{"id":"C2008A00121","name":"National Rental Affordability Scheme Act 2008","slug":"national-rental-affordability-scheme-act-2008","collection":"act","jurisdiction":"commonwealth","status":"in_force","isInForce":true,"actNumber":"121 of 2008","makingDate":null,"administeringDepartment":null,"currentVersion":{"id":8069,"registerId":"commonwealth-C2008A00121-current","compilationNumber":null,"startDate":"2026-03-30","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"Part 1","sectionType":"part","heading":"Preliminary","content":"## Part 1—Preliminary","sortOrder":0},{"sectionNumber":"1","sectionType":"section","heading":"Short title","content":"#### 1 Short title\n\n  This Act may be cited as the National Rental Affordability Scheme Act 2008.","sortOrder":1},{"sectionNumber":"2","sectionType":"section","heading":"Commencement","content":"#### 2 Commencement\n\n  This Act is taken to have commenced on 1 July 2008.","sortOrder":2},{"sectionNumber":"3","sectionType":"section","heading":"Object","content":"#### 3 Object\n\n  (1) The object of this Act is to encourage large‑scale investment in housing by offering an incentive to participants in the National Rental Affordability Scheme so as to:\n    (a) increase the supply of affordable rental dwellings; and\n    (b) reduce rental costs for low and moderate income households.\n  (2) The object of this Act is to be achieved in ways that include:\n    (a) protecting tenants of rental dwellings covered by allocations; and\n    (b) protecting investors; and\n    (c) providing rights to investors; and\n    (d) recognising the contributions, in cash or in kind, made by States and Territories to participants in the Scheme.","sortOrder":3},{"sectionNumber":"3A","sectionType":"section","heading":"Severability","content":"#### 3A Severability\n\n  Additional and severable operation of Act and tax law provisions\n  (1) Without limiting the effect of this Act or the tax law provisions apart from this section, this Act and the tax law provisions also have effect as provided by this section.\n  (2) To avoid doubt, none of the following subsections of this section limit the operation of any other subsection of this section.\n  External affairs\n  (3) This Act and the tax law provisions have the effect they would have if their operation were expressly confined to give effect to Australia’s rights and obligations under paragraph 1 of Article 2 and Article 11 of the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966, as in force for Australia from time to time.\n\n> Note: The International Covenant on Economic, Social and Cultural Rights is in Australian Treaty Series 1976 No. 5 (\\[1976\\] ATS 5) and could in 2019 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).\n\n  Corporations\n  (4) This Act and the tax law provisions have the effect they would have if their operation were expressly confined to the following:\n    (a) the regulation of activities, functions, relationships or business of an investor or approved participant that is a constitutional corporation;\n    (b) the creation of rights or privileges belonging to an investor or approved participant that is a constitutional corporation;\n    (c) the imposition of obligations on an investor or approved participant that is a constitutional corporation;\n    (d) in respect of the matters mentioned in paragraphs (a) to (c), the regulation of the conduct of persons or entities through which the constitutional corporation acts;\n    (e) the regulation of persons or entities whose conduct affects or is capable of affecting the activities, functions, relationships or business of an investor or an approved participant that is a constitutional corporation.\n  Taxation\n  (5) This Act and the tax law provisions have the effect they would have if their operation were expressly confined to determining the tax liability of a person.\n  Territories\n  (6) This Act and the tax law provisions have the effect they would have if their operation were expressly confined to apply in relation to the following:\n    (a) a rental dwelling that is located in a Territory;\n    (b) an approved participant or investor who is a resident of a Territory;\n    (c) an approved participant or investor that is:\n    (i) a body corporate that is incorporated in a Territory; or\n    (ii) a body corporate that is taken to be registered in a Territory under section 119A of the Corporations Act 2001; or\n    (iii) a trust, if the proper law of the trust and the law of the trust’s administration are the law of a Territory; or\n    (iv) an entity, the core or routine activities of which are carried out in or in connection with a Territory.","sortOrder":4},{"sectionNumber":"4","sectionType":"section","heading":"Definitions","content":"#### 4 Definitions\n\n  In this Act:\n\n> acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.\n\n> allocation, in relation to an incentive period, means an allotment to an approved participant of an entitlement to receive an incentive for a rental dwelling in relation to an NRAS year that falls within the incentive period if conditions are satisfied in relation to the rental dwelling.\n\n> constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.\n\n> incentive means:\n\n    (a) a National Rental Affordability Scheme Tax Offset; or\n    (b) an amount payable for an NRAS year.\n\n> Note: Paragraph (a)—for provisions relating to claiming the National Rental Affordability Scheme Tax Offset, see Division 380 of the Income Tax Assessment Act 1997.\n\n> incentive period means a 10 year period that starts on or after 1 July 2008.\n\n> investor, in relation to a rental dwelling covered by an allocation, means a person:\n\n    (a) who is the legal or beneficial owner of the rental dwelling; and\n    (b) who is not an approved participant in relation to the rental dwelling.\n\n> just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.\n\n> National Rental Affordability Scheme means the scheme prescribed for the purposes of section 5.\n\n> NRAS year (short for National Rental Affordability Scheme year) means:\n\n    (a) the period beginning on 1 July 2008 and ending on 30 April 2009; and\n    (b) the year beginning on 1 May 2009 and later years beginning on 1 May.\n\n> rental dwelling means a dwelling for which rent is payable and includes:\n\n    (a) a part of a dwelling or building that is capable of being lived in as a separate residence; and\n    (b) a unit that is a dwelling; and\n    (c) any dwelling prescribed by the regulations to be a rental dwelling for the purposes of this definition;\n  but does not include a caravan, houseboat, another kind of mobile dwelling or any dwelling prescribed by the regulations not to be a rental dwelling for the purposes of this definition.\n  Secretary means:\n    (a) the Secretary of the Social Services Department; or\n    (b) the Secretary of the Treasury Department.\n  Social Services Department means the Department administered by the Minister administering the Paid Parental Leave Act 2010.\n\n> tax law provisions means the following provisions of the Income Tax Assessment Act 1997:\n\n    (a) item 23 of the table in section 67‑23;\n    (b) Division 380.\n  Treasury Department means the Department administered by the Minister administering the A New Tax System (Goods and Services Tax) Act 1999.\n\n> unit means a unit held under a strata title system (or a similar system) established under a law of a State or Territory (however the unit is described for the purpose of that law), together with:\n\n    (a) any accompanying common property; and\n    (b) any permanent improvement (for example, a garage or storeroom) associated with the unit.","sortOrder":5},{"sectionNumber":"Part 2","sectionType":"part","heading":"The National Rental Affordability Scheme","content":"An Act to provide for the establishment of the National Rental Affordability Scheme, and for related purposes\n\n## Part 1—Preliminary\n\n#### 1 Short title\n\n  This Act may be cited as the National Rental Affordability Scheme Act 2008.\n\n#### 2 Commencement\n\n  This Act is taken to have commenced on 1 July 2008.\n\n#### 3 Object\n\n  (1) The object of this Act is to encourage large‑scale investment in housing by offering an incentive to participants in the National Rental Affordability Scheme so as to:\n    (a) increase the supply of affordable rental dwellings; and\n    (b) reduce rental costs for low and moderate income households.\n  (2) The object of this Act is to be achieved in ways that include:\n    (a) protecting tenants of rental dwellings covered by allocations; and\n    (b) protecting investors; and\n    (c) providing rights to investors; and\n    (d) recognising the contributions, in cash or in kind, made by States and Territories to participants in the Scheme.\n\n#### 3A Severability\n\n  Additional and severable operation of Act and tax law provisions\n  (1) Without limiting the effect of this Act or the tax law provisions apart from this section, this Act and the tax law provisions also have effect as provided by this section.\n  (2) To avoid doubt, none of the following subsections of this section limit the operation of any other subsection of this section.\n  External affairs\n  (3) This Act and the tax law provisions have the effect they would have if their operation were expressly confined to give effect to Australia’s rights and obligations under paragraph 1 of Article 2 and Article 11 of the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966, as in force for Australia from time to time.\n\n> Note: The International Covenant on Economic, Social and Cultural Rights is in Australian Treaty Series 1976 No. 5 (\\[1976\\] ATS 5) and could in 2019 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).\n\n  Corporations\n  (4) This Act and the tax law provisions have the effect they would have if their operation were expressly confined to the following:\n    (a) the regulation of activities, functions, relationships or business of an investor or approved participant that is a constitutional corporation;\n    (b) the creation of rights or privileges belonging to an investor or approved participant that is a constitutional corporation;\n    (c) the imposition of obligations on an investor or approved participant that is a constitutional corporation;\n    (d) in respect of the matters mentioned in paragraphs (a) to (c), the regulation of the conduct of persons or entities through which the constitutional corporation acts;\n    (e) the regulation of persons or entities whose conduct affects or is capable of affecting the activities, functions, relationships or business of an investor or an approved participant that is a constitutional corporation.\n  Taxation\n  (5) This Act and the tax law provisions have the effect they would have if their operation were expressly confined to determining the tax liability of a person.\n  Territories\n  (6) This Act and the tax law provisions have the effect they would have if their operation were expressly confined to apply in relation to the following:\n    (a) a rental dwelling that is located in a Territory;\n    (b) an approved participant or investor who is a resident of a Territory;\n    (c) an approved participant or investor that is:\n    (i) a body corporate that is incorporated in a Territory; or\n    (ii) a body corporate that is taken to be registered in a Territory under section 119A of the Corporations Act 2001; or\n    (iii) a trust, if the proper law of the trust and the law of the trust’s administration are the law of a Territory; or\n    (iv) an entity, the core or routine activities of which are carried out in or in connection with a Territory.\n\n#### 4 Definitions\n\n  In this Act:\n\n> acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.\n\n> allocation, in relation to an incentive period, means an allotment to an approved participant of an entitlement to receive an incentive for a rental dwelling in relation to an NRAS year that falls within the incentive period if conditions are satisfied in relation to the rental dwelling.\n\n> constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.\n\n> incentive means:\n\n    (a) a National Rental Affordability Scheme Tax Offset; or\n    (b) an amount payable for an NRAS year.\n\n> Note: Paragraph (a)—for provisions relating to claiming the National Rental Affordability Scheme Tax Offset, see Division 380 of the Income Tax Assessment Act 1997.\n\n> incentive period means a 10 year period that starts on or after 1 July 2008.\n\n> investor, in relation to a rental dwelling covered by an allocation, means a person:\n\n    (a) who is the legal or beneficial owner of the rental dwelling; and\n    (b) who is not an approved participant in relation to the rental dwelling.\n\n> just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.\n\n> National Rental Affordability Scheme means the scheme prescribed for the purposes of section 5.\n\n> NRAS year (short for National Rental Affordability Scheme year) means:\n\n    (a) the period beginning on 1 July 2008 and ending on 30 April 2009; and\n    (b) the year beginning on 1 May 2009 and later years beginning on 1 May.\n\n> rental dwelling means a dwelling for which rent is payable and includes:\n\n    (a) a part of a dwelling or building that is capable of being lived in as a separate residence; and\n    (b) a unit that is a dwelling; and\n    (c) any dwelling prescribed by the regulations to be a rental dwelling for the purposes of this definition;\n  but does not include a caravan, houseboat, another kind of mobile dwelling or any dwelling prescribed by the regulations not to be a rental dwelling for the purposes of this definition.\n  Secretary means:\n    (a) the Secretary of the Social Services Department; or\n    (b) the Secretary of the Treasury Department.