Bills

Residential Tenancies (Domestic Violence Protections) Amendment Bill

Committee Stage

In committee.

Clause 1.

The Hon. R.I. LUCAS: For the sake of convenience, and to help expedite matters, I might raise a number of issues at clause 1, with the agreement of the minister. I thank the minister for her response to the second reading which does answer a number of the questions I put during the second reading on behalf of a number of stakeholders.

I want to tease out a bit of further information in relation to the advice the minster has received on the interpretation of 'domestic violence service provider'; I think that is the phrase used in the legislation. I think the minister's reply provided to her from advisers was that it would include individual social workers within government departments and agencies and, I guess, psychologists within government agencies and in private practice.

Can I just confirm that that is the nature of the government's advice. I guess the issue I have there is how the government then determines how a psychologist or social work provider is a domestic violence service provider; that is, is every registered psychologist in private practice and operating in a government department going to be acknowledged as a domestic violence service provider because technically they might be, or is there something which identifies those who have developed some expertise in the area of providing services in the area of domestic violence?

The Hon. G.E. GAGO: I thank the honourable member for his questions. It will be a matter for SACAT to determine. It will obviously look for credible and reliable professional advice and consider that relevant advice when determining whether a person satisfies the criteria. Basically, it includes those professionals who have expertise in that area.

The Hon. R.I. LUCAS: I do not seek to delay the committee stage on this issue, but I am advised, for example, that there is no registration process for social workers, as opposed to some other professions. It would appear that the government's advice is that this ultimately will be a legal determination of SACAT. The legislation says 'domestic violence service provider', and we will need to await precedent by SACAT, in terms of whether or not a particular person who seeks to be defined as or come within that classification of 'domestic violence service provider', will be sufficient grounds to activate this particular clause, which potentially will result in the termination of a residential tenancy based on domestic abuse.

Clearly it is important because the legislation is saying that SACAT can only terminate a residential tenancy based on domestic abuse in certain circumstances; that is, a report is received from SAPOL or a report from whatever is ultimately determined to be a domestic violence service provider. Ultimately, from what the minister is indicating, it will depend on how SACAT interprets that. That can be, I would suspect, as broad as SACAT might wish it to be or as restrictive as SACAT might wish it to be.

There certainly does not appear to be clearly an accepted definition. There is nothing in the legislation that says that these are either the services or the professions that will be accepted as a report from a domestic violence service provider. Ultimately, we will be waiting for case law, I suppose, as to whether someone knows a social worker and a social worker reports the issue and that that is sufficient to activate this particular termination provision within the legislation.

I do not seek to delay the committee stage, but I highlight that this will be an issue that people will need to monitor ultimately as to how broadly SACAT interprets this particular provision and whether or not it is ultimately of assistance in terms of making use of this legislation or whether in the end it might be a restriction, in terms of being able to make use of the legislation.

The Hon. G.E. GAGO: I thank the honourable member. I am advised that the bill does not intend to define what is a service provider. It is a matter for SACAT to determine the level of expertise that it is prepared to accept in making a determination. I accept your comments.

The Hon. R.I. LUCAS: Another question the Landlords' Association raised was whether or not the definition of co-tenants included subtenants. They were suggesting that this needed to be clarified. Certainly, on my reading I would assume that it does not, but I seek the government's response to the Landlords' Association on that particular issue.

The Hon. G.E. GAGO: I am advised that the same protections do not apply to a subtenant unless named on a lease. Effectively, the tenant becomes the landlord for the purposes of a subtenancy, but the landlord needs to approve any subtenant and therefore could make an application to SACAT.

The Hon. R.I. LUCAS: I thank the minister for that response. Can the minister indicate the nature of the government's response to the Landlords' Association's concerns about new section 89A(4)(a) of the bill, and I will read those again:

If the tribunal releases part of the bond to the tenant, the landlord's position is compromised. Section 89A(4)(a) should be amended to include 'under such terms and conditions as the tribunal sees fit' so that a remaining tenant would have to reinstate the original bond if it is agreed by all that the tenancy be reinstated. So, if the landlord does not agree to reinstate the tenancy and the tribunal orders possession on a given date, the original bond should stand until the date of possession.

The Hon. G.E. GAGO: This has already been addressed through my response to clarifying the status of the bond—that is, that this bill does not change the status of the bond arrangements. The landlord, fundamentally, has first dibs on ensuring that anything they are owed comes out of the bond first before a victim might—

The Hon. R.I. LUCAS: And the Landlords' Association are happy with that response from the government?

The Hon. G.E. GAGO: Yes, particularly in light of the amendments that are being made.

The Hon. R.I. LUCAS: What is the government's response to the Landlords' Association's question as follows:

How will SACAT ensure that landlords are reimbursed in a timely manner? What is the process for reimbursement and who does the follow-up? If tenants—that is the abusive tenant—refuse to pay up, what are the penalties and how will this be enforced against the abusers?

The Hon. G.E. GAGO: Again, it remains unchanged from the current arrangements. For instance, if the damages are within the amount of the bond, then the landlord has access to that once an order is made. If it is more than the bond, then the landlord would again seek compensation in the same way as they currently do when the damages exceed the bond, and that is through civil proceedings.

Clause passed.

Clauses 2 to 6 passed.

