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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2023-05-02 Daily Xml
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Bills

Residential Tenancies (Protection of Prospective Tenants) Amendment Bill

Second Reading

Adjourned debate on second reading (resumed on motion).

Ms HUTCHESSON (Waite) (15:44): We all know that protecting our personal data in today's cyber climate is of utmost importance. With examples from Optus, Medibank Private and many more, the need to protect personal information has never been so critical. This bill also contains measures to protect tenant information by prohibiting tenant information from being disclosed without their consent or as required by law, the tenancy agreement, a court, or tribunal.

Information will need to be destroyed after three years for a successful tenant and within 30 days after the tenancy agreement is executed for unsuccessful tenants. There is allowance for tenants to approve their information to be held for up to six months in support of looking for another tenancy. This bill also regulates the disclosure and destruction of the personal information for both tenants and prospective tenants, with a maximum penalty of $20,000 and an expiation fee of $1,200. We are taking the protection of personal information seriously.

We see the costs of rents are continuing to increase and it is making it very difficult for those on lower incomes to find a property that is fit for living in. Due to shortages in affordable rentals, there are some examples of houses that are rented that have issues that some landlords do not look to fix or, alternatively, refuse to fix. An example of one such situation was raised with me recently. The member of my community said:

A few years ago I moved into my current home and at the time was assured by the landlord that despite the lack of air conditioning the summer temperatures indoors were adequate. I subsequently found that during heatwaves my indoor wall thermometer regularly read up to 38°. Night-time temperatures were often high enough as to make sleeping impossible, and I could literally feel the heat radiating down from the ceiling from the moment the sun came up in the morning. It was like living in a tin shed. Sometimes for days at a time I would have to move out of my home and stay with my parents just to get away from the heat so extreme it was affecting my health.

In response to this, I asked my landlord if she would consider installing air conditioning. Her response was to verbally abuse me, accuse me of being demanding and then said she would only consider it if I was to pay a fee well over $1,000, which would far exceed the combined cost of buying and installing the air conditioner. I considered this to be grossly unreasonable so I refused, since I could buy and install my own air conditioner for a fraction of this cost and then take it out with me or sell it when I left. Unfortunately, current rental laws require the landlord's permission to make such changes to the house, which she refused.

With the state of the current rental market I have been unable to find alternative accommodation, and so had to just go without air conditioning for years. It wasn't until the property recently changed hands and the new landlord took over that I was provided with a small portable air conditioner. It sounds like a jet engine, it's impossible to run while sleeping, takes up a huge amount of space, and I still have issues caused by the lack of insulation in the house, but I at last have mostly tolerable summer temperatures, which is a vast improvement over previous conditions.

If some reasonable minimum rental standards had existed I would never have had to live through such conditions. It is clear that it is not enough to merely hope a landlord will do the right thing, and without minimum requirements enshrined in law, renters like me are at the mercy of unreasonable landlords. I am not asking for luxury, I just wants a home that is not a danger to my welfare. Neither do I think I should have to bear the financial burden to bring a neglected house up to such a standard. I don't think these are unreasonable requests.

While this is not the subject of this bill, with rent bidding rife we can see houses being rented for much more than they are worth and landlords not looking to make improvements, as they can look to the next applicant on the list. This bill prohibits rental properties being advertised at a price range and prevents landlords or agents inviting higher rent offers. In addition, third parties—which often include websites facilitating application forms—are prevented from engaging in rent bidding. Preventing rent bidding makes it a fairer process. Everyone knows what the cost is and can go in knowing that their opportunity to call the house their home will be based on their application and not on the extra $50 someone can give them.

We are also addressing the practice of prospective tenants being charged fees for background checks and an assessment or rating of their suitability being provided to the landlord. All families should have the same opportunities, and this bill will prevent a person in trade or commerce from providing an assessment or rating of a prospective tenant that is based on their ability to pay more than the asking amount and disallows a person from receiving, or requiring a prospective tenant to pay for, an assessment or rating of their suitability for tenancy.

For some families and individuals, renting and saving for a bond in order to be able to move when they require can be a challenge. It is currently practice that landlords can claim up to the equivalent of six weeks' rent for their bond. With some properties in my electorate fetching over $600 a week for rent, this equates to $3,600. That is a substantial amount of money to lay on the table to secure a property.

Bond affordability is one of the immediate priorities we need to address as part of our plan for a better housing future. When rates fall below $250 per week, landlords can charge the equivalent of four weeks' rent, but this threshold only covers very few properties anymore. The bond threshold will now be raised to $800 to ensure that, for the majority of rental properties in SA, only a four-week bond will be required. This will reduce upfront costs for tenants and, depending on the amount of rent they will be paying, could equate to a between $500 to $1,600 saving. This new bond amount will apply to any bond payable under an agreement entered on or after 1 April this year. Any bond paid before that date will remain lodged with Consumer and Business Services until the tenant vacates the premises.

