal practitioner is not able to comply with the requirement without disclosing a privileged communication made by or on behalf of or to the legal practitioner in his or her capacity as a legal practitioner. (2) The legal practitioner is not entitled to refuse to comply with the requirement to the extent that he or she is able to comply with it without disclosing the privileged communication. s. 5 -- 39 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 36 (3) The legal practitioner is also not entitled to refuse to comply with the requirement if the person by or on behalf of whom the communication was made or (if the person is a registered agency in the course of being wound up) the liquidator agrees to the legal practitioner complying with the requirement. (4) If the legal practitioner refuses to comply with the requirement, he or she must immediately furnish in writing to the Registrar— (a) the name and address of the person to whom or by or on behalf of whom the communication was made (if known to the legal practitioner); and (b) sufficient particulars to identify the document containing the communication (if the communication was made in writing). Penalty: 60 penalty units. 127. Report on investigation As soon as practicable after completing an investigation under this Division, an inspector must give a written report on the result of the investigation to the Registrar. 128. Secrecy (1) An inspector must not disclose information acquired in the course of an investigation under this Division except— (a) for the purpose of conducting the investigation and making a report of the investigation; or (b) as permitted by sub-section (2); or s. 5 -- 40 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 37 (c) for the purpose of any proceedings under this Part; or (d) with the consent of the person to whom the information relates. Penalty: 60 penalty units. (2) An inspector may disclose information acquired in the course of an investigation— (a) to the Registrar, for any purpose related to the duties of the Registrar under this Part; or (b) to a member of the police force, if the inspector reasonably suspects that an offence has been committed; or (c) to a court or to VCAT; or (d) to a person appointed as the liquidator of the registered agency. Division 8—Powers of Registrar 129. Displacement of other laws (1) Sections 131, 132, 133 and 134 are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act in relation to the provisions of Chapter 2B and Chapter 5 of that Act and the provisions of that Act set out in the table in section 141 of that Act. Note: Section 5G of the Corporations Act provides that if a State law declares a provision of a State law to be a Corporations legislation displacement provision for the purposes of that section, any provision of the Corporations legislation with which the State provision would otherwise be inconsistent does not operate to the extent necessary to avoid the inconsistency. s. 5 -- 41 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 38 (2) This Division applies despite anything to the contrary in the Co-operatives Act 1996 and the Associations Incorporation Act 1981. 130. When powers of Registrar may be exercised (1) The Registrar may exercise a power under this Division in relation to a registered agency if— (a) there has been a failure by the registered agency to meet the prescribed registration criteria or the performance standards; or (b) the registered agency fails to comply with a requirement or direction under section 91, 100, 104, 106, 108 or 109; or (c) as a result of a change to the constitution or rules of the registered agency or the business activities carried on by the registered agency the Registrar believes that the ability of the agency— (i) to comply with the prescribed registration criteria and the performance standards; or (ii) to carry out its function of providing affordable housing to people on low incomes— is, or will be, adversely affected; or (d) the registered agency fails to make an appointment to its governing body, in accordance with a recommendation of the Registrar under section 131, within 28 days after the recommendation is made. s. 5 -- 42 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 39 (2) The Registrar must not exercise a power under this Division unless the Registrar is satisfied that the exercise of the power— (a) is appropriate in the circumstances; and (b) accords with any guidelines established under sub-section (3). (3) The Minister may establish guidelines for the exercise of the Registrar's powers under this Division. (4) Guidelines established under sub-section (3) must be published in the Government Gazette. (5) The Registrar must make a copy of the current guidelines available to each registered agency. 131. Registrar may recommend appointments to governing body of registered agency (1) The Registrar, after consultation with the governing body of a registered agency and after considering any nominations made by that governing body, may recommend the appointment of one or more persons, whom the Registrar considers to be appropriately qualified, to that governing body. (2) The governing body of the registered agency may make an appointment recommended under sub-section (1). (3) An appointment made under this section has effect as if it had been made in accordance with the constitution or rules of the registered agency. s. 5 -- 43 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 40 (4) A person may be appointed under this section in place of an existing member of the governing body or in addition to the existing members of the governing body of the registered agency. (5) This section applies despite anything to the contrary in the constitution or rules of the registered agency. 