National Housing Supply and Affordability Council Act 2023

Understanding the operation of the Act requires a precise reading of several statutory definitions and administrative concepts.

Member versus Appointed Member

The Act makes a fundamental structural distinction between a "member" of the Council and an "appointed member" (s 5). Under s 8, the Council consists of the Chair, the Deputy Chair, the Deputy Secretary of the Department who is primarily responsible for housing policy matters, and between four and seven other appointed members.

An "appointed member" is defined in s 5 as a member other than the Deputy Secretary. While the Deputy Secretary is a full member of the Council, they are an ex officio representative of the Department rather than a ministerial appointee under s 22. This distinction has critical legal consequences for the Council's decision-making processes:

• Quorum requirements under s 18(1) are calculated strictly as two-thirds of the number of appointed members.
• Voting rights under s 19(1) are restricted solely to the appointed members present and voting.

Consequently, the ex officio departmental member participates in deliberations but is legally excluded from voting on determinations, such as deciding whether a report should be given to the Minister (s 16(1) Note). This mechanism separates departmental advice from the formal, independent decisions of the appointed board.

PGPA Act Integration

Under s 7(2), the Council is prescribed in relation to the Department for the purposes of paragraph (a) of the definition of "Department of State" in section 8 of the Public Governance, Performance and Accountability Act 2013 (the PGPA Act). The legal effect of this prescription is that the members of the Council are legally classified as "officials" of the Department for the purposes of the PGPA Act (s 7(2) Note). This avoids the need to establish a separate, resource-intensive corporate entity under Commonwealth law. Instead, the Council operates within the financial, governance, and accountability frameworks of the Department, while retaining its distinct statutory advisory functions.

Qualified Independence

The concept of "independence" under s 14 is qualified by the statutory mechanism of ministerial requests under s 11. Although the Council is not subject to external direction in how it conducts its work (s 14(b)), it has no discretion to refuse a formal request from the Minister to undertake research, provide advice, or report on a specific matter (s 11(3)). The Minister may also impose terms of reference and binding timeframes on these requests (s 11(2)). Thus, while the Council is independent in its methodology and findings, the Minister retains statutory authority to direct the Council's workload and resource allocation.

The National Housing Supply and Affordability Council Act 2023 establishes a public sector advisory architecture that directly and indirectly influences several distinct categories of individuals and organisations.

The Minister and the Executive Government

The Minister responsible for housing is the primary recipient of the Council's outputs. The Act equips the Minister with a dedicated, expert advisory body to assist in the evaluation of housing policy, macro-prudential settings, and the performance of the housing system (s 9). The Minister also receives critical financial advice regarding the volume of funding to be released under the Housing Australia Future Fund Act 2023 and the Housing Australia Act 2018 (s 9(1)(c)-(d)).

Council Members

The Act directly governs the individuals appointed to the Council. Appointed members must meet rigorous eligibility criteria under s 22(2). The Minister must be satisfied that any appointee possesses substantial experience, expertise, or qualifications, alongside significant standing, in at least one of twelve specified fields:

• Economics (s 22(2)(c))
• Property development (s 22(2)(d))
• Urban and regional planning (s 22(2)(e))
• Residential construction (s 22(2)(f))
• Demography (s 22(2)(g))
• Social housing (s 22(2)(h))
• Accessibility for people with disability (s 22(2)(ha))
• Social policy (s 22(2)(i))
• Housing and homelessness policy (s 22(2)(j))
• Regional, rural, and remote housing policy (s 22(2)(ja))
• The housing needs of Aboriginal persons and Torres Strait Islanders (s 22(2)(k))
• Regulation, taxation, or government policy relating to housing (s 22(2)(l)).

Under s 22(3), the Minister must also ensure that the appointed members collectively possess an appropriate balance of these qualifications and skills.