These reforms are seen as the immediate priorities, but there will be more to come after further consideration of, and consultation on, the broader review of the act, with issues such as renting with pets, longer tenancies and retaliatory eviction being some that will be considered.

Our government is taking this review seriously as we roll out our plan for a better housing future. Last year, our Minister for Consumer and Business Affairs hosted a forum to hear firsthand the issues that are affecting our residential tenancy sector. Many stakeholders were present and many issues were discussed. This consultation received the response it deserved, with over 5,000 people completing the YourSAy survey and over 150 submissions received. As we continue to address the rental crisis, all of this feedback is being considered.

Ensuring that we are doing everything possible to ease the stress on the market is important. Ensuring renters have rights and have access to protections will allow more families and individuals to be able to rent without stress. I look forward to seeing what else will be included in the review. I commend this bill to the house.

Ms SAVVAS (Newland) (15:52): I am incredibly happy today to be speaking to the residential tenancies amendment bill, with the aim, of course, to protect prospective tenants. We all know that our rental market is booming and that at times it can be incredibly hard to find a rental property. We are initiating reforms here in SA so that South Australian tenants are not left behind, and these are regulatory safeguards that aim to protect those households. These reforms will better meet the needs of today's rental market, improve protections for renters and also ensure that landlords can continue to manage properties effectively. It is important, of course, to consider both sides of the coin when having that discussion.

As part of the reform, the minister announced a review of the RTA. This has been the most comprehensive review since 2014. We have identified, as a first step, that there are some immediate priorities in order to assist renters with affordability and to protect tenants' rights. This is all part of our broader housing package, a suite of different housing reforms to help more South Australians get a roof over their head.

We know that every South Australian does deserve to have a roof over their head, and that is something that so many of us do take for granted. I myself have lived in a great number of houses, and I certainly recognise the toll it takes on individuals and families—particularly thinking back on the amount that I moved as a young child—to continually get up and move. I have also lived in emergency housing, as I have spoken about in the house before, and will never take for granted, I hope, the feeling of walking into my own home each night, knowing that it is both safe and is mine.

I would like to acknowledge, when speaking about the housing crisis, the way that the housing crisis disproportionately impacts women and children. I also acknowledge that women—not only women but predominantly women—in domestic violence situations are often—not always but often—unable to get themselves out of a situation at home, away from an abusive partner, because they either cannot afford to live on their own or they cannot find the place to do it in. That is something that I truly believe is everyone's business.

We recognise as a government the pressure that the housing market is placing on South Australians, and that is not just typically vulnerable South Australians either. I have been contacted by a large number of constituents who are often two-income households and who are struggling for the first time in their lives to get into another rental property that is suitable for their needs, particularly those with kids, or with pets, or those who are wanting to remain close to a local school, whether for a school zone, local sports clubs or other priorities for the children.

We are prioritising housing as a government, and this bill is just one part of providing an immediate response to the challenges faced by Australian renters. People are moving to South Australia at record rates, and this has had a huge impact on the demand for housing, not just in the metro area, of course, but also in regional towns.

Our economy is looking really good in SA, and we have heard in the last few weeks that South Australia's population has risen by more than 25,000 people in a single year—the second biggest increase on record. That is a good thing. We do want people here in our great state, but it does bring with it challenges, there is no question of that.

This week, we have made a number of announcements relating to housing. We have just unveiled the first, brand-new public housing home that has been built as part of our $232 million investment in public housing. Construction is already underway on 81 new homes with 52 suburbs in line for brand-new South Australian Housing Association homes scheduled for completion by June 2026. The new homes are part of a $232 million investment in South Australia's public housing stock, which will deliver the first significant net increase in public housing stock in a generation.

At the same time, we have also announced another land release of nearly 2,000 homes to tackle the unprecedented housing crisis, bringing the total release number to about 25,000 across our state. We know that residential vacancy rates due to the population demand are historically low and that this supply shortage of rental properties has caused rents to increase significantly. It has also created an environment where renters are really struggling to find properties.

I was a landlord for a very short period of time, and I remember all too well the 30-plus applications in the first two hours of advertising my property online. It was a very small house without a garden, and I was saddened not only to have to say no to a number of incredibly worthy applicants but also surprised to see the number of large families applying for a rental property, particularly for such a small house without a garden which was not close to local shops or cafes and which was in a new development as well.

The shortage of houses has also led to rent bidding and requests for tenancy information that are entirely onerous. There are expectations over and above what a tenant should be reasonably expected to provide. This bill is here to address the issue of rent bidding as well as other priorities identified as part of the housing plan, including taking the first steps towards standardising rental application forms, as well as better protections for tenants' data, which we know in a changing digital world are incredibly important.

