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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
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RESIDENTIAL TENANCIES (MISCELLANEOUS) AMENDMENT BILL

Committee Stage

In committee.

Clauses 1 to 3 passed.

Clause 4.

The Hon. D.G.E. HOOD: I move:

Page 6, lines 17 to 19 [clause 4(2), inserted definition of domestic facilityrequiring instructions]—Delete the definition

There are two amendments, essentially, but the first one I am talking to is really deleting the definition, and [Hood-2] is the substantive amendment of these two amendments. What it does is delete the fact that, under the government bill as it stands, a criminal offence is created by a landlord who does not provide a tenant with a manual, or does not take reasonable steps to provide a manual.

The legal advice I have—and I may be accused of being pedantic here—is that the word 'reasonable' creates a lot of questions. Is it reasonable that they contact the manufacturer, for example? Is it reasonable that they scour the internet? What exactly is reasonable? If they fail to do that, then they are subject to a very substantial penalty, being potentially up to $1,250. There is an expiation fee applicable of $210, but should someone refuse to pay that because they simply do not agree with it, and of course that is their right, they could be slugged up to $1,250.

What I think is more offensive, is that potentially if they were found guilty of the offence and fined whatever the amount, they would be subject to a criminal record. This is just a landlord who has failed to provide some manuals to an individual because they cannot access them for whatever reason. The landlord believes they have taken reasonable steps, and they could find themselves with a criminal record, so I object to that. Essentially my first two amendments, that is [Hood-1] 1 and [Hood-2] 2, will make changes to this bill so that would no longer be the case.

The Hon. G.E. GAGO: I rise to oppose this amendment. Clause 22, new subsection (2), of the bill introduces a requirement for landlords to take responsible steps to ensure that tenants are given, before or at the time the tenant moves into the property, manuals or written or oral instructions about the operation of any domestic facilities requiring instructions. Domestic facilities requiring instructions are defined as appliances or devices provided by the landlord for the use of a tenant for which it would be reasonable to expect the tenant would need instructions.

If the landlord does not provide the necessary instructions then it will be taken into account in any subsequent compensation claim against the tenant for damaging the item pursuant to clause 41 of the bill. The proposal is based on section 14(2) of the Residential Parks Act 2007, which provides that residential park owners are required to ensure that residents have been given manuals or written or oral instructions about the operation of any appliances and devices provided for the use of the resident.

Concern has been expressed about the fact that the clause includes a maximum penalty of $1,250 for failure to comply. This penalty is not considered excessive at all as it is at the lowest end of the revised penalty scheme within the bill. It is noted that the same penalty applies to proposed new section 48(1) of the act under clause 22, new subsection (1), of the bill which requires a landlord to provide their contact details to the tenant.

Penalties have been reviewed and increased across the entire act, which has not happened since the act came into operation over 15 years ago. As with all penalties, the penalty proposed under clause 22 of the bill is there to encourage compliance within the requirements under the act. Landlords who attempt to do the right thing and provide instructions for the use of those facilities will obviously have nothing to worry about and there is also the requirement to list facilities they have provided instructions for in the tenancy agreement, which will provide a level of protection for landlords should a dispute arise as to whether instructions were provided.

The proposal under clause 22, new subsection (2), is considered important to ensure that tenants can properly use all facilities on the premises left by the landlord for the tenant's use and enjoyment and protect the tenants from being liable to compensate a landlord for damaging an appliance as a result of not being advised about its proper operation and also protect landlords by reducing damage to property by ensuring tenants know how to properly operate appliances.

The Hon. D.G.E. HOOD: I wonder if the minister would outline then, if this amendment is not going to succeed, two things. First of all, why should it be a criminal offence for not providing a manual for an oven, for example, in a particular property or an air conditioner, or whatever it may be? My second question is, given the minister's explanation, what would she or the government consider reasonable steps that would satisfy this? I would like to get something on the Hansard so when this is reviewed by the courts in future, they have something at least to consider. I think it is extraordinary that we will make criminals out of landlords who cannot provide manuals to tenants.

The Hon. G.E. GAGO: I have been advised that the penalty described in this provision is a standard penalty that we find throughout the act, a maximum penalty of $1,250 for failure to comply. The magnitude of the penalty reflects the severity of the breach. I draw to the attention of the opposition that it is a maximum penalty of $1,250. I have also been advised that, if the clause is supported on the condition that the penalty clause is deleted, then the government will still support this on the basis that tenants still will be protected through clause 41, which is the compensation clause.

The Hon. J.A. DARLEY: I support the government's intention in relation to the supplying of instructions to tenants. However, I would never support any penalty. I understand the minister is prepared to amend her clause to that effect.

