HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Subject Index
House of Assembly - Fifty-Second Parliament, Second Session (52-2)
2013-06-05 Daily Xml
Contents
Pdf Xml

HOUSING IMPROVEMENT BILL

Standing Orders Suspension

The Hon. A. PICCOLO (Light—Minister for Communities and Social Inclusion, Minister for Social Housing, Minister for Disabilities, Minister for Youth, Minister for Volunteers) (15:35): I move:

That standing orders be and remain so far suspended as to enable the introduction of the Housing Improvement Bill 2013 without notice forthwith.

The SPEAKER: An absolute majority not being present, ring the bells.

An absolute majority of the whole number of members being present:

Motion carried.

Introduction and First Reading

The Hon. A. PICCOLO (Light—Minister for Communities and Social Inclusion, Minister for Social Housing, Minister for Disabilities, Minister for Youth, Minister for Volunteers) (15:36): Obtained leave and introduced a bill for an act to provide for measures to address housing that is unsafe or unsuitable for human habitation; to control the rent of unsafe or unsuitable housing; to amend the Residential Parks Act 2007 and the Residential Tenancies Act 1995; to repeal the Housing Improvement Act 1940; and for other purposes. Read a first time.

Second Reading

The Hon. A. PICCOLO (Light—Minister for Communities and Social Inclusion, Minister for Social Housing, Minister for Disabilities, Minister for Youth, Minister for Volunteers) (15:36): I move:

That this bill be now read a second time.

The Housing Improvement Act 1940 was initiated to address concerns in relation to the standard and supply of housing in South Australia at a time of a shortage of housing arising from the Depression of the 1930s. Today, it is the older existing dwellings which provide a majority of the affordable housing within South Australia. A selection of owners continues to ignore their obligation to provide safe and suitable accommodation, exposing occupants to significant health and safety hazards.

Those in need of affordable housing, including the disadvantaged, the vulnerable and those on low incomes, are the most significantly impacted and find their choice of accommodation is often at an unacceptable standard. Although less than 1.5 per cent of private rental properties have a housing improvement declaration, the impact is higher on individual occupants. Occupants are impacted in various ways, including a lack of basic amenities, structural failure and substandard electrical or sewerage systems. An issue of concern—

Ms Chapman interjecting:

The Hon. A. PICCOLO: Be nice, member—identified during public consultation was the impact on some international students, whose lack of knowledge and preference for low-cost options make them particularly vulnerable.

What are the proposed changes? The bill continues the regulation of minimum standards for existing houses and the regulation of rent payable for unsafe or unsuitable housing. The bill will extend the application of standards from within the local council areas to all of South Australia. The bill vests authority with the minister, removing the shared responsibility between the South Australian Housing Trust and local government, and will repeal the current act. The South Australian Housing Trust will not lose any powers required for its usual activities by the repeal of the act.

The bill introduces a key objective of raising community awareness. A key principle is the concept of a general duty which provides for balanced obligations of both owner and occupant. The bill minimises the risk that tenants are evicted or treated unfairly if they make a complaint by now requiring that, if the premises have been the subject of an inspection in the previous six months, a notice to terminate or to vary the lease must be confirmed by the Residential Tenancies Tribunal.

The bill now gives the tribunal jurisdiction in lieu of the District Court to hear housing improvement/tenancy disputes. The same regime is established for conciliation of disputes as under the Residential Tenancy Act 1995. The bill requires housing improvement information to be provided to prospective tenants in addition to prospective purchasers to assist tenants to make an informed decision before committing to a lease.

Minimum amendments to the current processes are anticipated due to the alignment of the objectives of the bill with the current act. Administration of the act will continue to be in response to complaint from an occupant or referral from a support organisation. The bill is for continued regulation of minimum housing standards and does not impose new requirements.

Any existing orders issued under the current act will continue under the authority of the new act. Regulations for the new act based on the Housing Improvements Standards Regulations 2007 are proposed with feedback received during consultation included in the drafting instructions for parliamentary counsel.

The approach for enforcement of repairs will use the least costly instruments of persuasion and warning letters expected to achieve compliance from the majority of owners. Where there is noncompliance, enforcement through prosecution may be deemed the appropriate action.

Housing SA is currently modernising its total ICT systems and will incorporate the capability to manage the requirements of the new act. It is anticipated that preparation of regulations required under the new act will be completed in approximately 14 months with the commencement of the act late in 2014.

I seek leave to incorporate the rest of the explanation in Hansard.

Leave granted.

A review of the Act has found that the regulation of minimum standards for existing houses, and the rent control of sub-standard houses, continues to be relevant today, but the provisions to enforce minimum housing standards under the Act are ineffective in ensuring owners carry out necessary repairs. Substandard houses identified in the review were characterised by poor building condition through lack of essential maintenance, or defective work carried out by owners. Specific issues included structural failure and substandard electrical or sewerage systems. Without taking action to address this, some owners will continue to ignore their obligation to provide safe and suitable accommodation, exposing their occupants to significant health and safety hazards.

Those most impacted are low income households, migrants and students who need affordable housing. Many of these people, including tenants receiving government private rental assistance, have little choice but to accept housing of an unacceptable standard. Although less than 1.5 per cent of private rental properties have a Housing Improvement declaration, the impact is high on the individual occupants. Occupants are impacted in various ways, including health and safety impacts due to the condition of the property, such as lack of basic amenities, blocked fire exits due to overcrowding, or poor health causing inability to work.

Emerging issues identified during consultation include the increase in demand in rural and remote areas for rental accommodation by mine workers and associated contractors, resulting in low income residents being displaced into unsatisfactory accommodation. Also of concern was the impact on some international students, whose lack of knowledge and preference for low cost options make them vulnerable. The international education industry is the State's fourth largest export, accounting for more than 6,500 local jobs. Students are avid users of social media, and negative comments about South Australian housing can travel quickly and have a major impact on where future students choose to study.