\n  Social Services Department means the Department administered by the Minister administering the Paid Parental Leave Act 2010.\n\n> tax law provisions means the following provisions of the Income Tax Assessment Act 1997:\n\n    (a) item 23 of the table in section 67‑23;\n    (b) Division 380.\n  Treasury Department means the Department administered by the Minister administering the A New Tax System (Goods and Services Tax) Act 1999.\n\n> unit means a unit held under a strata title system (or a similar system) established under a law of a State or Territory (however the unit is described for the purpose of that law), together with:\n\n    (a) any accompanying common property; and\n    (b) any permanent improvement (for example, a garage or storeroom) associated with the unit.\n\n## Part 2—The National Rental Affordability Scheme\n\n### Division 1—Making the National Rental Affordability Scheme\n\n#### 5 Making the National Rental Affordability Scheme\n\n  To further the objects of this Act, the regulations must prescribe a Scheme (the National Rental Affordability Scheme) about the following matters:\n    (a) the approval of participants (approved participants) by the Secretary;\n    (b) the approval of rental dwellings by the Secretary;\n    (c) providing incentives to an approved participant if certain conditions are satisfied;\n    (d) a matter required or permitted by this Act to be included in the Scheme;\n    (e) ancillary or incidental matters.\n\n#### 6 Other matters that may be included in the National Rental Affordability Scheme\n\n  The National Rental Affordability Scheme may provide for any or all of the following matters:\n    (a) the application process for an allocation;\n    (b) the assessment criteria for an allocation (which may vary from time to time);\n    (c) the amount of an incentive;\n    (ca) the adjustment, in certain circumstances, of the amount of an incentive that:\n    (i) is to be provided to an approved participant; or\n    (ii) has previously been provided to an approved participant;\n    (cb) the passing on of contributions made by States and Territories, or their monetary equivalent, by approved participants in certain circumstances;\n    (d) how the market value rent of a rental dwelling covered by an allocation for an NRAS year is to be determined;\n    (e) the protection of tenants of rental dwellings covered by allocations;\n    (f) the protection of investors;\n    (g) the rights of investors.\n\n### Division 2—Allocation process\n\n#### 7 Making allocations\n\n  (1) The National Rental Affordability Scheme must provide for the Secretary to make an allocation for an incentive period in respect of a rental dwelling:\n    (a) on the conditions set out in subsection (2); and\n    (b) on the condition that an incentive may be offset or recouped in the circumstances provided for by the Scheme; and\n    (c) on any other conditions provided for by the Scheme.\n  Conditions imposed by Secretary under the Scheme\n  (2) The conditions are that:\n    (a) either:\n    (i) the rental dwelling has not been lived in as a residence at any time before the first day of the incentive period; or\n    (ii) the rental dwelling was unfit for anyone to live in, and since the day on which it has been made fit for living in, it has not been lived in as a residence between that day and the first day of the incentive period; and\n    (b) to the extent that the rental dwelling is rented during an NRAS year that falls within the incentive period—both:\n    (i) the rental dwelling is rented to a tenant or tenants of a kind prescribed by the regulations; and\n    (ii) each charge of rent for the rental dwelling during the year is at least 20% less than the market value rent for the dwelling; and\n    (c) to the extent that the rental dwelling is not rented during an NRAS year that falls within the incentive period—the dwelling is not vacant for longer than a period prescribed by the regulations.\n  (3) To avoid doubt, for the purpose of subparagraph (2)(a)(i), if a dwelling or building has been converted to create additional residences, then a part of the dwelling or building that is capable of being lived in as a separate residence must not have been lived in as a separate residence before the first day of the incentive period.\n  (4) Regulations made for the purposes of subparagraph (2)(b)(i) may provide for the Secretary to make a legislative instrument prescribing matters relating to the income of a tenant or tenants.\n  Condition disapplied by Secretary under the Scheme\n  (5) The National Rental Affordability Scheme may provide that, in certain circumstances, the Secretary may decide that the condition mentioned in subparagraph (2)(b)(ii) does not apply if the Secretary is satisfied that the Secretary’s decision will not result in an increase in rental costs for low and moderate income households.\n  Conditions varied or imposed directly by the Scheme\n  (6) Without limiting paragraph 8(a), the National Rental Affordability Scheme may:\n    (a) vary a condition of an allocation (other than a condition mentioned in paragraph (2)(a) or subparagraph (2)(b)(ii)) or impose a condition of an allocation; and\n    (b) set out the circumstances (if any) in which the condition is varied or imposed.\n  The condition is varied or imposed accordingly by force of this subsection.\n  (7) Subsection (6) has effect despite anything in this Act or the National Rental Affordability Scheme.\n\n#### 8 Variations, transfers and revocations of allocations\n\n  The National Rental Affordability Scheme may provide for and in relation to the following:\n    (a) the variation of an allocation in certain circumstances;\n    (b) the transfer of an allocation to another approved participant in certain circumstances;\n    (ba) the transfer of all allocations made to an approved participant to another approved participant or other approved participants in certain circumstances;\n    (bb) the transfer of an allocation to another rental dwelling in certain circumstances;\n    (c) the revocation of an allocation in certain circumstances;\n    (d) how such a variation, transfer or revocation is to be made.\n\n### Division 3—Receiving incentives\n\n#### 9 Eligibility for receiving incentives\n\n  The National Rental Affordability Scheme must provide for the Secretary to do the following in relation to an allocation:\n    (a) issue a certificate to an approved participant of a kind provided for by the Scheme that states the National Rental Affordability Scheme Tax Offset that is claimable in relation to an NRAS year;\n    (b) make a payment to an approved participant of a kind provided for by the Scheme for an NRAS year.\n\n## Part 3—Miscellaneous\n\n#### 10 Compensation for acquisition of property\n\n  (1) If the operation of this Act would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.\n  (2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.\n\n#### 10A Acceptance of undertakings\n\n  (1) The Secretary may accept a written undertaking given by an approved participant in relation to the National Rental Affordability Scheme.\n  (2) The undertaking must be expressed to be an undertaking under this section.\n  (3) The approved participant may withdraw or vary the undertaking at any time, but only with the written consent of the Secretary.\n  (4) The consent of the Secretary is not a legislative instrument.\n  (5) The Secretary may, by written notice given to the approved participant, cancel the undertaking.\n\n#### 10B Enforcement of undertakings\n\n  (1) The Secretary may apply to the Federal Court of Australia for an order under subsection (2) if:\n    (a) an approved participant has given an undertaking under section 10A; and\n    (b) the undertaking has not been withdrawn or cancelled; and\n    (c) the Secretary considers that the approved participant has breached the undertaking.\n  (2) If the Federal Court of Australia is satisfied that the approved participant has breached the undertaking, the Court may make any or all of the following orders:\n    (a) an order directing the approved participant to comply with the undertaking;\n    (b) an order directing the approved participant to pay to the Commonwealth an amount up to the amount of any financial benefit that the approved participant has obtained directly or indirectly and that is reasonably attributable to the breach;\n    (c) any order that the Court considers appropriate directing the approved participant to compensate any other person who has suffered loss or damage as a result of the breach;\n    (d) any other order that the Court considers appropriate.\n\n#### 11 Delegation\n\n  (1) The Secretary may, by written instrument, delegate all or any of the following powers to an SES employee in the Social Services Department or the Treasury Department:\n    (a) the Secretary’s power to approve a participant in the National Rental Affordability Scheme;\n    (b) the Secretary’s power to approve a rental dwelling for the purposes of the Scheme;\n    (c) the Secretary’s power to decide whether to make an allocation under the Scheme.\n  (2) The Secretary may, by written instrument, delegate to an APS employee in the Social Services Department or the Treasury Department all or any of the Secretary’s powers or functions under this Act or the regulations (other than the powers mentioned in subsection (1)).\n  (3) In exercising powers or functions under a delegation, the delegate must comply with any directions of the Secretary.\n\n#### 12 Regulations\n\n  The Governor‑General may make regulations prescribing matters:\n    (a) required or permitted by this Act to be prescribed; or\n    (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.","sortOrder":6},{"sectionNumber":"Division 1","sectionType":"division","heading":"Making the National Rental Affordability Scheme","content":"An Act to provide for the establishment of the National Rental Affordability Scheme, and for related purposes\n\n## Part 1—Preliminary\n\n#### 1 Short title\n\n  This Act may be cited as the National Rental Affordability Scheme Act 2008.\n\n#### 2 Commencement\n\n  This Act is taken to have commenced on 1 July 2008.\n\n#### 3 Object\n\n  (1) The object of this Act is to encourage large‑scale investment in housing by offering an incentive to participants in the National Rental Affordability Scheme so as to:\n    (a) increase the supply of affordable rental dwellings; and\n    (b) reduce rental costs for low and moderate income households.\n  (2) The object of this Act is to be achieved in ways that include:\n    (a) protecting tenants of rental dwellings covered by allocations; and\n    (b) protecting investors; and\n    (c) providing rights to investors; and\n    (d) recognising the contributions, in cash or in kind, made by States and Territories to participants in the Scheme.\n\n#### 3A Severability\n\n  Additional and severable operation of Act and tax law provisions\n  (1) Without limiting the effect of this Act or the tax law provisions apart from this section, this Act and the tax law provisions also have effect as provided by this section.\n  (2) To avoid doubt, none of the following subsections of this section limit the operation of any other subsection of this section.\n  External affairs\n  (3) This Act and the tax law provisions have the effect they would have if their operation were expressly confined to give effect to Australia’s rights and obligations under paragraph 1 of Article 2 and Article 11 of the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966, as in force for Australia from time to time.\n\n> Note: The International Covenant on Economic, Social and Cultural Rights is in Australian Treaty Series 1976 No. 5 (\\[1976\\] ATS 5) and could in 2019 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).\n\n  Corporations\n  (4) This Act and the tax law provisions have the effect they would have if their operation were expressly confined to the following:\n    (a) the regulation of activities, functions, relationships or business of an investor or approved participant that is a constitutional corporation;\n    (b) the creation of rights or privileges belonging to an investor or approved participant that is a constitutional corporation;\n    (c) the imposition of obligations on an investor or approved participant that is a constitutional corporation;\n    (d) in respect of the matters mentioned in paragraphs (a) to (c), the regulation of the conduct of persons or entities through which the constitutional corporation acts;\n    (e) the regulation of persons or entities whose conduct affects or is capable of affecting the activities, functions, relationships or business of an investor or an approved participant that is a constitutional corporation.\n  Taxation\n  (5) This Act and the tax law provisions have the effect they would have if their operation were expressly confined to determining the tax liability of a person.\n  Territories\n  (6) This Act and the tax law provisions have the effect they would have if their operation were expressly confined to apply in relation to the following:\n    (a) a rental dwelling that is located in a Territory;\n    (b) an approved participant or investor who is a resident of a Territory;\n    (c) an approved participant or investor that is:\n    (i) a body corporate that is incorporated in a Territory; or\n    (ii) a body corporate that is taken to be registered in a Territory under section 119A of the Corporations Act 2001; or\n    (iii) a trust, if the proper law of the trust and the law of the trust’s administration are the law of a Territory; or\n    (iv) an entity, the core or routine activities of which are carried out in or in connection with a Territory.\n\n#### 4 Definitions\n\n  In this Act:\n\n> acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.