The Hon. D.G.E. HOOD: For clarity, I thank the minister for that response. We are certainly much more comfortable with that. Moving this amendment maybe will not have the ultimate outcome for which I was looking, but nonetheless we will not be making criminals out of landlords, which of course is the objectionable part of this. However, we have seen no amendment to that effect.

The Hon. S.G. WADE: I indicate that the opposition is inclined to support the government's position but is not unattracted to the argument the Hon. Dennis Hood is putting that, whilst it is an appropriate balance of landlord and tenants' rights that instructions be provided and that that be a factor in the consideration of damage, to achieve that balance and mutual interest we do not need heavy sticks like maximum penalties and expiation fees. I echo the comments of Mr Hood and, if the government is not proposing to delete the maximum penalty in the expiation fee, the opposition is inclined to do so.

The Hon. K.L. VINCENT: This may be in some sense a silly question, but better safe than sorry: what about pieces of equipment that are add-ons? For example, in my house I am not really able to reach the air conditioning panel due to the fact that I use a wheelchair, so my landlord has provided me with a remote control for that air conditioner, which actually comes from a different model but works on my air conditioner. Would the landlord be in breach of the act by not providing a manual for that remote control, because it technically comes from a different piece of equipment?

The Hon. G.E. GAGO: I am advised that it would depend on what a person could reasonably expect. So, if it is reasonable to expect that you would need a manual to be able to operate the remote control—and I for one definitely need a manual to operate a remote control because I guarantee that every one I have in my household is different, and it sends me crazy—a manual should be provided.

The Hon. D.G.E. HOOD: Can I just clarify the government's position, and forgive me if I did not hear you, minister. Is it the government's position that you will move an amendment to clause 22 to delete the financial penalties and the potential for criminal conviction?

The Hon. G.E. GAGO: I am advised that the government would be happy to move an amendment, but that needs to occur at clause 22, I am advised.

The Hon. D.G.E. HOOD: In that case, I am happy to withdraw that amendment, having had that commitment from the minister.

The CHAIR: The Hon. Mr Hood, you have moved it; you are seeking leave to withdraw it, are you?

The Hon. D.G.E. HOOD: That is right, sir.

Leave granted; amendment withdrawn.

The Hon. S.G. WADE: I was hoping to clarify the advice the minister gave to a previous member in relation to reasonable steps and oral instructions. As I understood the minister's advice, there is a hierarchy of obligations, if you like. In other words, the landlord needs to take reasonable steps to provide a manual and, if it is not reasonable to provide a manual, then take reasonable steps to provide written instructions and, if that is not reasonable, take reasonable steps to provide oral instructions. That is not how I understand the common usage of the word 'or'.

I would have thought that the plain meaning of proposed section 48(2) is that a landlord, even at the first juncture, could choose between a manufacturer's manual, written instructions or oral instructions. Could you just clarify that I have understood her advice?

The Hon. G.E. GAGO: I think that subsection (2) is quite straightforward and very easy to understand. It says:

A landlord must take reasonable steps to ensure that a tenant is given, before or at the time the tenant commences occupation of the premises under the residential tenancy agreement, manufacturers' manuals, or written or oral instructions, about the operation of any domestic facilities requiring instructions.

So, it is 'or' on both occasions.

The CHAIR: The Hon. Mr Hood sought leave to withdraw his amendment and that amendment was to clause 4. We have fast-forwarded to clause 22. I am quite happy to put the first 21 clauses, but can we stick to clause 4. Minister, you have an amendment?

The Hon. G.E. GAGO: I move:

Page 7, lines 15 and 16 [clause 4(8), inserted definition of statutory charges, (b)]—Delete:

'the Waterworks Act 1932 or the Sewerage Act 1929' and substitute 'the Water Industry Act 2012'

This is a minor consequential amendment to update the definition of statutory charges under clause 4(8)(b) of the bill to include a reference to the Water Industry Act 2012, which repealed the Waterworks Act 1932 and the Sewerage Act 1929 on 1 January 2013.

Amendment carried; clause as amended passed.

Clause 5 passed.

New clause 5A.

The Hon. M. PARNELL: I move:

Page 8, after line 9—After clause 5 insert:

5A—Amendment of section 12—Membership of Tribunal

(1) Section 12(2)—delete subsection (2) and substitute:

(2) Subject to this section, an appointment as a member of the Tribunal following the commencement of this subsection will continue until the person attains the age of 65 years or retires before attaining that age.

(2a) A member of the Tribunal may be appointed on an acting basis and, in that case, the term of appointment will be for a term of not more than 6 months.

