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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
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RESIDENTIAL TENANCIES (MISCELLANEOUS) AMENDMENT BILL

Committee Stage

In committee.

(Continued from 28 November 2012.)

Clause 35.

Ms CHAPMAN: I had inquired of the Attorney as to the basis on which an extra week's bond had been identified in exchange for a tenant to bring one's pet or pets with them. As I understand the Attorney, there had been, effectively, a capacity for landlords to exclude people from the right to have an opportunity to be the tenant on the basis that they have a pet, unlike the provisions that had applied for decades—that is, you cannot discriminate against prospective tenants with children. A way around that would be to be able to say to the landlord, 'We will give you a chance to have a bit extra bond, but we want you allow these people to be considered for the tenancy.'

I think the approach is fine; the sentiment is good. The problem is that, clearly, a week's rent is not enough bond to cover large or multiple pet arrangements, in the opposition's view. So, we will look at how we might better deal with that. A graduated process might not be appropriate, but there may be an opportunity for not unreasonably withholding consent to occupy or a clause for the amount of the money to be determined ultimately by someone at the tribunal, in the circumstances. I just raise that as a concern on behalf of the opposition. I do not think that the minister needs to make any further comment.

The Hon. J.R. RAU: The point is, though, ultimately, this still gives the discretion to the landlord to say no. If somebody had five dogs or 10 cats or something and the landlord was concerned, the landlord does not have to offer the option of an additional bond. The landlord might say, 'I'm just not'—

Ms Chapman interjecting:

The Hon. J.R. RAU: The landlord may or may not think it is reasonable. I have seen images of places where there have been several cats and several dogs which had not been looked after very well. Even the image is disturbing without having your nostrils in the environment. I can understand why there may be a concern about these matters. I am happy to talk to the honourable member about that further if that is of any help.

Yesterday, the honourable member noted that clause 22 of the bill requires a landlord to provide certain contact details to the tenant. The member queried whether there is a similar obligation on the tenant to provide this information to the landlord, as well as other information, such as whether they had vacated the property, or whether someone has moved in. As stated yesterday, this matter is not addressed in the bill.

Clause 22 of the bill makes a few amendments to section 48 of the act, which lists the contact information a landlord is required to provide to the tenant. The act does not include a requirement for a tenant to provide similar information to a landlord, but it is assumed that this information will be provided willingly by tenants at the application stage, which is not regulated by the act. Section 51 of the act provides only that a tenant must not give false information to a landlord about their identity.

Requiring landlords to provide their contact details to tenants is to ensure that parties to a tenancy agreement can communicate with each other. Generally, landlords know how to contact their tenants because they know their residential address. Additionally, if a tenant wants to assign their interest in a tenancy agreement to another person or sublet the property, they are required to obtain the landlord's consent, under section 74 of the act.

If a landlord discovers that other people are living in the property, which they have not consented to, clause 10 of the bill makes it easier to serve a tribunal hearing notice on those unknown occupiers and subtenants.

Ms CHAPMAN: I think that is my point, and that is that there is no obligation on the tenant to provide that information. You say that, largely, they will provide that, and the landlord knows where they are living because they are going to be living in the landlord's premises. However, there should be a similar provision for a party who is a tenant to provide contact particulars, or at least be under an obligation (as landlords are) to be able to notify any change in circumstances, such as vacating the property. Then we go back to this issue again of not having to have a notice to the householder being left in the letterbox as some kind of official notice. That is my point. I ask that you review that matter as well, and the opposition certainly will now that we have that answer.

Clause passed.

Clauses 36 to 38 passed.

Clause 39.

Ms CHAPMAN: This clause relates to security of the premises. I think the opposition takes the view that it is not unreasonable for tenants or landlords to be able to secure the premises properly. If that is not acceded to by the landlord, for example, at the request of the tenant, then the tenant could attend to it and then have that expense reimbursed. I think that is the gist of this, and we support that.

I ask the Attorney whether there have been any circumstances where there has been some refusal to provide security of a lock. I assume we are talking about screen doors in addition to the usual locking arrangements or the refusal to add an extra level of locking services—viewing holes and these sort of things. I am not sure where this has come from. It would seem to me rather bizarre that whoever is occupying the property does not have the right to be able to ensure that it is secure, or that a landlord would leave their property in such a state that it would be accessible to be damaged or invaded by someone who is unwelcome or uninvited. Perhaps you can give us a bit of background to this.

