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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
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Bills

Housing Improvement Bill

Committee Stage

In committee.

(Continued from 9 February 2016.)

Clause 1.

Clause passed.

Clause 2 passed.

Clause 3.

Ms SANDERSON: I move:

Amendment No 1 [Sanderson–1]—

Page 5, line 5 [clause 3(a)]—After 'that' insert 'rental'

The Hon. Z.L. BETTISON: This amendment is not supported. This and the subsequent number of opposition amendments are seeking to reduce the application of the legislation from its current ambit, the form that it has taken for some time, covering all residential properties, to cover only rental properties. The Housing Improvement Bill and the Housing Improvement (Standards) Regulations 2007 are concerned with safety and suitability.

We believe that all people living in South Australia have the right to live in houses that provide basic standards and amenities. Maintaining minimum standards for existing housing is relevant for all residential dwellings in South Australia, ensuring safe and suitable housing for all. This bill is proposing health and safety protections for all members of the community from risks that may be present in poorly maintained residential buildings.

Issues such as structural failure of fences or gates on the perimeter of properties can and have caused death and injury to members of the public. Issues such as structurally unsafe pergolas may put at risk the safety of visitors, young children or service providers at a property. The role of the regulator is to ensure that our accommodation is safe and suitable. The bill now provides the ability to, first, liaise and negotiate with owners without issuing formal orders. Where there is no meaningful response from landlords, the issue of orders or enforcement of those orders is for the benefit of the community.

The bill recognises that properties routinely change between owner-occupied and rental accommodation; it is therefore necessary that the legislation captures all residential dwellings. The inclusion of clause 3(c)—Objects of Act—links the importance of raising community awareness, with ensuring that housing meets prescribed minimum housing standards. Raising community awareness is an important tool in encouraging self compliance.

Whilst there is a body of legislation that regulates a house under construction, without the current act or this proposed legislation there is no ability to regulate houses that are modified or deteriorate after construction. Where these modifications or deterioration affects the health and safety of residents and others in our community, the ability to regulate these houses to minimum standards of safety and suitability is vital. It is therefore necessary that the legislation captures all residential dwellings; therefore the amendment is not supported.

Mr KNOLL: The reason the opposition is putting forward this amendment is quite clear. It is very much in the government's media on this bill (or whether it is the second reading speech on this bill) that it very much pertains to protecting tenants from being exploited by landlords in a situation where they are being asked to pay unreasonable rents on substandard housing, and certainly it is there for the protection of tenants. Limiting this bill to premises that are tenanted out seems like a fantastic first step in reducing the scope of what can otherwise be quite strong regulation.

The opposition believes that there is a level of duplication in what is being proposed here, and that certainly there are, through the local government, a number of avenues by which people can seek to have redress in these circumstances. Also the Liberal Party believes that there is an inherent right to freedom to be able to live the way people want, free from interference.

The minister has put on the record that there have been instances where people have been hurt from substandard housing, and certainly we accept that, except to say that there already are avenues by which local government can provide redress in this area. This is a level of duplication that we think is unnecessary, and therefore we are putting forward these amendments so we can maintain the spirit of this bill, which is around protecting tenants, whilst at the same time freeing up the legislation from owner-occupiers, giving them the ability to be able to live and, if there are issues with their housing, there is still redress through local government to deal with these issues.

The Hon. Z.L. BETTISON: I thank the member for Schubert for his contribution. Let me address your concern about duplication with other acts. While other legislation or contractual arrangements may stipulate that premises are required to be kept in good repair, it is the Housing Improvements (Standards) Regulations 2007 which established the standards and provides instructive detail.

The object of the Development Act 1993 is to provide for efficient planning and development in the state and therefore focuses on new constructions and renovations where building work is required. There is very limited application to the maintenance of existing houses—for example, the requirement for smoke alarms and swimming pool fences.

With regard to the Residential Tenancies Act 1995, the Residential Tenancies Act and the Housing Improvement Bill seek to legislate for two entirely different purposes. The objective of the Residential Tenancies Act is to enforce aspects of the relationship between the landlord and tenant, and housing improvement interest remains regardless of ownership or tenancy arrangements, voiding the intention of the act being circumvented.