Clause 7.

The Hon. G.E. GAGO: I move:

Amendment No 1 [BusServCons–1]—

Page 4, lines 19 to 28 [clause 7, inserted section 89A(2)]—Delete subsection (2) and substitute:

(2) The Tribunal may, on application by the South Australian Housing Trust, a subsidiary of the South Australian Housing Trust, or a community housing provider registered under the Community Housing Providers National Law, terminate a residential tenancy from a date specified in the Tribunal's order if satisfied—

(a) that an intervention order is in force against a tenant for the protection of a person who normally or regularly resides at the residential premises; or

(b) that a tenant has committed domestic abuse against a person who normally or regularly resides at the residential premises.

This will allow a community housing provider registered under the Community Housing Providers National Law to apply for the tribunal to terminate a residential tenancy on the same grounds as set out in the bill for the South Australian Housing Trust.

The Hon. R.I. LUCAS: The Liberal Party supports this amendment.

Amendment carried.

The Hon. G.E. GAGO: I move:

Amendment No 2 [BusServCons–1]—

Page 5, after line 30 [clause 7, inserted section 89A(6)]—After paragraph (b) insert:

and

(c) in a case where—

(i) the landlord is a community housing provider registered under the Community Housing Providers National Law; and

(ii) the residential premises constitute community housing within the meaning of that Law,

that any tenant under the new residential tenancy agreement meets the eligibility requirements for such community housing and any membership or other requirements of the landlord associated with occupation of those premises.

This amendment is consistent with the provision in the bill for the South Australian Housing Trust and will ensure that, if the tribunal makes an order requiring a community housing provider to enter into a new residential tenancy agreement, the tribunal must first be satisfied that any tenant under the new agreement meets the housing provider's eligibility requirement for each community housing and any membership or other requirements of the landlord associated with the occupation of the premises.

The Hon. R.I. LUCAS: The Liberal Party supports the amendment.

Amendment carried.

The Hon. G.E. GAGO: I move:

Amendment No 1 [BusServCons–2]—

Page 6, lines 27 to 33 [clause 7, inserted section 89A(12)]—Delete subsection (12) and substitute:

(12) If 1 or more, but not all, of the co-tenants under a residential tenancy agreement are liable under subsection (10) or (11) for making a payment of compensation, the following provisions apply:

(a) the Tribunal may give a direction under section 110(1)(i) that the bond (if any) be paid to the landlord and any co-tenant who is not liable for making the payment in such proportions as the Tribunal thinks fit;

(b) a direction under paragraph (a) may not operate to limit the amount of bond payable to a landlord under section 110(1)(i).

This amendment, as I have already indicated, expressly outlines and makes abundantly clear that landlords will still have their ordinary rights to recover compensation from the bond. The bill does not seek to change a landlord's ordinary entitlement to payment out of the bond. It does, however, allow the tribunal to consider how any remaining portion of the bond should be refunded, and it allows the tribunal to determine who is responsible for any compensation above the bond.

The Hon. R.I. LUCAS: As I indicated earlier, whilst this particular amendment and the next have not been considered by the jointparty room, they are in my view consistent with the policy position the joint-party room took to support the legislation that has been introduced by the government. As the minister has outlined, I can surely hear the words from parliamentary counsel indicating that they believe the legislation was meant to be read this way but, out of an excess of caution, 'Let's write it into the legislation in these terms to ensure satisfaction to stakeholders such as the Landlords' Association, the Real Estate Institute and others.'

Therefore, on that basis, I believe it is consistent with the Liberal Party's position to support the legislation, and, at the same time, if this is something which has been resolved between stakeholders representing the Landlords' Association and others and the government, then I indicate support of the amendment on behalf of the Liberal Party.

Amendment carried; clause as amended passed.

Clause 8 passed.

Clause 9.

The Hon. G.E. GAGO: I move:

Amendment No 2 [BusServCons–2]—

Page 9, lines 1 to 7 [clause 9, inserted section 105UA(10)]—Delete subsection (10) and substitute:

(10) If 1 or more, but not all, of the residents under a rooming house agreement are liable under subsection (8) or (9) for making a payment of compensation, the following provisions apply:

(a) the Tribunal may give a direction under section 110(1)(i) that the bond (if any) be paid to the proprietor and any co-tenant who is not liable for making the payment in such proportions as the Tribunal thinks fit;

(b) a direction under paragraph (a) may not operate to limit the amount of bond payable to a proprietor under section 110(1)(i).

This is consequential.

The CHAIR: I will just draw to your attention that in paragraph (a) where the tribunal may give a direction under section 110, you have got 'co-tenant', instead of 'resident'. It should be 'resident', I understand.

The Hon. G.E. GAGO: You are quite right; very diligent, sir.

The CHAIR: I will take all the credit, even though it is not warranted.

The Hon. G.E. GAGO: And your advisers, very diligent.

Amendment carried; clause as amended passed.

Remaining clause (10) and title passed.

Bill reported with amendment.

Third Reading

The Hon. G.E. GAGO (Minister for Employment, Higher Education and Skills, Minister for Science and Information Economy, Minister for the Status of Women, Minister for Business Services and Consumers) (16:44): I move:

That this bill be now read a third time.

Bill read a third time and passed.