\n\n> allocation, in relation to an incentive period, means an allotment to an approved participant of an entitlement to receive an incentive for a rental dwelling in relation to an NRAS year that falls within the incentive period if conditions are satisfied in relation to the rental dwelling.\n\n> constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.\n\n> incentive means:\n\n    (a) a National Rental Affordability Scheme Tax Offset; or\n    (b) an amount payable for an NRAS year.\n\n> Note: Paragraph (a)—for provisions relating to claiming the National Rental Affordability Scheme Tax Offset, see Division 380 of the Income Tax Assessment Act 1997.\n\n> incentive period means a 10 year period that starts on or after 1 July 2008.\n\n> investor, in relation to a rental dwelling covered by an allocation, means a person:\n\n    (a) who is the legal or beneficial owner of the rental dwelling; and\n    (b) who is not an approved participant in relation to the rental dwelling.\n\n> just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.\n\n> National Rental Affordability Scheme means the scheme prescribed for the purposes of section 5.\n\n> NRAS year (short for National Rental Affordability Scheme year) means:\n\n    (a) the period beginning on 1 July 2008 and ending on 30 April 2009; and\n    (b) the year beginning on 1 May 2009 and later years beginning on 1 May.\n\n> rental dwelling means a dwelling for which rent is payable and includes:\n\n    (a) a part of a dwelling or building that is capable of being lived in as a separate residence; and\n    (b) a unit that is a dwelling; and\n    (c) any dwelling prescribed by the regulations to be a rental dwelling for the purposes of this definition;\n  but does not include a caravan, houseboat, another kind of mobile dwelling or any dwelling prescribed by the regulations not to be a rental dwelling for the purposes of this definition.\n  Secretary means:\n    (a) the Secretary of the Social Services Department; or\n    (b) the Secretary of the Treasury Department.\n  Social Services Department means the Department administered by the Minister administering the Paid Parental Leave Act 2010.\n\n> tax law provisions means the following provisions of the Income Tax Assessment Act 1997:\n\n    (a) item 23 of the table in section 67‑23;\n    (b) Division 380.\n  Treasury Department means the Department administered by the Minister administering the A New Tax System (Goods and Services Tax) Act 1999.\n\n> unit means a unit held under a strata title system (or a similar system) established under a law of a State or Territory (however the unit is described for the purpose of that law), together with:\n\n    (a) any accompanying common property; and\n    (b) any permanent improvement (for example, a garage or storeroom) associated with the unit.\n\n## Part 2—The National Rental Affordability Scheme\n\n### Division 1—Making the National Rental Affordability Scheme\n\n#### 5 Making the National Rental Affordability Scheme\n\n  To further the objects of this Act, the regulations must prescribe a Scheme (the National Rental Affordability Scheme) about the following matters:\n    (a) the approval of participants (approved participants) by the Secretary;\n    (b) the approval of rental dwellings by the Secretary;\n    (c) providing incentives to an approved participant if certain conditions are satisfied;\n    (d) a matter required or permitted by this Act to be included in the Scheme;\n    (e) ancillary or incidental matters.\n\n#### 6 Other matters that may be included in the National Rental Affordability Scheme\n\n  The National Rental Affordability Scheme may provide for any or all of the following matters:\n    (a) the application process for an allocation;\n    (b) the assessment criteria for an allocation (which may vary from time to time);\n    (c) the amount of an incentive;\n    (ca) the adjustment, in certain circumstances, of the amount of an incentive that:\n    (i) is to be provided to an approved participant; or\n    (ii) has previously been provided to an approved participant;\n    (cb) the passing on of contributions made by States and Territories, or their monetary equivalent, by approved participants in certain circumstances;\n    (d) how the market value rent of a rental dwelling covered by an allocation for an NRAS year is to be determined;\n    (e) the protection of tenants of rental dwellings covered by allocations;\n    (f) the protection of investors;\n    (g) the rights of investors.\n\n### Division 2—Allocation process\n\n#### 7 Making allocations\n\n  (1) The National Rental Affordability Scheme must provide for the Secretary to make an allocation for an incentive period in respect of a rental dwelling:\n    (a) on the conditions set out in subsection (2); and\n    (b) on the condition that an incentive may be offset or recouped in the circumstances provided for by the Scheme; and\n    (c) on any other conditions provided for by the Scheme.\n  Conditions imposed by Secretary under the Scheme\n  (2) The conditions are that:\n    (a) either:\n    (i) the rental dwelling has not been lived in as a residence at any time before the first day of the incentive period; or\n    (ii) the rental dwelling was unfit for anyone to live in, and since the day on which it has been made fit for living in, it has not been lived in as a residence between that day and the first day of the incentive period; and\n    (b) to the extent that the rental dwelling is rented during an NRAS year that falls within the incentive period—both:\n    (i) the rental dwelling is rented to a tenant or tenants of a kind prescribed by the regulations; and\n    (ii) each charge of rent for the rental dwelling during the year is at least 20% less than the market value rent for the dwelling; and\n    (c) to the extent that the rental dwelling is not rented during an NRAS year that falls within the incentive period—the dwelling is not vacant for longer than a period prescribed by the regulations.\n  (3) To avoid doubt, for the purpose of subparagraph (2)(a)(i), if a dwelling or building has been converted to create additional residences, then a part of the dwelling or building that is capable of being lived in as a separate residence must not have been lived in as a separate residence before the first day of the incentive period.\n  (4) Regulations made for the purposes of subparagraph (2)(b)(i) may provide for the Secretary to make a legislative instrument prescribing matters relating to the income of a tenant or tenants.\n  Condition disapplied by Secretary under the Scheme\n  (5) The National Rental Affordability Scheme may provide that, in certain circumstances, the Secretary may decide that the condition mentioned in subparagraph (2)(b)(ii) does not apply if the Secretary is satisfied that the Secretary’s decision will not result in an increase in rental costs for low and moderate income households.\n  Conditions varied or imposed directly by the Scheme\n  (6) Without limiting paragraph 8(a), the National Rental Affordability Scheme may:\n    (a) vary a condition of an allocation (other than a condition mentioned in paragraph (2)(a) or subparagraph (2)(b)(ii)) or impose a condition of an allocation; and\n    (b) set out the circumstances (if any) in which the condition is varied or imposed.\n  The condition is varied or imposed accordingly by force of this subsection.\n  (7) Subsection (6) has effect despite anything in this Act or the National Rental Affordability Scheme.\n\n#### 8 Variations, transfers and revocations of allocations\n\n  The National Rental Affordability Scheme may provide for and in relation to the following:\n    (a) the variation of an allocation in certain circumstances;\n    (b) the transfer of an allocation to another approved participant in certain circumstances;\n    (ba) the transfer of all allocations made to an approved participant to another approved participant or other approved participants in certain circumstances;\n    (bb) the transfer of an allocation to another rental dwelling in certain circumstances;\n    (c) the revocation of an allocation in certain circumstances;\n    (d) how such a variation, transfer or revocation is to be made.\n\n### Division 3—Receiving incentives\n\n#### 9 Eligibility for receiving incentives\n\n  The National Rental Affordability Scheme must provide for the Secretary to do the following in relation to an allocation:\n    (a) issue a certificate to an approved participant of a kind provided for by the Scheme that states the National Rental Affordability Scheme Tax Offset that is claimable in relation to an NRAS year;\n    (b) make a payment to an approved participant of a kind provided for by the Scheme for an NRAS year.\n\n## Part 3—Miscellaneous\n\n#### 10 Compensation for acquisition of property\n\n  (1) If the operation of this Act would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.\n  (2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.\n\n#### 10A Acceptance of undertakings\n\n  (1) The Secretary may accept a written undertaking given by an approved participant in relation to the National Rental Affordability Scheme.\n  (2) The undertaking must be expressed to be an undertaking under this section.\n  (3) The approved participant may withdraw or vary the undertaking at any time, but only with the written consent of the Secretary.\n  (4) The consent of the Secretary is not a legislative instrument.\n  (5) The Secretary may, by written notice given to the approved participant, cancel the undertaking.\n\n#### 10B Enforcement of undertakings\n\n  (1) The Secretary may apply to the Federal Court of Australia for an order under subsection (2) if:\n    (a) an approved participant has given an undertaking under section 10A; and\n    (b) the undertaking has not been withdrawn or cancelled; and\n    (c) the Secretary considers that the approved participant has breached the undertaking.\n  (2) If the Federal Court of Australia is satisfied that the approved participant has breached the undertaking, the Court may make any or all of the following orders:\n    (a) an order directing the approved participant to comply with the undertaking;\n    (b) an order directing the approved participant to pay to the Commonwealth an amount up to the amount of any financial benefit that the approved participant has obtained directly or indirectly and that is reasonably attributable to the breach;\n    (c) any order that the Court considers appropriate directing the approved participant to compensate any other person who has suffered loss or damage as a result of the breach;\n    (d) any other order that the Court considers appropriate.\n\n#### 11 Delegation\n\n  (1) The Secretary may, by written instrument, delegate all or any of the following powers to an SES employee in the Social Services Department or the Treasury Department:\n    (a) the Secretary’s power to approve a participant in the National Rental Affordability Scheme;\n    (b) the Secretary’s power to approve a rental dwelling for the purposes of the Scheme;\n    (c) the Secretary’s power to decide whether to make an allocation under the Scheme.\n  (2) The Secretary may, by written instrument, delegate to an APS employee in the Social Services Department or the Treasury Department all or any of the Secretary’s powers or functions under this Act or the regulations (other than the powers mentioned in subsection (1)).\n  (3) In exercising powers or functions under a delegation, the delegate must comply with any directions of the Secretary.\n\n#### 12 Regulations\n\n  The Governor‑General may make regulations prescribing matters:\n    (a) required or permitted by this Act to be prescribed; or\n    (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.","sortOrder":7},{"sectionNumber":"5","sectionType":"section","heading":"Making the National Rental Affordability Scheme","content":"#### 5 Making the National Rental Affordability Scheme\n\n  To further the objects of this Act, the regulations must prescribe a Scheme (the National Rental Affordability Scheme) about the following matters:\n    (a) the approval of participants (approved participants) by the Secretary;\n    (b) the approval of rental dwellings by the Secretary;\n    (c) providing incentives to an approved participant if certain conditions are satisfied;\n    (d) a matter required or permitted by this Act to be included in the Scheme;\n    (e) ancillary or incidental matters.","sortOrder":8},{"sectionNumber":"6","sectionType":"section","heading":"Other matters that may be included in the National Rental Affordability Scheme","content":"#### 6 Other matters that may be included in the National Rental Affordability Scheme\n\n  The National Rental Affordability Scheme may provide for any or all of the following matters:\n    (a) the application process for an allocation;\n    (b) the assessment criteria for an allocation (which may vary from time to time);\n    (c) the amount of an incentive;\n    (ca) the adjustment, in certain circumstances, of the amount of an incentive that:\n    (i) is to be provided to an approved participant; or\n    (ii) has previously been provided to an approved participant;\n    (cb) the passing on of contributions made by States and Territories, or their monetary equivalent, by approved participants in certain circumstances;\n    (d) how the market value rent of a rental dwelling covered by an allocation for an NRAS year is to be determined;\n    (e) the protection of tenants of rental dwellings covered by allocations;\n    (f) the protection of investors;\n    (g) the rights of investors.","sortOrder":9},{"sectionNumber":"Division 2","sectionType":"division","heading":"Allocation process","content":"An Act to provide for the establishment of the National Rental Affordability Scheme, and for related purposes\n\n## Part 1—Preliminary\n\n#### 1 Short title\n\n  This Act may be cited as the National Rental Affordability Scheme Act 2008.