The proposed Housing Improvement Bill 2013:

continues the regulation of minimum standards for existing houses with more effective provisions for compliance and enforcement; and

regulates the rent payable for unsafe and unsuitable housing; and

introduces a key objective of raising community awareness of the minimum housing standards.

A key principle on which this Bill is based is the concept of a general duty, which provides for balanced obligations of both owner and occupant.

The ability to fix rent by regulation is an appropriate response to ensure that disadvantaged people do not pay excessive rent for substandard housing. There is also a need to be able to direct the owner to repair items which pose unacceptable risk.

Raising community awareness is an important objective. History has shown the need to retain the regulation of minimum housing standards, but has also shown that many owners are willing to comply when they know of the requirements. This Bill provides essential support to ensure that the quality of affordable housing is maintained. The quality of life for South Australians is not only influenced by the cost of housing, but the quality of affordable housing.

During preliminary consultation in 2010, a discussion paper providing an overview of the proposed regulatory framework was presented for discussion to Government agencies, local government, and peak industry bodies. Feedback indicated general support for the continuation of regulation of minimum housing standards, and a general duty to ensure premises are safe and suitable for occupation. There was strong endorsement from tenant support organisations for continuation of rent control for substandard houses.

The Housing Improvement Bill 2013 was put out to consultation during July and August 2012. Information sessions were attended by sixty seven people from local government, real estate agents, tenant support and industry organisations. Sixteen written submissions were received, including various representative groups for landlords, tenants, real estate agents and local government.

The Bill repeals the Housing Improvement Act 1940. Historically the Act provided the legislative authority to the South Australian Housing Trust (SAHT). The Housing Improvement Bill 2013 vests authority to the Minister in lieu of shared responsibility between the SAHT and local government, with minimum standards for existing houses becoming applicable to residential premises throughout this State.

Part 3 of the Bill sets out the main suite of tools that will secure compliance with basic housing standards. These are housing assessment orders, housing improvement orders, housing demolition orders, notices to vacate and rent control notices.

A housing assessment order is issued to an owner where the Minister has reason to believe that the premises are, or may be, unsafe or unsuitable for human habitation. Such an order will require an owner to carry out assessments of the premises.

A housing improvement order may be issued to an owner where the Minister has reason to believe that the premises are unsafe or unsuitable for human habitation and that works are required to remediate defects. Such an order may require the carrying out of specified works.

A housing demolition order may be issued to an owner where the Minister has reason to believe that the premises are so unsafe or unsuitable that it would be impracticable or unreasonable to undertake remediation works. Such an order requires the demolition of the premises. This power is continued from the repealed Act, and as has been the case in the past, it is expected that this provision would be used rarely.

With each of these orders $20,000 is the maximum penalty for non-compliance. This contrasts with a maximum penalty of $100 for breach of an equivalent provision under the repealed Act of 1940.

Underpinning this framework are provisions that enable registration of the orders with the Registrar-General. An order is registered against an owner's land with the effect that successive owners of land are bound by any undischarged orders and a charge is placed on the land such that the Minister may recoup expenses incurred by the Minister in carrying out remedial work that an owner might fail to carry out him or herself under such an order.

Part 3 also enables tenants and registered mortgagees or encumbrancees, with the authorisation of the Minister, to carry out the requirements of a housing assessment order or housing improvement order. Where the premises are rented, costs and expenses may be recouped by withholding rental payments.

A notice to vacate is an essential tool to enable premises to be vacated should that be required under a housing improvement order or housing demolition order. Provisions have been included in the Bill to provide for the termination of a tenancy agreement, to secure the ejectment of occupants and, in appropriate cases, to compensate a tenant for resulting loss and inconvenience.

Rent control notices are continued from the repealed Act but with an improved process for inviting an owner to show why such a notice should not be made. A rent control notice will fix the rent of substandard premises after the Minister has taken into account the condition of the premises, the capital value of the premises as determined under the Valuation of Land Act 1971 and the market rent for residential premises of that kind in the same or similar localities. A rent control notice will continue to apply in relation to premises despite any change in ownership or occupancy of the premises.

Further provisions of the Bill include:

restricting landlords from entering premises at unreasonable times for the purposes of carrying out the requirements of a housing assessment order or housing improvement order;

ensuring the correct rent is paid and demanded in relation to premises that are subject to a rent control notice;

minimising the risk that tenants are evicted or treated unfairly by a landlord if they make a complaint about the condition of premises;

requiring disclosure in statements made in the advertising of the sale or lease of residential premises, of the fact that the premises are subject to an order or notice under the Bill.

The Bill gives the Residential Tenancies Tribunal jurisdiction to hear housing improvement tenancy disputes. Such disputes are disputes about matters arising under the Act or any matter that may be the subject of an application under the Act. The same regime for conciliation of complaints is established for disputed under the Act as for disputes under the Residential Tenancies Act 1995.

It is anticipated that the comprehensive and robust framework of measures contained in this Bill will support this government in its endeavours to achieve and maintain safe and suitable standards of housing in this State well into the 21st century.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

3—Objects of Act

This clause sets out the objects of the Act, which are—

to ensure that housing meets the prescribed minimum housing standards; and

to regulate unsafe or unsuitable housing and the rent payable in respect of such housing; and

to raise community awareness of the prescribed minimum housing standards.

4—Interpretation

This clause defines key terms used in this measure.

5—Prescribed minimum housing standards

This clause sets out a regulation making power to establish prescribed minimum housing standards that must be met for residential premises to be considered safe and suitable for human habitation. It sets out a non-exhaustive list of matters that may form the subject matter of such regulations including matters relating to construction, amenity, cleanliness, sanitation, safety and access.

6—Application of Act

This clause clarifies how terms used in this Act are to be interpreted when applied to sites and dwellings that are subject to residential park agreements within the meaning of the Residential Parks Act 2007 and to premises which are subject residential tenancy agreements, or to rooming house agreements, under the Residential Tenancies Act 1995.