The Hon. J.R. RAU: I am advised that the background to this is that it was a suggestion made by the Real Estate Institute. The particular problem they had confronted is, where a tenancy has expired and the tenants have left and new tenants come in, the new tenants, perhaps quite reasonably, say to the landlord, 'I want new locks,' because they do not know who is holding keys to the old locks. The point is that the landlords do not want to be in a position where they are constantly spending money on putting new locks on the premises.

They are saying, 'Look, it's fine if the tenant wants new locks, but if that's what they want then it is something that they can attend to.' The landlord provides the tenant with a functional, lockable premises and the tenant then says to the landlord, 'Well, I don't know who else might have a key; I want you to change all the locks.' The landlord might respond, 'Okay, you can change the locks if you want, but that's your lookout, not mine.'

Ms CHAPMAN: I will remember that the next time I am asking for the locks at the electorate office to be changed, which I asked the government to attend to 11 years ago and it still has not been attended to.

The Hon. J.R. Rau interjecting:

Ms CHAPMAN: I feel like I live there.

Clause passed.

Clauses 40 and 41 passed.

Clause 42.

Ms CHAPMAN: This clause relates to the alteration of premises. The opposition has had a number of inquiries about this—indeed, from my own colleagues and from constituents—as to exactly what this means. Essentially, there is a provision in the principal act, as I read it, which says that you cannot change, alter or add to someone's property except in certain circumstances. Now we are going to have a clause which will require that the landlord, however, cannot unreasonably withhold consent to these things happening.

If a new carpet was going to be put in at the expense of the tenant, one could think, 'Well, that's reasonable,' I suppose, especially if there is going to be some improvement and overall benefit to the landlord. If they are going to add a pergola or some other structure which is going to change the nature of the facility and/or attract any other land tax costs, etc., then these are the sorts of things that one has to be able to assess. In the absence of a definition about this in the principal act or in the bill that I can find, could the minister identify how this is going to work?

The Hon. J.R. RAU: I am advised that currently a landlord does not have to consent to a tenant altering the premises and does not need to have to give permission. By 'altering the premises' we do not mean here by demolishing walls or putting an extra storey on, or something. We are talking here about minor changes, and I will go into those in a moment. The bill provides that a landlord would be advised but cannot unreasonably withhold consent, and the unreasonableness of the withholding of the consent, which is the problem that the honourable member is pointing to, would be dealt with. It is envisaged that alterations of this type would include things such as the installation of a television antenna or mobility aids for elderly people, for example, a rail in a shower alcove, or something of that nature.

Clause passed.

Clause 43.

Ms CHAPMAN: This clause relates to the obligation or advice of the sale of the premises, and certain parties have to be advised. The Real Estate Institute contacted us about this issue and the obligation to advise the property manager and/or agent. It seems as though there must be some circumstances that have arisen where no-one knows about the sale except the person who is going to sell it, and that there are often many parties, not just the tenant, who might need to know about this.

That may place an unreasonable onus on the owner to advise other parties who are appointed agents, and the like, and in normal circumstances where people want to maintain good relationships with their agents, and so on, you would think that people would notify them, but I can see that there are situations where that does not happen. Was the government's view on receiving that recommendation that it was too onerous, or was there some other reason for declining to impose that on an expanded group of people?

The Hon. J.R. RAU: As I am advised, the situation is that the property agent and the tenant have no legal relationship with the sales agent. I gather that REISA was concerned that the sales agent therefore is not obliged in respect of those people to do anything absent of provisions such as this which would make it obligatory that they just provide basic notice of those matters.

Clause passed.

Clauses 44 to 65 passed.

Clause 66.

Ms CHAPMAN: This clause proposes the introduction of a regime of obligation that is to apply when one accesses a residential tenancy database, and it has been referred to as the black list. I think that the general tenor of complaint about the use of the black list or database has been one where one might find oneself on it and that it could be unfairly used against them—how do they get off it, how can it be rectified, who should have access to it, and so on. In my view, a rather cumbersome regime of obligation has been proposed here.

