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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
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Housing Improvement Bill

Introduction and First Reading

The Hon. Z.L. BETTISON (Ramsay—Minister for Communities and Social Inclusion, Minister for Social Housing, Minister for Multicultural Affairs, Minister for Ageing, Minister for Youth, Minister for Volunteers) (15:56): 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. Z.L. BETTISON (Ramsay—Minister for Communities and Social Inclusion, Minister for Social Housing, Minister for Multicultural Affairs, Minister for Ageing, Minister for Youth, Minister for Volunteers) (15:57): I move:

That this bill be now read a second time.

The Housing Improvement Act 1940 was enacted to address major concerns in relation to the standard and supply of housing in South Australia at a time of severe shortage of housing rising from the Depression of the 1930s. Today, it is the older dwellings located in established suburbs with existing facilities which provide the majority of affordable housing within South Australia.

A review of the act has found that the regulation of minimum standards for existing houses and the rent control of substandard 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 undesirable standard. While few private rental properties have a housing improvement declaration, the impact is high on the individual occupants. Occupant health and safety is potentially impacted due to the condition of the property, such as lack of basic amenities and blocked fire exits due to overcrowding.

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 in 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 2015 continues the regulation of minimum standards for existing houses with more effective provisions for compliance and enforcement; 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.

I seek leave to have the remainder of the second reading explanation and explanation of clauses inserted into Hansard without my reading them.

Leave granted.

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 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 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 2015 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, 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 South Australian Civil and Administrative 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.

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 the Act.

5—Prescribed minimum housing standards

This clause sets out a power to enable the making of regulations 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 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 the 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 that are subject to 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. The functions include promoting safe and suitable standards of housing, by ensuring that adequate measures are taken to achieve compliance with the Act, developing or adopting codes of practice or guidelines and being a primary source of advice to the Government in connection with safe and suitable standards of housing.

8—Delegation

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

Division 2—Authorised officers

9—Appointment of authorised officers

This clause deals with the appointment of authorised officers for the purposes of the Act. Appointments can be made subject to conditions or limitations. An authorised officer is subject to the Minister's direction.

10—Identity cards

This clause requires authorised officers to be issued with identity cards and to produce the card when exercising powers. The clause also requires the surrender of the card when the person ceases to be an authorised officer.

11—Powers of authorised officers

This clause sets out the powers of authorised officers in connection with the administration and enforcement of the Act. Such an officer may—

enter and inspect residential premises at a reasonable time;

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 against the Act, require a 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 a warrant; or

the officer believes it is necessary.

Subclause (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 clause; 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 the clause. The standard provisions regarding the evidentiary use that may be made of information provided by a person in compliance with the clause apply.

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 specified qualifications to carry out or prepare 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, apply to the Tribunal for a review of the order.

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 must include particulars of the defects identified in respect of the premises and 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, apply to the Tribunal for a review of the order.

The clause also provides a system for dealing with cases where urgent action is required to address unsafe or unsuitable conditions of residential premises. This is a fast track method of issuing a housing improvement order in circumstances of urgency. Such an order may be issued orally, but in such a case the person must be informed of his or her right to apply to the Tribunal for a review of the order. In addition, such an 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 include particulars of the defects identified in respect of the premises and 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, apply to the Tribunal for a review of the order.

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

This clause 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 (as may be required):

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 or on behalf of the Minister in taking action required by the order.

This clause also deals with notification of owners and registered mortgagees and encumbrancees. It sets out procedural requirements and preconditions 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 clause 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 clause 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 by the Minister are the amounts prescribed by regulation for any registration or cancellation of an order. Subclause (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. Subclause (6) sets out how the priority of a charge imposed under the clause 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.

Subclause (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 clause.

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

This clause 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 clause 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 clause 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 clause requires the Minister to issue a notice to vacate if a housing improvement order or housing demolition order has been issued in respect of 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, apply to the Tribunal for a review of the notice.

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.

22—Power of Tribunal to make order for ejectment or compensation

This clause enables the Tribunal to make an order for ejectment of an occupier who has not vacated premises by the date specified and an order under certain circumstances requiring a landlord to pay compensation to the tenant for loss and inconvenience as a result of the early termination of the tenancy.