Departmental Staff and Consultants

The Act affects public servants within the Department. Under s 31(1), the staff assisting the Council must be Australian Public Service (APS) employees of the Department whose services are made available by the Secretary. While they remain departmental employees for financial and employment purposes, s 31(2) establishes that when performing services for the Council, they are subject to the sole direction of the Council. Additionally, the Secretary may engage external consultants under s 32 to assist the Council, affecting private sector housing researchers, economists, and policy analysts who may be contracted to perform this work.

State, Territory, and Local Governments

State, Territory, and local governments are affected through the Council’s mandate to monitor local housing regulations, including land use, planning, zoning, and building codes (s 9(2)(c)(v)). The Council is also directed to collaborate with these governments to support the collection and publication of nationally consistent data on housing supply, affordability, and demand (s 9(1)(e)(ii)). This coordinates and standardises reporting metrics across different jurisdictions.

The Broader Housing and Homelessness Sector

The private housing construction sector, community housing providers, and homelessness services are affected by the research and policy advice generated by the Council. By monitoring housing system conditions (s 9(1)(e)(i)) and evaluating the value for taxpayers of government investments (s 9(2)(b)), the Council's reports can shape future funding guidelines, policy priorities, and regulatory reforms that affect housing developers, landlords, tenants, and home buyers.

The Act establishes a balanced matrix of statutory duties and rights that govern the relationship between the Council, its individual members, the Department, and the Minister.

Duties of the Council

The Council, as a collective body, is bound by several mandatory duties:

• Meeting Frequency: The Council must hold such meetings as are necessary for the efficient performance of its functions (s 16(1)). Specifically, the Chair must convene at least six meetings in each financial year (s 16(2)(b)).
• Responding to Appointed Members: The Chair must convene a meeting of the Council within 30 days after receiving a written request to do so from another appointed member (s 16(2)(c)).
• Compliance with Ministerial Requests: The Council must comply with any formal written request by the Minister to undertake research, provide advice, or report on a specific matter, including adhering to any ministerial terms of reference or timeframes (s 11(3)).
• Annual Reporting: The Council must prepare and submit an annual report to the Minister within ten months of the end of the financial year and publish it on the Council's website (s 10).
• Conflict of Interest Disclosures: Appointed members have a strict statutory duty to disclose any conflicts of interest directly to the Minister (s 28(1)). This duty operates in addition to the disclosure requirements set out in section 29 of the PGPA Act. Under s 28(3), a failure to disclose an interest to the Minister constitutes a breach of the PGPA Act itself.

Rights and Powers of the Council and its Members

• Discretion and Autonomy: The Council has the right to complete discretion in performing its functions and exercising its powers, free from external direction, subject only to the constraints of the Act and other Commonwealth statutes (s 14).
• General Power: The Council has the power to do all things necessary or convenient to be done for or in connection with the performance of its functions (s 13).
• Right to Publish Reports: The Council has the discretionary right to publish any report given to the Minister pursuant to its self-initiated reporting function under paragraph 9(1)(a) (s 12).
• Voting Rights: Appointed members hold the exclusive right to vote on questions arising at meetings (s 19(1)). The person presiding at a meeting (the Chair, Deputy Chair, or an appointed member chosen by those present) has a deliberative vote and, in the event of an equal division of votes, holds a casting vote (s 19(2)).
• Remuneration and Allowances: Appointed members have a right to be paid remuneration as determined by the Remuneration Tribunal, or as prescribed by ministerial legislative instrument if no determination is in operation, alongside prescribed allowances (s 25).

Rights and Powers of the Minister

• Appointment and Reappointment: The Minister has the power to appoint the Chair, the Deputy Chair, and other appointed members by written instrument for terms not exceeding four years (s 22(1), s 22(4), s 23(1)). Appointed members may be reappointed, subject to a strict cumulative lifetime limit of eight years (s 23(2)).
• Directing the Council's Work: The Minister has the power to request specific research, advice, and reports, and to set binding terms of reference and timeframes (s 11(1)-(2)). The Minister also has the power to withdraw or amend such requests at any time before the report or advice is delivered (s 11(5)).
• Leave and Conditions: The Minister has the power to grant leave of absence to appointed members (s 26) and to determine terms and conditions for matters not covered by the Act (s 27).
• Termination of Appointments: The Minister has the power to terminate the appointment of any appointed member under the conditions specified in s 30.