132. Registrar may give instructions to registered agency (1) The Registrar may give instructions to a registered agency or the members of the governing body of a registered agency. (2) The instructions may relate to— (a) the entering by the registered agency into arrangements that the Registrar considers appropriate with one or more other registered agencies; (b) the appointment of one or more persons, whom the Registrar considers to be appropriately qualified, to the governing body of the registered agency; (c) the appointment of an administrator to control and direct the registered agency; (d) the winding up and distribution of the assets of the registered agency; (e) any other matter relating to the registered agency that the Registrar thinks fit. s. 5 -- 44 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 41 (3) The arrangements under sub-section (2)(a) may include, but are not limited to, the following— (a) a transfer to one or more registered agencies of some or all of the land of a registered agency in which the Director has an interest; (b) a merger of one or more registered agencies. (4) The instructions may specify— (a) the time within which a matter referred to in sub-section (2) must be complied with; and (b) conditions to which that matter is subject, including a requirement for prior approval of the Registrar. (5) In giving an instruction or an approval under this section, the Registrar must have regard to the interests of the tenants of the registered agency. (6) The Registrar must take all reasonable steps to consult with the relevant regulatory body before giving any instruction or approval under this section. (7) The Registrar may consult with the creditors of a registered agency before giving any instruction or approval under this section. (8) A registered agency must comply with an instruction to it under this section. s. 5 -- 45 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 42 (9) A member of the governing body of a registered agency must comply with an instruction to the members of the governing body under this section. (10) Sections 131(3), 131(4) and 131(5) apply to an appointment made on an instruction under sub-section (2)(b) as if it were made on a recommendation under section 131. (11) Nothing in this section prevents the Registrar from giving more than one set of instructions to a registered agency in relation to the same matter. (12) In this section— "merger" includes amalgamation; "relevant regulatory body" means— (a) in the case of a registered agency that is an incorporated association, the Registrar of Incorporated Associations under the Associations Incorporation Act 1981; (b) in the case of a registered agency that is a co-operative, the Registrar of Co-operatives established under the Co-operatives Act 1996; (c) in the case of a registered agency that is a corporation, the Australian Securities and Investment Commission. s. 5 -- 46 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 43 133. Duties of administrator If an administrator is appointed to control and direct the affairs of a registered agency, the administrator— (a) must consult with the Registrar in carrying out his or her duties and functions; and (b) must have regard to the interests of tenants of the registered agency. 134. Agency to notify Registrar of intention to wind up (1) Subject to sub-section (2), a registered agency must give at least 28 days' written notice to the Registrar before commencing any proceedings to wind up the registered agency. (2) A registered agency must give notice to the Registrar immediately on becoming aware of the existence of any circumstance giving rise to an obligation on the registered agency under a law of a State or Territory or of the Commonwealth to commence winding up proceedings. (3) A registered agency must give the Registrar written notice without delay after becoming aware of the commencement of proceedings by any other person to wind up the registered agency. s. 5 -- 47 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 44 135. Registrar may indemnify certain persons (1) The Registrar, with the approval of the Minister and the Treasurer, may provide an indemnity in favour of any person appointed to the governing body of a registered agency under section 131 or 132 against any claim or proceeding arising against them for anything done in good faith in the performance of their duties as a member of the governing body. (2) An indemnity provided by the Registrar under sub-section (1) is subject to any terms and conditions that the Registrar thinks appropriate. (3) Any amounts that from time to time become due and payable under an indemnity authorised by this section shall be paid out of the Consolidated Fund (which is hereby to the necessary extent appropriated accordingly). 136. Registrar may provide financial accommodation to registered agency (1) If the Registrar exercises any power under section 131 or 132 in relation to a registered agency, the Registrar may, with the approval of the Minister and the Treasurer, provide financial accommodation or arrange for the provision of financial accommodation to a registered agency for any purpose associated with the exercise of that power. (2) In this section "financial accommodation" includes loan, grant, guarantee and waiver of payment of money. s. 5 -- 48 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 45 137. Financial powers of Registrar For the purposes of this Division, the Registrar has the powers conferred on it by the Borrowing and Investment Powers Act 1987. 