(2) Section 12—after subsection (3) insert:

(3a) Before a person is appointed (or reappointed) as a member of the Tribunal, the Minister must consult confidentially about the proposed appointment with a panel consisting of—

(a) a nominee of the Law Society of South Australia who has expertise in tenancy law; and

(b) a nominee of the Attorney-General; and

(c) a nominee of the House of Assembly appointed by resolution of that House; and

(d) a nominee of the Legislative Council appointed by resolution of the Council; and

(e) the Commissioner for Public Sector Employment,

(and for the purposes of the consultation must inform the members of the panel of all persons short-listed for appointment).

(3) Section 12(6)(b)—delete paragraph (b) and substitute:

(b) comes to the end of his or her term of office under this Act (including by retirement) and, in the case of an appointment on an acting basis, is not reappointed; or

This clause is to do with the membership of the Residential Tenancies Tribunal. There are basically two evils that I am seeking to overcome in this clause. The first is the ability of the government to appoint their mates, for want of a better word, to the tribunal, to make sure that there is some integrity over the appointment process, so that people appointed are in fact suitable and qualified for the position. The second evil is to be overcome by providing for some security of tenure which is consistent with the quasi-judicial or even judicial functions that are inherent in the jurisdiction of the tribunal.

What you have to remember, Mr Chairman, is that this is a tribunal where their jurisdiction is to be increased to $40,000 and where they also have, as I understand it, the ability to deal with contempt of the tribunal and with a range of other judicial or quasi-judicial matters. My understanding is that the most recent tenures provided to members of the Residential Tenancies Tribunal have been six months.

Imagine how we would regard the appointment of magistrates or judges if they were basically appointed for six months. I understand the practice of government is for longer terms than that, but my understanding of practice over many years is that, whether it is a fault in the Attorney-General's office or somewhere else, they never quite get around to appointing people in time and what often happens is that people actually do not know whether they are going to be reappointed up until the day that their tenure expires—and it has been thus for years and years and years.

What I think we need to do is take more seriously these appointments to what is effectively, as I say, a judicial or even quasi-judicial body. The approach that the government has taken over many years—and it suits the government—is to treat these tribunal members as if they were members of some minor advisory committee of government, the blowfly advisory board or something like that. They are paid sessional rates for the hours that they turn up and hear disputes. They are not entitled to any other Public Service benefits. They certainly do not have holidays or sick leave or anything like that. They are treated as if they were members of an advisory committee to government rather than people exercising jurisdiction up to $40,000 in value.

The model that I have chosen in this amendment (and I am grateful as always to parliamentary counsel for providing the precedent) is to use the same model as in the Fair Work Act 1994 relating to commissioners of the Industrial Relations Commission. Effectively, I have translated those requirements into the Residential Tenancies Act. The main two parts of the amendment are first of all to provide for tenure of appointment and secondly to make sure that any appointment or reappointment goes through a panel consisting of a nominee of the Law Society, a nominee of the Attorney-General, a nominee of the House of Assembly, a nominee of the Legislative Council, and the Commissioner for Public Sector Employment.

As members would be well aware, because it formed the basis of some debate in this place some time ago, that certainly was not the process followed with the most recent appointment of the presiding member. So what this amendment seeks to do is to add to this tribunal the gravitas it deserves.

The Hon. G.E. GAGO: The government opposes this amendment. Pursuant to section 12 of the act, members of the Residential Tenancies Tribunal are appointed by the Governor for a term not exceeding five years. This amendment seeks to change the term of member appointments so that they continue until the person reaches 65 years of age or they retire before then. It also provides for temporary six-month appointments for acting members, and introduces a requirement that before a member is appointed the minister must consult on the proposed appointment with a panel consisting of a nominee of the Law Society of South Australia, the Attorney-General, the House of Assembly, the Legislative Council and the Commissioner for Public Sector Employment.

As I said, the government opposes this amendment. The proposed tenure is not considered appropriate. It is necessary to be able to retain flexibility around operational requirements for the tribunal as its resource needs fluctuate. Additionally, the proposed consultation process is not considered appropriate, as members of the tribunal other than the presiding and deputy members are not required to be legally qualified, nor are they considered to be employees of the government. It is on those grounds that the government opposes this amendment.

The Hon. S.G. WADE: I move:

Proposed subclauses (1) and (3) to the proposed new clause 5A in the Hon. Mr Parnell's amendment be deleted.

The opposition is in part agreement with the government. At present a member of the Residential Tenancies Tribunal may be appointed for a term of up to five years by the Governor through Executive Council. A person may be reappointed after completion of their term, but has no guaranteed tenure whatsoever.