The National Housing Supply and Affordability Council Act 2023 contains no criminal offences or civil penalty provisions. It is an administrative and advisory statute rather than a regulatory or penal enforcement Act. Consequently, there are no fines, term-of-imprisonment penalties, or civil pecuniary penalties applicable to third parties, members of the public, or market participants.

Instead, the enforcement mechanisms within the Act are purely administrative, focusing on compliance, governance, and the removal of appointed members who fail to meet their statutory obligations.

Termination of Appointment

The primary mechanism for enforcing the standards of conduct, attendance, and integrity of the Council's appointed members is the Minister's power of termination under s 30. This section divides the grounds for termination into two distinct categories: discretionary termination for cause, and mandatory termination for financial instability, non-attendance, or conflict of interest failures.

Discretionary Termination for Cause

Under s 30(1), the Minister may terminate the appointment of an appointed member on two broad grounds:

1. Misbehaviour: This encompasses professional misconduct, breach of public trust, or actions that bring the Council or the Commonwealth into disrepute (s 30(1)(a)).
2. Incapacity: If an appointed member is unable to perform the duties of their office because of physical or mental incapacity (s 30(1)(b)).

Mandatory/Specific Grounds for Termination

Under s 30(2), the Minister may terminate an appointed member's tenure if specific triggering events occur. Although framed as "may terminate", these provisions represent clear statutory boundaries for acceptable conduct:

• Insolvency and Bankruptcy: If a member becomes bankrupt, applies for the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with their creditors, or makes an assignment of their remuneration for the benefit of their creditors (s 30(2)(a)).
• Persistent Non-Attendance: If an appointed member is absent, except on approved leave of absence under s 26, from any four meetings of the Council within any 12-month period (s 30(2)(b)). This enforces active participation on the part-time board.
• Failure to Disclose Conflicts: If an appointed member fails, without reasonable excuse, to comply with the dual-track disclosure requirements set out in s 28 of the Act, or s 29 of the PGPA Act, or any rules made under those sections (s 30(2)(c)). Because s 28(3) deems a failure to disclose interests to the Minister to be non-compliance with the PGPA Act, this ground links local failure directly to broader Commonwealth public sector integrity breaches.

Operational Enforcement of Ministerial Requests

While s 11(3) states that the Council "must comply" with a ministerial request for research or advice, the Act does not provide a judicial or pecuniary penalty for a collective failure by the Council to comply. Enforcement of this duty is managed through administrative and political accountability mechanisms. If the Council collectively refused to comply with a mandatory request under s 11(1), the Minister’s recourse would be to exercise powers of termination under s 30(1)(a) for misbehaviour (such as willful refusal to perform statutory duties), or to decline to reappoint members at the conclusion of their terms (s 23).

The Act does not operate in isolation; it is integrated into the broader architecture of Commonwealth administrative, financial, and housing law.

The PGPA Act 2013

The interaction with the Public Governance, Performance and Accountability Act 2013 is the most significant statutory relationship. Because the Council is prescribed in relation to the Department under s 7(2), its financial administration, record-keeping, and the conduct of its members are governed by the PGPA Act.

Importantly, s 28 of the Act modifies the standard application of section 29 of the PGPA Act. Section 29 of the PGPA Act requires officials of Commonwealth entities who have a material personal interest in a matter that relates to the affairs of the entity to disclose the details of the interest. Under s 28(1) of the Act, an appointed member of the Council must make this disclosure directly to the Minister. This is an additional requirement to any rules made under the PGPA Act. Section 28(3) establishes that a failure to disclose the interest to the Minister is deemed to be a failure to comply with section 29 of the PGPA Act itself, which triggers the termination provisions in s 30(2)(c).