\n\n#### 2 Commencement\n\n  This Act is taken to have commenced on 1 July 2008.\n\n#### 3 Object\n\n  (1) The object of this Act is to encourage large‑scale investment in housing by offering an incentive to participants in the National Rental Affordability Scheme so as to:\n    (a) increase the supply of affordable rental dwellings; and\n    (b) reduce rental costs for low and moderate income households.\n  (2) The object of this Act is to be achieved in ways that include:\n    (a) protecting tenants of rental dwellings covered by allocations; and\n    (b) protecting investors; and\n    (c) providing rights to investors; and\n    (d) recognising the contributions, in cash or in kind, made by States and Territories to participants in the Scheme.\n\n#### 3A Severability\n\n  Additional and severable operation of Act and tax law provisions\n  (1) Without limiting the effect of this Act or the tax law provisions apart from this section, this Act and the tax law provisions also have effect as provided by this section.\n  (2) To avoid doubt, none of the following subsections of this section limit the operation of any other subsection of this section.\n  External affairs\n  (3) This Act and the tax law provisions have the effect they would have if their operation were expressly confined to give effect to Australia’s rights and obligations under paragraph 1 of Article 2 and Article 11 of the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966, as in force for Australia from time to time.\n\n> Note: The International Covenant on Economic, Social and Cultural Rights is in Australian Treaty Series 1976 No. 5 (\\[1976\\] ATS 5) and could in 2019 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).\n\n  Corporations\n  (4) This Act and the tax law provisions have the effect they would have if their operation were expressly confined to the following:\n    (a) the regulation of activities, functions, relationships or business of an investor or approved participant that is a constitutional corporation;\n    (b) the creation of rights or privileges belonging to an investor or approved participant that is a constitutional corporation;\n    (c) the imposition of obligations on an investor or approved participant that is a constitutional corporation;\n    (d) in respect of the matters mentioned in paragraphs (a) to (c), the regulation of the conduct of persons or entities through which the constitutional corporation acts;\n    (e) the regulation of persons or entities whose conduct affects or is capable of affecting the activities, functions, relationships or business of an investor or an approved participant that is a constitutional corporation.\n  Taxation\n  (5) This Act and the tax law provisions have the effect they would have if their operation were expressly confined to determining the tax liability of a person.\n  Territories\n  (6) This Act and the tax law provisions have the effect they would have if their operation were expressly confined to apply in relation to the following:\n    (a) a rental dwelling that is located in a Territory;\n    (b) an approved participant or investor who is a resident of a Territory;\n    (c) an approved participant or investor that is:\n    (i) a body corporate that is incorporated in a Territory; or\n    (ii) a body corporate that is taken to be registered in a Territory under section 119A of the Corporations Act 2001; or\n    (iii) a trust, if the proper law of the trust and the law of the trust’s administration are the law of a Territory; or\n    (iv) an entity, the core or routine activities of which are carried out in or in connection with a Territory.\n\n#### 4 Definitions\n\n  In this Act:\n\n> acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.\n\n> allocation, in relation to an incentive period, means an allotment to an approved participant of an entitlement to receive an incentive for a rental dwelling in relation to an NRAS year that falls within the incentive period if conditions are satisfied in relation to the rental dwelling.\n\n> constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.\n\n> incentive means:\n\n    (a) a National Rental Affordability Scheme Tax Offset; or\n    (b) an amount payable for an NRAS year.\n\n> Note: Paragraph (a)—for provisions relating to claiming the National Rental Affordability Scheme Tax Offset, see Division 380 of the Income Tax Assessment Act 1997.\n\n> incentive period means a 10 year period that starts on or after 1 July 2008.\n\n> investor, in relation to a rental dwelling covered by an allocation, means a person:\n\n    (a) who is the legal or beneficial owner of the rental dwelling; and\n    (b) who is not an approved participant in relation to the rental dwelling.\n\n> just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.\n\n> National Rental Affordability Scheme means the scheme prescribed for the purposes of section 5.\n\n> NRAS year (short for National Rental Affordability Scheme year) means:\n\n    (a) the period beginning on 1 July 2008 and ending on 30 April 2009; and\n    (b) the year beginning on 1 May 2009 and later years beginning on 1 May.\n\n> rental dwelling means a dwelling for which rent is payable and includes:\n\n    (a) a part of a dwelling or building that is capable of being lived in as a separate residence; and\n    (b) a unit that is a dwelling; and\n    (c) any dwelling prescribed by the regulations to be a rental dwelling for the purposes of this definition;\n  but does not include a caravan, houseboat, another kind of mobile dwelling or any dwelling prescribed by the regulations not to be a rental dwelling for the purposes of this definition.\n  Secretary means:\n    (a) the Secretary of the Social Services Department; or\n    (b) the Secretary of the Treasury Department.\n  Social Services Department means the Department administered by the Minister administering the Paid Parental Leave Act 2010.\n\n> tax law provisions means the following provisions of the Income Tax Assessment Act 1997:\n\n    (a) item 23 of the table in section 67‑23;\n    (b) Division 380.\n  Treasury Department means the Department administered by the Minister administering the A New Tax System (Goods and Services Tax) Act 1999.\n\n> unit means a unit held under a strata title system (or a similar system) established under a law of a State or Territory (however the unit is described for the purpose of that law), together with:\n\n    (a) any accompanying common property; and\n    (b) any permanent improvement (for example, a garage or storeroom) associated with the unit.\n\n## Part 2—The National Rental Affordability Scheme\n\n### Division 1—Making the National Rental Affordability Scheme\n\n#### 5 Making the National Rental Affordability Scheme\n\n  To further the objects of this Act, the regulations must prescribe a Scheme (the National Rental Affordability Scheme) about the following matters:\n    (a) the approval of participants (approved participants) by the Secretary;\n    (b) the approval of rental dwellings by the Secretary;\n    (c) providing incentives to an approved participant if certain conditions are satisfied;\n    (d) a matter required or permitted by this Act to be included in the Scheme;\n    (e) ancillary or incidental matters.\n\n#### 6 Other matters that may be included in the National Rental Affordability Scheme\n\n  The National Rental Affordability Scheme may provide for any or all of the following matters:\n    (a) the application process for an allocation;\n    (b) the assessment criteria for an allocation (which may vary from time to time);\n    (c) the amount of an incentive;\n    (ca) the adjustment, in certain circumstances, of the amount of an incentive that:\n    (i) is to be provided to an approved participant; or\n    (ii) has previously been provided to an approved participant;\n    (cb) the passing on of contributions made by States and Territories, or their monetary equivalent, by approved participants in certain circumstances;\n    (d) how the market value rent of a rental dwelling covered by an allocation for an NRAS year is to be determined;\n    (e) the protection of tenants of rental dwellings covered by allocations;\n    (f) the protection of investors;\n    (g) the rights of investors.\n\n### Division 2—Allocation process\n\n#### 7 Making allocations\n\n  (1) The National Rental Affordability Scheme must provide for the Secretary to make an allocation for an incentive period in respect of a rental dwelling:\n    (a) on the conditions set out in subsection (2); and\n    (b) on the condition that an incentive may be offset or recouped in the circumstances provided for by the Scheme; and\n    (c) on any other conditions provided for by the Scheme.\n  Conditions imposed by Secretary under the Scheme\n  (2) The conditions are that:\n    (a) either:\n    (i) the rental dwelling has not been lived in as a residence at any time before the first day of the incentive period; or\n    (ii) the rental dwelling was unfit for anyone to live in, and since the day on which it has been made fit for living in, it has not been lived in as a residence between that day and the first day of the incentive period; and\n    (b) to the extent that the rental dwelling is rented during an NRAS year that falls within the incentive period—both:\n    (i) the rental dwelling is rented to a tenant or tenants of a kind prescribed by the regulations; and\n    (ii) each charge of rent for the rental dwelling during the year is at least 20% less than the market value rent for the dwelling; and\n    (c) to the extent that the rental dwelling is not rented during an NRAS year that falls within the incentive period—the dwelling is not vacant for longer than a period prescribed by the regulations.\n  (3) To avoid doubt, for the purpose of subparagraph (2)(a)(i), if a dwelling or building has been converted to create additional residences, then a part of the dwelling or building that is capable of being lived in as a separate residence must not have been lived in as a separate residence before the first day of the incentive period.\n  (4) Regulations made for the purposes of subparagraph (2)(b)(i) may provide for the Secretary to make a legislative instrument prescribing matters relating to the income of a tenant or tenants.\n  Condition disapplied by Secretary under the Scheme\n  (5) The National Rental Affordability Scheme may provide that, in certain circumstances, the Secretary may decide that the condition mentioned in subparagraph (2)(b)(ii) does not apply if the Secretary is satisfied that the Secretary’s decision will not result in an increase in rental costs for low and moderate income households.\n  Conditions varied or imposed directly by the Scheme\n  (6) Without limiting paragraph 8(a), the National Rental Affordability Scheme may:\n    (a) vary a condition of an allocation (other than a condition mentioned in paragraph (2)(a) or subparagraph (2)(b)(ii)) or impose a condition of an allocation; and\n    (b) set out the circumstances (if any) in which the condition is varied or imposed.\n  The condition is varied or imposed accordingly by force of this subsection.\n  (7) Subsection (6) has effect despite anything in this Act or the National Rental Affordability Scheme.\n\n#### 8 Variations, transfers and revocations of allocations\n\n  The National Rental Affordability Scheme may provide for and in relation to the following:\n    (a) the variation of an allocation in certain circumstances;\n    (b) the transfer of an allocation to another approved participant in certain circumstances;\n    (ba) the transfer of all allocations made to an approved participant to another approved participant or other approved participants in certain circumstances;\n    (bb) the transfer of an allocation to another rental dwelling in certain circumstances;\n    (c) the revocation of an allocation in certain circumstances;\n    (d) how such a variation, transfer or revocation is to be made.\n\n### Division 3—Receiving incentives\n\n#### 9 Eligibility for receiving incentives\n\n  The National Rental Affordability Scheme must provide for the Secretary to do the following in relation to an allocation:\n    (a) issue a certificate to an approved participant of a kind provided for by the Scheme that states the National Rental Affordability Scheme Tax Offset that is claimable in relation to an NRAS year;\n    (b) make a payment to an approved participant of a kind provided for by the Scheme for an NRAS year.\n\n## Part 3—Miscellaneous\n\n#### 10 Compensation for acquisition of property\n\n  (1) If the operation of this Act would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.\n  (2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.\n\n#### 10A Acceptance of undertakings\n\n  (1) The Secretary may accept a written undertaking given by an approved participant in relation to the National Rental Affordability Scheme.\n  (2) The undertaking must be expressed to be an undertaking under this section.\n  (3) The approved participant may withdraw or vary the undertaking at any time, but only with the written consent of the Secretary.\n  (4) The consent of the Secretary is not a legislative instrument.\n  (5) The Secretary may, by written notice given to the approved participant, cancel the undertaking.\n\n#### 10B Enforcement of undertakings\n\n  (1) The Secretary may apply to the Federal Court of Australia for an order under subsection (2) if:\n    (a) an approved participant has given an undertaking under section 10A; and\n    (b) the undertaking has not been withdrawn or cancelled; and\n    (c) the Secretary considers that the approved participant has breached the undertaking.