138. Delegation by Registrar The Registrar may delegate to any employee of the Department or to an inspector any power of the Registrar under this Division except this power of delegation. 139. Application for review (1) A registered agency or any member of the governing body of a registered agency may apply to VCAT for the review of— (a) an instruction given by the Registrar under this Division; (b) a decision by the Registrar to give or not to give an approval under this Division; (c) a recommendation by the Registrar under section 131. (2) An application must be made within 28 days after the instruction, recommendation or notice of the decision is given to the registered agency. 140. Application for enforcement If a registered agency or other person fails to comply with an instruction of the Registrar under section 132, the Registrar may apply to the Supreme Court for an Order requiring the agency or person to comply with that instruction within the time specified in the Order. s. 5 -- 49 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 46 Division 9—Revocation of Registration 141. Revocation of registration (1) The Registrar may revoke the registration of a registered agency under this Part if the Registrar is satisfied on reasonable grounds that— (a) the registered agency has failed to meet one or more performance standards applicable to the registered agency; or (b) the registered agency has failed to meet one or more of the prescribed registration criteria relevant to the registered agency; or (c) the registered agency has failed to comply with section 91; or (d) the registered agency has failed to comply with a lawful direction or instruction of the Registrar under this Part; or (e) the registered agency has ceased to operate as a rental housing agency; or (f) the registered agency is unable to pay its debts or to continue carrying on its business. (2) The Registrar may revoke the registration of a registered agency under this Part on the written request of the registered agency. (3) The Registrar must give the registered agency at least 14 days' written notice and the opportunity to be heard before revoking its registration under this Part. s. 5 -- 50 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 47 (4) The Registrar must give the registered agency a written statement of reasons for a decision by the Registrar under sub- section (1) to revoke its registration. (5) A statement of reasons may be given personally or by post. (6) The Registrar must cause a decision by the Registrar to revoke the registration of a registered agency to be published in the Government Gazette. 142. Application for review (1) A body may apply to VCAT for review of a decision by the Registrar under section 141(1) to revoke the registration of the body as a registered agency. (2) An application for review under this section must be made within 28 days after the day on which the statement of reasons is given under section 141. __________________ s. 5 -- 51 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 48 PART IX—REGULATIONS 143. Regulations (1) The Governor in Council may make regulations for or with respect to any matter or thing that by this Act is authorized or required or permitted to be prescribed or that is necessary to be prescribed for carrying this Act into effect. (2) Without limiting sub-section (1) the regulations may prescribe— (a) the terms and conditions to be incorporated in agreements for the lease or sale of land between the Director and any person; (b) forms for use under this Act; (c) the rent payable in respect of any land or class of land of the Director and the circumstances in which and the conditions on which the Director may grant rebates of rent; (d) the registration of rental housing agencies, including the criteria for registration and for determining the category of registration; (e) the matters to be included in the Register of Housing Agencies; (f) fees for the purposes of Part VIII; (g) a penalty of not more than 10 penalty units for any contravention of the regulations; s. 5 -- 52 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 49 (h) that, in addition to any penalty, any expense incurred by the Director or the Registrar in consequence of a breach of the regulations or in the execution of work directed by the regulations to be executed by any person and not executed by that person must be paid by the person committing that breach or failing to execute that work; (i) the procedure to be followed, the conditions to be complied with and any matters necessary to be prescribed for carrying the regulations into effect. (3) Regulations made under this Act— (a) may be of general or of specially limited application; (b) may differ according to differences in time, place or circumstance; (c) may apply, adopt or incorporate any matter contained in any document, code, standard, rule, specification or method formulated, issued, prescribed or published by any person, whether wholly or partially or as amended by the regulations; (d) may leave any matter to be approved or determined by the Director or the Registrar. __________________'. s. 5 -- 53 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 50 6. New Part X inserted After Part IX of the Housing Act 1983 insert— "PART X—TRANSITIONAL 144. Power to terminate existing leases (1) The Director, after giving not less than 90 days' notice to a co-operative specified in Schedule 9, may terminate any lease existing on 1 July 2005 between the Director and that co-operative. (2) The Director may refuse to renew any lease existing on 1 July 2005 between the Director and a co-operative specified in Schedule 9. (3) Sub-sections (1) and (2) apply despite any option to