The amendment proposed by the Hon. Mark Parnell would treat the tribunal more like a court, with appointments being made in a similar way to magistrates. We appreciate that this is a value judgement in relation to each court and tribunal but, in our view, this tribunal should not be accorded that status.

However, we are attracted to the proposed subclause (2), particularly in the experience of this government in its lack of transparency and a lack of merit in the appointment process, so we believe that would be an enhancement. If the government wants to tweak the list it may choose to do so in this committee consideration or subsequently, perhaps even by recommittal; however, on behalf of the opposition I indicate that we support subclause (2).

The Hon. M. PARNELL: Having heard the view of government and the view of the opposition, whilst I still believe that there is merit in the three parts of my amendment, I will not object to the deletion of subclauses (1) and (3). Once they are gone, then we can vote on the rest.

Amendment carried.

The committee divided on the new clause as amended:

AYES (11)
Bressington, A. Dawkins, J.S.L. Franks, T.A.
Lee, J.S. Lensink, J.M.A. Lucas, R.I.
Parnell, M. (teller) Ridgway, D.W. Stephens, T.J.
Vincent, K.L. Wade, S.G.
NOES (10)
Brokenshire, R.L. Darley, J.A. Finnigan, B.V.
Gago, G.E. (teller) Hood, D.G.E. Hunter, I.K.
Kandelaars, G.A. Maher, K.J. Wortley, R.P.
Zollo, C.

Majority of 1 for the ayes.

New clause as amended thus inserted.

Clauses 6 to 14 passed.

Clause 15.

The Hon. M. PARNELL: I move:

Page 9, lines 36 and 37 [clause 15(1)]—Delete subclause (1)

This amendment comes from the submission to the review of the Residential Tenancies Act by the Community Housing Council of South Australia Incorporated. It is probably fair to say that I was a little surprised that this organisation asked for this amendment because it is effectively a landlord body and the benefit of the amendment could probably be said to lie more with tenants—at least that was my first reaction when I saw it.

The issue is how long a party to a tribunal order has to lodge a notification of intention to seek to vary or set aside an order. In other words, it is sort of the second bite of the cherry amendment. So, if an order is made, the question is: how long before the door closes on parties being able to go back to the tribunal to seek to vary or set aside that order? The current arrangement is three months. So, parties have three months to go back to the tribunal. The government's bill proposes that that be reduced to seven days.

I will read the very brief paragraph provided by the Community Housing Council of South Australia. I think that all members would have this but, for the benefit for Hansard, I want to put it on the record. It states:

The experience of CHOs is that the current time limit of 3 months offers flexibility which means they are able to negotiate constructively with tenants; it is important to note that CHOs house vulnerable tenants. As an example it might be that the order is to make certain repayments and a tenant maybe going well for 6 weeks and then there are issues. CHOs in the current 3 month timeframe have the opportunity to work with tenants and get them back on track within the 3 months. CHOs are concerned that a 7 day time limit will remove this flexibility which is an effective tool and used frequently to maintain tenancies.

In other words, according to the Community Housing Council of South Australia, it believes that the status quo better serves its vulnerable tenants.

In light of that submission, it seems to me that the status quo is probably worth retaining. That is at the heart of this amendment; it keeps the three-month time period within which applications to vary or set aside tribunal orders may be made.

The Hon. G.E. GAGO: The government advises that it opposes this amendment. The purpose of clause 15 of the bill is to improve the efficiency of the tribunal by requiring parties seeking to vary or to set aside an order to do so in a timely manner. Whilst circumstances change, it is not considered necessary for parties to be given three months within which to apply to the tribunal for such an order. Please note that the ability of the tribunal to grant an extension of time to applicants will be retained for the benefit of the few situations where a longer time period is genuinely needed.

The Hon. S.G. WADE: The opposition is supportive of the government position.

Amendment negatived; clause passed.

Clauses 16 to18 passed.

Clause 19.

The Hon. M. PARNELL: I move:

Page 10, after line 25—Insert:

(1) Section 46(1)—after 'fees' insert:

payable by landlords (other than the South Australian Housing Trust or a registered community housing organisation)

This amendment seeks to redress one of the longstanding elements of unfairness in relation to the Residential Tenancies Tribunal system; that is, that the Residential Tenancies Tribunal is overwhelmingly funded by interest on tenants' bond money, yet the tribunal is used overwhelmingly by landlords to evict tenants.