\n  (2) If the Federal Court of Australia is satisfied that the approved participant has breached the undertaking, the Court may make any or all of the following orders:\n    (a) an order directing the approved participant to comply with the undertaking;\n    (b) an order directing the approved participant to pay to the Commonwealth an amount up to the amount of any financial benefit that the approved participant has obtained directly or indirectly and that is reasonably attributable to the breach;\n    (c) any order that the Court considers appropriate directing the approved participant to compensate any other person who has suffered loss or damage as a result of the breach;\n    (d) any other order that the Court considers appropriate.\n\n#### 11 Delegation\n\n  (1) The Secretary may, by written instrument, delegate all or any of the following powers to an SES employee in the Social Services Department or the Treasury Department:\n    (a) the Secretary’s power to approve a participant in the National Rental Affordability Scheme;\n    (b) the Secretary’s power to approve a rental dwelling for the purposes of the Scheme;\n    (c) the Secretary’s power to decide whether to make an allocation under the Scheme.\n  (2) The Secretary may, by written instrument, delegate to an APS employee in the Social Services Department or the Treasury Department all or any of the Secretary’s powers or functions under this Act or the regulations (other than the powers mentioned in subsection (1)).\n  (3) In exercising powers or functions under a delegation, the delegate must comply with any directions of the Secretary.\n\n#### 12 Regulations\n\n  The Governor‑General may make regulations prescribing matters:\n    (a) required or permitted by this Act to be prescribed; or\n    (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.","sortOrder":10},{"sectionNumber":"7","sectionType":"section","heading":"Making allocations","content":"#### 7 Making allocations\n\n  (1) The National Rental Affordability Scheme must provide for the Secretary to make an allocation for an incentive period in respect of a rental dwelling:\n    (a) on the conditions set out in subsection (2); and\n    (b) on the condition that an incentive may be offset or recouped in the circumstances provided for by the Scheme; and\n    (c) on any other conditions provided for by the Scheme.\n  Conditions imposed by Secretary under the Scheme\n  (2) The conditions are that:\n    (a) either:\n    (i) the rental dwelling has not been lived in as a residence at any time before the first day of the incentive period; or\n    (ii) the rental dwelling was unfit for anyone to live in, and since the day on which it has been made fit for living in, it has not been lived in as a residence between that day and the first day of the incentive period; and\n    (b) to the extent that the rental dwelling is rented during an NRAS year that falls within the incentive period—both:\n    (i) the rental dwelling is rented to a tenant or tenants of a kind prescribed by the regulations; and\n    (ii) each charge of rent for the rental dwelling during the year is at least 20% less than the market value rent for the dwelling; and\n    (c) to the extent that the rental dwelling is not rented during an NRAS year that falls within the incentive period—the dwelling is not vacant for longer than a period prescribed by the regulations.\n  (3) To avoid doubt, for the purpose of subparagraph (2)(a)(i), if a dwelling or building has been converted to create additional residences, then a part of the dwelling or building that is capable of being lived in as a separate residence must not have been lived in as a separate residence before the first day of the incentive period.\n  (4) Regulations made for the purposes of subparagraph (2)(b)(i) may provide for the Secretary to make a legislative instrument prescribing matters relating to the income of a tenant or tenants.\n  Condition disapplied by Secretary under the Scheme\n  (5) The National Rental Affordability Scheme may provide that, in certain circumstances, the Secretary may decide that the condition mentioned in subparagraph (2)(b)(ii) does not apply if the Secretary is satisfied that the Secretary’s decision will not result in an increase in rental costs for low and moderate income households.\n  Conditions varied or imposed directly by the Scheme\n  (6) Without limiting paragraph 8(a), the National Rental Affordability Scheme may:\n    (a) vary a condition of an allocation (other than a condition mentioned in paragraph (2)(a) or subparagraph (2)(b)(ii)) or impose a condition of an allocation; and\n    (b) set out the circumstances (if any) in which the condition is varied or imposed.\n  The condition is varied or imposed accordingly by force of this subsection.\n  (7) Subsection (6) has effect despite anything in this Act or the National Rental Affordability Scheme.","sortOrder":11},{"sectionNumber":"8","sectionType":"section","heading":"Variations, transfers and revocations of allocations","content":"#### 8 Variations, transfers and revocations of allocations\n\n  The National Rental Affordability Scheme may provide for and in relation to the following:\n    (a) the variation of an allocation in certain circumstances;\n    (b) the transfer of an allocation to another approved participant in certain circumstances;\n    (ba) the transfer of all allocations made to an approved participant to another approved participant or other approved participants in certain circumstances;\n    (bb) the transfer of an allocation to another rental dwelling in certain circumstances;\n    (c) the revocation of an allocation in certain circumstances;\n    (d) how such a variation, transfer or revocation is to be made.","sortOrder":12},{"sectionNumber":"Division 3","sectionType":"division","heading":"Receiving incentives","content":"An Act to provide for the establishment of the National Rental Affordability Scheme, and for related purposes\n\n## Part 1—Preliminary\n\n#### 1 Short title\n\n  This Act may be cited as the National Rental Affordability Scheme Act 2008.\n\n#### 2 Commencement\n\n  This Act is taken to have commenced on 1 July 2008.\n\n#### 3 Object\n\n  (1) The object of this Act is to encourage large‑scale investment in housing by offering an incentive to participants in the National Rental Affordability Scheme so as to:\n    (a) increase the supply of affordable rental dwellings; and\n    (b) reduce rental costs for low and moderate income households.\n  (2) The object of this Act is to be achieved in ways that include:\n    (a) protecting tenants of rental dwellings covered by allocations; and\n    (b) protecting investors; and\n    (c) providing rights to investors; and\n    (d) recognising the contributions, in cash or in kind, made by States and Territories to participants in the Scheme.\n\n#### 3A Severability\n\n  Additional and severable operation of Act and tax law provisions\n  (1) Without limiting the effect of this Act or the tax law provisions apart from this section, this Act and the tax law provisions also have effect as provided by this section.\n  (2) To avoid doubt, none of the following subsections of this section limit the operation of any other subsection of this section.\n  External affairs\n  (3) This Act and the tax law provisions have the effect they would have if their operation were expressly confined to give effect to Australia’s rights and obligations under paragraph 1 of Article 2 and Article 11 of the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966, as in force for Australia from time to time.\n\n> Note: The International Covenant on Economic, Social and Cultural Rights is in Australian Treaty Series 1976 No. 5 (\\[1976\\] ATS 5) and could in 2019 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).\n\n  Corporations\n  (4) This Act and the tax law provisions have the effect they would have if their operation were expressly confined to the following:\n    (a) the regulation of activities, functions, relationships or business of an investor or approved participant that is a constitutional corporation;\n    (b) the creation of rights or privileges belonging to an investor or approved participant that is a constitutional corporation;\n    (c) the imposition of obligations on an investor or approved participant that is a constitutional corporation;\n    (d) in respect of the matters mentioned in paragraphs (a) to (c), the regulation of the conduct of persons or entities through which the constitutional corporation acts;\n    (e) the regulation of persons or entities whose conduct affects or is capable of affecting the activities, functions, relationships or business of an investor or an approved participant that is a constitutional corporation.\n  Taxation\n  (5) This Act and the tax law provisions have the effect they would have if their operation were expressly confined to determining the tax liability of a person.\n  Territories\n  (6) This Act and the tax law provisions have the effect they would have if their operation were expressly confined to apply in relation to the following:\n    (a) a rental dwelling that is located in a Territory;\n    (b) an approved participant or investor who is a resident of a Territory;\n    (c) an approved participant or investor that is:\n    (i) a body corporate that is incorporated in a Territory; or\n    (ii) a body corporate that is taken to be registered in a Territory under section 119A of the Corporations Act 2001; or\n    (iii) a trust, if the proper law of the trust and the law of the trust’s administration are the law of a Territory; or\n    (iv) an entity, the core or routine activities of which are carried out in or in connection with a Territory.\n\n#### 4 Definitions\n\n  In this Act:\n\n> acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.\n\n> allocation, in relation to an incentive period, means an allotment to an approved participant of an entitlement to receive an incentive for a rental dwelling in relation to an NRAS year that falls within the incentive period if conditions are satisfied in relation to the rental dwelling.\n\n> constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.\n\n> incentive means:\n\n    (a) a National Rental Affordability Scheme Tax Offset; or\n    (b) an amount payable for an NRAS year.\n\n> Note: Paragraph (a)—for provisions relating to claiming the National Rental Affordability Scheme Tax Offset, see Division 380 of the Income Tax Assessment Act 1997.\n\n> incentive period means a 10 year period that starts on or after 1 July 2008.\n\n> investor, in relation to a rental dwelling covered by an allocation, means a person:\n\n    (a) who is the legal or beneficial owner of the rental dwelling; and\n    (b) who is not an approved participant in relation to the rental dwelling.\n\n> just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.\n\n> National Rental Affordability Scheme means the scheme prescribed for the purposes of section 5.\n\n> NRAS year (short for National Rental Affordability Scheme year) means:\n\n    (a) the period beginning on 1 July 2008 and ending on 30 April 2009; and\n    (b) the year beginning on 1 May 2009 and later years beginning on 1 May.\n\n> rental dwelling means a dwelling for which rent is payable and includes:\n\n    (a) a part of a dwelling or building that is capable of being lived in as a separate residence; and\n    (b) a unit that is a dwelling; and\n    (c) any dwelling prescribed by the regulations to be a rental dwelling for the purposes of this definition;\n  but does not include a caravan, houseboat, another kind of mobile dwelling or any dwelling prescribed by the regulations not to be a rental dwelling for the purposes of this definition.\n  Secretary means:\n    (a) the Secretary of the Social Services Department; or\n    (b) the Secretary of the Treasury Department.\n  Social Services Department means the Department administered by the Minister administering the Paid Parental Leave Act 2010.\n\n> tax law provisions means the following provisions of the Income Tax Assessment Act 1997:\n\n    (a) item 23 of the table in section 67‑23;\n    (b) Division 380.\n  Treasury Department means the Department administered by the Minister administering the A New Tax System (Goods and Services Tax) Act 1999.\n\n> unit means a unit held under a strata title system (or a similar system) established under a law of a State or Territory (however the unit is described for the purpose of that law), together with:\n\n    (a) any accompanying common property; and\n    (b) any permanent improvement (for example, a garage or storeroom) associated with the unit.\n\n## Part 2—The National Rental Affordability Scheme\n\n### Division 1—Making the National Rental Affordability Scheme\n\n#### 5 Making the National Rental Affordability Scheme\n\n  To further the objects of this Act, the regulations must prescribe a Scheme (the National Rental Affordability Scheme) about the following matters:\n    (a) the approval of participants (approved participants) by the Secretary;\n    (b) the approval of rental dwellings by the Secretary;\n    (c) providing incentives to an approved participant if certain conditions are satisfied;\n    (d) a matter required or permitted by this Act to be included in the Scheme;\n    (e) ancillary or incidental matters.\n\n#### 6 Other matters that may be included in the National Rental Affordability Scheme\n\n  The National Rental Affordability Scheme may provide for any or all of the following matters:\n    (a) the application process for an allocation;\n    (b) the assessment criteria for an allocation (which may vary from time to time);\n    (c) the amount of an incentive;\n    (ca) the adjustment, in certain circumstances, of the amount of an incentive that:\n    (i) is to be provided to an approved participant; or\n    (ii) has previously been provided to an approved participant;\n    (cb) the passing on of contributions made by States and Territories, or their monetary equivalent, by approved participants in certain circumstances;\n    (d) how the market value rent of a rental dwelling covered by an allocation for an NRAS year is to be determined;\n    (e) the protection of tenants of rental dwellings covered by allocations;\n    (f) the protection of investors;\n    (g) the rights of investors.