Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2010-2011-2012-2013
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
HOMELESSNESS BILL 2013
HOMELESSNESS (CONSEQUENTIAL AMENDMENTS) BILL 2013
EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minister for Housing and Homelessness,
the Hon Mark Butler MP)
HOMELESSNESS BILL 2013
HOMELESSNESS (CONSEQUENTIAL AMENDMENTS) BILL 2013
OUTLINE
Homelessness Bill 2013
The Homelessness Bill 2013 is aimed at increasing recognition and
awareness of people who are homeless or at risk of homelessness. It is part
of a broader reform process to reduce homelessness.
The 2008 White Paper, The Road Home, outlines how the Government
intends to reduce homelessness. The targets are to halve the rate of
homelessness by 2020, and to provide supported accommodation for all
rough sleepers who seek it. These targets will be achieved through a
significant boost in spending, new agreements with the states and territories,
and an overhaul of the existing legislative framework.
The homelessness legislative framework was the subject of a report by the
House of Representatives Standing Committee on Family, Community,
Housing and Youth, Housing the Homeless.
With the exception of a legislative right to housing, which is outside current
Government policy and, in practice, would be significantly dependent on the
actions of the states and territories (which are responsible for housing), the
Committee's recommendations have been incorporated into this Bill to the
best extent possible.
The Bill draws national attention to the experience of homelessness,
and voices the aspiration that all Australians have access to appropriate,
affordable, safe and sustainable housing.
The Bill acknowledges the direct relationship between addressing
homelessness and social inclusion. It sets out a range of service delivery
principles to which the Commonwealth is committed, and the strategies seen
as necessary to reduce homelessness. These statements of principle reflect
a Commonwealth perspective. The Bill does not impose them on the states
and territories.
The Bill also confirms the Commonwealth's commitment to cooperation and
consultation in reducing homelessness, and promotes the human rights of
people facing homelessness.
This new legislation will replace the Supported Accommodation Assistance
Act 1994, retaining in law the important statements about homelessness, the
partnerships, effort and strategies that are needed to tackle it, and the
treatment and support that vulnerable Australians deserve.
1
The current federal financial relations framework for Commonwealth, state
and territory efforts to reduce homelessness - with funding provided through
Commonwealth-state mechanisms such as the National Partnership on
Homelessness and the National Affordable Housing Specific Purpose
Payment - will continue. This Bill is therefore complementary to the
comprehensive funding arrangements already in place, and is not a funding
instrument in itself.
Similarly, the issue of service quality is being pursued by working with states
and territories to develop a non-legislative Homelessness National Quality
Framework, which will be the primary strategy for the White Paper goal of
ensuring quality services.
Homelessness (Consequential Amendments) Bill 2013
The Homelessness (Consequential Amendments) Bill 2012 repeals the
Supported Accommodation Assistance Act 1994.
The Bill also makes a consequential amendment to the Commonwealth
Electoral Act 1918. This is to replace the definition of homeless person,
which applies in the provisions about including itinerant electors in the
Electoral Rolls, and which currently partly relies on concepts drawn from the
Supported Accommodation Assistance Act 1994.
The new definition of homeless person will ensure that the itinerant elector
provisions will continue, despite the repeal of the 1994 Act, to apply simply
and clearly so that people who are homeless can still effectively participate in
electoral activities in the Australian community.
FINANCIAL IMPACT STATEMENT
These Bills have no financial impact.
STATEMENTS OF COMPATIBILITY WITH HUMAN RIGHTS
A statement of compatibility with human rights for each Bill appears at the end
of this explanatory memorandum.
2
HOMELESSNESS BILL 2013
NOTES ON CLAUSES
Part 1 - Preliminary
Summary
Part 1 provides for formal matters in relation to the Homelessness Bill 2013
and defines certain terms.
Explanation of the clauses
Clause 1 sets out how the new Act may be cited - that is, as the
Homelessness Act 2013.
Clause 2 provides that the new Act will commence on the day that it receives
Royal Assent.
Clause 3 provides that the object of the new Act is to increase recognition
and awareness of persons who are experiencing homelessness
(in accordance with the definition of the term homelessness in clause 5) and
of persons who are at risk of experiencing homelessness.
