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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
2012-11-28 Daily Xml
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RESIDENTIAL TENANCIES (MISCELLANEOUS) AMENDMENT BILL

Committee Stage

In committee (resumed on motion).

Clause 13.

The Hon. J.R. RAU: I would like to say that the member for Bragg has nothing more to say but I think that would be misleading the parliament.

The CHAIR: Inaccurate, too.

The Hon. J.R. RAU: So I will not say that, as tempting as it is.

The CHAIR: If I remember correctly we are at clause 13 and the Attorney-General is about to provide answers to some questions. Is that right?

The Hon. J.R. RAU: Yes, I am here to answer questions absolutely; that is what I am here for.

The CHAIR: My understanding is that there were some answers outstanding—not outstanding answers but answers that were outstanding.

The Hon. J.R. RAU: I am glad you liked them. You meant outstanding but not in that fashion?

The CHAIR: No; they are yet to be provided.

The Hon. J.R. RAU: Right.

The CHAIR: They are both.

The Hon. J.R. RAU: I thought I was getting a compliment from the chair.

Ms Chapman: You were on thought bubbles.

The Hon. J.R. RAU: Yes indeed, the questions from this morning; I was at my thought bubble point a while ago. Member for Bragg, what I had in mind is that this was not intended in any way to be a way of circumventing due process or anything else, but if you had an instance where, for example, let us say there is an application to recover a bond and it is demonstrated by documentation to the satisfaction of the tribunal that the property has been trashed, or that the cost of removing rubbish from the premises in a clean-up situation at the end is a certain amount of money, and the application is made to recover that money from the bond, for instance, and parties do not bob up.

It seems to me that there should be some relatively low frills way of dealing with matters which are pretty well self-evident about the making of certain orders. It was never intended, and is not intended, that that provision would ever be used as some sort of alternative to due process where there is any question about matters that are so ambiguous as to require some sort of evidence from people, or there is no confidence on the part of the tribunal member that the material is, essentially, self-explanatory. So, it is not intended to be a substitute for due process; it is meant to facilitate, in effect, a red tape reduction in cases where it is very clear what the outcome should be.

There were a couple of other questions I had this morning which I am now able to provide further information in relation to. First, the member for Stuart asked a question: are housing cooperatives covered? I am advised that the Residential Tenancies Act does apply to housing cooperatives within the meaning of the South Australian Co-operative and Community Housing Act 1991. There are also specific provisions in the act and regulations that only relate to housing cooperatives. The bill simply amends the definition of a registered housing cooperative to a registered community housing organisation which also includes a registered housing association. This was requested by the Department for Communities and Social Inclusion.

The second matter was a question from the honourable member for Bragg, who asked: did respondents suggest any other types of occupancy arrangements to be covered by the Residential Tenancies Act? I advised that, yes, there was a suggestion to create a separate class of student accommodation, however, it was determined that it would be difficult to differentiate between student accommodation and other share accommodation. Protections relating to student accommodation are being increased in other ways, for example, through improving the rooming house accommodation provisions. One of the most important reforms to the rooming house provisions is to require proprietors of rooming houses to lodge their bonds with the Commissioner for Consumer Affairs. Currently, this is not required.

The other point is that there was a suggestion to increase the protections available for older residents. Whilst we are not proposing to create a separate class of tenancy agreement for the elderly, these are rental villages where residents live in a retirement environment. They fall outside the scope of the Retirement Villages Act 1987 because they do not charge a premium; that is, an accommodation bond of $1,000 or above, which is the defining feature of a retirement village scheme. The bill amends the act so that lifestyle village agreements are treated as tenancy agreements and, most importantly, provides the elderly residents with access to the tribunal to enforce their rights.

Furthermore, there was a suggestion to create a separate class of employee accommodation, with a condition that accommodation agreement would terminate if the employment contract terminates. The termination of agreements is a fundamental area of regulation by the act and it would not be appropriate for the act to apply to agreements allowing for instant termination. There was also a suggestion to remove the current exemption from the application of the act for boarders and lodgers. This was not supported as it was thought it would create a burden on a section of the community that may house a boarder or lodger for reasons other than running a commercial enterprise like a rooming house, which I think is what we discussed earlier today.