Part 2—Administration

Division 1—Minister

7—Functions

This clause sets out the functions of the Minister in connection with the administration of the Act. A key aspect of the Minister's role is to ensure that adequate measures are taken to achieve compliance with its provisions. To further promote the aims and effectiveness of the Act the Minister may also fulfil a role in developing or adopting codes, practices or guidelines. For example, the Minister may set standards in connection with activities, materials, substances or equipment which are used in connection with domestic housing. The Minister is also to be a primary source of advice to the Government about preserving, protecting and promoting safe and suitable standards of housing.

8—Delegation

The Minister will be able to delegate functions and powers under the Act.

Division 2—Authorised officers

9—Appointment of authorised officers

The Minister may appoint a suitably qualified person to be an authorised officer for the purposes of the Act. The appointment can be made subject to conditions or limitations. An authorised officer remains subject to the Minister's direction.

10—Identity cards

This clause requires that the Minister must, as soon as reasonably practicable after appointing an officer, issue him or her with an identity card that complies with this section. An officer who intends to exercise power under the Act must produce the identity card on request.

11—Powers of authorised officers

This clause establishes that in administering or enforcing the Act an authorised officer may enter and inspect residential premises at any reasonable time. During the course of the inspection the officer can—

ask questions of any person found on the premises;

inspect any article or substance found in the premises;

take and remove samples from any substance or other thing found in the premises;

require any person to produce any plans, specifications, books, papers or documents;

examine, copy and take extracts from any plans, specifications, books, papers or documents;

take photographs, films or video recordings;

take measurements, make notes and carry out tests;

remove any article that may constitute evidence of the commission of an offence.

An authorised officer may require any person to answer any question that may be relevant to the administration or enforcement of the Act.

This clause further provides that an authorised officer may use reasonable force to enter residential premises if—

the officer has the authority of a warrant issued by a magistrate; or

if the officer believes, on reasonable grounds, that the circumstances require immediate action to be taken.

A magistrate must not issue a warrant unless satisfied that there are reasonable grounds to suspect the commission of an offence under the Act or that the issue of the warrant is otherwise reasonably required.

Subsection (6) makes it an offence attracting a maximum penalty of $10,000 for a person to—

hinder or obstruct an authorised officer, or a person assisting an authorised officer, in the exercise of a power under this section; or

fail to answer a question put to him or her by an authorised officer to the best of his or her knowledge, information and belief; or

fail to provide reasonable assistance in relation to the inspection of premises.

The ground of self-incrimination cannot be used as an excuse for failure to furnish information required under subsection (6). The standard provisions regarding the evidentiary use that may be made of information provided by a person in compliance with subsection (6) are included at subsection (8).

Part 3—Orders, notices and other action to deal with unsafe or unsuitable housing conditions

Division 1—Housing assessment orders, housing improvement orders and housing demolition orders

12—Housing assessment orders

The Minister may issue a housing assessment order to the owner of residential premises if the Minister has reason to believe that the premises are, or may be, unsafe or unsuitable for human habitation. Failure to comply with a housing assessment order attracts a maximum penalty of $20,000.

A housing assessment order must include a requirement for assessments to be carried out of the nature and extent of defects at the premises, and for a written report of those assessments to be submitted to the Minister. In addition, such an order may require a person with specific qualifications to carry out or provide a report of the assessments and may require assessments to be carried out on behalf of the Minister by an authorised officer or other person authorised by the Minister. The order must state that the person may, within 28 days, appeal against the order to the District Court.

13—Housing improvement orders

The Minister may issue a housing improvement order to the owner of residential premises if the Minister has reason to believe that the premises are unsafe or unsuitable for human habitation and that works are required to remediate defects in respect of the premises. Failure to comply with a housing improvement order attracts a maximum penalty of $20,000.

A housing improvement order may require the person to whom it is issued to prepare a plan of works for the premises or to carry out specified works within a specified period. The order may authorise the work to be carried out on behalf of the Minister by an authorised officer or other person authorised by the Minister and may require the premises to be vacated and remain unoccupied for a time. The order must state that the person may, within 28 days, appeal against the order to the District Court.

In contrast with the regime for housing assessment orders and housing demolition orders (below), this clause provides a system for dealing with cases where urgent action is required to address unsafe or unsuitable conditions of residential premises. In such cases an authorised officer may issue an emergency housing improvement order to impose requirements of a kind that may be imposed under subsection (2). Such an order may be issued orally, but in such a case the person must be informed of his or her right to appeal against the order to the District Court. An emergency housing improvement order will expire within 3 business days unless it is confirmed by a written order issued by the Minister and served on the person.

14—Housing demolition orders

The Minister may issue a housing demolition order to the owner of residential premises if the Minister has reason to believe that the premises are so unsafe or unsuitable that it would be impracticable or unreasonable to undertake remediation works. Failure to comply with a housing demolition order attracts a maximum penalty of $20,000.

Such an order must require the premises to be demolished not less than 28 days after issue of the order. The order must require the premises to be vacated and remain unoccupied until the completion of demolition or of specified works. The order may also authorise the demolition to be undertaken on behalf of the Minister by an officer authorised or other person authorised by the Minister. The order must state that the person may, within 28 days, appeal against the order to the District Court.

15—Registration of housing assessment order, housing improvement order or housing demolition order

This section enables a housing assessment order, housing improvement order or housing demolition order to be registered with the Registrar-General in relation to land owned by the person on which the premises are located.

The effect of such registration is either or both of the following:

the order will become binding on each successive owner of the land;

the registration of the order against the land will operate as a charge on land, securing payment to the Minister of costs and expenses incurred by the Minister in taking action required by the order.

Further provisions of this section set out procedural requirements for cancelling the registration of the order.

