Residential Parks (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 25 October 2018.)

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (16:06): I think I was outlining to the parliament in reply, or in rebuttal, some of the concerns I had about the member for Kaurna's approach to this bill as we approached this year's state election, in particular his attempt to present to his electorate, specifically the residents of the Moana caravan park, the diligence with which his former government had approached the reform of law in the area of the protection of residential park residents. In fact, he had said at the local level, just before the state election, as published on 12 March 2018:

We've been in the process of introducing new legislation of these parks to provide greater rights for residents so that when their contracts come to an end, there will be automatic renewal of their contracts.

Quite clearly, we know the reality is that, at that time, the previous government had presented a bill in the preceding year and let it stagnate, fail and, when parliament was prorogued, die. We all know how busy they were on the last day of parliament. Their priority was dealing with changing the fairness clauses to the Electoral Act. The priority for the Moana caravan park residents had clearly evaporated, so I think it is disingenuous of those on the other side to pretend to have been active in the support of this—the need for it and recognising the importance of it—while in reality they had abandoned these people.

Our position on this side of the house is that it is important legislation. We supported it then. We made it very clear, yet they did not advance it, and that is to their eternal shame. Having introduced the legislation in September this year, I received a letter from the member for Taylor. He made an inquiry on behalf of some of his constituents—at the very least they had the roles of president and vice president of a local residential park's residents association, so I am making the assumption that they were resident in this particular park and therefore were constituents of Mr Gee.

In any event, they were people who had come forward to suggest that there be a strengthening of the bill in respect of market value for the purchase of dwellings, and they wanted to add in specific provision for that. In addition to that, they wanted some changes in respect of residents committees being elected and there being a base standard of agreement across parks and an end to embedded networks in which electricity is provided to a box and then fed to a number of houses. Finally, they wanted to see safety evacuation plans developed in consultation with residents committees.

At first blush, I am sure these are all quite genuine inquiries that were made and proposals put by his constituents. I have responded to the member, but for the purposes of this debate, because it has been raised by him in the debate, I will set out the following. The concerns in respect of section 50A relate to this question of the value that is to be attributed for the purchase of a dwelling. It is important to note that, while the amendment provides the park owner the first option to purchase a dwelling from a resident's estate, it does not diminish the rights of the resident's estate to occupy, sell or assign a dwelling in any way.

The bill provides amendments that require the reviewing and reissuing of agreements and will no longer allow for agreements to be terminated at the end of an agreement or on no specific grounds. Proposed section 50A has been included in the bill as a balance to provide an opportunity for the park owner to purchase the dwelling from the resident and regain ownership of the site. However, this proposed section also ensures that the estate has full protection and control over what occurs and is not obliged to accept any offer made by the park owner. If the park owner does not make an offer or the estate does not agree to an offer made within 28 days, the park owner's option to purchase will lapse and the dwelling can be sold on the open market as usual.

In addition, section 50 of the Residential Parks Act 2007, that is the principal act that we are amending today, ensures that a park owner or their agent cannot hinder or prevent the sale of a dwelling by a resident, and if there are attempts to interfere with the sale process they are guilty of an offence. Furthermore, while residents committees may be established under section 7 of the existing act, the bill seeks to improve these provisions by making residents committees mandatory in residential parks with more than 20 long-term residents, with obligations on the park owner to encourage residents to form a residents committee and to formally respond to any issues raised by the committee through a proper process.

However, sections 7(1), (3) and (4) of the existing act will still apply that provide for only residents to form a residents committee. It ensures that all residents may participate and makes it an offence if the park owner interferes with that process. Residents committees allow for a forum for residents to raise any issues they have, for those issues to be raised with the park owner through the proper process. To support residents in this process, Consumer and Business Services (CBS) propose to provide new educational material which will include general information on forming and running committees. In addition, I remind members that CBS advice and conciliation officers will offer ongoing support with formalising any agreements reached.

As part of the implementation of the bill, CBS will be providing a standard agreement template for use by owners to ensure transparency around exemptions and waivers proposed by the bill. Also, due to the different types of residential and mixed parks in SA, embedded utility networks exist in some parks in SA. Residents in residential parks are protected by section 43 of the current act, which requires that park owners must bear all statutory charges imposed in respect of the rented property but may, by a term of a residential park agreement, charge for the consumption of water, electricity and gas if they are not metered separately.

These charges must be based on the level of the consumption at the property, and section 43(3) of the act states that a resident need not make a payment unless the park owner provides to the resident specified information which may include accounts and receipts or copies of accounts and receipts relevant to the payment or the goods or services in respect of which the payment is sought.