renew in the relevant lease. (4) No compensation is payable by the Director to a co-operative for— (a) the termination under this section of a lease with the co-operative; or (b) a refusal under this section to renew any lease with the co-operative. (5) If a co-operative specified in Schedule 9 changes its name before, on or after 1 July 2005, the reference to the co-operative in this section is to be taken to be a reference to a co-operative by its new name.". s. 6 -- 54 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 51 7. Power to develop and manage land (1) After section 15(1)(c) of the Housing Act 1983 insert— "(ca) at the request of the Secretary, and on terms and conditions agreed between the Director and the Secretary— (i) develop any land which is vested in the Secretary or in respect of which the Secretary has a leasehold estate; (ii) generally control, manage or use any land which is vested in or leased to or subject to any mortgage or security in favour of the Secretary; (iii) maintain and repair and generally control, manage or use any houses and buildings situated on land referred to in sub-paragraph (ii); and (cb) at the request of a registered agency, and on terms and conditions agreed between the Director and the registered agency— (i) develop any land which is vested in the agency or in respect of which the agency has a leasehold estate; (ii) generally control, manage or use any land which is vested in or leased to or subject to any mortgage or security in favour of the agency; (iii) maintain and repair and generally control, manage or use any houses and buildings situated on land referred to in sub-paragraph (ii); and". (2) In section 15(1) of the Housing Act 1983— (a) at the end of paragraph (a) insert "and"; and (b) at the end of paragraph (b) insert "and". s. 7 -- 55 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 52 8. Power to make grants of money After section 24(2) of the Housing Act 1983 insert— "(3) Nothing in this section requires the Director to make a grant of money to any person even if the Director has previously made a grant of money to that person under this section.". 9. Power of delegation For section 35(1) of the Housing Act 1983 substitute— "(1) With the prior approval of the Minister, the Director may delegate to any employee of the Department or to any other person or body any of the powers, discretions, functions or authorities of the Director under this or any other Act, except this power of delegation and the Director's powers and functions under Division 6 of Part VIII. (1A) With the prior approval of the Minister, the Director may by instrument delegate to the Registrar any of the Director's powers and functions under Division 6 of Part VIII.". 10. Execution of documents (1) In sections 37(1)(b) and 37(1)(c) of the Housing Act 1983 for "an officer of the Ministry of Housing" substitute "a person". (2) In section 37(3)(a) of the Housing Act 1983 for "any officer of the Ministry of Housing" substitute "any person". s. 8 -- 56 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 53 11. New section 38 substituted For section 38 of the Housing Act 1983 substitute— '38. Improper interest in contracts (1) A prescribed person who is in any way improperly concerned or interested in any contract or agreement made by or on behalf of the Director is guilty of an offence and is liable to a penalty not exceeding 60 penalty units. (2) In this section "prescribed person" means— (a) the Director of Housing; (b) the Registrar of Housing Agencies; (c) an employee of the Department; (d) a delegate of the Director.'. 12. References to officers of Ministry of Housing (1) In section 39 of the Housing Act 1983 for "an officer of the Ministry of Housing" substitute "an employee of the Department". (2) In section 43(4)(a) of the Housing Act 1983 for "an officer of the Ministry of Housing" substitute "an employee of the Department". (3) In clause 1 of Schedule 5 to the Housing Act 1983, in the definition of "authorized officer" for "an officer of the Ministry of Housing" substitute "an employee of the Department". (4) In clause 6(b) of Schedule 5 to the Housing Act 1983 for "an officer of the Ministry of Housing" substitute "an employee of the Department". s. 11 -- 57 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 54 13. Amendment of references to Public Sector Management and Employment Act 1998 (1) In section 4(1) of the Housing Act 1983 in the definition of "Department" for "Public Sector Management and Employment Act 1998" substitute "Public Administration Act 2004". (2) In section 75(6) of the Housing Act 1983 for "Public Sector Management and Employment Act 1998" substitute "Public Administration Act 2004". (3) For section 75(7) of the Housing Act 1983 substitute— "(7) The Public Administration Act 2004 (other than Part 5 of that Act) does not apply to the Registrar of Housing Agencies in respect of that office.". (4) In section 77(6) of the Housing Act 1983 for "Public Sector Management and Employment Act 1998" substitute "Public Administration Act 2004". 14. New Schedules 7 and 8 inserted After Schedule 6 to the Housing Act 1983 insert— "SCHEDULE 7 REGISTRATION OF RENTAL HOUSING AGENCIES REGISTRATION CRITERIA The criteria for determining whether a rental housing agency should be registered under Part VIII are as follows— 1. General (1) The rental housing agency must be a non-profit body. s. 13 -- 58 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 55 (2) To be registered as a registered housing association the rental housing agency must be a company limited by shares or by guarantee. (3) To be registered as a registered housing provider the rental housing agency must be a company limited by shares or by guarantee or a co-operative or an incorporated association. (4) The rental housing agency must be established to provide affordable rental housing to people on low incomes. (5) Unless the Registrar otherwise approves under section 82 or 103, the rental housing agency must not act as a trustee for any person other than a registered agency. (6) Unless the Registrar otherwise approves under section 82 or 103, the rental housing agency must not be a subsidiary of any body other than a registered agency. 