The Residential Tenancies Act, however, does not cover all types of arrangements where a person is granted a right of occupancy for valuable consideration. For example, an agreement under which one or two persons board or lodge with another, or residential premises attached to or situated on land let by the landlord to the tenant for business purposes, or residential premises attached to colleges or educational institutions.

As in the current act, the bill will regulate minimum standards for all premises used as a place of residence. For those residential premises where the agreement is not covered under the Residential Tenancies Act, division 4 of the bill provides landlord obligations consistent with the Residential Tenancies Act for the duration of the housing improvement interest.

You talked about local government as well. Local government has the ability to enforce legislation relating to environmental health and planning and development. The Housing Improvement Bill will continue to complement this legislation and the Housing Regulator will continue to work. The local government, in relation to specific properties, may present risks that straddle various pieces of legislation. Duplication has not and will not be an issue between housing regulation and local government.

I just go to the point again, and I have raised this previously in our conversation, that while you point out that individuals should have the freedom to live as they choose, we all recognise that these freedoms must be weighed against the impacts on others. It is not a legitimate argument to say an individual has a right to choose to live in an unsuitable or unsafe way when this has the potential to impact on the health and safety of others in the community.

Where an order is placed on a property that was rented, the order remains on the property should it become owner-occupied. These minimum standards apply to all residential premises in South Australia. This order remains on a property regardless of occupancy. We know that a property can change from being rented to owner-occupied without being repaired, and that is why we are not supporting the amendment.

Mr PEDERICK: I just want to ask the minister, and she noted the regulations from 2007, how far back an act has been in place that regulates housing improvement in regard to owner-occupiers.

The Hon. Z.L. BETTISON: Since 1940.

Mr PEDERICK: This legislation has been in place since 1940, and I understand it has not been enacted on owner-occupiers in that time, yet you have indicated in your previous contribution that there have been deaths and injury as a result of owner-occupier homes not being up to standard.

The Hon. Z.L. BETTISON: I understand that is not correct, although it is rare, and in fact there was something in the 1980s, as I am told. There was some action taken against an owner-occupier.

Mr PEDERICK: Can the minister give us any more detail on what that action may have been from the 1980s in relation to owner-occupier?

The Hon. Z.L. BETTISON: I do not have that answer here. I am happy to take it on notice and come back to you.

Mr SPEIRS: I would like to ask a couple of questions but, just by way of introduction, my view is very similar to that described by the member for Schubert—that, while we want to keep the spirit of this legislation intact in regard to private landlords ensuring that their properties are in a reasonable condition, the extension of the bureaucracy and the long and heavy arm of bureaucracy into private residential dwellings is of concern to us. There is no doubt in my mind that this is duplication and that it is simply unnecessary additional law being brought into being when there are other forms of legislation which could be used to deal with some of these issues.

I would like to ask a question in relation to section 56 of the South Australian Public Health Act. Under this section, under which you have a duty to 'take all reasonable steps to prevent or minimise any harm to public health caused by, or likely to be caused by' your actions. Has the existence of the public health act (which is often used by local councils to deal with properties which are in a poor condition, particularly private properties) been canvassed when developing the Housing Improvement Act and the possible duplication between the public health act and the clauses in that act which can already be used by local government to deal with issues of public safety caused by substandard private housing?

The Hon. Z.L. BETTISON: I thank the member for Bright. I am advised the bill that we are proposing—the modernisation—we understand that this has been available to the owner-occupier since 1940. My understanding is that we go further than the public health act that you are talking about, and the focus is on structural damage and looking at that structural issue, which is not covered by the public health legislation that you talk about.

Mr SPEIRS: With regard to this clause and the desire for the state government to look at policing private housing, has the state government consulted with local government as to their actions in this area under the Housing Improvement Act?

The Hon. Z.L. BETTISON: I am advised that this proposed modernisation to the legislation has been around for some time and we have consulted with local government two or three times. In fact, if I recall accurately, I met the key stakeholders just before we introduced this bill again.