In relation to proposed section 138A, it is proposed that a fire safety evacuation plan template will be provided by CBS. If there are any concerns from residents regarding any fire safety or prevention measures, these matters should be raised and brought to the attention of the park owner through the residents committee. Fire safety requirements for caravan parks and residential parks in South Australia already exist under section 76A of the Development Regulations 2008, and specifically under Minister’s Specification SA 76A.

I also wish to convey to the member for Taylor that I understand that SARPRA representatives are part of a group of key stakeholders that has been involved in the consultation process for the proposed reforms since February 2017, and I have appreciated their input during that time. I thank the member for Taylor for writing to me about the matter on behalf of his constituents, or representatives of the association that operates in his constituency, and I trust that covers any concerns he might have.

In short, some of the issues he has raised have been incorporated into the bill post consultation. Perhaps the member for Taylor received the information from his constituents prior to viewing the final draft of this bill. In any event, there could be a misunderstanding in relation to what is there. I trust that he can reassure the constituents in those circumstances.

I maintain a position to other members of this house that arrangements are made to provide a briefing upon the introduction of a bill, usually at a time that is convenient for the opposition spokesperson. Relevant experts from the department are available to answer any questions in relation to its development, with more detail provided by parliamentary counsel representatives who are present. The same is offered to Independent or minority representatives in the parliament.

In the event that members are not able to attend those briefings, they are at liberty to contact our office and seek a separate briefing if they wish. Alternatively, if there are a significant number, we would make that forum available in a larger meeting room here at parliament. As sponsors of new legislation, I accept that we have a responsibility to present the bill to the parliament, and to make available experts in the development of these new laws, in order to provide explanations and answer questions. It is our job to promote the advantage of the law reforms for which we are seeking the support of the parliament.

What I sometimes find curious is that the experts we make available for these briefings come along, answer questions to the best of their capacity and take on notice any questions where further data or information is available and can be provided. We then find that we come into parliament and the same information is sought again. I find that a bit concerning. I do not think it is unreasonable to come to the parliament and say, 'We have asked questions in this area. We would like noted on the record the indication of the government of A, B and C because that is something we are very concerned about and we want it to be absolutely clear.'

Frankly, I think it is a little insulting to those people, who are experts in their field, to have them come out and recount this material again almost word for word. I will just put that on the record because I think it is unfair to them, and to the value of their time, to repeat what they have been asked in a briefing. Nevertheless, in the end that is a matter for the opposition.

I will now move to the people in Glenelg who were 'represented'—if one could butcher a word so badly to describe the advocacy provided—by former senator Mr Nick Xenophon, who is now back in legal practice. I think it was the Brighton Caravan Park—I keep forgetting the name of the caravan park. I should not; it should be planted in my brain. I say this because the local representative has made a detailed contribution in relation to what happened there and outlined, I think for the benefit of the parliament, the mature way in which the council—of which he was a member at the time (he was not mayor at that stage, but he was a member)—had approached the consideration of the people who had been long-term occupiers of the temporary accommodation they had at this caravan park.

For Mr Xenophon to have gone to this group at the time and promised them the opportunity of relief through the Supreme Court to endorse some unknown law that was going to protect them and give them some kind of property rights for people who are under these residential arrangements was mischievous and cruel. I remember speaking to Mr Xenophon about this issue. I was so annoyed about it. I said, 'How can you possibly say to these people that this is something that they have a right to do and promptly attach their statements to form part of the affidavit base in the Supreme Court challenge?'

Within a very short time, having done that, raised their expectation and given them hope, he walks away. He dumps them—just dumps them! These people are left with pending Supreme Court litigation and a situation where their hopes were clearly going to be smashed. I just find that whole episode and conduct by Mr Xenophon to be unconscionable, and I place it on the record in this debate because this is exactly the group of people we are trying to ensure have better protection in their occupancy in the future.

However, we are not doing what Mr Xenophon has done—that is, to try to pretend to them that they have some kind of property rights that give them an entitlement to have access on the foreshore of the beautiful Holdfast Bay for a few dollars a week. That is not how it works. I find it a bit surprising that there were not more people living in the local area who were saying, 'Well, look, hang on a minute. We all contribute our rates. We pay the market value consideration for the right to live in this beautiful location, and these other people here are paying a weekly payment, they have not made a capital payment and they have all this entitlement.' That is just unconscionable.