The amendment bill proposes priority changes to the Residential Tenancies Act 1995 as part of the broader housing strategy, providing for prescribed information that cannot be requested of a prospective tenant, protecting tenant information, prohibiting rent bidding and third parties charging prospective tenants fees for an assessment or rating of their suitability for a tenancy.

It also provides for information, to be prescribed in the regulations, that must not be requested of a tenant, which we think is incredibly important. We have all heard stories relating to rental application forms and processes. The member for Gibson mentioned earlier a story relating to video applications in a resident's current home trying to assess their suitability, or perhaps the way the individual was leaving that rental property.

That is not the first time I have heard that story. I have heard that story multiple times not just in my community but also when we were looking to rent out our property and also when looking to purchase a new home of my own. It is also not the first time I have heard the story mentioned by the member for Davenport of residents lying or feeling that they could not tell the truth in their applications to get a rental property—whether it be to get into a school zone or close to the local sports club, shopping centre, dog park or other amenity.

After consultation with key stakeholders on the draft bill, based on the feedback we received we have included a technical amendment to ensure the exemption under section 47B is intended to apply only to a landlord who is also the housing assistance provider, to ensure that the prohibition does not interfere with the housing assistance provider requesting information required to determine a tenant's eligibility.

There are also the clauses I mentioned before relating to protecting tenants' data and information. In light of recent cybersecurity incidents, where individuals' personal information was accessed, this includes measures to protect tenant information by prohibiting tenant information from being disclosed without their consent. This is very important.

We have all recently seen the impact on communities of cyber attacks and data incidents with respect to Optus and Latitude. We saw the flow-on effects then to Service SAs across the state, and we have seen how that has impacted communities over the past few months. Adapting to an increasingly global and connected world is very important, as is the protection of customer data.

One of the major elements of this reform relates to banning rent bidding, and I would like to speak about contact I have received from a number of local residents. One resident in my electorate, who has lived in her property for upwards of five years, advised me she had been asked to pay a 20 per cent increase in her rent after the landlord was offered a private rental price from a complete stranger. My understanding is that the property was not actually up for rent and had not been advertised in any way.

An individual found out who the owner of the property was and offered them rent for the house, which already had a tenant, that was significantly above what was being paid by that tenant, who had been there for many years. As result of this what I would call unsolicited rent bidding, the resident was asked to increase her rent payment by upwards of 20 per cent. That increase would equate to over half that individual's salary—and that is an individual who lives and pays her bills alone. Simply, residents should not be under that pressure.

I did mention my very brief period as a landlord (it was about six months) and, although I know it is not necessarily always indicative of all landlords, I do recall a bit of a moral crisis when tenants were seeking to rent bid despite my not even wanting them to do that. When we were looking for applications for tenants, individuals came to discuss it with us on the side or tried to offer something higher than we were asking. That is not something I condoned or wanted to occur.

I thought of myself as quite a good landlord—and of course many are—but levelling the playing field for tenants, for agents and for landlords is incredibly important so that those discussions do not have to be had and so that the landlords themselves are also not put in the position where they are being provided with unsolicited offers or unsolicited rent bids. The amendment bill prohibits rental properties being advertised at a price range and prevents landlords or agents inviting higher rent offers. In addition, third parties, which often include websites facilitating tenant application forms, will be prevented from engaging in rent bidding.

Provisions relating to third parties are intended to address conduct involving prospective tenants being charged fees for background checks and an assessment or rating of their suitability being provided to the landlord or agent. There are reports that in some instances prospective tenants paying for a background check and offering higher rent have been afforded a higher rating through that process

Our amendment bill will prevent that practice by the landlord or agent and also prevent anyone engaging in trade or commerce providing that assessment or rating that is based on an offer of higher rent. That is incredibly important. We are also looking at having more affordable residential tenancy bonds. That was the fourth immediate priority announced as part of our government's plan for a better housing future.

I know myself, from looking for a rental property in a very short period of time after the breakdown of a relationship and having to move out very quickly in the last few years, when I was looking at rental properties in my local area where bonds were $3,000 or $4,000, There did not seem to be much method to the price that was actually being requested relating to those residential bonds. I know that it is the same for my mother. She recently moved interstate and is renting again, which she has not done for some time, moving with a family into a property in Byron Bay, which is also experiencing quite a significant housing crisis. The bonds requested at those properties are absolutely astronomical.

Because of the rent price increases, renters who have even moderately priced houses are often unable to provide the six weeks' rental bond. It is a significant challenge for those who are looking for affordable housing or who need to access housing quickly. I think that again goes back to the conversation about particularly women and children, if they are escaping a difficult circumstance or perhaps in a domestic violence situation, being unable to get out of their property quickly because, in addition to the rent being paid, they need that backup behind them in order to pay the residential bond.