We have a number of questions about its operation. It is going to be the threshold question of whether or not we think it is necessary to have this whole regime, which the opposition is still considering. I understand the member for Mount Gambier has some questions about this as well. Rather than take up the time in this debate, because we are still looking at it, I will just alert you, Mr Chairman, to the fact that the member for Mount Gambier is keen to have some questions.

The Hon. J.R. RAU: This might help the member for Mount Gambier as well; this might be helpful to all members. It gives me considerable pleasure to be able to share with the chamber that this is a COAG reform. It is part of the seamless MCCA economy.

Ms Chapman interjecting:

The Hon. J.R. RAU: This is before my time. It is not even SCAG, actually; it is a thing called MCCA which I had never heard of until about 30 seconds ago—ministerial council on consumer affairs, which is now not called that. It is called something else now; that is why I did not know about MCCA. I postdate MCCA. Anyway, apparently Queensland drafted—

Ms Chapman interjecting:

The Hon. J.R. RAU: No, this was a little while ago. They put them in in 2010 and I gather all the other states have either got them in or are getting them in, and I suspect the answer to whatever questions come will be that because this is supposed to be a database that has a national operation, there are elements of this that are interconnected and, if we become disconnected with that, then the value of the thing changes.

However, if indeed I am a member of whatever MCCA used to be, which is CAF and CAANZ, and people have issues about this, I am more than happy to take them up in that forum but I think a unilateral variation of this might render this database non-congruent with others. Whether that causes difficulty or impracticalities, I cannot possibly say, but that is where it came from, anyway.

Ms Chapman: When's the next meeting?

The Hon. J.R. RAU: The next meeting is next week. We can put it on the agenda. Sorry, I could put it on the agenda, but as I do not yet know what you do not like about it, I would just have it on the agenda without knowing why it was there.

Mr PEGLER: The information that goes into this database, does that apply to the information held by landlords for their own purposes?

The Hon. J.R. RAU: If the honourable member goes to page 34, new section 99B provides:

This Division does not apply to a residential tenancy database kept by an entity (including a department of the government of a State or Territory) for use only by that entity or its officers, employees or agents.

'Entity', I am advised, includes a landlord.

Mr PICCOLO: The reason I raise this is that I have had a number of people who are tenants in my electorate whose names have appeared on TICA, one of the databases. I have actually dealt with the person who at that time ran TICA, and a most objectionable person he was. His conduct was referred to the federal commissioner for privacy. He did on this occasion what he did on previous occasions: he just ignored the commissioner's directions and findings.

My question is twofold. Given that the database is a national scheme, and is nationally run and that we have state law, and you mentioned COAG, I assume that, by operation of this proposed law in every state and also at a commonwealth level, you would be able to tackle these people like TICA who abuse the use of these databases. I acknowledge there is a proper place for databases, but, clearly, this person has no concern for the accuracy or inaccuracy of the information. Not only that, he also released information. So there are two issues: how do we tackle it and, secondly, is there any provision for penalties for breaches of privacy as well?

The Hon. J.R. RAU: I am going out on a limb here and going try to answer this without help.

Mr Gardner: What could possibly go wrong?

The Hon. J.R. RAU: What could possibly go wrong? Up on the wire, no net. Page 38, 99H—Ensuring quality of listing—database operator's obligation, and you will see that subsection (1) talks about the operator receiving written notice stating that personal information must be amended or removed, and subsection (2) provides that the database operator must—not may—amend the personal information in the stated way, or remove the personal information within 14 days, and there is a $5,000 penalty for failure to comply. The second bit, if you go to 99J on page 39, deals with privacy concerns.

Mr PICCOLO: I thank the Attorney for his information. In terms of the operation of 99H and 99J, given that TICA was at the time based in either Queensland or New South Wales, how do we enforce it on somebody whose database is constructed and operated from a different state? That was my major concern.

The Hon. J.R. RAU: The good news is that if we go to 99K on page 40, it provides:

The Tribunal may, on the application of the Commissioner or a person whose personal information is [involved]...make such orders against a landlord...agent or database operator as may be necessary or expedient in the opinion of the Tribunal to ensure...compliance...

Mr PICCOLO: I am not sure that that answered my question.