Mr SPEIRS: Did those key stakeholders you met with before the legislation was introduced raise any concerns about duplication? It has certainly been my experience in recent weeks, having spoken to local government both within my electorate and externally, that they are concerned about duplication and the state government's interference in an area that they believe they have significant control of already and are dealing with effectively.

The Hon. Z.L. BETTISON: It is my understanding that the issue of duplication has not been raised. In fact, they were more than satisfied for us, under the Housing Improvement Bill, to take responsibility for the structural integrity of properties.

Ms SANDERSON: Just to reiterate the Liberal belief and philosophy that people have the right to live in their own home and freely do that, whilst I agree that people who are renting should be protected from substandard housing, overcharging or houses that possibly could cause them a danger, I think that people living in their own home have a responsibility and a right to live in their own home.

I indicated in my first speech on this bill that, whilst renovating a house, I would have been in contravention of many of these regulations, and I certainly would not have appreciated a government staff member coming to my home without notice being able to use reasonable force to enter my home if they felt that there was a safety issue in breach of the regulations of this act. I think it is going way too far, and they are not the powers that this government should have.

I note that since 1940 (so, that is 76 years of this act being able to be used against owner-occupiers) the minister can indicate only one prior use in the 1980s, which strengthens the case that it is not relevant and not required. Clearly, if there have been other dangerous chimneys or fences there have been other ways for those things to be remedied, for example, under the Fencing Act.

There are civil remedies that can be used, such as the Health Act, the Development Act, the Public Health Act, and councils generally would get involved at this level. So, I really do not see why we need another level of bureaucracy, another level of red tape and another level of this government interfering with the rights of people living in their own home who are home owners.

I would like to ask the minister whether she could confirm because I am told that this act has mostly been used against the Housing Trust, and most of the houses that are found to be substandard are actually owned by the government. Can the minister indicate how many private homes are tenanted under this act and how many are Housing Trust, or at least a percentage—if it is 50:50, 60:40 or what the rate is?

The Hon. Z.L. BETTISON: None of the houses that are under any of the orders at the moment are Housing Trust. Can we just focus on what this is about. I know that the member is talking about the individual and the owner-occupier but this is about safety—it is safe for the resident, it is safe for visitors, it is safe for tenants and it is safe for service providers.

I know that the member for Adelaide has shared with us her interesting restoration story and the renovations that she went through, but I think it is important to continue to have that ability to have that conversation with people, draw it to their attention and then pursue it through if it is not up to safety standards and if it is not structurally safe.

I remember in Prospect not long ago a wall that fell down on a child. Now, this is the kind of thing where, if it is raised with us, we need to go in and prosecute that person, or talk to them about fixing it up. Rather than duplicating, which has been raised, I think we support local government in its ability to make the area safe.

The committee divided on the amendment:

Ayes 17

Noes 24

Majority 7

AYES
Bell, T.S. Chapman, V.A. Duluk, S.
Gardner, J.A.W. Goldsworthy, R.M. Griffiths, S.P.
Knoll, S.K. Pederick, A.S. Pisoni, D.G.
Redmond, I.M. Sanderson, R. (teller) Speirs, D.
Tarzia, V.A. Treloar, P.A. van Holst Pellekaan, D.C.
Williams, M.R. Wingard, C.
NOES
Atkinson, M.J. Bettison, Z.L. Bignell, L.W.K.
Brock, G.G. Caica, P. Close, S.E.
Cook, N. Digance, A.F.C. (teller) Gee, J.P.
Hildyard, K. Hughes, E.J. Kenyon, T.R.
Key, S.W. Koutsantonis, A. Mullighan, S.C.
Odenwalder, L.K. Piccolo, A. Picton, C.J.
Rankine, J.M. Rau, J.R. Snelling, J.J.
Vlahos, L.A. Weatherill, J.W. Wortley, D.

Amendment thus negatived.

The CHAIR: Member for Adelaide, do you wish to proceed with your second amendment?

Ms SANDERSON: I am told it is consequential.