Currently, landlords can claim residential bonds equivalent to a maximum of six weeks' rent when the weekly rent is $250 or greater, and increasingly fewer properties fall below this threshold. The bond threshold will now be raised to $800 to ensure that for the majority of rental properties only a four-week bond will be required. The new bond amount will apply to any bond paid or payable under an agreement entered into on or after—I am sorry I have the wrong date here, but in the near future. I am sure the minister can provide the specific date, but I think these are incredibly important reforms.

To this day, on one side of my family I am the only person who still lives in a home they own. My mum was the first person in our family to have ever, ever, ever purchased a house. Before she was able to do so, as a child I remember all too well the regular routine of having to pack up and move again. I remember the celebration and commemoration when my mum moved into her 50th home, and she was not even 50 years old when that occurred.

I believe it was her 50th or 51st home when we first lived in a property that was not rented or owned by family or a friend. The simple fact of the matter was that as soon as we got comfortable, the landlord would increase the rent or they would make the decision to sell the property from underneath us. That was incredibly familiar to my mum, who had moved around so much as a kid that she attended upwards of 10 public schools.

For mum, it was her goal to ensure we did not have to move around as much as she did and that we could stay in the schools we were enrolled in for as long as possible. That being said, trying to find a property, particularly as a single mum with two kids and usually a kitten or a puppy, which in many cases we would have liked to keep depending on the property that we were in, often meant that we lived further away from school than we wanted.

That meant for the majority of my childhood, although I stayed at one primary school and only moved high schools once, I lived far away from my friends because we simply were not able to live close to the school I was attending. I know that in this economy and in this housing crisis, those stats are even broader and that too many families are unable to get homes in the communities they want to raise their children in.

I am incredibly lucky to own my own home, and I really hope never to lose sight of how lucky I am to have that security, nor do I hope that other members of our government lose sight of that. I think it is incredibly important to remember those things when we are making reforms for people who do not have that luck or that right. It is a security that the bleeding heart leftie in me wishes desperately for more and more people because it does feel particularly good to know that I have a house I can live in and live in for a very long time if I so choose.

Our government's announcement last year to begin this most comprehensive review of the RTA seeks to ensure a modern, contemporary and robust legislative framework that strikes the right balance between the interests of both tenants and landlords. Having been in very different ways on both sides of the coin in a very short period of time, I truly recognise that the needs of landlords are important too, and I think that it is important to get that balance right.

The broader review that is currently underway will also consider how best to promote a sustainable residential tenancies sector that supports retaining existing landlords but also attracts prospective landlords who would like to enter the sector. The minister recently held a forum to hear firsthand the issues that are currently impacting the sector, and that forum informed the development of the discussion paper, which invited comment on the different priority issues.

There are a number of issues that were raised and things that we may look to consider in the future. Among the number of things that were raised was a crackdown on the practice of rent bidding, which of course we are attempting to deal with today. There was discussion about a maximum bond amount, again considered in this bill, and the standardising of application forms, again considered in this bill.

There were other things, such as renting with pets. I recall all too well the number of people who suggested that we get rid of the doggy door in the house that we owned before we rented out our house in case people found it some sort of invitation to bring in pets. As a landlord, I was quite okay with pets in the rental, but it was not surprising to me that that was uncommon. That was something that was recommended against by a number of friends who were in a similar circumstance.

They also wanted us to consider whether the minimum notice required for not renewing a fixed-term agreement should be increased. Again, I often drive through Adelaide pointing out houses that I lived in as a kid. There are many, and many that were taken away and knocked down quite quickly and built into something else. I often drive past the rental we lived in for three months on Osmond Terrace. That is now a much nicer house than the smaller unit that we lived in at Norwood for a very short period of time.

There was also a discussion about requirements for rooming houses and share accommodation. Having seen, as a young person, a number of share arrangements go wrong for my friends, I think that is really important to consider as well. For lots of people, that is their first experience out of the family home, and it really does pave the way for an individual's experience in the housing market for years to come. It is really important to consider those options as well.

There is lots to do moving forward, but I am very happy with the progress that we are intending to make today and happy to commend the bill.

The Hon. A. MICHAELS (Enfield—Minister for Small and Family Business, Minister for Consumer and Business Affairs, Minister for Arts) (16:12): I just want to say thank you to all the members for their contributions to this debate on the Residential Tenancies (Protection of Prospective Tenants) Amendment Bill. It has been great to have so many people share their views and experiences with the rental situation that we are currently facing in South Australia, as we are facing around the country, to be honest.

I want to thank in particular the member for Heysen and the member for Unley as well as, on this side of the chamber, the members for Adelaide, Newland, King, Gibson, Davenport, Elder, Waite, Giles, Playford, Elizabeth and Torrens and my cabinet colleagues the member for Hurtle Vale and the member for Reynell. To have that many speakers on a bill indicates the importance of us in this place being able to deal with some of these cost-of-living pressures and the housing crisis that we are seeing around the country.