The Hon. J.R. RAU: I am advised that 99K(1) is the relevant provision, but if you bear with me I will seek further information. I have just checked with parliamentary counsel and the situation is that, whilst this is a national scheme and you would have corresponding provisions in each state, it would not be the case that the South Australian tribunal could of its own motion make an order in respect of Queensland. So, it would be necessary, I would therefore assume, for a complaint to be made to the relevant tribunal in the state in which the database was housed, but then you could be assured that they would be applying the same rules in their jurisdiction.

Mr PICCOLO: Assuming that all the states play ball, which is not always the case, a tenant would have to take action in a different jurisdiction against where the database operator operates from to get an enforcement from the commissioner in that state.

The Hon. J.R. RAU: Yes, except inasmuch as it was a database which was operational in South Australia, in which case there would be a sufficient connection with South Australia. I will be corrected I am sure, but I think the position is basically this: if you had a national database or a database which straddled more than one state, and in one of those jurisdictions somebody had a grizzle about what was in that database, because of the operational connection between that database and the jurisdiction, they would have to observe orders of the South Australian tribunal. If you had a database which was entirely enclosed within Queensland and did not have application here and a person was disgruntled about that database, the South Australian tribunal's orders would not be relevant, nor would there be jurisdiction to make them.

Mr PICCOLO: Sorry to labour this, but if I could just clarify it. If a landlord in South Australia takes advantage of that database service and sends a name off to that operator, and that person is then listed on that database, are you suggesting that, by virtue of the fact that both the property and the landlord are in this state, it creates a sufficient connection to this state, and therefore the tenant who has agreed, who lives in this state, could take action in this commission or in this state against that database operator?

The Hon. J.R. RAU: I think the only answer I can give with confidence, and this is on advice, is that inasmuch as there is a South Australian connection, there is jurisdiction in our tribunal to make orders which are to be observed.

Mr Piccolo interjecting:

The Hon. J.R. RAU: That may be so.

Ms CHAPMAN: I have one final question on that regime. It related to the proposed 99B. The South Australian Housing Trust or whatever its successor is, or the Land Management Corporation or whatever its successor is, and so on, may keep databases. I only mention the Land Management Corporation because it now has Housing Trust property in it under the new RenewalSA structure. These entities are state entities; they retain records of poor tenants, especially those who have trashed houses and so on. Are they exempt, or is this only in relation to other personal information—whether they have children who have run away from school or something?

The Hon. J.R. RAU: I think the answer is that there is an explicit inclusion of the government department or government agency and that therefore this division would not apply to them.

Ms CHAPMAN: That is why I asked the question, because it provides that this does not apply, including the department of whatever, for use only by that entity or its officers, employees or agents. Is the situation that there could actually be an internal database in these agencies that has inaccurate information on it and you are stuck on it, so how do you get off? I would have thought there is a process, through the Freedom of Information Act, for example, where you can still apply, I think, to remedy state records and so on. That might be a bit more of a cumbersome process, whereas I am not quite sure whether they are fitting into this obligation or not?

The Hon. J.R. RAU: It goes back to the honourable member for Mount Gambier's question about whether a landlord's own record is going to be in there. The landlord could be a little one who has one property, an individual person, or the landlord could be a much larger landlord like Housing SA. The idea is that we are not seeking in this legislation to regulate those internal records. It might well be that there are other methodologies for dealing with those internal records. What we are talking about here is the databases which sit above individual entities' recordkeeping capacity and purport to go across the whole range of tenants. They are private companies.

Clause passed.

Remaining clauses (67 to 80), schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Business Services and Consumers) (16:51): I move:

That this bill be now read a third time.

Ms CHAPMAN (Bragg) (16:51): I wish to add a small contribution to indicate that the Attorney's advisers from his department (consumer affairs) had provided advice to the opposition on this matter. We thank them for their time and briefings provided. I note that in summary from the debate on this bill the Attorney has undertaken to electronically provide me with copies of submissions after 7 December which is the time period he has given signatories of those submissions time to indicate their objection or otherwise to their view and also a draft form when prepared by the commissioner and I thank the Attorney for giving that indication. I look forward to receiving the same.

Bill read a third time and passed.

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