16—Action by Minister on non-compliance with housing assessment order, housing improvement order or housing demolition order

This section enables the Minister (or an authorised officer or other person authorised by the Minister) to carry out the requirements of a housing assessment order, housing improvement order or housing demolition order in the event of non-compliance with such an order by the owner.

17—Recovery of costs and expenses incurred by Minister

This section enables the Minister to recover reasonable costs and expenses incurred by the Minister in taking action under a housing assessment order, housing improvement order or housing demolition order as a debt from the person to whom the order was issued. Also recoverable under the section are the amounts prescribed by regulation for any registration or cancellation of an order. Subsection (3) sets out the method of recovery of these amounts including as a charge on land (if the order has been registered) or in the form of rent. Subsection (6) sets out how the priority of a charge imposed under the section ranks as compared with other charges, namely, it will have priority over—

any prior charge imposed on the land (whether or not registered) that operates in favour of a person who is an associate of the owner of the land; and

any other charge on the land other than a charge registered prior to the registration of the order.

Subsection (7) gives the Minister the same powers as a mortgagee under a mortgage in relation to any default in payment of an amount that is a charge on land under this section.

18—Action, and recovery of costs and expenses, by registered mortgagee or encumbrancee or by tenant

This section provides that certain persons other than the owner (namely a tenant or a registered mortgagee or encumbrancee) may take action as authorised by the Minister in respect of a housing assessment order, a housing improvement order or a housing demolition order which has not been complied with. A tenant may recover the costs of doing so either as a debt due by the person to whom the order was issued or as a deduction in rent. A registered mortgagee or encumbrancee is entitled to recover the amount as a debt or by adding it to the principal of the mortgage.

19—Owner of residential premises may seek reimbursement of costs and expenses from other owners

This section enables an owner of residential premises who has been issued with a housing assessment order, housing improvement order or housing demolition order to seek an order from the Tribunal to recover all or some of the costs incurred in connection with the order from one or more other owners of the premises.

20—Interaction of this Division with Real Property Act 1886

This section gives precedence to the provisions of Division 1 relating to registration by the Registrar-General and the priority of charges over the Real Property Act 1886. A charge imposed under the Division is not discharged by the exercise of a power of sale or foreclosure under that Act or by the exercise of a power of sale under any other Act.

Division 2—Notice to vacate

21—Notice to vacate

This section requires the Minister to issue a notice to vacate premises if a housing improvement order or housing demolition order has been issued in respect of the premises requiring the premises to be vacated. A notice to vacate is issued to the occupiers of the premises (who may or may not be the owners) and requires them to vacate the premises by a specified date. If the premises are occupied under a residential tenancy agreement, the notice must state that the tenancy will be terminated on a specified date, that the tenants must give up possession of the premises on or before that date and that the landlord is authorised to take possession of the premises on that date. The notice must state that the persons may, within 28 days, appeal against the order to the District Court.

Failure to comply with a notice to vacate or to sublet premises to which it applies is an offence attracting a maximum penalty of $5,000.

An order for compensation may be sought from the Tribunal by a tenant against a landlord and an order for ejectment of occupants may be sought from the Tribunal. Subsection (6) provides for enforcement of an order for ejectment by a bailiff of the Tribunal.

Division 3—Rent control notices

22—Rent control notices

This section allows the Minister to declare, by a rent control notice published in the Gazette, that premises in respect of which a housing improvement notice has been issued are to be subject to rent control. Before doing so, the Minister must give a preliminary rent control notice stating his or her intention to control the rent and the maximum proposed rent. In fixing the maximum proposed rent the Minister must have regard to the condition of the premises, the capital value of the premises as assessed under the Valuation of Land Act 1971 and the market rent for similar premises.

The preliminary notice gives the person 14 days to make representations to the Minister as to why a rent control notice should not be issued, after which the Minister decides whether or not to proceed with the notice.

A rent control notice comes into operation on the date of gazettal or a later date specified in the notice and remains in place for the period specified or until revoked by the Minister. The notice continues to apply despite any change in ownership or occupancy.

23—Offence to charge more than maximum rent under rent control notice

This section makes it an offence attracting a maximum penalty of $5,000 or expiation fee of $315 for a person to charge, demand or receive rent above that fixed in a rental control notice.

Division 4—Special provisions relating to prescribed residential tenancy agreements

24—Landlord must give notice of intention to carry out inspections or works under housing assessment or housing improvement order

This section provides for the manner in which a landlord may enter and inspect premises in respect of which a housing assessment order or housing improvement order applies. In most cases, entry will only be permitted after written notice is given to the tenant between 7 and 14 days before the day of entry. Exceptions are provided for remote locations, if a person is required to accompany the inspection or in the case of emergencies. Works required under the order may be carried out between 8am and 8pm on any day except Sundays and public holidays and after the tenant has been given at least 48 hours notice. It should be noted that this section does not apply to premises that are rented under a residential park agreement within the meaning of the of the Residential Parks Act 2007, under a residential tenancy agreement within the meaning of the Residential Tenancies Act 1995 to which that Act applies or under a rooming house agreement within the meaning of the Residential Tenancies Act 1995. That is because such agreements are governed by similar provisions in those respective Acts.

25—Landlord must keep and provide record of rent if rent control notice applies

This section requires a landlord to keep a record of rent details if a rent control notice applies to the premises. The records must include details of the date and amount of payment, who paid the rent, the period of the tenancy to which the rent relates. Records must be kept for two years. If rent is paid other than into an ADI account, the details must be given to the tenant within 48 hours. If paid into an ADI account, the landlord need only give the details on request by the tenant. Failure to comply with the section is an offence attracting a maximum penalty of $2,500 and an expiation fee of $210. As with the previous section, it should be noted that this section does not apply to premises that are rented under a residential park agreement within the meaning of the of the Residential Parks Act 2007, under a residential tenancy agreement within the meaning of the Residential Tenancies Act 1995 to which that Act applies or under a rooming house agreement within the meaning of the Residential Tenancies Act 1995. That is because such agreements are governed by similar provisions in those respective Acts.