We are obviously taking to this place some immediate measures to deal with those cost-of-living pressures and also to deal with some of the privacy issues and some of the information requirements that are expected of tenants that seemingly have escalated as part of this housing crisis that we are dealing with. Particularly being able in this bill to deal with rent bidding is, I think, going to be really important and helpful for tenants.

We know that vacancy rates are extraordinarily low and, in fact, at historically low levels in South Australia, as we have seen in the rest of the country but particularly here. That is obviously a significant supply shortage issue that we need to deal with. We do have a broader housing package that will deal with that, including public housing builds, release of land supply, of course, other measures the Minister for Planning earlier spoke about and affordable housing here in the CBD as well. A range of measures are being undertaken.

This is one part of that puzzle to deal with the current rental sector as it is at the moment, but obviously our amendments need to look at the long term. We really need to carefully balance what are seen as the interests of the landlords and the interests of the tenants, and really have a balanced approach to tenancy policy in this state.

As I said, this is the first part of a broader review. We started this process last year, and I got a number of stakeholders together with the assistance of the Consumer and Business Services team. I want to particularly thank the commissioner and his team for pulling together that forum and the work they have done since. Initially we got stakeholders, including SACOSS, Shelter SA, Uniting Communities, REISA, the Landlords' Association, representatives from SAHA, DHS and RentRight SA.

A number of people came together to have an open discussion about the sorts of issues we needed to look at in what really was the first major piece of work on the Residential Tenancies Act since 2014. We also had the Hon. Robert Simms, the Hon. Frank Pangallo and the Hon. Connie Bonaros from the other place come to that forum. We basically pinned down the issues that we need to think about. We included issues like renting with pets; rent bidding, which we are dealing with in this bill; the bond threshold, which I will talk about separately; standardising application forms; and the notice period for not renewing a fixed-term lease, particularly with people often applying for 100-plus houses at a time before they actually find one in the current circumstances that they can rent.

There were concerns around rooming house regulations and share accommodation. Housing standards came up and some of the issues we have just heard about in terms of safety modifications, putting in air conditioners, requiring landlord consent and some of the minor changes as well in terms of hooks for paintings, and all those sorts of things, and whether we can do something on that. We did talk about and we will be doing further work on supporting renters who have experienced domestic violence. Water bills and payment issues came up, and there were also issues around illegal drug activity and the impact that may have on future tenants' health and how we tackle that.

From that, we prepared a discussion paper that has gone out for broad consultation. We ended up with over 5½ thousand survey responses and over 150 written submissions, so I want to thank everyone who participated in that consultation. We picked out a few immediate priorities that we thought would address some cost-of-living issues, particularly in terms of the bond threshold and rent bidding, and some other issues we thought would have broad support. We put them into this bill that we are debating now. Of course, some of those other issues will come back to this place with further work having been done over the next little while.

In terms of what is in this bill that I hope to get through, we are talking about banning rent bidding. That means preventing landlords or agents from soliciting higher rent offers, which we know is happening a lot in the current market. We want to make sure that landlords and agents are advertising properties at a fixed price rather than at a broad band of lower and upper to stop that kind of rent bidding process. We want to make sure that tenants are certain when they are going in to apply for a property—because it is an extensive process—that they actually have some idea of what the property is going to rent for.

Earlier this year, the member for Adelaide and I were talking to Ariba, who had moved over here with her husband from Melbourne. They have made these changes in Victoria and she was surprised that they were going through a rental auction process when she came to South Australia that had been outlawed in Victoria. She advocated quite strongly for banning rent bidding, which we hope to get through in this bill.

We are also doing something in this bill that has not been done as far as I can tell in other jurisdictions, and that is looking at the practice that has developed particularly in the Eastern States on third parties coming along into the market and basically having apps or websites where they will assist agents and landlords to get tenant applications. What they are doing is actually charging tenants for background checks, often rating them higher if they do bid higher than the advertised rental.

That is the sort of change to the market that I think we need to come down on. We are doing it here. We did on Friday hear from national cabinet and from the Prime Minister that there will be some work at national cabinet level on some uniformity on residential tenancy laws around the country. That is something I hope we take up at a national level that is being led by South Australia.

Some of the other changes that are in here are around protecting tenant information, from the perspective of what a landlord or agent can request in terms of a rental application. We are seeing examples of bank statements being requested and credit card statements being requested. There are a number of questions around what would otherwise be prevented under equal opportunity legislation, so what we are proposing in this bill is that certain prescribed information will not be permitted to be asked in an application form. Then we will consult on regulations as to what that is, but that is the path that we are taking regarding equal opportunity type discriminatory practices and some of those practices that are a bridge too far in terms of privacy breaches for tenants.