\n\n### Division 2—Allocation process\n\n#### 7 Making allocations\n\n  (1) The National Rental Affordability Scheme must provide for the Secretary to make an allocation for an incentive period in respect of a rental dwelling:\n    (a) on the conditions set out in subsection (2); and\n    (b) on the condition that an incentive may be offset or recouped in the circumstances provided for by the Scheme; and\n    (c) on any other conditions provided for by the Scheme.\n  Conditions imposed by Secretary under the Scheme\n  (2) The conditions are that:\n    (a) either:\n    (i) the rental dwelling has not been lived in as a residence at any time before the first day of the incentive period; or\n    (ii) the rental dwelling was unfit for anyone to live in, and since the day on which it has been made fit for living in, it has not been lived in as a residence between that day and the first day of the incentive period; and\n    (b) to the extent that the rental dwelling is rented during an NRAS year that falls within the incentive period—both:\n    (i) the rental dwelling is rented to a tenant or tenants of a kind prescribed by the regulations; and\n    (ii) each charge of rent for the rental dwelling during the year is at least 20% less than the market value rent for the dwelling; and\n    (c) to the extent that the rental dwelling is not rented during an NRAS year that falls within the incentive period—the dwelling is not vacant for longer than a period prescribed by the regulations.\n  (3) To avoid doubt, for the purpose of subparagraph (2)(a)(i), if a dwelling or building has been converted to create additional residences, then a part of the dwelling or building that is capable of being lived in as a separate residence must not have been lived in as a separate residence before the first day of the incentive period.\n  (4) Regulations made for the purposes of subparagraph (2)(b)(i) may provide for the Secretary to make a legislative instrument prescribing matters relating to the income of a tenant or tenants.\n  Condition disapplied by Secretary under the Scheme\n  (5) The National Rental Affordability Scheme may provide that, in certain circumstances, the Secretary may decide that the condition mentioned in subparagraph (2)(b)(ii) does not apply if the Secretary is satisfied that the Secretary’s decision will not result in an increase in rental costs for low and moderate income households.\n  Conditions varied or imposed directly by the Scheme\n  (6) Without limiting paragraph 8(a), the National Rental Affordability Scheme may:\n    (a) vary a condition of an allocation (other than a condition mentioned in paragraph (2)(a) or subparagraph (2)(b)(ii)) or impose a condition of an allocation; and\n    (b) set out the circumstances (if any) in which the condition is varied or imposed.\n  The condition is varied or imposed accordingly by force of this subsection.\n  (7) Subsection (6) has effect despite anything in this Act or the National Rental Affordability Scheme.\n\n#### 8 Variations, transfers and revocations of allocations\n\n  The National Rental Affordability Scheme may provide for and in relation to the following:\n    (a) the variation of an allocation in certain circumstances;\n    (b) the transfer of an allocation to another approved participant in certain circumstances;\n    (ba) the transfer of all allocations made to an approved participant to another approved participant or other approved participants in certain circumstances;\n    (bb) the transfer of an allocation to another rental dwelling in certain circumstances;\n    (c) the revocation of an allocation in certain circumstances;\n    (d) how such a variation, transfer or revocation is to be made.\n\n### Division 3—Receiving incentives\n\n#### 9 Eligibility for receiving incentives\n\n  The National Rental Affordability Scheme must provide for the Secretary to do the following in relation to an allocation:\n    (a) issue a certificate to an approved participant of a kind provided for by the Scheme that states the National Rental Affordability Scheme Tax Offset that is claimable in relation to an NRAS year;\n    (b) make a payment to an approved participant of a kind provided for by the Scheme for an NRAS year.\n\n## Part 3—Miscellaneous\n\n#### 10 Compensation for acquisition of property\n\n  (1) If the operation of this Act would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.\n  (2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.\n\n#### 10A Acceptance of undertakings\n\n  (1) The Secretary may accept a written undertaking given by an approved participant in relation to the National Rental Affordability Scheme.\n  (2) The undertaking must be expressed to be an undertaking under this section.\n  (3) The approved participant may withdraw or vary the undertaking at any time, but only with the written consent of the Secretary.\n  (4) The consent of the Secretary is not a legislative instrument.\n  (5) The Secretary may, by written notice given to the approved participant, cancel the undertaking.\n\n#### 10B Enforcement of undertakings\n\n  (1) The Secretary may apply to the Federal Court of Australia for an order under subsection (2) if:\n    (a) an approved participant has given an undertaking under section 10A; and\n    (b) the undertaking has not been withdrawn or cancelled; and\n    (c) the Secretary considers that the approved participant has breached the undertaking.\n  (2) If the Federal Court of Australia is satisfied that the approved participant has breached the undertaking, the Court may make any or all of the following orders:\n    (a) an order directing the approved participant to comply with the undertaking;\n    (b) an order directing the approved participant to pay to the Commonwealth an amount up to the amount of any financial benefit that the approved participant has obtained directly or indirectly and that is reasonably attributable to the breach;\n    (c) any order that the Court considers appropriate directing the approved participant to compensate any other person who has suffered loss or damage as a result of the breach;\n    (d) any other order that the Court considers appropriate.\n\n#### 11 Delegation\n\n  (1) The Secretary may, by written instrument, delegate all or any of the following powers to an SES employee in the Social Services Department or the Treasury Department:\n    (a) the Secretary’s power to approve a participant in the National Rental Affordability Scheme;\n    (b) the Secretary’s power to approve a rental dwelling for the purposes of the Scheme;\n    (c) the Secretary’s power to decide whether to make an allocation under the Scheme.\n  (2) The Secretary may, by written instrument, delegate to an APS employee in the Social Services Department or the Treasury Department all or any of the Secretary’s powers or functions under this Act or the regulations (other than the powers mentioned in subsection (1)).\n  (3) In exercising powers or functions under a delegation, the delegate must comply with any directions of the Secretary.\n\n#### 12 Regulations\n\n  The Governor‑General may make regulations prescribing matters:\n    (a) required or permitted by this Act to be prescribed; or\n    (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.","sortOrder":13},{"sectionNumber":"9","sectionType":"section","heading":"Eligibility for receiving incentives","content":"#### 9 Eligibility for receiving incentives\n\n  The National Rental Affordability Scheme must provide for the Secretary to do the following in relation to an allocation:\n    (a) issue a certificate to an approved participant of a kind provided for by the Scheme that states the National Rental Affordability Scheme Tax Offset that is claimable in relation to an NRAS year;\n    (b) make a payment to an approved participant of a kind provided for by the Scheme for an NRAS year.","sortOrder":14},{"sectionNumber":"Part 3","sectionType":"part","heading":"Miscellaneous","content":"## Part 3—Miscellaneous","sortOrder":15},{"sectionNumber":"10","sectionType":"section","heading":"Compensation for acquisition of property","content":"#### 10 Compensation for acquisition of property\n\n  (1) If the operation of this Act would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.\n  (2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.","sortOrder":16},{"sectionNumber":"10A","sectionType":"section","heading":"Acceptance of undertakings","content":"#### 10A Acceptance of undertakings\n\n  (1) The Secretary may accept a written undertaking given by an approved participant in relation to the National Rental Affordability Scheme.\n  (2) The undertaking must be expressed to be an undertaking under this section.\n  (3) The approved participant may withdraw or vary the undertaking at any time, but only with the written consent of the Secretary.\n  (4) The consent of the Secretary is not a legislative instrument.\n  (5) The Secretary may, by written notice given to the approved participant, cancel the undertaking.","sortOrder":17},{"sectionNumber":"10B","sectionType":"section","heading":"Enforcement of undertakings","content":"#### 10B Enforcement of undertakings\n\n  (1) The Secretary may apply to the Federal Court of Australia for an order under subsection (2) if:\n    (a) an approved participant has given an undertaking under section 10A; and\n    (b) the undertaking has not been withdrawn or cancelled; and\n    (c) the Secretary considers that the approved participant has breached the undertaking.\n  (2) If the Federal Court of Australia is satisfied that the approved participant has breached the undertaking, the Court may make any or all of the following orders:\n    (a) an order directing the approved participant to comply with the undertaking;\n    (b) an order directing the approved participant to pay to the Commonwealth an amount up to the amount of any financial benefit that the approved participant has obtained directly or indirectly and that is reasonably attributable to the breach;\n    (c) any order that the Court considers appropriate directing the approved participant to compensate any other person who has suffered loss or damage as a result of the breach;\n    (d) any other order that the Court considers appropriate.","sortOrder":18},{"sectionNumber":"11","sectionType":"section","heading":"Delegation","content":"#### 11 Delegation\n\n  (1) The Secretary may, by written instrument, delegate all or any of the following powers to an SES employee in the Social Services Department or the Treasury Department:\n    (a) the Secretary’s power to approve a participant in the National Rental Affordability Scheme;\n    (b) the Secretary’s power to approve a rental dwelling for the purposes of the Scheme;\n    (c) the Secretary’s power to decide whether to make an allocation under the Scheme.\n  (2) The Secretary may, by written instrument, delegate to an APS employee in the Social Services Department or the Treasury Department all or any of the Secretary’s powers or functions under this Act or the regulations (other than the powers mentioned in subsection (1)).\n  (3) In exercising powers or functions under a delegation, the delegate must comply with any directions of the Secretary.","sortOrder":19},{"sectionNumber":"12","sectionType":"section","heading":"Regulations","content":"#### 12 Regulations\n\n  The Governor‑General may make regulations prescribing matters:\n    (a) required or permitted by this Act to be prescribed; or\n    (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.","sortOrder":20}],"analysis":{"flash_summary_failed":{"failed":true,"reason":"Unauthenticated. Configure AI_GATEWAY_API_KEY or use a provider module. Learn more: https://ai-sdk.dev/unauthenticated-ai-gateway","source":"analysis-cron"},"issue_detection":{"absurdities":[{"type":"circular_definition","section":"4 (definition of 'National Rental Affordability Scheme')","severity":"medium","reasoning":"The Act defines the NRAS by reference to section 5, and section 5 defines what must be in the NRAS. Until the regulations are made, the defined term has no referent. More critically, the definition of 'allocation' in s4 depends on the NRAS existing, but the NRAS depends on regulations which depend on the Act which uses the term being defined. If the regulations are ever not made or are invalid, the entire definitional structure collapses.","confidence":0.82,"description":"Circular definition: 'National Rental Affordability Scheme' is defined as 'the scheme prescribed for the purposes of section 5', while section 5 requires the regulations to prescribe 'a Scheme (the National Rental Affordability Scheme)'. The definition depends entirely on the thing being defined existing, and the scheme has no substantive content in the Act itself — it is a scheme defined by reference to itself being prescribed."},{"type":"circular_definition","section":"4 (definition of 'rental dwelling')","severity":"medium","reasoning":"The eligibility condition in s7(2)(a)(i) requires assessment of the dwelling's history before the incentive period begins — at which point rent has not yet been charged and the dwelling may not yet technically meet the definition of 'rental dwelling'. An allocation is made in respect of a 'rental dwelling', but at the time of the newness condition being tested, the property is not yet a rental dwelling. This creates a definitional bootstrapping problem.","confidence":0.71,"description":"A 'rental dwelling' is defined as 'a dwelling for which rent is payable'. This means a dwelling only qualifies as a rental dwelling at the moment rent is payable — yet the scheme conditions in s7(2)(a) require the dwelling to not have been 'lived in as a residence' before the incentive period, which presupposes the dwelling is being assessed before any rent is payable, i.e. before it qualifies as a rental dwelling under the definition."