Clause 4 defines certain terms that are used in the new Act. In particular,
it defines:
homelessness by reference to the detailed definition of that term in
clause 5;
mainstream services as the general services provided by government
or non-government agencies that are available to the general
population. This definition then lists some agencies as examples,
including Centrelink (that is, the part of the Department of Human
Services overseen by the Chief Executive Centrelink under the Human
Services (Centrelink) Act 1997), public and community housing, aged
care and community health centres, although the list is not intended to
be exhaustive;
specialist homelessness services as including services to assist
people who are, or are at risk of, sleeping rough or living in an
improvised dwelling. This definition is intended not to be exhaustive,
and may also include other services established for the purpose of
assisting people facing homelessness, even if they are not sleeping
rough or at risk of sleeping rough.
1
Clause 5 defines the term homelessness with express reference to when a
person is experiencing homelessness, rather than being at risk of
homelessness. The intention, however, is to ensure that the definition
operates so that a person is at risk of homelessness when they are at risk of
experiencing homelessness in accordance with the definition. It provides that
a person is experiencing homelessness if they are in at least one of the
following circumstances:
(a) sleeping rough or living in an improvised dwelling;
(b) temporarily living with friends or relatives, having no other usual
address and not having the capacity to obtain other suitable
accommodation;
(c) having no safe place to live (including because the person is, or
is at risk of, experiencing domestic violence). This limb of the
definition recognises that the safety of a person is a vital aspect
of that person's living circumstances. Some people may
experience homelessness because they have no safe place to
live, even if they have a usual address. This means, for
example, that a person who is living temporarily with friends or
relatives and cannot return home safely because of domestic
violence, or the risk of domestic violence, will be recognised to
be a person experiencing homelessness;
(d) living in accommodation provided by a specialist homelessness
service (within the meaning of the definition of that term in
clause 4);
(e) living in a refuge, shelter or similar crisis accommodation. This
limb of the definition recognises that people living in crisis
accommodation should also be recognised as experiencing
homelessness;
(f) living in a caravan park, boarding house, hostel or similar
accommodation, whether on a short-term or long-term basis,
in respect of which the person has no secure lease and is not
living in that accommodation by choice. This recognises that not
all people who live in these kinds of accommodation are
homeless.
2
Part 2 - Recognition of persons who are, or are at risk of, experiencing
homelessness
Summary
Part 2 provides for the recognition of people experiencing, or at risk of
experiencing, homelessness. It recognises that there are certain factors that
may contribute to homelessness and that certain people may be particularly
vulnerable to experiencing homelessness.
Part 2 also recognises the Commonwealth's aspiration that all people living in
Australia should have access to appropriate, affordable, safe and sustainable
housing, and that access to such housing contributes to a person's social and
economic participation. It recognises the direct relationship between
addressing homelessness and achieving a socially inclusive society, and sets
out a number of service delivery outcomes that the Commonwealth is
committed to achieving.
The Part expresses the Commonwealth's recognition of the importance of
having strategies to reduce the number of people who are, or are at risk of,
experiencing homelessness. It confirms the Commonwealth's commitment to
cooperation and consultation in reducing homelessness.
It also recognises the steps that the Commonwealth has taken to protect the
rights of all Australians, including people who are, or are at risk of,
experiencing homelessness, by recognising international standards for the
protection of universal human rights and fundamental freedoms.
Explanation of the clauses
Clause 6 recognises that people experiencing, or at risk of experiencing,
homelessness should have the same abilities to exercise their human rights
and the same opportunities as other Australians. The particular challenges
people who are experiencing, or are at risk of experiencing, homelessness
face and the support that they should receive are also recognised.
Subclauses 6(1), 6(2) and 6(3) recognise that people who are, or are at risk
of, experiencing homelessness, while they have the same rights as other
Australians, face more challenges in exercising those rights and should have
the same ability to exercise those rights.
Subclause 6(4) recognises that people who are, or are at risk of, experiencing
homelessness, contribute to family, social and community life. This subclause
acknowledges that a person's value to society is not defined by whether or not
the person has a home.
3
Subclause 6(5) recognises that people who are, or are at risk of, experiencing
homelessness should be supported to enjoy optimum health, safety and
social wellbeing. Social wellbeing includes connections to community and the
ability to participate in community life without discrimination.
Subclause 6(6) recognises that the support provided to people who are, or are
at risk of, experiencing homelessness should be provided in a tailored way
that respects their dignity as individuals, enhances their self-esteem,
is sensitive to their specific and individual social and economic circumstances,
and respects their particular cultural backgrounds and their beliefs.
Subclause 6(7) recognises that people who are, or are at risk of, experiencing
homelessness should be supported to achieve greater economic wellbeing
and sustainability, greater participation in civic affairs and should have
opportunities to participate in employment and education. While the term
`civic affairs' is not defined, this phrase is intended to cover the ability to vote
in elections and participate in public policy discussion and participation to the
same extent as other Australians.