Clause passed.

Clause 4 passed.

Clause 5.

Ms SANDERSON: I move:

Amendment No 3 [Sanderson—1]—

Page 7, line 38 [clause 5(1)]—After 'premises' insert:

that are, or are to be, occupied under a residential tenancy agreement

The Hon. Z.L. BETTISON: The amendment is not supported. To re-emphasise what we have already covered, the fundamental principle of this legislation is to protect all members of the community from health and safety risks that are present in residential dwellings.

Amendment negatived; clause passed.

Clause 6.

Mr KNOLL: From previous answers, I am now given to understand that Housing SA properties are considered part of this clause, and the minister gave an answer that, currently, there are not any Housing SA properties that are subject to this order. Have there been properties in the past that have been subject to this order and, if there is any quantification that can be given, that would be exciting?

The Hon. Z.L. BETTISON: I am advised there have been no orders but they are required to meet minimum standards.

Clause passed.

Clauses 7 to 10 passed.

Clause 11.

Ms SANDERSON: I move:

Amendment No 6 [Sanderson—1]—

Page 10, line 27 [clause 11(1)(a)]—Delete paragraph (a) and substitute:

(a) enter or inspect any residential premises at any reasonable time no earlier than 14 days after giving the landlord of the premises notice of the intended inspection; and

Although the owner-occupier amendments, which relate to about 20 of the amendments I have put forward, have failed and therefore we do not need to go through them, this amendment, however, still could exclude owner-occupiers. This clause relates to giving notice to inspect a home. It is fair enough that no notice is given if it is the tenant who has rung up and said there is an issue, because the tenant is expecting them to come.

However, if it is an owner-occupier and somebody else has given notice of an issue (whether it is their fence, chimney, or whatever), I think it is unreasonable to turn up—and I am told it would only be within working hours—without giving prior notice and expect an owner-occupier to be home, because they are most likely to be at work during those times. It is only fair, I think, to give notice before you come to inspect somebody's home so they can be home and allow you to come in.

It worries me more that they have the powers to use reasonable force. If the owner-occupier is not home because you have not given them notice that you are coming and you have the ability to use reasonable force to break into their home if you think there is something of danger (which is indeterminable and could be based on hearsay because someone has reported it), I think I would like this amendment to still go ahead.

The Hon. Z.L. BETTISON: This amendment is not supported. As articulated by the member for Adelaide, the amendment seeks to require the regulator to provide the landlord with at least 14 days' notice of an inspection. A property inspection occurs with the consent of the tenant as the occupier. The bill proposes that the regulator can engage with the landlord early in the process and the regulator will communicate with the landlord prior to issuing an order.

The bill as presented minimises the risk that tenants are evicted or treated unfairly by a landlord if they make a complaint about the condition of the premises. Many complaints (about 50 per cent) do not proceed to action under the act due to insufficient cause for the regulator to be involved. To advise the owner prior to each inspection may cause the owner unnecessary concern and, in the case of a tenanted property, exposes the tenant to retaliatory eviction.

The new bill allows for earlier dialogue between the regulator and the owner. Generally, the regulator will engage with the owner regarding the condition of the property when satisfied that the tenant is protected from potential eviction. Under the Housing Improvement Act 1940, the engagement only occurs with the owner after a formal notice of intention to declare a property substandard has been served. Currently under the act, if an owner wishes to evict the tenant following the notice of intention, there is a requirement for an owner to apply to SACAT to confirm the notice. This provides independent review to ensure the eviction reasons are genuine and not related to the tenant complaint about the condition of the property.

Under the Housing Improvement Bill, engagement with the owner will be able to occur after the property has first been inspected. This is because the tenant protection will be brought forward such that the requirement for the owner to apply to SACAT to confirm a notice of eviction is based on genuine reasons and commences when the property has first been inspected. As a result of this early protection under the bill, the owner can be contacted by the regulator following the first inspection. This enables dialogue between the owner and the regulator, rather than progressing immediately to any formal action, as is currently the case. The need for formal action is anticipated to be reduced as a result of this.