Putting that issue to one side, some recent amendments a few years ago allowed for application fees to be levied for applications to the tribunal; in other words, compounding the existing injustice. It is not enough that the tenants are already paying for a service that is overwhelmingly used to evict them but if they have a claim, a case they want to bring, they have to pay an application fee of $37.25.

This amendment is fairly simple. It basically recognises that the tenants have already paid for the use of this service and they should not have to pay a second time. There are, as I understand it, already exemptions that can be granted in relation to not having to pay that fee but this amendment would make it so that tenants would not be paying the fee as a matter of course.

The other exceptions are the Housing Trust and registered community housing organisations. They should not be obliged to pay the fee either. That is the effect of this amendment; that is, tenants will not need to pay the $37.25 to bring applications to the tribunal.

The Hon. A. BRESSINGTON: I will not be supporting this amendment. I think the choice of the Hon. Mark Parnell's words is interesting: that the tribunal is used to evict people. I know a number of people who own rental properties with good tenants, and the last thing they want to be doing is evicting good tenants.

When you go to the tribunal to evict a tenant there are probably a number of reasons why and No. 1 is that they have probably fallen way behind in their rent and you seek some sort of mediatory body to be able to come to an agreement as to either being able to catch up with rent or whatever it may be. There may also have been property damage and you want to evict the tenant because they have wrecked your property. Sometimes it is that the property needs to be sold because renting properties these days is not a profitable exercise at all.

To say that, if you have had damage done to your property or that your tenant is behind in the rent and you want to take this to the tribunal, you are then responsible for the application fee as well is pretty much a bit of slap in the face. I would like to just stress that good tenants rarely get evicted.

The Hon. S.G. WADE: Like the Hon. Ann Bressington we are attracted to joining the government in opposing the amendment. We note that under section 46(2) the fee may be reduced or remitted by the registrar if the person is suffering financial hardship or for any other proper person, and we note the scope of that discretion is wide. As such, we do not share the honourable member's view that additional exemptions should be enshrined.

The Hon. G.E. GAGO: The government opposes this amendment. As the Hon. Mark Parnell correctly notes, the tribunal is funded by the income derived from the investment of bond moneys lodged with Consumer and Business Services. However, it is not considered appropriate for tenants to be granted free access to the tribunal for this reason.

One of the main reasons for the introduction of the application fee was to reduce the number of applications made unnecessarily to the tribunal. The imposition of a fee encourages parties to attempt to resolve disputes between themselves before applying to the tribunal as a last resort. Some of you may not be aware that the collection of the fee facilitates a provision of educational initiatives, such as the financial counselling and advocacy support provided to tenants through the Tenants Information and Advocacy Service.

TIAS is a service provided by Anglicare, which receives an annual grant through the collection fee from Consumer and Business Services. Additionally, it is important to note that the application fee does not apply to concession card holders, full-time students and those who can demonstrate they are suffering financial hardship. Where they might be significantly disadvantaged by this fee, there are provisions made for any of those individuals.

Amendment negatived; clause passed.

Clauses 20 and 21 passed.

Clause 22.

The Hon. D.G.E. HOOD: I think the minister had some comments to make on this clause before I move this amendment if I need to.

The Hon. G.E. GAGO: I move:

Page 11, lines 36 to 37—Leave out all words in these lines

The Hon. D.G.E. HOOD: Can I just clarify this with the minister. Is the impact of that that a landlord, because they would not be subject either to an expiation fee or a fine, also would not be subject to any criminal record?

The Hon. G.E. GAGO: I have been advised that, yes, your understanding is correct; however, as I pointed out earlier on, they are still likely to be subject to compensation.

The Hon. D.G.E. HOOD: Family First supports the amendment, and I withdraw my amendment [Hood-1] 2.

Amendment carried; clause as amended passed.

Clause 23.

The Hon. S.G. WADE: I move:

Page 12, lines 26 and 27 [clause 23, inserted section 49(1)]—

Delete 'form approved by the Commissioner' and substitute 'prescribed form'

The government bill is proposing to create a standard form to use for residential tenancy agreements. Previously, the written agreement did not have to be in a consistent format, provided it was a valid agreement that complied with the act.

In the absence of a standard form the industry created a series of forms, I understand many of which followed a standard formula per se. This has proved helpful for landlords to ensure the requirements of the agreement were met, and so the opposition agrees with the government's proposal to create a standard form. It will make compliance with the act more straightforward and give both landlords and tenants some peace of mind.

However, this is a very important part of any agreement and, in our view, should not just be left to the commissioner alone to decide without a prospect of review. The industry and tenants should be given more assurance than simply, 'Just trust us, it will be fine.' The government has not given any public commitment to consulting with industry or tenant groups, and having the agreement in the regulations would force the government to do so and ensure that such an important form gets the consideration it deserves.

