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Winding-up clauses for community housing providers

All community housing providers registered under the National Regulatory System for Community Housing (NRSCH) must have an appropriate winding-up clause in their constitution.

This clause provides for the transfer of remaining community housing assets located in:

  • Queensland under the Housing Act 2003
  • other participating jurisdictions under that jurisdiction’s corresponding law.

The NRSCH winding-up clause provided below is an example of a clause that complies with the requirement in Schedule 3, part 1, item 2 of the Housing Act 2003.

You may choose to adopt this clause.

Example of NRSCH winding-up clause

  1. National Regulatory System for Community Housing winding-up requirements
    1. In this clause 'Community Housing Asset', 'Corresponding Law', 'Housing Agency', 'Participating Jurisdiction' and 'Registered Provider' have the same meanings as in the Housing Act 2003 (Qld).
    2. Despite clause [cross-reference to general winding-up clause], each Community Housing Asset remaining after satisfaction of the Company's liabilities must be transferred as follows:
      1. each remaining Community Housing Asset of the Company in Queensland must be transferred under s 37H(2)(a) of the Housing Act 2003 (Qld); and
      2. each remaining Community Housing Asset of the Company located in a Participating Jurisdiction must be transferred under the Corresponding Law of that Participating Jurisdiction to:
      1. the Housing Agency in the Participating Jurisdiction;
      2. another Registered Provider in the Participating Jurisdiction; or
      3. another entity as prescribed under the Corresponding Law.

General winding-up clause

This example indicates that you should cross-reference to a general winding-up clause, which is separate to the NRSCH winding-up clause.

A general winding-up clause is the clause in your constitution, rules or other constituting document that deals with your organisation's assets (after debts and liabilities are paid) before you close down your organisation.

The NRSCH winding-up clause applies:

  • only to state-funded community housing assets
  • in addition to existing winding-up clauses in your constitution.

Alternative wording

You may use suitable alternative wording rather than the example we've provided.

Ensure that the alternative wording is legally consistent with the Housing Act and the National Law.

Seek legal advice about your winding-up clause and any changes required to adapt it for your constitution.

The Registrar needs to review your alternative wording to ensure it's appropriate and compliant with this registration condition.

They will examine the evidence and make a final decision, which may or may not agree with your legal advice.

How to use the clause

Insert stand-alone clause

Insert the NRSCH winding-up clause (or other legally consistent clause) as a stand-alone clause in addition to your organisation's general winding-up clause:

Example 1

  1. General winding-up clause
  2. NRSCH winding-up clause
    1. In this clause…
    2. Despite clause 10…

Example 2

  1. General winding-up clause
  2. NRSCH winding-up clause
    1. In this clause…
    2. Despite clause 10

Example 3

  1. Winding-up (Heading)
  2. General winding-up clause
  3. NRSCH winding-up clause
    1. In this clause…
    2. Despite clause 10…

Cross-reference general clause

Ensure the NRSCH winding-up clause (or other legally consistent clause) cross-references the general winding-up clause:

Example 1

  1. General winding-up clause
  2. NRSCH winding-up clause
    1. In this clause…
    2. Despite clause 10…

Example 2

  1. General winding-up clause
  2. NRSCH winding-up clause
    1. In this clause…
    2. Despite clause 10

Example 3

  1. Winding-up (Heading)
  2. General winding-up clause
  3. NRSCH winding-up clause
    1. In this clause…
    2. Despite clause 10

Place subclauses in same clause

Ensure all the subclauses of the NRSCH winding-up clause are in the same clause

Example

  1. NRSCH winding up clause (Heading)
  2. In this clause…
  3. Despite clause…

How not to use the clause

Don't insert as a subclause to general clause

Do not insert the NRSCH winding-up clause (or other legally consistent clause) as a subclause to the general winding-up clause.

Example 1

  1. General winding-up clause
    1. NRSCH winding-up clause
    2. In this clause…
    3. Despite clause 10

Example 2

  1. General winding-up clause
  2. NRSCH winding-up clause
  3. In this clause…
  4. Despite clause 10…

Example 3

  1. Winding-up (Heading)
    1. General winding-up clause
    2. NRSCH winding-up clause
      1. In this clause…
      2. Despite clause 10

Don't remove or replace general clause

Do not remove or replace your general winding-up clause with the NRSCH winding-up clause (or other legally consistent clause):

Example

10 General winding-up clause

11 10 NRSCH winding-up clause.

Don't separate subclauses

Do not separate all the subclauses of the NRSCH winding-up clause. They should all be part of the same clause.

Example

10 NRSCH winding up clause (Heading)

11 In this clause…

12 Despite clause…

Providing evidence of amended constitution

Registrar notification

Once you've amended your constitution, rules or other constituting document and inserted the NRSCH winding-up clause or other legally consistent clause, the Registrar needs to see evidence that your organisation has formally adopted the constitution.

Any modification to your constitution and/or winding-up clause after registration requires you to notify the Registrar.

Failure to notify the Registrar may trigger compliance and affect your registration status. Read more about when to notify the Registrar of an event.

What evidence to provide

The evidence requirements depend on your entity type:

  • Company limited by shares or guarantee (Corporations Act 2001): Minutes of general meeting or confirmation of chair adopting amendment to constitution
  • Incorporated association or co-operative (Association Incorporation Act 1981): Letter from Office of Fair Trading approving amendment
  • Aboriginal Corporation (Corporations (Aboriginal and Torres Strait Islander) Act 2006): Letter from Regulatory Services of Indigenous Corporations approving amendment to constitution or rule book.

This list is neither prescriptive nor exhaustive.

Multi-jurisdictional providers

The Queensland NRSCH winding-up clause requirement applies only to providers whose primary jurisdiction is Queensland.

If you're applying for registration under the National Law and your primary jurisdiction isn't Queensland, you don't need to include the Queensland NRSCH winding-up clause in your constitution, even if you have assets in Queensland.

However, you do need to include the required winding-up clause in your constitution. Contact the Registrar of your primary jurisdiction if you have any questions.

Winding-up clause and registration applications

At the 'Eligibility and Tier Form' (ETF) stage, not having an appropriate NRSCH winding-up clause won't prevent your application progressing to the next stage.

You can progress to the 'Application for Registration' (AFR) stage with the understanding that, if you need to amend your constitution or equivalent document, it can be processed during this time.

You must have the example NRSCH clause—or have shown that your alternative clause is legally consistent with the Housing Act—before we can decide on your registration.

Demonstrating you have a legally consistent winding-up clause forms part of your application for registration. Submit it to us within time frames set by the Registrar.

You don't need to amend your constitution before applying for registration, but you must complete this amendment before we can decide on your registration.

Contact us

For more information, contact your primary analyst or contact us via:

Contact

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General enquiries: 13 QGOV (13 74 68)