Furthermore, s 18(2) of the Act interacts with the PGPA Act rules regarding meetings. If an appointed member is required by rules made under section 29 of the PGPA Act to withdraw from a meeting during deliberations or decisions regarding a matter in which they have a conflict, and their departure causes the meeting to lose its two-thirds quorum (s 18(1)), s 18(2) provides a statutory bypass. The remaining appointed members at the meeting are legally deemed to constitute a quorum for the purpose of any deliberation or decision regarding that specific matter.

The Housing Australia Future Fund Act 2023

The Council's advisory functions are directly tied to the operation of the Housing Australia Future Fund Act 2023. Under s 9(1)(c) of the Act, the Council has the function of advising the Minister regarding the total amount of grants of financial assistance to be made in a financial year under subsections 18(1) and (3) of the Housing Australia Future Fund Act 2023. This ensures that the disbursement of funds from the Housing Australia Future Fund is informed by the Council's independent assessment of housing supply and affordability dynamics.

The Housing Australia Act 2018

Similarly, s 9(1)(d) establishes a direct statutory link to the Housing Australia Act 2018. The Council must advise the Minister on the total amount of payments to be made to Housing Australia in a financial year under paragraph 47C(1)(b) of the Housing Australia Act 2018. This links the Council’s empirical research directly to the funding and operational capital allocated to Housing Australia for its programs.

The Remuneration Tribunal Act 1973

The determination of remuneration for the appointed members is governed by the Remuneration Tribunal Act 1973. Section 25(1) states that appointed members are to be paid the remuneration determined by the Remuneration Tribunal. Section 25(3) makes the entire remuneration section subject to the Remuneration Tribunal Act 1973, ensuring that the independent setting of public official compensation is maintained. However, s 25(4) permits the Minister, by legislative instrument, to prescribe alternative remuneration and allowances if no Tribunal determination is in operation.

The Acts Interpretation Act 1901

Several procedural aspects of the Council's administration rely on the Acts Interpretation Act 1901:

• Reappointments: Section 22(1) Note 1 references section 33AA of the Acts Interpretation Act 1901, which governs the power to reappoint members.
• Acting Appointments: Section 24, which governs the appointment of an Acting Chair or Acting Deputy Chair during vacancies or absences, references sections 33A and 33AB of the Acts Interpretation Act 1901 regarding the rules, powers, and restrictions applicable to acting officers.
• Electronic Participation: Section 20 Note references section 33B of the Acts Interpretation Act 1901, which permits and regulates the conduct of meetings where members participate via telecommunications or other electronic means.

The National Housing Supply and Affordability Council Act 2023 (Act No. 80 of 2023) was assented to on 28 September 2023. Under the commencement table in s 2(1), the entire Act commenced on 27 December 2023, which was the 90th day after the Act received the Royal Assent.

According to the provided source text, which represents the Act as originally enacted, there have been no subsequent legislative amendments to the text. It remains in its original form as passed by both Houses of the Parliament of Australia (having been introduced via the Minister’s second reading speeches in the House of Representatives on 9 February 2023 and the Senate on 6 March 2023).

The Act does, however, contain a built-in statutory mechanism designed to trigger future legislative evaluation and potential amendment. Part 5 of the Act (s 33, s 34) mandates a formal review of the legislation. Under s 34(1), the Minister must cause a review of the "effectiveness of this Act" to be undertaken as soon as possible after 1 July 2026.

The persons conducting this review are required to deliver a written report to the Minister (s 34(2)), which the Minister must then cause to be tabled in each House of the Parliament within 15 sitting days of receiving it (s 34(3)). This review represents a structured policy checkpoint where the performance, powers, and statutory composition of the Council will be empirically evaluated, which may lead to subsequent legislative amendments to refine the Council's functions or governance structures.