2. Constitution—objects and powers (1) Subject to sub-clause (3), the constitution or rules of the rental housing agency must contain the provisions required by this clause. Objects (2) The rental housing agency's statement of objects must include an object to the effect of one of the following objects— (a) to promote the relief of poverty, sickness or the needs of the aged by providing affordable rental housing to persons in housing need as low-income households, or through infirmity or age; or (b) to promote other purposes beneficial to the community through the provision of affordable housing and associated services. (3) The rental housing agency's statement of objects is not required to include an object set out in sub-clause (2) if the rental housing agency otherwise satisfies the Registrar that it is a non-profit body. s. 14 -- 59 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 56 Powers (4) The rental housing agency's powers must include powers to— (a) acquire, by way of purchase, lease, transfer or otherwise, real property; (b) dispose of any real property, subject to the consent of the Director under section 109 of the Housing Act 1983; (c) provide security for the payment of money, subject to the consent of the Director under section 109 of the Housing Act 1983; (d) apply for and accept, grants or loans from any Federal, State or local government or authority; (e) enter into contracts and joint ventures with any public or private entity; (f) do anything incidental to or in furtherance of its objects. 3. Constitution—additional provisions (1) The constitution or rules of the rental housing agency must also include provisions to the effect of the provisions in this clause. Alteration of Constitution (2) A provision must be included to the effect that the constitution or rules of the rental housing agency may only be amended by special resolution in accordance with the legislation under which the rental housing agency is incorporated. Agency not to act as trustee without approval (3) A provision must be included to provide that the rental housing agency must not act as trustee for any person other than a registered agency without the written approval of the Registrar under section 82 or 103 of the Housing Act 1983. s. 14 -- 60 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 57 Application of property and income (4) A provision must be included to provide that the assets and income of the rental housing agency must be applied solely for the purposes for which the rental housing agency is incorporated and cannot be distributed directly or indirectly to the members of the rental housing agency except as bona fide compensation for services rendered or expenses incurred on its behalf. Winding up (5) A provision must be included to provide that in the event of the rental housing agency being wound up, any surplus assets remaining after payment of its liabilities must be transferred to another registered agency under the Housing Act 1983, approved by the Registrar under that Act, with similar purposes and which is not carried on for the purposes of profit or gain to its members. 4. Capacity to meet performance standards To be registered in a particular category, the rental housing agency must demonstrate the capacity to meet the performance standards applicable to that category of agency. __________________ SCHEDULE 8 REGISTER OF HOUSING AGENCIES PART 1—INFORMATION TO BE INCLUDED IN REGISTER 1. Incorporation details (1) The name by which the registered agency is incorporated (including previous names by which the registered agency has been known). (2) The Act or law under which the registered agency is incorporated. s. 14 -- 61 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 58 (3) The address of the registered office of the registered agency (including previous addresses at which it has been registered in the previous 5 years). (4) The Australian Company Number (A.C.N.) of the registered agency, if it is a company. (5) The registration number of the registered agency under the Co-operatives Act 1996, if it is a co-operative. (6) The registration number of the registered agency under the Associations Incorporation Act 1981, if it is an incorporated association. (7) The date of incorporation. (8) The full names and addresses of all members of the governing body of the registered agency and the dates of their appointment (including the names and addresses of all members holding office within the registered agency in the previous 5 years). (9) The full name and address of the public officer (if any) of the registered agency (including the names and addresses of all public officers holding that office within the registered agency in the previous 5 years). (10) A current copy of the registered agency's constitution or rules, and the date on which they were approved under the Corporations Act or the Co-operatives Act 1996 or the Associations Incorporation Act 1981 or any relevant corresponding previous enactment. (11) A current copy of the registered agency's objects or statement of purposes and the date on which they were approved under the Corporations Act or the Co-operatives Act 1996 or the Associations Incorporation Act 1981 or any relevant corresponding previous enactment. (12) Each declaration given by the registered agency under sections 81(6)(a), 81(6)(d), 106(1)(a) and 106(1)(d). s. 14 -- 62 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 59 2. Business details (1) The Australian Business Number (ABN) (if any) issued to the registered agency under the A New Tax System (Australian Business Number) Act 1999 of the Commonwealth. (2) Each declaration given by the registered agency under sections 81(6)(b) and 106(1)(b). (3) The names and addresses of all financial institutions at which the registered agency holds accounts of any description and the account numbers of those accounts. (4) Details of the non-profit status of the registered agency. 