26—Termination of prescribed residential tenancy agreement by tenant

A tenant under a prescribed residential tenancy agreement of premises that are the subject of a housing assessment order or housing improvement order is entitled to vacate without reason on at least 7 days notice. Again, this section does not apply to premises that are rented under a residential park agreement within the meaning of the of the Residential Parks Act 2007, under a residential tenancy agreement within the meaning of the Residential Tenancies Act 1995 to which that Act applies or under a rooming house agreement within the meaning of the Residential Tenancies Act 1995. That is because such agreements are governed by similar provisions in those respective Acts.

27—Termination or variation of prescribed residential tenancy agreement by landlord

This section provides certain protections for tenants who occupy premises that have been the subject of an inspection by an authorised officer within the past 6 months or to which an order or notice under this Part applies (other than a notice to vacate). It enables tenants to speak freely about the condition of premises without fear of being evicted. A notice given to a tenant by a landlord terminating or varying such a tenancy must be in the prescribed manner and form, rely on at least 1 ground prescribed by regulation, and be confirmed by the Tribunal.

The section enables the genuineness of factors motivating the giving of a notice of termination or variation by a landlord to be tested by the Tribunal, thus reducing the likelihood of retaliatory action on the part of a landlord.

If satisfied that the notice is genuine, the Tribunal may confirm the notice, however if it is not satisfied of the genuineness of the notice, it may set aside the notice, and/or make an order reinstating the tenancy on such condition as it considers appropriate.

The Tribunal may, when considering the application, make an order compensating the tenant for loss or inconvenience resulting from the termination or variation of the tenancy.

It is an offence attracting a maximum penalty of $2,500 for a landlord to grant a fresh tenancy over the same premises within 6 months without the consent of the Tribunal.

Again, this section does not apply to premises that are rented under a residential park agreement within the meaning of the of the Residential Parks Act 2007, under a residential tenancy agreement within the meaning of the Residential Tenancies Act 1995 to which that Act applies or under a rooming house agreement within the meaning of the Residential Tenancies Act 1995. That is because such agreements are governed by similar provisions in those respective Acts.

Division 5—Obligation to publicise orders and notices

28—Orders and notices under this Part to be displayed on premises

This section requires an owner of premises which are the subject of an order or notice under Part 3 of the Act (other than a preliminary rent control notice) to display the order or notice legibly and prominently at the premises as directed by the Minister. Failure to comply with this provision is an offence attracting a maximum penalty of $5,000 or an expiation fee of $315.

29—Orders and notices under this Part to be declared in advertisements for sale or lease of land and in lease agreement

This section requires the vendor of premises to which an order or notice under Part 3 of the Act applies (other than a preliminary rent control notice) to include in any advertisement for the sale of the premises a clear statement that such order or notice applies to the premises. Failure to comply with this provision is an offence attracting a maximum penalty of $5,000 or an expiation fee of $315.

Similar clear disclosure must be made in respect of the advertising for the lease of such premises and in the lease agreement. In addition, if a rent control notice applies to the premises, any oral or written representation to the lessee concerning the rent must make disclose that the rent is fixed by a rental control order. Failure to comply with this provision is an offence attracting a maximum penalty of $5,000 or an expiation fee of $315.

Statements required to be made under the section in an advertisement or document must be in legible form and appear in a reasonably prominent position in the advertisement or document, with a failure to comply with the requirement an offence attracting a maximum penalty of $5,000 or an expiation fee of $315.

If a landlord fails to make clear to a lessee that the rent is fixed under a rent control notice the lessee may give notice not to be bound by the lease.

Division 6—Appeals

30—Appeals to Court

This section sets out the appeals that may be made to the District Court. A person who has been issued with a housing assessment order, housing improvement order, housing demolition order or notice to vacate may appeal against the order or notice or a variation of the order or notice. The owner of premises in respect of which a rent control notice has been made may appeal to the Court against the notice or any variation of the notice. An appeal must be made within 28 days after the order or notice is issued or made or any variation of the order or notice is made.

Part 4—General duty

31—General duty

This Part creates a statutory duty that requires an owner of property to ensure that the premises are safe and suitable for human occupation. There is a general duty with the following specific obligations:

a landlord must take reasonable steps to ensure that the premises are and remain safe and suitable for human occupation;

a tenant must take reasonable steps to comply with the landlord's actions to discharge his or her obligations and ensure that the premises are maintained in a reasonable state for the purposes of human habitation.

In determining what is to be regarded as being reasonable for the purposes of this clause, regard must be had to matters including—

prescribed minimum housing standards;

relevant codes of practice under the regulations;

the impact on occupants of the premises of a failure to comply with the general duty.

A failure to comply with the general duty does not of itself render an owner liable to civil liability or criminal action, but compliance may be enforced by the issuing of a housing assessment order, housing improvement order or housing demolition order.

Part 5—Residential Tenancies Tribunal

Division 1—Definitions

32—Definitions

This clause provides definitions of conciliation and conciliation conference, terms used in Part 5.

Division 2—Role of Registrars and magistrates

33—Registrars may exercise jurisdiction in certain cases

This clause provides for the jurisdiction of the Registrar or a Deputy Registrar.

34—Magistrates may exercise jurisdiction in certain cases

The jurisdiction of the Tribunal is conferred on magistrates subject to a scheme for listing of matters before magistrates to be prescribed by the regulations.

Such regulations cannot be made except after consultation with the Presiding Member of the Tribunal and the Chief Magistrate. A magistrate exercising the jurisdiction of the Tribunal under this Act is taken to be a member of the Tribunal.

Division 3—Proceedings before Tribunal

35—Constitution of Tribunal

The Tribunal is to be constituted of a single member and may, at any 1 time, be separately constituted for the hearing and determination of a number of separate matters.

36—Duty to act expeditiously

The Tribunal is required, where practicable, to hear and determine proceedings within 14 days or, if that is not practicable, as expeditiously as possible.