As a newly enacted statute establishing an advisory body with no direct regulatory, enforcement, or punitive powers over private citizens or commercial entities, there is no recorded litigation history arising under this Act. The source text does not cite any judicial decisions, and the advisory nature of the Council significantly limits the potential for commercial or civil litigation.

However, the statutory design of the Act leaves open specific, well-defined avenues for potential administrative law litigation under general Commonwealth public law principles.

Administrative Decisions (Judicial Review) Act 1977 (ADJR Act)

Decisions made by the Minister or the Council under the Act are "decisions of an administrative character made under an enactment" and are therefore subject to judicial review under the ADJR Act, as well as under section 75(v) of the Australian Constitution.

Appointment Terminations

The most likely locus of future litigation would be a ministerial decision to terminate the appointment of an appointed member under s 30. If the Minister terminates a member's tenure for "misbehaviour" (s 30(1)(a)) or "incapacity" (s 30(1)(b)), the affected member would have standing to seek judicial review. Litigation of this nature typically focuses on whether the Minister afforded the member procedural fairness (natural justice), whether the Minister fell into jurisdictional error, or whether there was a legally sufficient evidentiary basis to support a finding of "misbehaviour" or "incapacity."

Procedural Validity of Determinations

If the Council makes a formal advisory determination (for example, advising the Minister on HAFF funding under s 9(1)(c)) without a valid quorum under s 18, or via an inquorate meeting where a conflicted member participated in breach of s 18(2), the validity of that advice could theoretically be challenged. While such advice is non-binding on the Minister, a failure to obtain valid statutory advice from the Council where it is a statutory prerequisite for executive action under other legislation (such as the Housing Australia Future Fund Act 2023) could expose subsequent executive decisions to administrative law challenges.

Practitioners, compliance professionals, and researchers should be aware of several non-obvious statutory mechanisms and potential "gotchas" embedded in the text of the Act.

Ex Officio Members Have No Voting Power

While s 8(c) establishes that the Deputy Secretary of the Department responsible for housing policy is a full "member" of the Council, s 19(1) explicitly states: "A question arising at a meeting of the National Housing Supply and Affordability Council is to be determined by a majority of the votes of the appointed members present and voting." Because s 5 defines "appointed member" as a member other than the Deputy Secretary, the Deputy Secretary has no statutory voting rights.

Any decision or report determined by a vote that counts the Deputy Secretary’s vote, or where the Deputy Secretary’s vote was used to break a tie, would be procedurally invalid. This is a critical trap for the administration of Council meetings.

Quorum Excludes the Departmental Representative

Similarly, s 18(1) stipulates that a quorum is constituted by "two-thirds of the number of appointed members." The Deputy Secretary cannot be counted toward establishing a quorum. If a meeting is held with only appointed members and the Deputy Secretary present, the physical presence of the Deputy Secretary does not assist in reaching the two-thirds threshold of appointed members.

The Double-Disclosure Trap for Conflicts

Under s 28(1), appointed members must make disclosures of material personal interests under section 29 of the PGPA Act directly to the Minister. This is a critical procedural trap: under standard PGPA Act rules, disclosures are typically made to the board or the governing authority of the entity. However, under s 28(3) of this Act, an appointed member is legally deemed not to have complied with section 29 of the PGPA Act if they do not disclose the interest to the Minister in writing.

This failure immediately activates the Minister's power of termination under s 30(2)(c). A member cannot defend themselves by proving they verbally disclosed the conflict to the Council during a meeting; they must have provided written notice to the Minister.

The Illusion of Total Independence

Although s 14 states that the Council has "complete discretion" and "is not subject to direction from anyone", s 11(3) contains a mandatory override: "The Council must comply with such a request [from the Minister]." If the Minister requests research on a specific topic with a highly restrictive timeframe and narrow terms of reference under s 11(2), the Council is legally compelled to divert its resources to fulfill that request. The Minister can effectively control the Council’s research agenda and prevent it from focusing on self-initiated projects simply by issuing consecutive formal requests under s 11(1).