The opposition is not suggesting that the government or the commissioner have any sinister motives in drafting the forms, just that since it will have such a central role in agreements it should be created through a collaborative process. Placing it in regulations will also allow the parliament to be that final check and balance should the agreement not reflect the values of the community and the needs of the sector. This is a balance and a check that we hope the parliament does not have to use, but given this government's track record on consultation, or lack thereof, we are of the view that this is necessary.

The Hon. J.A. DARLEY: Whilst I agree in principle with what the Hon. Stephen Wade is trying to achieve, I also believe that allowing a greater level of flexibility with respect to written residential tenancy agreements is preferable. I understand the minister is willing to give an undertaking that, in developing a format that would be acceptable to the commissioner and in making any subsequent changes down the track, the government would consult with peak bodies, such as the Real Estate Industry Association. If that is the case, I am willing to support the clause in its current form. I understand that the real estate industry accepts this. Will the minister please confirm?

The Hon. G.E. GAGO: The government rises to oppose this amendment. It had been considered to prescribe the standard form agreement by regulation. However, the feedback received from respondents during consultation highlighted the need for the form to be easily amended, if necessary. Therefore, rather than prescribing the form by regulation, which will provide for a slower amendment process as it is subject to cabinet and parliamentary processes, it was decided to introduce a form approved by the commissioner so as to provide for greater flexibility and administrative efficiency. As the Hon. John Darley has indicated, the government will give an undertaking to consult with the industry on the development of the form.

The Hon. S.G. WADE: I find it extraordinary. Of course I welcome the government's commitment to consultation, but do we really think that having regulations precludes consultation? Having regulations actually insists on consultation. That is why we have regulatory disallowance processes, so that governments cannot, without fiat, ride roughshod over communities' views. This is why the parliament constantly talks about disallowable instruments. To think that somehow my amendment is getting in the way of the consultation process is beyond belief.

In terms of the argument the minister uses with regard to flexibility, is the minister serious? The cabinet operates on a 10-day rule. Is the government saying that it believes that it needs to put in standard form agreements with more regularity than every 10 days? This is bizarre! I find it gobsmacking that the government would try to put up these sorts of arguments.

We found through our consultation that stakeholder after stakeholder after stakeholder said that this standard form was very important—that it was far too important to leave it in the single fiat of a single bureaucrat. I urge members to join us in parliament giving some assurance to the community that consultation will not merely be promised by this government but shall be delivered.

The Hon. G.E. GAGO: I am somewhat bemused. The Hon. Stephen Wade needs to listen to the contributions made in this place. There was nowhere in my debate on this amendment that I challenged that regulations would somehow impede consultation—that was not said or inferred at all. I said that the problem in putting it into regulation is that it slows down the process. That was the argument. It is an unnecessary additional process. We have consulted broadly; the industry supports what we are doing. It agreed to a standard form and doing it this way provides much greater flexibility and administrative efficiency.

The Hon. S.G. WADE: If the government is serious in suggesting that a regulatory process would slow down the process, is the government suggesting that the commissioner would not be required to take the standard form to cabinet?

The Hon. G.E. GAGO: I am advised, technically not.

The Hon. S.G. WADE: I would make the point to the committee that is even more extraordinary. If, at least, the cabinet was going to say, 'We will have a look over it,' but the commissioner can write it on Monday night and issue it on Tuesday morning. I think that the industry deserves more respect than that.

The Hon. M. PARNELL: I want to try to get some perspective back into this. The most important thing we are going to achieve in this is that there will be a standard form of tenancy agreement. That is the first thing. Just by way of an aside, I only ever appeared once before the Residential Tenancies Tribunal in Victoria and that was a situation where some DIY person had taken an old shop lease and crossed out the word 'shop' and written in the address of the residential premises and it was an inappropriate document, but it did strike me 25 years ago that a standard form agreement would make sense.

When you go online and you look for the standard form agreements now, you can see they have not been updated for a long time. They still have that free water allowance. Remember the free water allowance we used to get? It says that the tenant only starts paying after the free water has been exhausted and we have not had that situation for years. The question before us is: if we are going to have a standard form agreement, is it enough that the commissioner approves it or should it be in the regulations?

The Greens' position has been fairly consistent over the years that, if we think something is important enough to warrant a bit of scrutiny, then having a disallowable process makes sense. There is only one nagging doubt I have–and the Hon. Stephen Wade might take this question and answer it. It strikes me that if we do go down the path of your amendment where it is a disallowable instrument if it was, in fact, disallowed, then I am just wondering whether that would create a vacuum and whether there would be, in effect, no standard form agreement that could be used.