Division 4—Jurisdiction of Tribunal

37—Jurisdiction of Tribunal

The Tribunal is given exclusive jurisdiction to hear and determine a housing improvement tenancy dispute.

However, the Tribunal has no jurisdiction to hear and determine a monetary claim for more than $40,000, unless the parties to the proceedings consent in writing (and such a consent will be irrevocable).

If a monetary claim is above the Tribunal's jurisdictional limit, the claim and any other claims related to the same residential tenancy agreement may be brought in a court competent to hear and determine a claim founded on contract for the amount of the claim.

38—Application to Tribunal

This clause deals with the making of applications to the Tribunal.

Division 5—Conciliation

39—Conciliators

This section provides for the appointment of conciliators by the Commissioner.

40—Conciliation by conciliator nominated by Commissioner

This section provides that the Registrar or Deputy Registrar may refer applications to the Commissioner for conciliation if they are of a class prescribed by the regulations. The Commissioner then will nominate a conciliator who may call a conciliation conference. If a conciliation is terminated by the conciliator for any reason, including because it appears that it is unlikely that an agreed settlement can be reached within an agreed time, the conciliator must refer the matter to the Registrar or Deputy Registrar for listing before the Tribunal.

41—Conciliation by Tribunal

Before making an order to determine a housing improvement tenancy dispute, it is the duty of the Tribunal under this section to use its best endeavours to bring the parties to the dispute to a settlement that is acceptable to the parties. The Tribunal may refer such a dispute to a conference of the parties to the dispute to explore the possibilities of resolving the matters at issue by agreement. Each party to the dispute (or a representative) may be required by the Tribunal to attend the conference. A member of the Tribunal, the Registrar or another officer of the Tribunal authorised by the Presiding Member will preside at the conference. If a party to such a dispute fails to attend a properly convened conciliation conference, the Tribunal may determine the proceeding adversely to the absent party and make any appropriate orders.

42—Duties of conciliators

Conciliators have the following functions in the conciliation of a housing improvement tenancy dispute:

to seek to identify the issues in dispute and to narrow the range of the dispute;

to encourage the settlement of the dispute by facilitating, and helping to conduct, negotiations between the parties to the dispute;

to promote the open exchange of information relevant to the dispute by the parties;

to provide to the parties information about the operation of this Act relevant to a settlement of the dispute;

to help in the settlement of the dispute in any other appropriate way.

43—Procedure

This section specifies a number of procedural matters applying to conciliation conferences. For example, a conference will be held in private unless the conciliator determines otherwise. The conciliator may exclude from the conference any person apart from the parties and their representatives. If a conciliator is not legally qualified, he or she may refer a question of law arising at the conference to a member of the Tribunal who is legally qualified for determination. A settlement to which a party or representative of a party agrees at a conference is binding on the party provided it is not inconsistent with the principal Act. The settlement must be put into writing and signed by or for the parties. The Tribunal may make a determination or order to give effect to the settlement. A member of the Tribunal who conducts a conciliation conference in relation to a housing improvement tenancy dispute may not hear and determine proceedings concerning the dispute unless the parties otherwise agree.

44—Restriction on evidence

Evidence of anything said or done in the course of conciliation under this Division is inadmissible in proceedings before the Tribunal unless all parties to the proceedings consent otherwise.

Division 6—Intervention by Minister

45—Intervention by Minister

The Minister may intervene in proceedings before the Tribunal or a court concerning a housing improvement tenancy dispute.

If the Minister intervenes in proceedings, he or she becomes a party to the proceedings and has all the rights (including rights of appeal) of a party to the proceedings.

Division 7—Evidentiary and procedural powers

46—Tribunal's powers to gather evidence

This clause provides for the Tribunal's powers to gather evidence.

47—Procedural powers of Tribunal

The Tribunal is empowered to—

hear an application in a way that the Tribunal considers most appropriate;

decline to entertain the application if it considers the application frivolous or trivial;

decline to entertain an application, or adjourn a hearing, until the fulfilment of conditions fixed by the Tribunal with a view to promoting a settlement;

proceed to hear and determine an application in the absence of a party;

extend a period within which an application or other step in respect of proceedings must be made or taken (even if the period has expired);

vary or set aside an order if the Tribunal considers there are proper grounds for doing so;

adjourn a hearing to a time or place or to a time and place to be fixed;

allow the amendment of an application;

hear an application jointly with another application;

receive in evidence a transcript of evidence in proceedings before a court and draw conclusions of fact from that evidence;

adopt, as in its discretion it considers proper, the findings, decision or judgment of a court that may be relevant to the proceedings; and

generally give directions and do all things that it thinks necessary or expedient in the proceedings.

The Tribunal is empowered to determine an application without proceeding to a hearing in certain circumstances.

The Tribunal's proceedings must be conducted with the minimum of formality and in the exercise of its jurisdiction the Tribunal is not bound by evidentiary rules but may inform itself as it thinks appropriate and must act according to equity, good conscience and the substantial merits of the case.

48—General powers of Tribunal to cure irregularities

The Tribunal may, if satisfied that it would be just and equitable to do so, excuse a failure to comply with a provision of this Act on terms and conditions the Tribunal considers appropriate.

The Tribunal may amend proceedings if satisfied that the amendment will contribute to the expeditious and just resolution of the questions in issue between the parties.