The Cumulative Eight-Year Term Limit

Under s 23(1), an appointed member holds office for the period specified in their instrument of appointment, which must not exceed four years. While they are eligible for reappointment, s 23(2) imposes a hard cumulative lifetime limit: "A person must not hold office as an appointed member for a total of more than 8 years." This is an absolute cap that cannot be waived or bypassed by the Minister. Any attempt to reappoint a member beyond a cumulative total of eight years would be ultra vires and invalid.

Statutory Quorum Bypass for Conflicts

Section 18(2) provides a unique mechanism that could catch members off-guard. If an appointed member leaves a meeting due to a conflict of interest, and their departure reduces the number of remaining members below the required two-thirds quorum, the remaining members legally constitute a valid quorum for that specific matter. This means that highly sensitive decisions can legally be decided by a tiny fraction of the Council's appointed members, provided the loss of quorum was caused strictly by conflict-of-interest departures.

Compliance with the Act falls into distinct categories of operational duties for different actors.

Checklist for Individual Appointed Members

• Disclose Interests Immediately: If you possess a material personal interest in a matter before the Council, you must write a formal disclosure letter detailing the interest and send it directly to the Minister (s 28(1)). Do not rely on verbal disclosures at meetings.
• Monitor Attendance: Ensure you do not miss four meetings of the Council in any 12-month period without a formal, written leave of absence granted by the Minister under s 26, to avoid triggering mandatory termination grounds under s 30(2)(b).
• Verify Qualifications: Ensure that you maintain standing and active expertise in the designated field under s 22(2) for which you were appointed, as a total loss of capacity or standing in that field could be construed as incapacity under s 30(1)(b).
• Respect the Lifetime Cap: Do not accept an appointment or reappointment that would cause your cumulative service on the Council to exceed eight years in total (s 23(2)).

Checklist for the Council Chair

• Convene Minimum Meetings: You must convene at least six formal meetings of the Council in each financial year (s 16(2)(b)).
• Respond to Member Requests: If you receive a written request from another appointed member to hold a meeting, you must formally convene a meeting of the Council within 30 days of receiving that request (s 16(2)(c)).
• Manage Voting Rules: Ensure that when a vote is taken, only "appointed members" vote. Explicitly exclude the Deputy Secretary from any tally or division (s 19(1)).
• Manage Quorum Rules: Ensure that at least two-thirds of the appointed members are present before commencing any formal decision-making, excluding the Deputy Secretary from the quorum calculation (s 18(1)), unless the special conflict bypass under s 18(2) is active.
• Fulfill Ministerial Requests: Ensure the Council prioritises and complies with any formal requests for reports or advice issued by the Minister under s 11, adhering strictly to the provided terms of reference and timeframes.
• Deliver the Annual Report: Draft, approve, and submit the Council's annual report on its research to the Minister no later than ten months after the end of each financial year, and ensure it is published on the Council's website (s 10).

Checklist for the Department and Secretary

• Provide Staffing Support: The Secretary must identify and make available APS employees from the Department to assist the Council (s 31(1)).
• Maintain Operational Separation of Staff: Ensure that departmental staff assigned to assist the Council understand that, while performing these duties, they are subject only to the directions of the Council (s 31(2)), not departmental managers.
• Manage Consultants: The Secretary must handle the formal engagement of any external consultants contracted under s 32 to assist the Council, ensuring compliance with Commonwealth procurement rules.

Checklist for the Minister

• Verify Appointment Balance: When appointing members, verify that they collectively possess an appropriate balance of qualifications, skills, and experience across the twelve fields listed in s 22(2).
• Appoint Leadership: Ensure that you formally designate one appointed member as Chair and one as Deputy Chair by written instrument (s 22(4)).
• Initiate the Statutory Review: Ensure that a formal review of the effectiveness of the Act is initiated as soon as possible after 1 July 2026, and that the resulting report is tabled in both Houses of Parliament within 15 sitting days of receipt (s 34).