Clause 7 recognises that there are certain factors that may contribute to
homelessness and that certain people may be particularly vulnerable to
experiencing homelessness.
Subclause 7(1) provides a non-exhaustive list of these factors, referring to the
examples of unemployment, a lack of appropriate, affordable, safe and
sustainable housing, physical or mental health issues, substance abuse,
family conflict, discrimination, domestic violence and physical, emotional or
sexual abuse.
Subclause 7(2) recognises that certain people leaving institutional settings,
such as custodial, juvenile detention or mental health institutions,
or non-institutional settings, such as guardianship and foster care
arrangements, may be at risk of experiencing homelessness.
Clause 8 recognises the Commonwealth's aspiration that all people living in
Australia should have access to appropriate, affordable, safe and sustainable
housing, and recognises that access to such housing contributes to a
person's social and economic participation. The purpose of this provision is to
provide legislative recognition of the object of the National Affordable Housing
Agreement, which is to ensure that all Australians have access to affordable,
safe and sustainable housing that contributes to social and economic
participation.
Clause 9 recognises the direct relationship between addressing
homelessness and achieving a socially-inclusive society.
4
Subclause 9(1) recognises a number of barriers that people who are, or are at
risk of, experiencing homelessness may face in achieving social inclusion,
including barriers to participating in education, employment and civic affairs,
accessing basic needs such as healthcare, and maintaining community and
social links.
To help more people living in Australia achieve social inclusion,
subclause 9(2) expresses a commitment by the Commonwealth to a
cooperative approach with the states and territories, local government, and
the not-for-profit and for-profit sectors to address homelessness.
Clause 10 sets out five service delivery outcomes in relation to mainstream
services and specialist homelessness services for people experiencing, or at
risk of experiencing, homelessness, to which the Commonwealth expresses
its commitment. These are that mainstream services and specialist
homelessness services:
are of the highest quality;
are, within available resources, based on priority of access, taking into
account an assessment of the needs and vulnerability of those people;
are timely, responsive, appropriate to the circumstances of those
people, accessible and integrated;
address the individual needs of those people, and are culturally
appropriate, taking their views into account; and
are provided in a way that does not prejudice the universal human
rights of those people.
Clause 11 expresses, in subclause (1), the Commonwealth's recognition of
the importance of having strategies to reduce the number of people who are,
or are at risk of, experiencing homelessness, including strategies for:
prevention and early intervention (measures to stop people becoming
homeless in the first place and to respond quickly with effective support
for those who do become homeless, to help them get back on their
feet);
increasing the supply of affordable housing;
increasing the range of available appropriate accommodation options;
ongoing support and services, including individual case management
where appropriate.
5
Subclause 11(2) recognises the importance of research, and acknowledges
that research into homelessness helps identify and target strategies to
address the individual needs of people experiencing, or at risk of
experiencing, homelessness. It recognises the value of evidence-based
policy in preventing and responding effectively to the complexity of
homelessness.
Clause 12 confirms the Commonwealth's commitment to cooperation and
consultation in reducing homelessness. It recognises that, to reduce the
number of people experiencing, or at risk of experiencing, homelessness, it is
important for the Commonwealth to adopt a cooperative and consultative
approach.
Subclause 12(1) recognises the Commonwealth's commitment to working
cooperatively with all levels of government, the not-for-profit sector,
the for-profit sector, and people who are, or are at risk of, experiencing
homelessness, to reduce the number of people who are, or are at risk of,
experiencing homelessness.
Subclause 12(2) recognises the Commonwealth's commitment to its agencies
(including, as appropriate, departments of state, statutory agencies and
Commonwealth authorities) working cooperatively to reduce the number of
people who are, or are at risk of, experiencing homelessness.
Subclause 12(3) recognises the Commonwealth's commitment to maintaining
a consultative approach with stakeholders to the development of policies to
address the issue of homelessness.