Division 8—Judgments and orders

49—General powers of Tribunal to resolve housing improvement tenancy disputes

The Tribunal may, on application by a party to a housing improvement tenancy dispute—

restrain an action in breach of this Act; or

require a person to comply with an obligation under this Act; or

order a person to make a payment (which may include compensation) under this Act for breach of this Act; or

modify a residential tenancy agreement to enable the tenant to recover compensation payable to the tenant by way of a reduction in the rent otherwise payable under the agreement; or

relieve a party to a residential tenancy agreement from the obligation to comply with a provision of the agreement; or

terminate a residential tenancy agreement or declare that a residential tenancy agreement has or has not terminated; or

reinstate rights under a residential tenancy agreement that have been forfeited or have otherwise been terminated; or

require payment of rent into the Fund until conditions stipulated by the Tribunal have been complied with; or

require that rent so paid into the Fund be paid out and applied as directed by the Tribunal; or

require a tenant to give up possession of residential premises to the landlord; or

make orders to give effect to rights and liabilities arising from the assignment of a residential tenancy agreement; or

exercise any other power conferred on the Tribunal under this Act; or

do anything else necessary or desirable to resolve a housing improvement tenancy dispute.

The Tribunal does not have jurisdiction to award compensation for damages arising from personal injury.

50—Special powers to make orders and give relief

The Tribunal may make an order in the nature of an injunction (including an interim injunction), an order for specific performance, or an order for payment to the Fund of exemplary damages.

However, a member of the Tribunal who is not legally qualified cannot make such an order without the approval of the Presiding Member of the Tribunal.

The matters to be taken into account by the Tribunal before assessing an amount to be ordered in the nature of exemplary damages are—

any harm to persons or detriment to the public interest resulting from the contravention;

any financial saving or other benefit that a person stood to gain by committing the contravention;

any other matter it considers relevant.

The Tribunal may also make interlocutory orders, binding declarations of right and ancillary or incidental orders.

51—Conditional and alternative orders

The Tribunal may make conditional orders or orders in the alternative so that a particular order takes effect, or does not take effect, according to whether stipulated conditions are complied with.

52—Enforcement of orders

An order of the Tribunal may be registered in an appropriate court and enforced as an order of that court.

A contravention of an order of the Tribunal (other than an order for the payment of money) will be an offence attracting a maximum penalty of $10,000.

53—Application to vary or set aside order

A party to proceedings before the Tribunal may, within 1 month, apply to the Tribunal for an order varying or setting aside an order. The Tribunal may allow an extension of time.

54—Costs

The Governor may, by regulation, provide that in proceedings of a prescribed class the Tribunal will not award costs unless—

all parties to the proceedings were represented by legal practitioners; or

the Tribunal is of the opinion that there are special circumstances justifying an award of costs.

Division 9—Obligation to give reasons for decisions

55—Reasons for decisions

The Tribunal will be required to state written reasons for a decision or order if asked to do so by a person affected by the decision or order.

Division 10—Reservation of questions of law and appeals

56—Reservation of questions of law

The Tribunal may reserve a question of law for determination by the Supreme Court.

57—Appeals

An appeal lies to the Administrative and Disciplinary Division of the District Court from a decision or order of the Tribunal.

An appeal must be commenced within 1 month of the decision or order appealed against unless the Court allows an extension of time.

If the reasons of the Tribunal are not given in writing at the time of making a decision or order, and the appellant then requests the Tribunal to state its reasons in writing, the time for commencing the appeal runs from the time when the appellant receives the written statement of the reasons.

Division 11—Representation in proceedings before Tribunal or at conciliation conference

58—Representation in proceedings before Tribunal or at conciliation conference

A party to a housing improvement dispute may be represented by a lawyer if—

all parties to the proceedings agree to the representation and the Tribunal is satisfied that it will not unfairly disadvantage a party who does not have a professional representative; or

the Tribunal is satisfied that the party is unable to present the party's case properly without assistance; or

another party to the dispute is a lawyer, or is represented by a professional representative; or

the Minister has intervened in, or is a party to, the proceedings.

A party may be represented by a person who is not a lawyer if—

the party is a body corporate and the representative is an officer or employee of the body corporate; or

the party is a landlord and the representative is an agent, or an officer or employee of an agent, appointed by the landlord to manage the premises on the landlord's behalf; or

all parties to the proceedings agree to the representation and the Tribunal is satisfied that it will not unfairly disadvantage an unrepresented party; or

the Tribunal is satisfied that the party is unable to present the party's case properly without assistance.

59—Remuneration of representative

A representative of a party to a housing improvement tenancy dispute in proceedings before the Tribunal or at a conciliation conference may not be remunerated unless the representative is:

a lawyer or a law clerk employed by lawyer; or

an officer or employee of a body corporate; or

an agent, officer or employee of an agent representing the landlord in the proceedings.

Contravention of this provision is an offence attracting a maximum penalty of $15,000.

Division 12—Miscellaneous

60—Entry and inspection of property

The Tribunal is empowered to enter, or authorise another person to enter, a land or a building to carry out an inspection the Tribunal considers relevant to a proceeding before the Tribunal.

A person who obstructs the Tribunal or a person authorised by the Tribunal, who, in exercising a power of enter or inspection under this section, is guilty of a contempt of the Tribunal.

61—Contempt of Tribunal

A person who interrupts the proceedings of the Tribunal or misbehaves before the Tribunal, insults the Tribunal or an officer of the Tribunal acting in the exercise of official functions, or refuses, in the face of the Tribunal, to obey a direction of the Tribunal, is guilty of a contempt of the Tribunal.

62—Punishment of contempt

The Tribunal is empowered to punish a contempt by—

imposing a fine not exceeding $5,000;

suspending the right of a person to represent parties to housing improvement tenancy disputes for a specified period or until further order; or

committing the person to prison until the contempt is purged subject to a limit (not exceeding 1 year) to be fixed by the Tribunal at the time of making the order for commitment.

63—Fees

The Governor is empowered to prescribe fees in relation to proceedings in the Tribunal.

The Registrar is empowered to remit or reduce a fee if the party by whom the fee is payable is suffering financial hardship, or for any other proper reason.

64—Procedural rules

The Governor may, by regulation, prescribe procedural rules.

The Presiding Member of the Tribunal may make the Rules of the Tribunal relevant to the practice and procedure of the Tribunal.