23—Enforcement of ejectment order

This clause makes an order for ejectment enforceable by a bailiff appointed by the Tribunal provided that the person in whose favour the order was made notifies the Tribunal of non-compliance with the order within 14 days of the date on which the order takes effect (or such longer period as the Tribunal may allow). The clause sets out the powers of a bailiff in enforcing such an order, including that the bailiff may request the assistance of the police and may use reasonable force. These powers are consistent with equivalent powers for such a purpose under the Residential Tenancies Act 1995.

Division 3—Rent control notices

24—Rent control notices

This clause 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 the owner 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 made, 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.

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

This clause 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 the maximum rent fixed in a rent control notice.

Division 4—Special provisions relating to prescribed residential tenancy agreements

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

This clause provides for the manner in which a landlord may enter and inspect premises to 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 and a specified 2 hour period required to be available for the proposed entry. In remote locations, if a person is required to accompany the inspection these time requirements are relaxed somewhat, and in the case of emergencies there are no time requirements. It should be noted that this clause 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. Such agreements are governed by similar provisions in those respective Acts.

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

This clause 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 and 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 clause is an offence attracting a maximum penalty of $2 500 and an expiation fee of $210. As with the previous clause, this clause 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. Such agreements are governed by similar provisions in those respective Acts.

28—Termination of prescribed residential tenancy agreement by tenant

A tenant residing in premises that are the subject of an order or notice under Part 3 is entitled to vacate without reason on giving at least 7 days notice. Again, this clause 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. Such agreements are governed by similar provisions in those respective Acts.

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

This clause 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 reprisals. 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 clause 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 factors are genuine, the Tribunal may confirm the notice, however if it is not so satisfied, 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 clause 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 protected by similar provisions in those respective Acts.

Division 5—Obligation to publicise orders and notices

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

This clause requires an owner of premises which are the subject of an order or notice under Part 3 (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.

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

This clause requires the vendor of premises to which an order or notice under Part 3 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.

Clear disclosure must also 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 disclose that the rent is fixed by a rental control notice. This offence attracts a maximum penalty of $5,000 or an expiation fee of $315.

Statements required to be made under the clause in an advertisement or document must be in legible form and appear in a reasonably prominent position in the advertisement or document, with the 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 rescind the lease.

Division 6—Review by Tribunal

32—Review by Tribunal

A person who has been issued with a housing assessment order, housing improvement order, housing demolition order or notice to vacate may apply for a review by the Tribunal of 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 apply for a review of the notice or any variation of the notice. An application for review 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 (unless the Tribunal allows an extension of time).

Part 4—General duty

33—General duty

This Part creates a statutory duty on an owner of property to ensure that the premises are safe and suitable for human habitation. If the premises are occupied under a residential tenancy agreement, the landlord and tenant have the following obligations:

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

the tenant must take reasonable steps to comply with the landlord's actions and must 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 the clause, regard must be had to matters including—

prescribed minimum housing standards;

relevant codes of practice under the regulations;

the potential 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—South Australian Civil and Administrative Tribunal

34—Jurisdiction of Tribunal

This clause vests the South Australian Civil and Administrative Tribunal with jurisdiction to deal with a housing improvement tenancy dispute. It will have the powers given to it under the Act as well as under the South Australian Civil and Administrative Tribunal Act 2013.

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.

In such proceedings the court may exercise the relevant powers of the Tribunal under the South Australian Civil and Administrative Tribunal Act 2013 as well as under the Act.

35—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.

36—Amendment of proceedings

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

37—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 the Act; or

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

order a person to make a payment (which may include compensation) under the Act for breach of the 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 the 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.

38—Restraining orders

The Tribunal may make a restraining order against a person in the following circumstances:

if the person is causing or may cause serious damage to property following the issuing of an order or notice under Part 3 in relation to the premises or the making of any decision by the Tribunal in relation to the premises in a material respect; or

if the person is failing to comply with the general duty under Part 4.

A restraining order may be made without notice to the person provided that the Tribunal gives the person a reasonable opportunity to satisfy it that the order should not continue.

39—Special powers to make orders

The Tribunal may make an order in the nature of an injunction (including an interim injunction) or an order for specific performance.

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

The Tribunal may also make ancillary or incidental orders.

40—Application to vary or set aside order

A party to proceedings before the Tribunal may apply to the Tribunal for an order varying or setting aside an order within 1 month of the making of the order. The Tribunal may allow an extension of time. The 1 month period will, if reasons are provided on request by the applicant, run from the time the applicant receives the written statement of reasons. This clause is expressed not to limit the provisions of the South Australian Civil and Administrative Tribunal Act 2013. Proceedings under the clause are not intended to constitute a review for the purposes of section 34 or 70 of that Act.