3. Assets (1) The address and title or other identifying particulars of any land of which the registered agency is a registered proprietor. (2) The address, title or other identifying particulars and name of the registered proprietor of any land over which the registered agency holds a lease, tenancy agreement or licence of more than 3 years' duration and in which the Director has an interest, a copy of the lease, tenancy agreement or licence, and the date of the lease, tenancy agreement or licence. (3) The address, title or other identifying particulars and name of the registered proprietor of any land at which the registered agency provides housing services to the public. (4) Each declaration made by the registered agency under sections 81(6)(c) and 106(1)(c). 4. Registration particulars (1) The registration number given to the registered agency on registration under Part VIII. (2) The date of registration of the registered agency under Part VIII (including the dates of any periods in which the registered agency has not been registered in the preceding 5 years). s. 14 -- 63 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 60 (3) The current registration status and registration category of the registered agency. (4) A record of whether the registered agency has complied with its reporting requirements under this Act and the dates and descriptions of all reports supplied by the registered agency under section 105 in the preceding 5 years. PART 2—INFORMATION TO BE MADE AVAILABLE TO THE PUBLIC (1) The name by which the registered agency is registered. (2) The address of the registered office of the registered agency. (3) The full names of all members of the governing body of the registered agency. (4) The full name of the public officer (if any) of the registered agency. (5) The registration number given to the registered agency on registration under Part VIII. (6) The date of registration of the registered agency under Part VIII (including the dates of periods in which the registered agency has not been registered in the preceding 5 years). (7) The current registration status and registration category of the registered agency. (8) A record of whether the registered agency has complied with its reporting requirements under this Act and the dates and descriptions of all reports supplied by the registered agency under section 105 in the preceding 5 years. __________________". s. 14 -- 64 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 61 15. New Schedule 9 inserted After Schedule 8 of the Housing Act 1983 insert— "SCHEDULE 9 RENTAL HOUSING CO-OPERATIVES Name of Co-operative Registration No. under Co-operatives Act 1996 Carlton Rental Housing Co-operative Ltd Diamond Valley/Whittlesea Rental Housing Co-operative Ltd Eastern Suburbs Rental Housing Co-operative Ltd Essendon Rental Housing Co-operative Ltd Footscray Rental Housing Co-operative Ltd Northcote Rental Housing Co-operative Ltd SouthEast Housing Co-operative Ltd St Kilda Rental Housing Co-operative Ltd Sunshine/St Albans Rental Housing Co-operative Ltd West Turk Housing and Elderly Services Co-operative Ltd Williamstown Rental Housing Co-operative Ltd G0002404G G0010002C G0010009T G001007N G0010006L G0002447B G00032313E G0010008R G0010001A G0010015M G0002355V ". s. 15 -- 65 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 62 16. Amendment of Borrowing and Investment Powers Act 1987 After item 11 of Schedule 1 to the Borrowing and Investment Powers Act 1987 insert— "11AA. Registrar of Housing Agencies 5, 8, 10, 11, 11AA, 13, 14, 15, 20, 20A, 21" 17. Amendment of Transfer of Land Act 1958 After section 76(2) of the Transfer of Land Act 1958 insert— "(3) A notice or demand referred to in sub-section (1) or (2) must also be served on the Director within the meaning of the Housing Act 1983 if— (a) the mortgage or charge affects land in which the Director has an interest under section 107 of that Act; and (b) the interest of the Director is recorded on the Register.". ═══════════════ See: Act No. 13/1987. Reprint No. 7 as at 3 November 2003 and amending Act Nos 85/2003 and 22/2004. LawToday: www.dms. dpc.vic. gov.au s. 16 See: Act No. 6399. Reprint No. 14 as at 1 January 2003 and amending Act Nos 23/2004, 30/2004 and 47/2004. LawToday: www.dms. dpc.vic. gov.au -- 66 of 67 -- Victorian Legislation and Parliamentary Documents Act No. 106/2004 Housing (Housing Agencies) Act 2004 63 ENDNOTES † Minister's second reading speech— Legislative Assembly: 18 November 2004 Legislative Council: 14 December 2004 The long title for the Bill for this Act was "to amend the Housing Act 1983 to provide a regulatory framework for non-profit rental housing agencies serving the needs of low-income tenants, to amend the Borrowing and Investment Powers Act 1987 and the Transfer of Land Act 1958 and for other purposes." Endnotes -- 67 of 67 --