Clause 13 acknowledges that the Commonwealth has acted to protect the
rights of all Australian citizens, including people who are, or are risk of,
experiencing homelessness, by recognising international standards for the
protection of universal human rights and fundamental freedoms through:
the ratification of the International Convention on the Elimination of all
Forms of Discrimination;
the ratification of the International Covenant on Economic, Social and
Cultural Rights;
the ratification of the International Covenant on Civil and Political
Rights;
the ratification of the Convention on the Elimination of All Forms of
Discrimination Against Women;
the ratification of the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment;
the ratification of the Convention on the Rights of the Child;
6
the ratification of the Convention on the Rights of Persons with
Disabilities;
the acceptance of the Universal Declaration of Human Rights;
the acceptance of the Declaration on the Elimination of Violence
Against Women;
the statement of support for the United Nations Declaration on the
Rights of Indigenous Peoples; and
the enactment of legislation that includes the Human Rights
(Parliamentary Scrutiny) Act 2011 and the Australian Human Rights
Commission Act 1986.
Subclause 13(2) recognises that addressing the problem of homelessness by
reducing the number of people who are, or are at risk of, experiencing
homelessness is part of meeting Australia's international human rights
obligations.
7
Part 3 - Other matters
Summary
Part 3 provides that, once enacted, the Act is not to create or give rise to any
rights or obligations. It also provides that the Act is not intended to apply to
the exclusion of any law of a state or territory that provides for the recognition
of people who are, or are at risk of, experiencing homelessness.
Explanation of the clauses
Clause 14 provides that the Act does not create or give rise to any rights or
obligations.
Subclause 14(1) is intended to ensure that the Act does not give rise to legally
enforceable rights in a court or other proceedings (including in a tribunal),
whether of a substantive or procedural nature.
Subclause 14(2) provides, to avoid doubt, that no action, suit or proceeding is
to be instituted in reliance on the terms of the Act or the operation of the Act.
Clause 15 provides that the Act is not intended to apply to the exclusion of
any law of a state or territory that provides for the recognition of people who
are, or are at risk of, experiencing homelessness.
8
HOMELESSNESS (CONSEQUENTIAL AMENDMENTS) BILL 2013
NOTES ON CLAUSES
Clause 1 sets out how the new Act may be cited - that is, as the
Homelessness (Consequential Amendments) Act 2013.
Clause 2 provides that sections 1 to 3 of the new Act will commence on the
day the new Act receives Royal Assent. It also provides that Schedule 1 will
commence at the same time as the Homelessness Act 2013 commences.
Clause 3 provides that each Act that is specified in a Schedule is amended as
set out in the applicable items in the Schedule concerned, and that any other
item in the Schedule has effect according to its terms.
9
Schedule 1 - Amendments
Part 1 - Repeal
Summary
Part 1 provides for the repeal of the whole of the Supported Accommodation
Assistance Act 1994 (Supported Accommodation Assistance Act).
Background
The new Homelessness Act 2013 is intended to replace the Supported
Accommodation Assistance Act, retaining the important statements about
homelessness, the partnerships, effort and strategies that are needed to
tackle it, and the treatment and support that vulnerable Australians deserve.
However, in recognition of the current federal financial relations framework for
Commonwealth, state and territory efforts to reduce homelessness - with
funding provided through Commonwealth-state mechanisms such as the
National Partnership on Homelessness and the National Affordable Housing
Specific Purpose Payment - a number of the aspects of the Supported
Accommodation Assistance Act are no longer required, including the funding
arrangements it outlines between the Commonwealth and states and
territories.
Explanation of the changes
Clause 1 repeals the whole of the Supported Accommodation Assistance Act.
10
Part 2 - Consequential amendment
Summary
Part 2 makes a consequential amendment to subsection 96(13) (definition of
homeless person) of the Commonwealth Electoral Act 1918 (Commonwealth
Electoral Act).
Background
The amendment to the Commonwealth Electoral Act made by this Part is
consequential upon the repeal of the Supported Accommodation Assistance
Act. A minor amendment is made to the definition of homeless person,
which applies in provisions about including itinerant electors in the Electoral
Rolls. The amendment will ensure that the definition will continue to apply by
reference to the natural meaning of the term `homeless' so that people who
are homeless can still effectively participate in elections.
This amendment preserves the operation of existing provisions in the
Commonwealth Electoral Act despite the repeal of the Supported
Accommodation Assistance Act.
Explanation of the changes
Clause 2 repeals the definition of homeless person in subsection 96(13) of
the Commonwealth Electoral Act, and substitutes a new definition. Under the
new definition, a homeless person includes a person living in crisis
accommodation or transitional accommodation and a person who has
inadequate access to safe and secure housing.
This amendment will effectively preserve paragraph (a) of the current
definition in subsection 96(13) of the Commonwealth Electoral Act and
remove the reference, in paragraph (b) of the current definition, to the
Supported Accommodation Assistance Act.