As it is worded, it basically says that a landlord or tenant must not prepare or authorise the preparation of a written residential tenancy agreement in a form that is not the form and it is either approved by the commissioner on the regulations. I am worried how might we deal with a vacuum in regulations?

The Hon. S.G. WADE: My understanding is that the regulation introducing a new form (first clause) would be to delete the old form, and so if you disallowed the regulation you would be disallowing the bit that says delete the old form. The old form would exist until it is replaced. I do not believe it would be beyond the width of parliamentary counsel to draft such a form. If it is necessary to make provisions in the act for preservation, then that might need to be a recommittal issue if the house is inclined to this approach.

The Hon. A. BRESSINGTON: I would like to ask the minister a question. We are going to have a standard form, a tenancy agreement, and this is for real estate agents and their tenants, or the people who they are renting the houses to on behalf of owners. I am just wondering if this is going to also apply to landlords who are renting one home to a tenant and, if that is the case, are they actually able to amend that tenancy agreement to suit the individual circumstances? For example, my neighbour rents a house to somebody else but she actually covers the excess water bill so that the garden is kept in reasonable condition.

Would those sorts of amendments be able to occur just between the landlord and the tenant or would they need to go in front of the commissioner to be able to get approval for an amendment?

The Hon. G.E. GAGO: I am advised that yes, there will be one standard form agreement for all written tenancy agreements, but it will be possible to include variations within that where both parties are in mutual agreement.

The Hon. A. BRESSINGTON: So, you do not have to go to the commissioner to get approval for that?

The Hon. G.E. GAGO: I have been advised that the standard form should provide the flexibility to enable that to occur.

The Hon. M. PARNELL: Further to the issue I raised with the Hon. Stephen Wade, I think the only consequence of having a vacuum—and I am thinking more in terms of the initial regulations; if they were disallowed there would be nothing to fall back on—would be a potential criminal matter, but it is impossible to conceive where if there was in fact no standard approved form that anyone would be prosecuted for failing to use it when it did not exist.

I do not like answering my own questions in these things, but I note that subsection (4) provides:

A failure to comply with this section does not make the residential tenancy agreement illegal, invalid or unenforceable.

So, in fact even if there was some difficulty or hiatus in terms of a standard approved form, it does not invalidate whatever form was used.

In light of that, the Greens will be supporting the Hon. Stephen Wade's amendment. If there is some need for parliamentary counsel to tweak it or to look at it again between the houses, we can do that. We think that this is a fundamentally important document and we like the idea of it being in regulations, rather than simply at the whim of the commissioner.

The Hon. D.G.E. HOOD: Family First supports the amendment.

The committee divided on the amendment:

AYES (13)
Bressington, A. Brokenshire, R.L. Dawkins, J.S.L.
Franks, T.A. Hood, D.G.E. Lee, J.S.
Lensink, J.M.A. Lucas, R.I. Parnell, M.
Ridgway, D.W. Stephens, T.J. Vincent, K.L.
Wade, S.G. (teller)
NOES (8)
Darley, J.A. Finnigan, B.V. Gago, G.E. (teller)
Hunter, I.K. Kandelaars, G.A. Maher, K.J.
Wortley, R.P. Zollo, C.

Majority of 5 for the ayes.

Amendment thus carried.

The Hon. S.G. WADE: I move:

Page 12, lines 29 and 30 [clause 23, inserted section 49(2)]—

Delete 'form approved by the Commissioner' and substitute 'prescribed form'

I suggest to the committee that this amendment is consequential to my first amendment to clause 23.

Amendment carried; clause as amended passed.

Clauses 24 and 25 passed.

Clause 26.

The Hon. S.G. WADE: I move:

Page 13, after line 19—After subclause (2) insert:

(3) Section 52(3)—delete subsection (3)

This amendment seeks to remove subsection 52(3) from the act, which at present discriminates against families with children. The provision in the act provides that where an agent or a landlord lives on the premises or adjacent to the premises, they may refuse to grant a tenancy if the tenant has children. At a time when we hear federal Labor talk about its supposed support for working families it is peculiar, at least, that at the state level this provision remains.

The issue was first raised with the Liberal opposition by Shelter SA, which is seeking the amendment I am moving today. We have consulted with other industry stakeholders, and the amendment received broad support. If we are truly a state that values families and gives support to young families, we believe that removing barriers to stable, safe housing is an important way of demonstrating that support.