The Subordinate Legislation Act 1978 does not apply to Rules of the Tribunal.

Part 6—Register

65—Register

This section provides that the Minister must keep a register that records—

the address of residential premises to which an order or notice under Part 3 applies;

the maximum rent fixed for residential premises to which a rent control notice applies; and

any other prescribed information.

The register must be made available for free inspection by members of the public. However, the Minister has an absolute discretion to exclude particular details in the register from inspection.

Part 7—Miscellaneous

66—Contract to avoid Act

An agreement or arrangement that is inconsistent with this Act or purports to exclude, modify or restrict the operation of this measure, will be (unless the inconsistence, exclusion, modification or restriction is expressly permitted under this measure) to that extent void.

A purported waiver under this measure will be void.

A person who enters into an agreement or arrangement to defeat, evade or prevent the operation of this measure (directly or indirectly) will be guilty of an offence attracting a maximum penalty of $10,000.

67—Protection from liability

This clause provides that an authorised officer or person engaged in the administration of the Act will not be subject to civil or criminal liability for any acts or omissions done in good faith in the exercise or discharge of a power, function or duty or in the carrying out of any direction or requirement under the Act.

68—Offences by bodies corporate

If a body corporate is guilty of an offence against this Act, each director and manager of the body corporate will be guilty of an offence and liable to the same penalty as is prescribed for the principal offence whether or not the body corporate has been prosecuted and convicted for the offence, unless the director or manager (as the case may be) proves that he or she could not by the exercise of reasonable due diligence have prevented the commission of the offence.

69—Tribunal may exempt agreement or premises from provision of Act

The Tribunal is empowered to grant exemptions which may be conditional. Contravention of a condition of an exemption order is an offence attracting a maximum penalty of $2,500.

70—Service

Provision is made for the service of a notice or document on a person or agent of the person by giving it to the person or an agent of a person—

personally; or

by leaving it for the person or agent at the person's or agent's place of residence, employment or business with someone apparently over the age of 18 years; or

by posting it to the person's or agent's last known place of residence, employment or business; or

by sending it to the person or agent by fax or email to an address provided by the person or agent for the purposes of service under the Act.

In the case of service on a tenant, subtenant or occupier of residential premises, service may also be effected by fixing it on a conspicuous part of the premises or by some other manner permitted by the Tribunal.

If two or more persons are owners, occupiers, landlords, tenants or subtenants of residential premises, service need only be effected in relation to one of them.

An order, notice or other document required to be given to an occupier or subtenant under this Act need not address the occupier or subtenant by name.

71—False or misleading information

A person must not make a statement that is false or misleading in a material particular, whether by inclusion or omission, in respect of any information given or record made under the Act. Contravention of this clause is an offence attracting a maximum penalty of $20,000.

72—Continuing offences

If an offence against a provision of this Act is committed by a person by reason of a continuing act or omission, the person will be liable to an additional penalty for each day during which the offence continues of not more than one-fifth of the maximum penalty for the offence.

If an offence continues after the person is convicted of it, the person will be guilty of a further offence against the provision and will also be liable to an additional penalty for each day during which the offence continues after the conviction of not more than one-fifth of the maximum penalty for the offence.

73—Commencement of proceedings for summary offences

Proceedings for an offence against the Act may only be commenced by the Minister or an authorised officer within 3 years of the date of the alleged commission of the offence. The Attorney-General may authorise an extension of time.

74—Orders in respect of contraventions

This section provides that if the court finds that there has been an offence committed under the Act that has caused injury or loss or damage to property, the court may, in addition to any penalty—

order the defendant to take specified action to prevent further injury, loss, or property damage; or

order the defendant to pay an amount to a public authority or person if the public authority or person have incurred costs or expenses in preventing the injury, loss or damage or if the person has suffered injury or loss, or damage to property.

A person who has contravened the Act may also be ordered to pay the Minister an amount into the consolidated account not exceeding the court's estimation of the amount of economic benefit he or she is estimated to have accrued. This includes an economic benefit obtained by delaying or avoiding costs.

75—Recovery from related bodies corporate

This clause provides that if an amount is payable by a body corporate to the Minister, its related bodies corporate will be jointly and severally liable to pay the amount.

76—Joint and several liability

Where an amount is recoverable by the Minister from 2 or more persons, the provision is to be construed as if those persons were jointly and severally liable to pay the amount to the Minister.

77—Evidentiary provisions

This section outlines the evidentiary requirements applying to proceedings commenced under this Act.

78—Regulations

Provision is made for the making of regulations.

Schedule 1—Related amendments, repeal and transitional provisions

Part 1—Preliminary

1—Amendment provisions

This clause is formal.

Part 2—Amendment of Residential Parks Act 2007

2—Clauses 2 to 11—Amendment of various provisions of Residential Parks Act 2007

Clauses 2 to 11 amend various provisions of the Residential Parks Act 2007 that are consequential on, or related to, the Housing Improvement Act 2013.

Part 3—Amendment of Residential Tenancies Act 1995

3—Clauses 12 to 23—Amendment of various provisions of Residential Tenancies Act 1995

Clauses 12 to 25 amend various provisions of the Residential Tenancies Act 1995 that are consequential on, or related to, the Housing Improvement Act 2013.

Part 4—Repeal of Housing Improvement Act 1940

4—Clause 24—Repeal of Act

This clause repeals the Housing Improvement Act 1940.

Part 5—Transitional provisions

5—Clauses 25 to 31—Transitional provisions

These clauses contain transitional arrangements for the implementation of the measure. They continue declarations made under section 23(1) of the repealed Act, and notices under sections 52(1), 52(3), 54, 57 and 58 of the repealed Act.

Debate adjourned on motion of Dr McFetridge.

PARLIAMENTARY BUSINESS
MEMBERS
GET INVOLVED
ABOUT PARLIAMENT
VISIT
LEGISLATIVE COUNCIL
HOUSE OF ASSEMBLY
CONTACT