We also want to make really clear that data breaches are a concern, and we are tackling that by requiring destruction of rental application information within 30 days for unsuccessful tenants and within three years of a tenancy ending for successful tenants. That will hopefully, at least in part, deal with some of those concerns around privacy as well. Again, that is something that we potentially will lead the nation with in terms of the national reforms as well.

As I said, this is all part of a broader reform to residential tenancies. One of the other really significant cost-of-living pressures was the bonds, which were potentially up to six weeks for anything over $250. What we have done—and it commenced on 1 April—is raise that bond threshold from $250 to $800. When it was first introduced in the 1990s, $250 was basically two times the median rent in Adelaide. That has not changed in terms of the threshold. Obviously, rents have substantially increased. How we got to the $800 figure was to basically take the concept when it was originally introduced and modernise it in terms of the inflation to rents.

We are at the $800 mark now, so a significant number of properties that are being rented now are only allowed to claim four weeks' rent. We know that it is saving, already in the first few weeks since 1 April, significant money for tenants and making it a lot easier for them to be able to afford to move properties. We know that we are saving tenants about $930 up-front, which I know has been greatly appreciated by those tenants who have moved in the last few weeks.

We will come back to the house with further updates and a broader reform bill, but we do want to get these reform measures through, do as much as we can as quickly as we can to support a stronger rental sector, of course balancing up what landlords and tenants need in terms of the strong sector. We saw today that interest rates have just gone up. Obviously, that impacts the landlords, so we want to be really careful about what we are doing. We are hoping to have broader reforms come in very shortly but for this particular bill I appreciate the opposition's broad support, and I look forward to a committee stage, I understand.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Mr TEAGUE: Perhaps for convenience, I will ask the overarching question at clause 1, and I will indicate that I will otherwise largely confine my questions to those amendments subsequent to the introduction and second reading on 8 March. My question in relation to the prevalence of rent bidding is in the context of what I understand to be prohibited conduct by the REISA.

In circumstances where, in South Australia, it is prohibited by the REISA's code of conduct as I understand it, and as a result, I understand, is not common practice, is the minister able to inform the house in relation to the real effect or change that this might affect, as it were, beyond amplifying, reiterating a practice that we understand ought already to be common?

The Hon. A. MICHAELS: We do know that landlords are not, obviously, caught by the Real Estate Institute code of conduct, so those who do not have recent members as their agents are fully entitled to and, from what we can tell, are undertaking rent bidding. We also know there are a number of real estate agents who are in the rental market who are not recent members, who are, again, also not caught by that code of conduct. To be able to impose a penalty under this I think sends a significant message that it is not okay.

Obviously, I expect recent members would be fully complying with it anyway, so it is probably not going to be a big change for that cohort of agents, but to have a financial penalty imposed on rent bidding I think will have a significant impact on, I guess, the culture of the market at the moment, which is, we are consistently hearing from constituents and people in the sector or the key stakeholders we had at that forum, that it is a practice that is happening. We have seen interstate, particularly in feedback I have had from Victoria, that their legislation has actually dampened that practice in Victoria, and we hope to see the same here.

Mr TEAGUE: I think it is at page 3284 of the Hansard on 8 March where the minister has referred to prescribed information that is the subject of what is to be the new section 47B. Is there any indication more specifically that the minister is able to provide to sort of spell out what is going to be included in that prohibited prescribed information?

The Hon. A. MICHAELS: We are looking at consulting in the regulations on matters that we think are a bridge too far in terms of privacy. As I said earlier in terms of credit card statements and bank statements, those are the sorts of things we think are inappropriate to be asking for, and we will be consulting on that. I think there was general consensus around that forum table with a range of stakeholders, including the Landlords' Association and REISA, that that is an acceptable change.

We also want to introduce some of the changes that are, I guess, Equal Opportunity Act prohibitions, such as age, marital status. Those sorts of issues that can cause discrimination we think should not appropriately be asked for in a residential tenancy application. That is the path we are going down, and obviously we will be consulting broadly on what that regulation looks like.

The ACTING CHAIR (Mr Brown): Any further questions?

Mr TEAGUE: Perhaps one more in the general sense. The minister has there referred to a greater level of consistency with other jurisdictions. Is there a particular model or a particular cause for consistency in terms of the other jurisdictions in terms of prescribed information that is prohibited there?

The Hon. A. MICHAELS: Victoria has a similar system of prescribed information that cannot be asked for, so that is where I am getting that information from and we will be following that model.

Clause passed.

Clause 2 passed.

Clause 3.