Next question: were there any complaints from respondents about expanding the scope of the act? I am advised that expanding the scope of the act to apply to lifestyle village agreements was generally supported. No respondents were opposed to that proposal. Clarifying that the act applies to agreements for apartment style accommodation provided by operators who are not exempt educational institutions was generally supported. No respondents were opposed to the proposal.

The proposal to extend the scope of the act to apply to vendor tenants where the agreement for the sale of the property confers a right on the vendor to stay on the property for a period of more than 28 days after the sale was supported by most respondents. Some respondents thought the matter should be left to be negotiated between the parties. However, by making the agreement a tenancy agreement it clarifies the rights and obligations of each party in the event that things go wrong or the relationship breaks down.

In relation to the rooming house provisions, I am advised that no respondents were opposed to increasing the protections available to rooming house residents, who are often vulnerable and disadvantaged members of the community. The only significant negative feedback received from respondents on the proposed rooming house reforms, in the discussion paper that was released, related to the proposal to change the term 'rooming house' to 'boarding house'. It was thought that that term was more commonly understood; however, this was not supported by respondents and so it was not pursued and is not included in the bill.

Ms CHAPMAN: Just on that last matter of the boarding house definition, so I am clear about this, because you mentioned something about students: my understanding is that there is some provision to ensure that boarding houses in independent schools do not come under this, where students reside on school properties which are for a commercial—more than three people, etc. Is that right?

The Hon. J.R. RAU: They are exempt, I am advised.

Ms CHAPMAN: I am just not sure where that is. I couldn't find it anywhere, but assumed that was the case.

The Hon. J.R. RAU: I am advised that will be in the act. We will have a look for that whilst we go on.

Ms CHAPMAN: For the benefit of the member for Mount Gambier, can the Attorney confirm that it excludes St Mark's, which I gave you as an example before?

The Hon. J.R. RAU: I am advised that section 5(1) provides:

(1) This Act does not apply to—

(a) an agreement giving a right of occupancy in—

[inter alia]...(ii) an educational institution, college, hospital or nursing home;

Ms CHAPMAN: Minister, yesterday I think you made some ministerial statement or gave an answer to a question about changing some practices relating to residential arrangements. Can you just clarify that that is nothing to do with this legislation or regulations. It is just in anticipation of some new regime, is it?

The Hon. J.R. RAU: No, what I was advising the parliament about yesterday was that the member for Kavel asked me a series of questions earlier in the year about complaints that he had received about a number of consumer and business affairs matters and it came to my attention that there were, amongst those, complaints about the time it was taking for various matters to be processed by the Residential Tenancies Tribunal.

In the context of those complaints, I asked the department to explain to me what the then present circumstances were and discuss with me how we were going to fix them up, and the report to the parliament yesterday was in the nature of an update to the house that the following administrative steps had been undertaken by the department and the Residential Tenancies Tribunal by reason of changing their procedures or the department having additional staff available to clear backlogs and so forth, that we had improved the performance of the tribunal.

Those matters are quite independent of this bill, although I must say there are some machinery provisions in this bill which may add additional refinements, and the one you referred to generously as my 'thought bubble' may possibly fit into that category.

Ms CHAPMAN: The other subsection under clause 13 is about this change of power of the tribunal for proceedings and about the minimum informality and so on. I have not checked that with the act but there is some expansion there on the informality opportunity is there? Are we adding words like 'if it thinks appropriate'? All this seems a bit wishy-washy to me, to be frank, but, in any event, to have a clause that says they are not bound by the usual rules of evidence is the common short succinct phrase. Is this expanded to do what? To make it say 'Do what you like'?

The Hon. J.R. RAU: Are you looking at 13(4) in particular or what are you looking at?

Ms CHAPMAN: Clause 13(4), which is the substitution of the new do as you like clause, if I can call it that.

The Hon. J.R. RAU: I think that is a little bit expansive 'do as you like'. I prefer to say 'Do as you do' but without overly technical and formal process. I think ultimately that comes down to a drafting matter.

Ms CHAPMAN: It seems to be a much more generous description of what is going to be, what I would call, a sort of non-formal tribunal. We have small claims courts, and we have a number of different tribunals which are not bound by the strict rules of evidence for all the reasons which are obvious and meritorious, and it just seems that this is the broadest I have ever seen. Are we going to see this in other jurisdictions or is this some new standard that we are going to have: the distinction between lower order courts or tribunals and superior courts?