Historically, approximately 30 per cent of owners have undertaken repairs when the notice of intention is received. There is expected to be a similar level of response to initial dialogue under the bill. It is possible that the bill will in fact result in a higher proportion of owners undertaking repairs as there is the ability to negotiate. The power of officers and penalties are real incentives where there is a serious health and safety risk to the community. We do not support the amendment.

Amendment negatived.

Ms SANDERSON: I move:

Amendment No 7 [Sanderson–1]—

Page 11, line 28 [clause 11(6), penalty provision]—Delete '$10,000' and substitute '$5,000'

I also have questions that do not relate to the amendment but where explanations are required. Clause 11(1)(b)(viii) provides:

…remove any article that may constitute evidence of the commission of an offence against this Act…

Can the minister give examples of what types of articles would be removed from a home that would constitute evidence?

The Hon. Z.L. BETTISON: I am advised that an example is that you would take an asbestos sample.

Ms SANDERSON: Further to that, clause 11(6)(b) provides:

…having been asked a question under this section, does not answer the question to the best of his or her knowledge, information and belief…

Can the minister explain how you would determine whether someone has answered a question to the best of their knowledge?

The Hon. Z.L. BETTISON: I am advised that we would have to prepare a brief for prosecution if we did not feel that they were being honest.

Amendment carried; clause as amended passed.

Clause 12.

Ms SANDERSON: I move:

Amendment No 8 [Sanderson–1]—

Page 12, line 6 [clause 12(1)]—Delete 'The' and substitute 'Subject to subsection (1a), the'

Mr KNOLL: We are at housing assessment orders. I would like to ask—and I am happy for the time frame to be variable, based on whatever information you have—how many housing assessment orders have been issued let's say over the last year, if you have got that information, or, if you have a time series backwards, that would be wonderful.

The Hon. Z.L. BETTISON: We do not have housing assessment orders at this stage. Perhaps I can run through some stats for you. Complaints wise, we get about 300 a year. From 1 July 2015 to 4 March 2016, we had 206 complaints. Many complaints—as I mentioned previously, in the area of 50 per cent—do not proceed to action under the act due to insufficient cause for the regulator to be involved. Where complaints do proceed, approximately 30 per cent of property defects are resolved by the owner prior to an order being placed on the property.

As of 4 March 2016, 1,493 properties were declared substandard—approximately 1.2 per cent of the private rental sector. As at 4 March 2016, 1,409 properties have rent control. Approximately 40 per cent of properties under rent control are in regional areas. As at 4 March 2016, 112 properties were declared uninhabitable.

Mr KNOLL: That saved quite a few questions. I find it incredible that, with 40,000 houses that the government owns through Housing SA, there have been no housing assessment orders. Is it the case that, if there are issues in relation to a Housing SA property, the reason there are not any that have had assessment orders put on there is because those issues are resolved prior to a more formal process being undertaken? What number of complaints relate to Housing SA properties? When you say 50 per cent are not investigated, would some of those relate to Housing SA properties or, when you say a third are fixed prior to any formal assessment order, are any of those Housing SA?

The Hon. Z.L. BETTISON: As I am advised, the housing improvement branch has received only one complaint in relation to a Housing SA tenancy. Housing SA spends more than $100 million a year in maintenance. Obviously, we have annual visits, when we go out to see people, but there is an expectation that the tenant also contacts the maintenance centre if there is an issue. Perhaps on that basis we would endeavour for all Housing SA to have that maintenance, structural safety and security. If that is something that a Housing SA tenant does not believe is there, then we have a responsibility to act on it.

Mr KNOLL: Obviously, within your purview, minister, there are authorised officers that can inspect and go into people's houses. What staffing is there currently? I am thinking about some housing inspection officer who goes into people's houses, and I assume there is a small group of these people. I am just wondering how many staff there are.