What is reasonable is that the people in this circumstance be assisted in relocating in a circumstance where the owner of the property proposes to redevelop it, bearing in mind that the owner of the property is the people of the district. It is not Mr and Mrs Multimillionaire: it is the people of the district. It is public land under the management and stewardship of the Holdfast Bay council, and so to try to present them as some kind of nasty, money-grabbing person who wants to develop a site for some personal gain is just not the way it should have ever been presented, and I think that in itself was mischievous.

I commend those members of the Holdfast Bay council at the time for their grown-up, mature approach to the reasonable support of those who had been residents in their area for some years—some of the people who occupied this rather prestigious place—and said to them right from the start, 'Look, we understand that this is going to have some difficulty for some of you because you have enjoyed the privilege of living here, but we will give you some financial support to relocate,' and good on the council for doing that.

Mr Patterson: And some took it up.

The Hon. V.A. CHAPMAN: Indeed, some accepted that in a mature and responsible way, and they assisted to relocate and given sufficient time to transfer, etc. As I say, I commend the council for the efforts it made. As we know now, the Supreme Court action collapsed, as was expected. As I understand it, the council did not pursue any cost orders against them in relation to those circumstances. I think that is generous in the circumstances, but the financial position of a number of these would have meant that they were not in a position to meet that in any event, so I think that was entirely just and equitable. But guess who picks up the cost? The people of Holdfast Bay. The people who pay the rates. None of these things is at no cost.

We have the personal cost of the humiliation of the dashed hopes of the people who lived in the park, their raised expectations smashed in the reality and then the financial cost of all this being left to the people of Holdfast Bay. They are the ones who have to pick up the cost of this. This is why it is so inequitable and the behaviour of Mr Xenophon so unconscionable, so I thank the member for bringing up the matter and clearly outlining what happened.

I will always remember it. I can remember picking up a big wad of handwritten statements by these residents attached to a copy of the affidavit. I hate to think what Mr Xenophon charged for it. In any event, they were proceedings that were doomed from the start. That is behaviour that I hope will never be repeated. I am proud that this legislation will help to set out a program of extra protection where it may be needed where the tenancy or the tenure is at risk for people who live in these circumstances.

Something to remember, and I think it is a fair comment, is that a number of the people who reside in these residential parks do not have a lot of other options. It is not as though they can go and buy a property or a house. It is not as though they are in a position to secure the leasehold at a commercial value of a number of properties. They do not enjoy the financial circumstances available to others. They do not have a lot of choice, so it is incumbent on us in the parliament to provide some protection to them. I am proud to say on behalf of the government that this bill does that, and I hope that it will have swift passage in the parliament.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. Z.L. BETTISON: Attorney, who was consulted on this bill and can you provide copies of those submissions?

The Hon. V.A. CHAPMAN: I think this is another matter that was raised in the course of the briefings. Let me just say this, and I have said it multiple times: as a matter of course, we do not provide copies of the submissions for the reasons that have been previously explained. A number of them, however, are on the website. One of them that I know is regularly on the website, and I have a copy of it with me today, is from the Law Society. They had no objection to the bill, having noted the proposed amendments we were foreshadowing from last year's draft.

I do not have copies of the others before us, but I think it is fair to say that, as was evident from the second reading, there was quite substantial consultation with the association that represents the interests of residential park owners and the entity that represents those who reside in residential parks. I do not have their full name in front of me, but I think that SA Parks is the association that represents the interests of residential park owners. I indicate that the consultation process—as I said, it was referred by last year's minister—stretched from 17 March 2016 to 30 July 2018. Some of those meetings happened three or four times a month all the way through.

Clause passed.

Clauses 2 to 4 passed.

Clause 5.

The Hon. Z.L. BETTISON: What is the effect of exchanging 'short fixed' for 'fixed short' in this clause?

The Hon. V.A. CHAPMAN: It is a very short question, but it is a long answer. The act currently includes the meaning of 'short fixed term' as a term of 90 days or less and long term is assumed to be other than a short-term period. During consultation, SA Parks raised that the definition of long term was not clear and needed to be clarified. The bill was to define a short-term residential park agreement as follows:

For the purposes of this Act, a residential park agreement will be taken to be for a short term if it is for a term of 90 days or less (and all other residential park agreements will be taken to be for a long term.)

The bill deletes 'short fixed' whenever occurring, and substitutes in each case 'fixed short' and

personal representation of a deceased resident means a person who is entitled at law to administer the estate of the deceased resident;

Personal representative has been defined as part of the proposed insertion of section 50(a) of the sale of dwelling following the death of a resident.

The Hon. Z.L. BETTISON: What is the effect of deleting subsection (2)?