The Hon. A. MICHAELS: I move:

Amendment No 1 [ConsBusAffairs–1]—

Page 2, lines 11 and 12 [clause 3, heading to inserted section 47B]—Delete 'not to be requested to disclose prescribed information' and substitute:

—requirements relating to provision of information

Amendment No 2 [ConsBusAffairs–1]—

Page 3, lines 1 to 4 [clause 3, inserted section 47B(2)]—Delete subsection (2) and substitute:

(2) Subsection (1) does not apply to—

(a) an entity, or a class of entities, prescribed by the regulations; or

(b) a provider of a housing assistance program, or a class of housing assistance programs, prescribed by the regulations.

(3) The regulations may include requirements relating to the provision of information to or by a prospective tenant in connection with the prospective tenant applying to enter into a residential tenancy agreement (including requirements relating to the manner or form in which information is to be provided).

(4) A person who contravenes a requirement prescribed under subsection (3) is guilty of an offence.

Maximum penalty: $20,000.

Expiation fee: $1,200.

Mr TEAGUE: I suppose there is a general level of curiosity about the need for amendment No. 1. It seems to be an interesting change to the words in a heading. I would just go with the flow on that otherwise, I think, unless the minister might take the opportunity to put anything that might be helpful on the record about the change in amendment No. 1.

In relation to amendment No. 2, seeing as it is moved at the same time, I indicate that amendment No. 2 is relatively substantive and spells out both the entities that are proposed to be exempt from the application of the prohibition, and otherwise spelling out manner and form more fully than in the bill as introduced and introducing a standalone offence and penalty provision. So it is fleshing out the original subsection (2) and including those other aspects. I perhaps invite the minister to provide any explanation that might be helpful as to the reason for the proposed amendment, particularly in amendment No. 2.

The Hon. A. MICHAELS: Broadly, these amendments have come through feedback from SAHA, in particular dealing with tenants who are part of a housing assistance program, either community housing or public housing. Those in subsection (2) that we will not apply this prohibition to are essentially community housing providers and SAHA, because they do need to inquire in terms of the personal situation of some of these tenants that might otherwise be discriminatory. That is why that is there.

In terms of the change in the title of the clause and then subsection (3) that is being introduced, what we ideally would like for tenants is to be able to have consistency in the information they are providing to various agents. The time and the volume of the detail requested by individual agents and landlords (1) vary substantially and (2) are incredibly extensive from the feedback we have been given—as in multiple, multiple pages of information and, as I said before, things like bank statements and credit card statements. We want ideally to move to consistency in what landlords and agents can request, so that is why the amendment to subsection (3) has come in as well—and, of course, the offence provision to make sure that we have a little bit of stick in this as well.

Amendments carried; clause as amended passed.

Clause 4.

The Hon. A. MICHAELS: I move:

Amendment No 3 [ConsBusAffairs–1]—

Page 3, after line 23 [clause 4, inserted section 52A]—After subsection (3) insert:

(4) This section does not apply to—

(a) the South Australian Housing Trust or a subsidiary of the South Australian Housing Trust; or

(b) a registered community housing provider.

Again, this is feedback from the South Australian Housing Trust in respect of the way public housing is based on a percentage of income rather than a fixed amount for a property. The trust is feeding that through so that they can actually keep doing the business that they do in supporting tenants in public housing.

Mr TEAGUE: That is helpful. That provides some sort of context, I suppose. What we are otherwise seeing on the face of this is an amendment that would render inapplicable to the SA Housing Trust, or any subsidiary or a registered community housing provider, a clause that on its face is prohibiting the impugned conduct of facilitating rent bidding by requiring that a property is advertised at a fixed amount. As I understand it, there is only a need, as it is perceived by the government, to exempt the SA Housing Trust or a registered community housing provider from the effect of 52A, not 52B, and that is in circumstances where the very mechanism of the rental offer is necessarily by reference to the income of the prospective tenant.

My question is: how is it not anyway, in those circumstances, an offer at a fixed amount? It is just a matter of fixing it. I understand where they are coming from but, as I understand the minister's explanation, the intent is not to move away from the provision of a fixed amount in terms of rental; it is just that in those cases there is a different means of determining what that fixed amount might be.

The Hon. A. MICHAELS: That is right. When we drafted this and went out initially to consult, no-one really picked up that that was an issue, and I do not actually think that in practice it would be. It is just something that they requested. Given that they would not really be doing rent bidding—that is the nature of their work—we did not see any harm in accepting that suggestion.

Mr TEAGUE: In the circumstances (and this is probably a bookend rather than a further question because I think it is probably helpful to have in Hansard) of those members of the South Australian community who would be in receipt of rental housing and entering into a tenancy agreement after the introduction of these provisions, they would not somehow find themselves in circumstances where—and I do not really mean to address it in terms of whether they are worse off or not, but that they are in different circumstances—the fixed amount of rent that such a tenant would be required to pay would really need to be fixed other than by means of new section 52A, that is all, and it would still be determined according to that mechanism, rather than by this provision. I am just indicating that is helpful and I appreciate the minister's explanation.