The Hon. Z.L. BETTISON: If I recall accurately, the Deputy Leader of the Opposition suggested that this may be a way for Housing SA staff numbers to be boosted. At the moment, we do not see any increase with this new bill. There are three investigation officers, one manager, one project manager, three admin support staff and the housing regulator. Three investigation officers are OPS5 positions, and we have suitably qualified authorised officers. The regulator will ensure officers have an appropriate balance of qualifications and experience to appropriately be able to perform their role and functions as an authorised officer.

Ms SANDERSON: How does the minister anticipate working all the country areas? Currently, I believe the local government has staff. There are councils throughout South Australia that, when there is an issue, their staff go out and inspect properties; however, now this will be coming back under state government. With the limited staff you have to cover such a huge expanse, how do you plan to get to all of the regional housing?

The Hon. Z.L. BETTISON: As I am advised, from our knowledge, local government does not do a lot in this area at this stage, although they have some powers. We have the ability to engage experts in the local area, and I understand that is what we have done in the past.

Ms SANDERSON: Can the minister confirm that this will not be another job put onto local government that they do not have the power to do, yet they will be given the job of going out and inspecting and thus there is further cost shifting to local government?

The Hon. Z.L. BETTISON: My understanding is that we have the ability to engage contractors to deliver this responsibility if need be. I do not think this is cost shifting to local government; I reject that.

Ms SANDERSON: Can the minister confirm whether any of the 1,409 properties that you mentioned that were under rent control are Housing Trust properties?

The Hon. Z.L. BETTISON: None of them are.

Ms CHAPMAN: Of the eight investigative officers—I think they are going to be authorised officers under the bill—

Mr Knoll: Three.

Ms CHAPMAN: Three investigative officers—

Mr Knoll: Three admin.

Ms CHAPMAN: Yes, and there is a total, I think, of eight.

The Hon. Z.L. BETTISON: If I may provide the information: on our usual basis it is seven but we have engaged a project manager through this Housing Improvement Bill process.

Ms CHAPMAN: So the project manager will cease: is that the position?

The Hon. Z.L. BETTISON: I presume her skills and experience will be used elsewhere in the department.

Ms CHAPMAN: Apart from the person who is now working with you as a project manager, what else do these seven do other than respond to complaints and/or conduct inspections of the 1,400 or so that are under rent control?

The Hon. Z.L. BETTISON: You have articulated that clearly; that is what they do. As you may recall, we said that with about 50 per cent of those calls made there is some action taken. There is a lot of conversation, as I am informed, prior to action being taken often. People will call up—they might be a tenant, they might be a neighbour—and those conversations obviously involve the work and understanding as to whether there is an issue that we should go out and inspect.

Ms CHAPMAN: So seven people plus the project officer who respond to the 300 complaints, half of which do not need to go on because they are counselled through it or the like, are responsible for something like 150 complaints a year.

An honourable member interjecting:

Ms Chapman: As a job—I might have this job.

The Hon. Z.L. BETTISON: We couldn't possibly lose you from the house, deputy leader. We talked about over 1,400 that are under rent control, and I understand that they often review and survey those rent controls to make sure that they are maintained. Obviously, it is proactive when people call up and talk about the action taken, but there is also a maintenance and a review of what is currently under that control.

Ms CHAPMAN: And those personnel actually do the inspections, or are there other persons with qualifications in structural engineering or the like who do that work?

The Hon. Z.L. BETTISON: Three of the investigation officers who are the qualified authorised officers do the inspections.

The CHAIR: We are looking at amendment No. 8 on schedule 1 in the name of the member for Adelaide which is clause 12, page 12, line 6, deleting the word 'the', so I am putting this amendment.

Amendment negatived.

The CHAIR: I am advised that means that you may wish to not proceed with your amendment No. 9. Is that correct?

Ms SANDERSON: That is right; I think it would be consequential.

The CHAIR: It does not make sense, so it is not proceeding. In that case, we will move to your amendment No. 10.

Ms SANDERSON: I move:

Amendment No 10 [Sanderson–1]—

Page 12, line 30 [clause 12(4), penalty provision]—Delete '$20,000' and substitute '$10,000'

The Hon. Z.L. BETTISON: This amendment is accepted.

Amendment carried; clause as amended passed.

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