The Hon. V.A. CHAPMAN: I think I just answered that.

Clause passed.

Clause 6.

The Hon. Z.L. BETTISON: What is the minimum and maximum size for a residents committee?

The Hon. V.A. CHAPMAN: The current act allows for a residents committee to be formed in residential parks where there are residents from at least five different sites involved. If the park owner unreasonably interferes with the resident's right in forming or participating in a residents committee, the park owner is guilty of an offence. However, residents committees are not currently mandatory. The bill will make them mandatory.

The Hon. Z.L. BETTISON: I do not think you have actually answered my question. More than one is the minimum and the maximum is 10? Do you have a detailed number?

The Hon. V.A. CHAPMAN: I am advised that we understand it is three, but I will check. I will have a look at the principal act. As I have just read out about the residents from at least five different occupied sites, I am taking that as a minimum of five.

The Hon. Z.L. BETTISON: If any clarification is needed, we can seek that between the houses. What powers and responsibilities does a residents committee have; for example, what can they make decisions about and in what circumstances are they binding on the park owner?

The Hon. V.A. CHAPMAN: By way of what can they resolve, they can resolve whatever they like. There is no impediment to what they might consider in the course of their business, but the decisions or resolutions of a committee are not binding on the park owner, or vice versa. They are an advocacy body that we are entrenching in the legislation so that there is a capacity for them to do just that and not be ignored by having under-representation or no representation amongst the residential population.

Bear in mind that the residents themselves—the residential occupiers—have their own individual rights and they should not be in any way dissuaded from advocating on behalf of their own rights. It is felt that, in circumstances where there is sometimes a power imbalance, it is reasonable that there be a committee in existence, where there are more than 20 residents occupying a park, and that this is an important extra tool for them to protect their interests.

The Hon. Z.L. BETTISON: What legal indemnity does a residents committee have in relation to decisions they have made?

The Hon. V.A. CHAPMAN: In the sense of any director's liability insurance, or anything of that nature, I do not think that would be necessary. This is not a body that is in charge of money. It is not an incorporated association. It is not a corporate entity, so it does not have any obligations in that regard. It must exist as a committee. Its decisions are not binding on other parties, so I am not sure what they would be indemnified against because there is not a direct consequence of a resolution that they might reach at that stage. Even park residents do not have to take any notice of them if they were to think that representations being made were not in their interest. The resolutions of the committee do not destroy or diminish the rights of the residential occupier and the rights that he or she has under their agreement.

Clause passed.

Clause 7.

The Hon. Z.L. BETTISON: Clause 7, I understand, inserts a new section. Why was this clause introduced?

The Hon. V.A. CHAPMAN: I think it makes it clear that it is to avoid doubt. That is what it says at the beginning.

The Hon. Z.L. BETTISON: I would like a further explanation. Obviously, during your consultation, perhaps this was an area of concern. Can you elaborate, please?

The Hon. V.A. CHAPMAN: I will answer this as best I can. The purpose of this, if the member reads the section, is to make sure that, if there is any doubt, it does not apply just to new agreements that are reached but to ones that are already in existence that are going to be renegotiated and re-signed. That is what it is confirming. I do not know of any particular doubt being raised about it, but I will use the example of the Moana Beach residents.

If, at the time this legislation is passed, they have signed up to a new agreement, that would still be covered by this. If they are yet to negotiate what their new residential arrangement is with the Onkaparinga council, it will apply to whatever is negotiated. What has been made clear is that it is not prospective only to those agreements that are established in the future but to the re-signing of existing tenancies.

Clause passed.

Clauses 8 to 11 passed.

Clause 12.

The Hon. Z.L. BETTISON: In regard to 17B, where certain site agreements are to be reissued, what provision is there to stop an unscrupulous site owner from continuing to reissue short-term agreements without providing all the required documents to the residents?

The Hon. V.A. CHAPMAN: That can be done but the times accumulate and, at the end of the five years, the protections still apply, so they are not getting out of the obligations that will now be imposed under the act and of course they will have to issue the documentation each time.

Clause passed.

Clause 13.

The Hon. Z.L. BETTISON: I understand that this is also a new clause. Why was it deemed necessary to introduce an offence for the failure of a resident to inform a park owner of their intention to assign an interest to another person?

The Hon. V.A. CHAPMAN: In short, to ensure the protection of the resident on the transfer of ownership of the land to protect their interest, notice has to be given to do just that. If they do not do it, obviously there is a penalty that applies. What we are trying to achieve here, as I think was evident under the previous bill, is to ensure that, if existing tenancies are to be honoured and respected, there has to be full disclosure all the way along.