The Hon. J.R. RAU: I suspect having just spoken to my adviser and parliamentary counsel that it is a case of the tribunal having become aware that some other acts of parliament have similar provisions in them and it is seeking to have them put here. The formulation, as you point out, in 4(2)(b), is a very standard formulation one finds in many pieces of legislation. I do not think that it was meant to create some dramatic shift in the precision of the tribunal so much as to clarify that it is an informal body.

Clause passed.

Clauses 14 to 20 passed.

Clause 21.

Ms CHAPMAN: This relates to the obligation of the landlord to advise a prospective tenant before they sign up that they are going to advertise or intend to advertise the sale of a property. I suppose it raises the question: is it presumed here that, at the time of asking the tenant to sign up, if they have formed the intention to sell at that point is there an expectation that the tenant will be informed?

The Hon. J.R. RAU: Yes, I believe that that is the point of it.

Clause passed.

Clause 22.

Ms CHAPMAN: This in a way relates to some questions that I asked about sending out notices to people without knowing who is the tenant. There is quite a significant obligation on the landlord to advise the tenant of their name, their address, their numbers and so on, but there does not appear to be any obligation on the tenant to do the same, that is, to notify if they have vacated for any period of time, or if someone else is paying the rent in the meantime, which I think was your explanation for why notices on applications to the tribunal did not need to be named because it had to do with the occupier.

I do not disagree with the imposition of the obligation to disclose, apart from the person from a company, for example, who is on the tenancy agreement. It is reasonable for the tenant to have access to the name and reasonable contact details for that person but is there a reciprocal arrangement for the tenants and, if not, why not?

The Hon. J.R. RAU: There is not, as I understand it, in the amendment bill. We will have a look and see whether there is anything approximating that in the original act.

Clause passed.

Clause 23.

Ms CHAPMAN: I think we have covered this in the general second reading contributions but, as I understand it, your expectation is that the commissioner's office or someone in the department would have prepared the draft by the time we get to deal with this matter in another place, and on that basis I do not have any other questions. We will wait and see what they come up with—so I take that nod as being a yes.

The Hon. J.R. RAU: Yes. Given that that will not be happening now until, I expect, early in the new year, I think that should give us time to be able to prepare a draft document. I indicate that I will be very happy to speak with the honourable member for Bragg and enable—

Ms Chapman interjecting:

The Hon. J.R. RAU: I will enable you to see draft documents and comment.

Clause passed.

Clauses 24 to 34 passed.

Clause 35.

Ms CHAPMAN: This clause makes provision for extra bonds to be paid, and I think an extra week's rent, if you bring a pet. One of the issues of concern that has been brought to my attention is whether a week is long enough for a goldfish. Probably, because they are not going to cause too much damage; perhaps jump out of the bowl or wet the carpet. However, if you bring multiple cats or dogs, for example, there may be significant damage to the property, and is a week's bond enough?

What if it is a large pet such as a horse, for example, on a property? All these come with different circumstances in which damage could be caused. Is there any provision or consideration given for graduation, or the opportunity to negotiate a greater or lesser extra rent for the calculation of the bond, based on the size of the animal; the number of animals, birds or whatever; and the likelihood of damage?

The Hon. J.R. RAU: I thank the honourable member for the question. Quite obviously, we have the goldfish at one end, Mr Ed at the other and everything in between. There is quite a range of things that we could be talking about, but let's look at what the present law says. The present law says that it is reasonable for a landlord to say to a prospective tenant, 'I don't want pets in the place.' At the moment, though, there is no opportunity for the tenant to come back with any further point of negotiation, which might be, 'Can I keep my cat if I pay an extra bond?', because that is not provided for.

This clause simply provides for a mechanism whereby the landlord and the tenant can actually negotiate with that additional bit of flexibility. You see, at the moment it is either you get in or you do not. The landlord might say, 'Look, if I had an extra week's bond I might be prepared to risk you having a cat, but without that I am just not prepared to have you there with that cat.' The intention of this was to provide greater flexibility between landlords and tenants and, ultimately, that some landlords who might refuse the pet, in effect, might be persuaded to be less black and white about the pet question if there was some additional security given to them. So, that is the reason for that.

Have we considered a sliding scale, where we start off with hamsters and go to pachyderms? Not really. We thought that is about the most sensible way we can do it, and it is intended to give both parties a bit of room to move.

Progress reported; committee to sit again.


At 18:00 the house adjourned until Thursday 29 November 2012 at 10:30.


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