This amendment to the definition of homeless person in the Commonwealth
Electoral Act is purely consequential to the repeal of the Supported
Accommodation Assistance Act, and is not intended to change the operation
of the definition. The new definition of homeless person is an inclusive,
non-exhaustive definition that relies on the ordinary and natural meaning of
`homeless person'.
11
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011
Homelessness Bill 2013
This 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.
Overview of the Bill
The Bill provides an Act for the recognition of people who are, or are at risk
of, experiencing homelessness to maintain a national focus on the issue of
homelessness.
The Bill calls attention to the seriousness of homelessness, and seeks to
increase awareness and understanding in the Australian community about
homelessness and how it challenges people's ability to achieve social
inclusion. The Bill sets out the Commonwealth's views on the strategies and
partnerships needed to address homelessness and how people facing
homelessness deserve to be treated and supported.
Human rights implications
Increasing awareness of human rights
The Bill engages the human rights enjoyed by all Australians and seeks to
advance the awareness of these rights as they apply to people who are, or
are at risk of, experiencing homelessness.
The Bill lists the ratified international standards and enacted legislation of the
Commonwealth that forms the basis for the human rights and freedoms of all
Australians. The Bill highlights that people who are, or are at risk of,
experiencing homelessness should have the same ability to exercise their
rights as other Australians. The Bill also recognises that people who are, or
are at risk of, experiencing homelessness face more challenges than other
Australians in exercising their rights.
As the Bill highlights and reaffirms the existing human rights of people who
are, or are at risk of, experiencing homelessness, the Bill neither extends nor
limits the human rights of those who are, or are at risk of, experiencing
homelessness, or any other people. The Bill explicitly links Australia's
reduction of homelessness with meeting its international human rights
obligations.
1
Demonstrating the Commonwealth's support of international human rights
obligations
The Bill sets out the Commonwealth's goal to reduce the number of people
who are, or are at risk of, experiencing homelessness through its commitment
to working cooperatively with key stakeholders and its recognition of the
importance of key strategies. The Bill also sets out the Commonwealth's
aspiration that all people living in Australia have access to appropriate,
affordable, safe and sustainable housing. This demonstrates the
Commonwealth's support towards Australia's international human rights
obligations and, in particular, engages Australia's obligations under Article 11
of the International Covenant on Civil and Political Rights, the right to an
adequate standard of living, which includes the right to adequate housing.
This complements and is consistent with the practical steps towards
progressively realising the right to housing that Australia has taken through its
investments under the National Affordable Housing Agreement and related
National Partnerships. It also supports Australia's obligations to a wide range
of other rights which are affected by homelessness, including, but not limited
to, the right to health, personal safety, privacy and social security. These
obligations relate to Australian ratified treaties, including the International
Covenant on Civil and Political Rights and the Convention on the Rights of the
Child.
Conclusion
The Bill is compatible with human rights because it seeks to promote the
existing human rights of people who are, or are at risk of, experiencing
homelessness. It does not create any limitations to human rights. This Bill
demonstrates the Commonwealth's support of Australia's international human
rights obligations under a number of treaties.
Minister for Housing and Homelessness,
the Hon Mark Butler MP
2
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011
Homelessness (Consequential Amendments) Bill 2013
This 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.
Overview of the Bill
The Bill provides an Act to supplement the Homelessness Bill 2013. Because
the new Homelessness Act 2013 will replace the Supported Accommodation
Assistance Act 1994, this Consequential Amendments Bill repeals the
Supported Accommodation Assistance Act to make way for the new
legislation.
The Bill also makes a consequential amendment to the Commonwealth
Electoral Act 1918. At present, the definition of homeless person in the
Commonwealth Electoral Act partly relies on concepts drawn from the
Supported Accommodation Assistance Act. That element of the definition
needs to be removed because of the repeal of that Act.
Human rights implications
Maintaining the right to civic participation
The Bill's amendment to the Commonwealth Electoral Act 1918 preserves the
administrative arrangement that allows Australians who are experiencing
homelessness to participate in federal electoral activities. This maintains the
right to political participation, and the right to vote, for Australians
experiencing homelessness. These rights are part of Australia's international
human rights obligations under Article 25 of the International Covenant on
Civil and Political Rights and Article 21 of the Universal Declaration on Human
Rights.
Conclusion
The Bill is compatible with human rights because it supports the right to vote
for Australians experiencing homelessness.
Minister for Housing and Homelessness,
the Hon Mark Butler MP
1