The Hon. Z.L. BETTISON: Who asked for this clause to be introduced?

The Hon. V.A. CHAPMAN: As I understand it, this was part of the formula that was proposed originally. Remember that what was being attempted to be addressed here was to cure the ill of short-term tenancies and to give an opportunity for some extra rights, especially where there are people in long-term residence. That is what is being achieved under this bill. This is part of the proposal. There were some changes to that, obviously, in the nearly two years of negotiations as to how that model would work. My understanding is that this was right back when the original bill came in, and we dealt with it in debates with the Labor government.

The Hon. Z.L. BETTISON: How did you arrive at the penalty amount?

The Hon. V.A. CHAPMAN: Can I just add to that, because I am advised that another reason to put this in the formula as to how it is going to be protected is not to just deal with any residents in certain circumstances but to protect all residents. Secondly, the amount is less than other penalties because we are dealing with residents. I hope that is clear.

Clause passed.

Remaining clauses (14 to 25) passed.

Schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (16:44): I move:

That this bill be now read a third time.

Mr PICTON (Kaurna) (16:44): I seek to make a brief contribution to the third reading debate on this very important bill, the Residential Parks (Miscellaneous) Amendment Bill. It is one I certainly have been a strong supporter of. I was a strong supporter in the previous parliament when the previous government introduced this legislation. I was a strong supporter when the previous House of Assembly passed this legislation, and now it has been brought back by the government in this chamber.

I believe it is important to make a few comments, particularly reflecting on the comments by the Attorney-General in the second reading debate in terms of how it relates to the Moana caravan park, a residential park in my electorate. This bill will be very helpful for people of the Moana caravan park who are permanent residents there. They have spoken to me over the course of this year about concerns they have that will be addressed and improved by this bill. It would have been improved if the Legislative Council had passed it in the last parliament, but certainly now they will be very glad that it is being passed again through this house.

I would like to set out my advocacy in relation to the people at the Moana caravan park. They came to me earlier in the year, and I addressed their concerns in relation to the changes that the City of Onkaparinga, which owns the park, were putting forward in terms of reducing the length of their leases. That would not be able to happen after the passage of this legislation. I made clear to them that this is something that we would be making sure was our priority after the new parliament had come back together, given that this was something it was something that had passed this house but not the other place before the election.

So, after the swearing-in of the new government, I certainly made the issue of Moana known to the Attorney-General when I wrote to her on 10 April to raise the concerns. The letter stated:

The City of Onkaparinga has recently offered permanent residents of the Moana Beach Tourist Park two year contract for the land that their homes are built upon. The residents are concerned that this will prevent them from selling their homes at a price on par with their initial investment.

The residents are also concerned that these short-term contracts are being offered in order to allow the City of Onkaparinga to reclaim the land following the completion of a master plan for the site in approximately two years.

The Residential Parks (Miscellaneous) Amendment Bill 2017 was introduced by the former Government with the intention of improving security for permanent residents of Residential Parks. The changes under this amendment would prevent situations such as the one occurring at the Moana Beach Tourist Park.

As such, these residents would like to know whether the new State Government will commit to progressing the Residential Parks (Miscellaneous) Amendment Bill 2017 through the Parliament.

I trust that you will take residents' concerns into consideration and provide a response in due course. I look forward to your reply.

Then on 10 May 2017, one month later—that is when it was dated; I received it on 15 May 2018, sightly over a month later—I received a response from the Attorney-General, saying:

I write in response to your letter of 10 April 2018 regarding concerns raised by residents of the Moana Beach Tourist Park, and the progression of the Residential Parks (Miscellaneous) Amendment Bill 2017 that was introduced into Parliament by the former Government.

I advise that I have reviewed the Bill as introduced into Parliament last year and I intend on progressing the reforms as a priority.

Thank you for writing to me on this matter.

As I said, that was back in May. It has now been some seven months since I initially wrote to the deputy leader asking for this bill to be brought back before the parliament. I hope that we are able to get this through the other place before the end of the year so that this legislation will be able to come in as soon as possible so that it can relieve a situation in terms of the Moana Beach Tourist Park residents, who I think have faced some significant hardship from the City of Onkaparinga in the way they have dealt with them.

I make no apologies at all in terms of my advocacy for this bill, my advocacy for the people of Moana and the people in the residential caravan park. It is very disappointing the approach that the Deputy Premier has taken in relation to this debate, to continue to slander. Instead, she should realise that she is actually the Deputy Premier and should get on with the job.

Bill read a third time and passed.