},{"type":"impossible_compliance","section":"7(5)","severity":"medium","reasoning":"Requiring the Secretary to be 'satisfied' of a negative causal market outcome with prospective certainty is an epistemically impossible standard. Rental market effects are inherently uncertain and context-dependent. The provision sets a standard that cannot be met with any rigour, making the discretion either always unavailable (if applied strictly) or always available (if applied loosely), depending on who is making the assessment.","confidence":0.75,"description":"The Secretary may disapply the 20% below market rent condition if satisfied that doing so 'will not result in an increase in rental costs for low and moderate income households'. However, the Secretary is being asked to predict a future state of the housing market with certainty ('will not result'), making compliance with the satisfaction requirement practically impossible — the Secretary cannot know with certainty what effect waiving the discount will have on the broader rental market."},{"type":"self_contradicting","section":"7(6) and 7(7)","severity":"high","reasoning":"The Act purports to grant the subordinate instrument (the Scheme, being regulations) power to override the Act itself via s7(7). Regulations cannot override primary legislation under standard Australian constitutional and legislative principles (Acts Interpretation Act 1901), yet s7(7) purports to authorise this. Additionally, the Scheme overriding 'the National Rental Affordability Scheme' means the instrument can override itself, which is logically incoherent.","confidence":0.78,"description":"Subsection 7(6) states the Scheme (made by regulations) may vary or impose conditions, and that this occurs 'by force of this subsection'. Subsection 7(7) then states subsection (6) has effect 'despite anything in this Act or the National Rental Affordability Scheme'. This means regulations (subordinate legislation) can override the Act (primary legislation) by force of the Act itself, and can also override the Scheme of which the regulations are constitutive — creating a self-referential and potentially self-undermining override mechanism."},{"type":"other","section":"4 (definition of 'NRAS year') and 4 (definition of 'incentive period')","severity":"medium","reasoning":"A 10-year incentive period commencing 1 July 2008 ends 30 June 2018. The NRAS years within this period would be: NRAS Year 1 (1 Jul 2008–30 Apr 2009), Year 2 (1 May 2009–30 Apr 2010)... Year 11 (1 May 2018–30 Apr 2019). NRAS Year 11 starts within the incentive period but ends outside it. This creates ambiguity about whether year 11 is 'within' the incentive period and whether incentives are claimable for it. The misalignment between calendar year, NRAS year and incentive period is a structural drafting flaw.","confidence":0.85,"description":"The first NRAS year runs from 1 July 2008 to 30 April 2009 — a period of 10 months, not 12. Subsequent NRAS years run from 1 May to 30 April (12 months). An 'incentive period' is a '10 year period'. A 10-year incentive period starting 1 July 2008 would span approximately 10 years and 10 months of NRAS years (since the first year is short), meaning the number of NRAS years in a 10-year incentive period may be 11 NRAS years rather than 10, creating an inconsistency between the nominal period and the number of benefit years."},{"type":"self_contradicting","section":"10A(3) and 10A(5)","severity":"low","reasoning":"The asymmetry between participant withdrawal (requiring Secretary consent) and Secretary cancellation (requiring nothing) is internally contradictory as to the nature of the undertaking. If the undertaking is binding and serious enough to require consent for participant withdrawal, there is no logical basis for the Secretary to be able to cancel it without any threshold. This also potentially undermines s10B enforcement, as the Secretary could cancel an undertaking immediately before or after breach to avoid or create enforcement opportunities.","confidence":0.72,"description":"An approved participant may only withdraw or vary their undertaking 'with the written consent of the Secretary', yet the Secretary may unilaterally cancel the undertaking at any time under s10A(5) with no consent or threshold required. The Secretary thus has greater power to end the undertaking than the participant who gave it, creating an asymmetry that undermines the voluntary nature of the undertaking."},{"type":"self_contradicting","section":"10B(1)(b)","severity":"medium","reasoning":"The precondition in s10B(1)(b) that the undertaking not be cancelled — without distinguishing Secretary-initiated cancellation from participant withdrawal — means the Secretary can inadvertently or deliberately foreclose court enforcement by exercising their own cancellation power under s10A(5). The statute creates a mechanism by which the enforcing party can destroy the preconditions for their own enforcement action.","confidence":0.68,"description":"The Secretary may apply to the Federal Court for enforcement of an undertaking only if 'the undertaking has not been withdrawn or cancelled'. However, under s10A(5), the Secretary can cancel the undertaking. If the Secretary mistakenly cancels an undertaking after a breach occurs, they lose the ability to enforce it under s10B, effectively allowing the Secretary's own administrative error to extinguish enforcement rights — an absurd outcome."},{"type":"other","section":"4 (definition of 'Secretary')","severity":"high","reasoning":"Critical functions such as making an allocation (s7), issuing certificates (s9(a)), accepting undertakings (s10A), and applying to the Federal Court (s10B) are vested in 'the Secretary' with no mechanism to resolve which Secretary acts when two hold the position. Either Secretary could potentially approve a participant while the other refuses, or one could accept an undertaking while the other cancels it. The Act provides no tiebreaker, no division of functions, and no conflict resolution mechanism.","confidence":0.88,"description":"The 'Secretary' is defined as either the Secretary of the Social Services Department or the Secretary of the Treasury Department. Throughout the Act, 'the Secretary' (singular, with definite article) is given specific powers and functions — approving participants, making allocations, issuing certificates, accepting undertakings, applying to courts. Where two people simultaneously hold the role of 'the Secretary', it is unclear which one exercises any given power or whether both must act jointly, potentially creating administrative paralysis or conflicting decisions."}],"contradictions":[{"severity":"medium","section_a":"3(2)(a) — object of protecting tenants","section_b":"7(5) — Secretary may disapply the 20% below-market rent condition","confidence":0.8,"description":"The Act's stated object includes 'protecting tenants of rental dwellings covered by allocations', but s7(5) allows the Secretary to waive the core tenant-protection mechanism (the 20% below market rent condition) in unspecified 'certain circumstances'. Removing the rent discount directly harms tenants by allowing higher rents, contradicting the protective object."},{"severity":"high","section_a":"7(2)(b)(ii) — condition that rent must be at least 20% below market value","section_b":"7(6) — Scheme may vary conditions of an allocation","confidence":0.85,"description":"Section 7(6)(a) expressly states the Scheme may vary any condition of an allocation 'other than a condition mentioned in... subparagraph (2)(b)(ii)' — i.e., the 20% rent discount condition is protected from variation by the Scheme. Yet s7(5) allows the Secretary (acting under the Scheme) to disapply exactly that condition. These two provisions are in direct tension: the Scheme cannot vary the condition but can provide for the Secretary to disapply it entirely, which is a more drastic modification than a variation."},{"severity":"high","section_a":"5 — regulations must prescribe the Scheme","section_b":"7(7) — s7(6) has effect despite anything in this Act or the Scheme","confidence":0.78,"description":"Section 5 requires the regulations to prescribe the Scheme (including mandatory conditions under s7). Section 7(7) then provides that s7(6) — which allows the Scheme to vary or impose conditions — has effect 'despite anything in this Act or the National Rental Affordability Scheme'. This means the Scheme can alter the conditions that the Act in s7(2) mandates be included in the Scheme, creating a contradiction between the mandatory content requirements of s5/s7(2) and the override power in s7(7)."},{"severity":"low","section_a":"11(1) — SES employees may be delegated major approval and allocation powers","section_b":"11(2) — APS employees may be delegated all other powers under the Act","confidence":0.65,"description":"Section 11(1) reserves the most significant powers (participant approval, dwelling approval, allocation decisions) to SES-level delegates only, implying these require senior oversight. Section 11(2) allows all other powers to be delegated to any APS employee. However, s10B court enforcement proceedings — arguably the most consequential power in the Act — are not listed in s11(1) and thus could be delegated under s11(2) to a junior APS employee, inconsistently with the apparent intent to reserve high-stakes decisions to senior officers."},{"severity":"medium","section_a":"3(2)(b)-(c) — object of protecting and providing rights to investors","section_b":"7(1)(b) — condition that incentive may be offset or recouped","confidence":0.7,"description":"The Act's stated object includes 'protecting investors' and 'providing rights to investors', but the Act simultaneously imposes as a mandatory condition of every allocation that incentives may be offset or recouped by the Secretary. The power to claw back incentives already provided (s6(ca)(ii)) without any explicit compensation mechanism contradicts the investor-protection object, as investors may structure their affairs in reliance on received incentives only to have them recouped."}]},"kimi_summary":{"content_quality":"ok","complexity_score":4,"scope_assessment":{"changed":false,"description":"The legislation appears consistent with its original intent as stated in the objects clause - encouraging large-scale investment in affordable housing through incentives. The framework allows for regulatory detail but does not show significant scope creep beyond the original housing affordability purpose."},"complexity_factors":["Multiple constitutional heads of power relied upon (external affairs, corporations, taxation, territories) requiring complex severability provisions in section 3A","Heavy reliance on delegated legislation - the actual Scheme details are left to regulations, with the Act providing only a skeleton framework","Cross-references to tax law provisions in the Income Tax Assessment Act 1997 (Division 380)","Nested conditions for allocations in section 7(2) with multiple sub-paragraphs and alternatives","Dual Secretary structure (Social Services or Treasury) creating administrative complexity","Interaction between statutory conditions and Scheme-imposed conditions with override provisions (section 7(6)-(7))","Defined terms reference constitutional provisions (paragraphs 51(xx) and 51(xxxi))"],"plain_english_summary":"This legislation establishes the **National Rental Affordability Scheme (NRAS)**, a program designed to encourage large-scale investment in affordable housing by offering financial incentives to property investors and developers.\n\n**What it does:**\n- Creates a framework where the government provides **tax offsets or direct payments** to \"approved participants\" who build or renovate rental properties\n- Requires these properties to be rented to **low and moderate income households** at least 20% below market rent\n- Sets up a 10-year \"incentive period\" for each property, with strict conditions about property condition, tenant eligibility, and vacancy limits\n\n**Who it affects:**\n- **Property investors and developers** who want to participate in the scheme and receive incentives\n- **Low and moderate income renters** who get access to cheaper housing\n- **State and Territory governments** who can contribute to the scheme\n- **The Secretary** (of either Social Services or Treasury) who administers approvals and allocations\n\n**Key protections:**\n- Tenants are protected through regulated rent levels and eligibility requirements\n- Investors are protected through guaranteed incentive periods and compensation provisions if the government acquires their property\n- The government can accept enforceable undertakings from participants and take court action if breached\n\n**Why it matters:**\nThis is Australia's main mechanism for stimulating private investment in affordable rental housing, bridging the gap between market rents and what lower-income households can afford. It uses tax incentives rather than direct government construction to increase housing supply."},"flash_summary":{"complexity_score":6,"scope_assessment":{"changed":false,"description":"The text of the Act is internally consistent with its stated object (s3) and implements that object by requiring regulations to create the operational Scheme (s5). The severability provision (s3A) restricts the Act’s effective constitutional bases if necessary but does not change the Act’s declared object or the operational requirement that the Scheme be prescribed by regulation. In short, the statutory scope set out in the Act (objects, required Scheme matters, allocation conditions, enforcement and delegation mechanisms) aligns with the instrument’s original stated purpose in s3."