41—Reasons for decisions

This clause requires the Tribunal to provide written reasons for its decision on request by a person affected by the decision.

42—Time for application for review or instituting appeal

The time for making an application for a review or appeal under the South Australian Civil and Administrative Tribunal Act 2013 runs from the time written reasons are received, provided that the request is made within 1 month of the decision.

43—Representation in proceedings before Tribunal

The rights of a party to a housing improvement dispute to be represented in proceedings before the Tribunal (including a conference or mediation under the South Australian Civil and Administrative Tribunal Act 2013) are set out in this clause.

A party 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 (defined to mean a lawyer, law clerk or a person who holds or has held legal qualifications under the law of the State or another place); 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.

44—Remuneration of representative

A representative of a party to a housing improvement tenancy dispute in proceedings before the Tribunal 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 representing the body corporate in the proceedings; or

an agent, officer or employee of an agent representing the landlord in the proceedings whose premises the agent had been appointed to manage on behalf of the landlord.

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

Part 6—Register

45—Register

This clause 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. A person may also obtain a copy of part of the register on payment of the prescribed fee.

Part 7—Miscellaneous

46—Contract to avoid Act

An agreement or arrangement that is inconsistent with the Act or purports to exclude, modify or restrict the operation of the Act, will be (unless the inconsistency, exclusion, modification or restriction is expressly permitted under the Act) to that extent void. A purported waiver under the Act will be void. A person who enters into an agreement or arrangement to defeat, evade or prevent the operation of the Act (directly or indirectly) will be guilty of an offence attracting a maximum penalty of $10,000.

47—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. Such a liability lies instead against the Crown.

48—Offences by bodies corporate

If a body corporate is guilty of an offence against the 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 unless that person can prove that he or she could not, by the exercise of due diligence, have prevented the commission of the offence. A person may be prosecuted and convicted of an offence against this clause whether or not the body corporate has been prosecuted and convicted of the offence.

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

The Tribunal may order that a provision of the Act will not apply (or will apply in a modified way) to a particular prescribed residential tenancy agreement or to particular premises occupied under such an agreement. Contravention of any condition of such an order is an offence attracting a maximum penalty of $2,500.

50—Service

An order, notice or document may be served on a tenant, subtenant, occupier or other person (or agent of the 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 addition, the order, notice or document may also be fixed 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 or authorised to be given to an occupier or subtenant under the Act need not address the occupier or subtenant by name.

51—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 of a particular, any information given or record kept under the Act. The offence attracts a maximum penalty of $20,000.

52—Continuing offences

If an offence against a provision of the 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 of not more than one-fifth of the maximum penalty for the offence.

An obligation will be regarded as continuing until the act is done, regardless of whether a period within which, or time before which, the act is required to be done has expired or passed.

53—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 or such later time as the Attorney-General may allow.

54—Orders in respect of contraventions

This clause provides that if the court finds that there has been an offence committed under the Act that has caused injury or loss to a person or damage to property of the person, 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 reasonable costs and expenses or compensation as determined by the court.

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 acquired or accrued. This includes an economic benefit obtained by delaying or avoiding costs.

55—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.

56—Joint and several liability

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

57—Evidentiary provisions

This clause outlines the evidentiary provisions that will facilitate proof of certain matters in proceedings under the Act.

58—Regulations

This clause sets out the general regulation-making powers under the Act.

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 9—Amendment of various provisions of Residential Parks Act 2007

Clauses 2 to 9 amend various provisions of the Residential Parks Act 2007 that are consequential on, or related to, the Housing Improvement Act 2015.

Part 3—Amendment of Residential Tenancies Act 1995

3—Clauses 10 to 21—Amendment of various provisions of Residential Tenancies Act 1995

Clauses 10 to 21 amend various provisions of the Residential Tenancies Act 1995 that are consequential on, or related to, the Housing Improvement Act 2015.

Part 4—Repeal of Housing Improvement Act 1940

4—Clause 22—Repeal of Act

This clause repeals the Housing Improvement Act 1940.

Part 5—Transitional provisions

5—Clauses 23 to 30—Transitional provisions

These clauses contain transitional arrangements for the implementation of the Act.

Debate adjourned on motion of Mr Speirs.

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