The Hon. A. MICHAELS: I take that as a comment, unless you had any questions.

The Hon. D.G. PISONI: Picking up on the point you made that the amendment is required because the rent paid is based on income, how often is the income reviewed of tenants to see whether they still qualify for public housing? Is there a cut-off point of income that disqualifies somebody from public housing? If they reach that income point after they have been in public housing for months or years, what is the process dealing with that?

The ACTING CHAIR (Mr Brown): I am not necessarily sure how this applies to the bill, but anyhow I will give the minister a chance to respond.

The Hon. A. MICHAELS: I think that I will take that on notice and consult with the Minister for Human Services, who has the responsibility for SAHA, in terms of your questions relating to rental increases versus income. I will take that on notice.

Amendment carried; clause as amended passed.

Clause 5.

The Hon. A. MICHAELS: I move:

Amendment No 4 [ConsBusAffairs–1]—

Page 4, after line 21 [clause 5, inserted section 76A]—After subsection (2) insert:

(3) This Division does not apply to—

(a) the South Australian Housing Trust or a subsidiary of the South Australian Housing Trust; or

(b) a registered community housing provider; or

(c) an agency or instrumentality of the Commonwealth or the State prescribed by the regulations.

Mr TEAGUE: Here we have the new division 14A. Once again, the amendment would apply so as to render the division inapplicable to SA Housing Trust, a registered community housing provider, or an agency or instrumentality of the commonwealth or the state that may be prescribed by the regulations.

In this regard—and I suppose I might have jumped on my feet a bit too early after the success of the last process—we have a division that is going to require reasonable steps to be taken to protect tenant information and reasonable steps to destroy tenant information within a prescribed time following a tenancy. The question to start with is: how come those entities ought be exempted from those provisions?

The Hon. A. MICHAELS: Again, this is really to prevent any unintended consequences. Obviously, when people are put on a public housing waitlist it is often for substantially more than 30 days, unfortunately. We did not want to cause any issues for the South Australian Housing Trust or community service providers in terms of the information they keep on file for that purpose, and we know those wait times unfortunately keep blowing out. So we did not want the unintended consequences of having this provision apply to them where they were required to destroy information within 30 days.

Mr TEAGUE: As I read it, it goes considerably more broadly. In fact, it deals certainly with subsection (2)(b)(ii) and 30 days, but it also, as I read it, exempts those or renders inapplicable the requirement for those agencies to take reasonable steps to protect tenant information at all—section 76B(1)—and its obligations to destroy tenant information in relation to the end of the tenancy.

While one might understand that someone might be on a list for a long period of time and might not be limiting their application to one property and so on, and that they might benefit from that same protection of information in relation to destruction of information following a tenancy, are there parallel obligations that apply to those agencies?

The Hon. A. MICHAELS: As I understand it, those agencies, in particular the community housing providers, are of such size that the national Privacy Principles apply to them versus an individual landlord or small real estate agency, which would not necessarily have those national Privacy Principles apply to them. So they do have protection, and to make sure there are not inadvertent consequences of having this broad division apply to them we have carved them out, knowing that there is protection, in terms of privacy for the information, more broadly in particular national Privacy Principles.

For additional information, the State Records Act for SAHA and also the South Australian Information Privacy Principles, that the community housing providers are contractually required to abide by, also assist in making sure that tenant information is protected.

Mr TEAGUE: I think the minister has given the indication to the house that those agencies that are expressly the subject of what would be the new subsection (3), and any that might be subsequently prescribed by regulation pursuant to the power in subsection (3)(c), are, and/or would be, subject to the same or more stringent requirements than what are set out in this new division 14A, so far as they apply to those individuals and bodies who are the subject of division 14A.

The Hon. A. MICHAELS: That is my understanding, that there is that protection anyway, so carving them out from this does not give any less protection for tenants in terms of their privacy, which is what we are trying to achieve with this.

Mr TEAGUE: Would the minister give the indication—and the minister may have already—that, therefore, there will not be any agency or instrumentality prescribed by the regulations unless that agency or instrumentality is subject to obligations by whatever separate means no less stringent than what are the subject of division 14A?

The Hon. A. MICHAELS: There is certainly no intention to include anyone other than SAHA and community housing providers, so I can confirm that it is our intention to make sure it is only those. I cannot envisage a situation where there would be any others than those community housing providers and SAHA.

Amendment carried; clause as amended passed.

Schedule and title passed.

Bill reported with amendment.

Third Reading

The Hon. A. MICHAELS (Enfield—Minister for Small and Family Business, Minister for Consumer and Business Affairs, Minister for Arts) (16:49): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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