},"complexity_factors":["Heavy delegation of substantive details to regulations and Scheme instruments (s5–s6), meaning operational rules are not in the Act itself","Significant administrative discretion vested in the Secretary (approval, allocation, disapplication of 20% rule, acceptance/cancellation of undertakings) (s7(5), s10A, s11)","Interplay with tax law provisions and tax offsets (defined in s4 and referenced in s3A), requiring coordination between tax and administrative frameworks","Multiple eligibility and ongoing compliance conditions for allocations (new dwelling requirement, tenant income tests, 20% below market rent, vacancy limits) (s7(2))","Enforcement routed through the Federal Court with remedies including recovery of financial benefit attributable to breaches (s10B), introducing litigation risk and evidentiary complexity","Constitutional and territorial tailoring via severability clause (s3A) and cross‑references to constitutional concepts (s4), which affects the Act’s operative scope and legal interpretation"],"plain_english_summary":"# What this law does, who it affects, and how it works\n\n- What the instrument does, mechanically\n  - The Act establishes the National Rental Affordability Scheme (NRAS) as a regulatory framework and requires regulations to set up the operational Scheme (see s5). The regulations are responsible for the detailed rules: who may be an approved participant, how rental dwellings are approved, how allocations are made, and how incentives are paid or claimed (s5, s6).\n  - The Act defines the core legal concepts used by the Scheme (s4) and sets the Scheme’s broad conditions for allocating incentives to dwellings (s7). It also provides enforcement tools, delegation arrangements, and miscellaneous measures such as compensation where the Act causes an acquisition of property (s10), acceptance and enforcement of undertakings (ss10A–10B), and power to make regulations (s12).\n\n- Stated purpose and where it appears in the Act\n  - The Act’s stated object is to encourage large‑scale investment in housing by offering an incentive so as to increase supply of affordable rental dwellings and reduce rental costs for low and moderate income households (s3(1)). The Act also lists ways this object is to be achieved, including protecting tenants and investors and recognising State and Territory contributions (s3(2)). These are purpose statements; the Act implements them through the Scheme (s5–s9).\n\n- Who decides and who pays\n  - The Secretary (defined as the Secretary of Social Services or the Secretary of the Treasury) is the central decision‑maker under the Act: approving participants and dwellings, making allocations, issuing certificates and making payments as required by the Scheme (s4 definition; s5; s7; s9). The Secretary may accept, vary or cancel written undertakings from approved participants (s10A) and may take enforcement action in the Federal Court (s10B).\n  - The incentives themselves are either a tax offset or amounts payable for NRAS years (incentive definition, s4). That means the Commonwealth provides benefit either through a tax mechanism or by direct payment (s4; s9). The Commonwealth is explicitly made liable to pay reasonable compensation where the operation of the Act results in acquisition of property otherwise than on just terms (s10).\n\n- What participants must do, and compliance burden\n  - To obtain an allocation for a dwelling an approved participant must meet the conditions set out in s7(2): the dwelling must be new or recently made fit for habitation and not previously lived in as a separate residence (s7(2)(a) and (3)); if rented during an NRAS year it must be rented to tenants of a kind prescribed by regulation and each charge of rent that year must be at least 20% below the market value rent for the dwelling (s7(2)(b)(i)–(ii)); if not rented it must not be vacant longer than a period prescribed in regulation (s7(2)(c)). Regulations may create income tests for tenants (s7(4)).\n  - The Scheme may also require allocations to be varied, transferred or revoked in specified circumstances (s8). Approved participants may need to provide and adhere to undertakings under s10A, and breach can lead to Federal Court orders including repayment of benefits that are reasonably attributable to a breach (s10B(2)(b)). These rules create ongoing obligations for approved participants and potential litigation exposure.\n\n- Discretion, delegation and rule‑making\n  - The Act intentionally leaves much of the detailed policy design to subordinate instruments. The regulations must create the Scheme and may set assessment criteria, the amount of incentives, adjustment mechanisms, rules about passing on State contributions, valuation methods for market rent, tenancy protections and investor protections (s5, s6).\n  - The Act gives the Secretary significant discretion: the Scheme may permit the Secretary to disapply the 20% rent‑reduction condition in specified circumstances if the Secretary is satisfied no increase in rental costs for low and moderate income households will result (s7(5)). The Secretary may also accept undertakings and delegate approval and allocation powers to SES and APS employees subject to directions (ss10A, 11).\n\n- Interactions and legal limits\n  - The Act explicitly ties itself to specific tax law provisions (Division 380 and an item in s67‑23 of the Income Tax Assessment Act 1997) and contains a severability clause specifying how the Act and those tax law provisions operate if they must be confined to certain constitutional heads of power (external affairs, corporations, taxation) or to Territories (s3A; s4 definition of tax law provisions). That signals the Act’s design to function together with tax legislation and to be operable within specified constitutional bases.\n\n- Incentives, beneficiaries and costs\n  - Beneficiaries in the text are approved participants and investors who receive incentives (s4 definition of incentive; s9). The incentive is a concentrated, identifiable benefit to participants (tax offset or payment). The cost of those incentives is borne by the Commonwealth budget (direct payment or foregone tax revenue) and is therefore carried by taxpayers generally (s4; s9). The Scheme may require passing on State contributions in certain circumstances (s6(cb)), which affects how benefits and costs are shared among participants, States/Territories and the Commonwealth.\n\n- Enforcement and remedy mechanics\n  - Where an approved participant gives an undertaking and the Secretary considers it breached, the Secretary may apply to the Federal Court for orders to enforce compliance, to recover up to the amount of any financial benefit reasonably attributable to the breach, or to make other compensatory orders (s10B). If the Act causes an acquisition of property not on just terms, the Commonwealth must pay reasonable compensation and the person can sue in the Federal Court if necessary (s10).\n\n- Implementation risks and trade‑offs (mechanical and procedural)\n  - The Act relies heavily on regulations and Scheme instruments for the detailed operation of virtually every substantive point (s5–s6). That concentrates design choices in subordinate instruments and in the Secretary’s exercise of delegated powers (s11). The need to coordinate tax offsets and direct payments (s4; s9), to define market value rent and tenant eligibility in regulations (s6(d); s7(4)), and to manage enforcement through the Federal Court (s10B) are practical implementation requirements that determine administrative cost, compliance burden and litigation exposure.\n\n- Behavioural effects the Act creates (mechanisms, not predictions)\n  - The Act creates an entitlement — an allocation — that, if conditions are met, produces an incentive (s4; s7). To obtain or retain the incentive, approved participants must make the dwelling available under the Scheme’s tenancy and rent conditions (s7(2)). The Secretary’s powers to vary, transfer or revoke allocations (s8), to accept and enforce undertakings (ss10A–10B), and to disapply the 20% rule in narrow circumstances (s7(5)) structure how participants will plan investment, leasing and tenancy arrangements.\n\nKey sections cited: object (s3); severability and constitutional confinement (s3A); definitions and incentive form (s4); requirement to create Scheme by regulation (s5); matters Scheme may cover (s6); allocation conditions including 20% below market rent and tenant income rules (s7(2)(b)(ii), s7(4)); transfers/variations/revocations (s8); certificates and payments (s9); compensation for acquisition (s10); undertakings and enforcement (ss10A–10B); delegation (s11); regulation power (s12)."},"summary":{"complexity_score":6,"scope_assessment":{"changed":true,"description":"The original intent was primarily to increase affordable rental housing supply by attracting investment. Over time the Act expanded to include explicit constitutional anchoring across multiple heads of power (s3A severability provisions), enforcement mechanisms for undertakings (ss10A-10B), provisions for bulk transfer of allocations between participants, and adjustment/clawback of incentives already paid — suggesting the scheme encountered implementation challenges requiring stronger compliance and administrative flexibility tools not contemplated at the outset."},"complexity_factors":["Relies heavily on external regulations to fill in critical operational details, meaning the Act alone is incomplete and readers must consult separate regulatory instruments","Multiple constitutional heads of power addressed in the severability clause (s3A) — external affairs, corporations power, taxation power, territories power — creating parallel legal operations of the same Act","Cross-references to income tax legislation (Income Tax Assessment Act 1997, Division 380) requiring readers to consult a separate and complex statute to understand how the tax incentive works","Distinction between 'approved participants' and 'investors' as separate legal categories with different rights and obligations adds a layer of structural complexity","The allocation mechanism involves conditional entitlements that can be varied, transferred between participants, transferred between properties, or revoked — creating a multi-layered regime","The scheme operates across Commonwealth, State and Territory jurisdictions simultaneously, with contributions from multiple levels of government","The document appears to contain significant structural repetition (sections are reproduced multiple times), which may confuse readers about the authoritative version"],"plain_english_summary":"## What This Law Does\n\nThe **National Rental Affordability Scheme Act 2008** sets up a federal government program designed to make renting more affordable for low and middle-income Australians. It does this by offering financial rewards to property investors and housing organisations who agree to rent out their properties at **at least 20% below market rate** (the going price for similar rentals in the area).\n\n## Who Is Involved?\n\nThere are three main groups:\n\n1. **Approved participants** — usually housing organisations or property managers who register with the government to manage properties under the scheme\n2. **Investors** — the actual owners of the rental properties (who may be different from the approved participants)\n3. **Tenants** — low to moderate income renters who benefit from the cheaper rent\n\n## What's the Deal for Investors/Participants?\n\nIn exchange for keeping rent at least 20% below market rate, participants receive an **incentive** — either:\n- A **tax offset** (a reduction in the tax they owe), or\n- A **cash payment** from the government\n\nThese incentives run for **10-year periods**. The detailed rules about how much the incentive is worth and how to apply are set out in separate government regulations (rules made under this Act).\n\n## Key Conditions\n\nTo get the incentive, the rental property must:\n- Be **new** or previously uninhabitable (not previously lived in)\n- Be rented to eligible tenants (income limits apply, set by regulations)\n- Be rented at **20% or more below market rent**\n- Not sit vacant for too long when not rented\n\n## What Happens If Someone Breaks the Rules?\n\nIf an approved participant makes a formal commitment (called an **undertaking**) and then breaks it, the government can take them to the **Federal Court of Australia**, which can order them to:\n- Comply with their commitment\n- Repay any financial benefit they wrongly gained\n- Compensate anyone who suffered loss\n\n## State and Territory Governments\n\nStates and Territories can also contribute to the scheme — either with money or other support — and this is factored into how incentives work.\n\n## The Fine Print: Why It's a Framework Law\n\nThis Act is essentially a **skeleton** — it creates the legal framework but leaves most of the detailed rules (like exactly how much the incentive is worth, who qualifies as a tenant, and how long a vacancy is allowed) to be filled in by **regulations** (separate government rules). This means the scheme can be adjusted without changing the Act itself."}},"importantCases":[],"_links":{"self":"/api/acts/national-rental-affordability-scheme-act-2008","history":"/api/acts/national-rental-affordability-scheme-act-2008/history","analysis":"/api/acts/national-rental-affordability-scheme-act-2008/analysis","conflicts":"/api/acts/national-rental-affordability-scheme-act-2008/conflicts","importantCases":"/api/acts/national-rental-affordability-scheme-act-2008/important-cases","documents":"/api/acts/national-rental-affordability-scheme-act-2008/documents"}}