The Hon. G.E. GAGO: I understand that the Hon. Mark Parnell will move an amendment to this, so the government will support this with amendment. Discrimination against tenants with children was not intended as a priority area for the review of the act, particularly as it is regulated by extensive commonwealth legislation.

The government believes that the ability of a landlord or agent to discriminate against a tenant with a child in relation to premises in which they live is fair and reasonable and should be maintained. However, discrimination against tenants with children in relation to premises adjacent to the premises in which the landlord or agent lives is considered unfair by the government and, as such, the amendment, insofar as it relates to that issue, is supported.

The Hon. M. PARNELL: I move:

Page 13, after line 19—After subclause (2) insert:

(3) Section 52(3)—delete 'or in premises adjacent to those premises'

I have an amendment to the same clause. For the benefit of honourable members, the difference between the Hon. Stephen Wade's amendment and mine is that the Hon. Stephen Wade's amendment basically outlaws discrimination against children in all cases, whereas my amendment does retain one circumstance where you can discriminate against children, and that is if you are leasing part of your own property.

In other words, if you are leasing your back rooms then, I think for the reasons the minister said, most people probably accept that it is reasonable to say, 'I'm renting a part of my own house. I should be able to say whether or not I want children in my own house.' But the act as it currently stands goes too far because it also talks about premises that are adjacent. In other words, it is allowing landlords to be social engineers and determine that neighbouring properties are not allowed to have children either, and I think that is a bridge too far.

So, the amendment that I am moving basically creates a special case for when you are renting part of your own property but it draws the line there. There is no ability for a landlord to try to keep children out of the next-door property, which they presumably also own, and it does not bear much scrutiny when you think about it because they have no control over the people on the other side where they do not even own the property and a family with 15 children could move in. I see it as a way of putting a bit of a brake on social engineering but making a special case for someone who is renting out part of their own home.

The Hon. D.G.E. HOOD: Family First is attracted to both amendments, but I think the Hon. Mr Parnell has made a sound point. Within the very strict confines of someone's own premises, they should have that ability to discriminate, if you like. It might be particularly an old person, or whatever it might be, so we will support the Hon. Mr Parnell's amendment.

The Hon. J.A. DARLEY: I will also be supporting the Hon. Mark Parnell's amendment.

The committee divided on the Hon. Mr Wade's amendment:

AYES (7)
Dawkins, J.S.L. Lee, J.S. Lensink, J.M.A.
Lucas, R.I. Ridgway, D.W. Stephens, T.J.
Wade, S.G. (teller)
NOES (12)
Brokenshire, R.L. Darley, J.A. Finnigan, B.V.
Franks, T.A. Gago, G.E. (teller) Hood, D.G.E.
Hunter, I.K. Kandelaars, G.A. Maher, K.J.
Parnell, M. Wortley, R.P. Zollo, C.

Majority of 5 for the noes.

Amendment thus negatived.

The Hon. Mr Parnell's amendment carried; clause as amended passed.

Clauses 27 and 28 passed.

Clause 29.

The Hon. G.E. GAGO: I move:

Page 14, after line 10—After subclause (3) insert:

(3a) Section 55—after subsection (2) insert:

(2a) Despite subsections (1) and (2), the rent payable under a residential tenancy agreement may be increased at any time by mutual agreement between the landlord and the tenant.

Currently, section 55(1) of the act enables a landlord to increase the rent every six months. Since most fixed-term tenancies are for a term of at least one year, many tenants find themselves locked into a tenancy agreement they can no longer afford as a result of a mid-term rent increase. Clause 29 of the bill amends the act so that the rent increases may be only every 12 months. In light of that amendment, it was submitted that consideration be given to enabling rent increases at any time during a tenancy by mutual consent between the parties—for example, to cover the cost of an improvement to the premises or a request by the tenant, such as installing an air conditioner.

Currently 55(1) of the act would prevent a landlord and a tenant from agreeing that a rent increase is fair and reasonable in exchange for the installation of air conditioning, as requested by the tenant. Therefore, this amendment is recommended in the interests of enabling flexibility between parties to tenancy agreements where there is agreement.

The Hon. S.G. WADE: The opposition supports the government amendment.

The Hon. M. PARNELL: What is there to prevent a landlord asking daily for rent increases until they get the tenant's agreement?

The Hon. G.E. GAGO: The honourable member is about to steal my thunder because my next amendment is about placing undue pressure on tenants to agree to rent increases. I would imagine that asking a person daily would potentially constitute undue pressure.

Amendment carried; clause as amended passed.

Clause 30.

The Hon. G.E. GAGO: I move:

Page 14, after line 21 [clause 30(1)]—After inserted paragraph (fa) insert:

(fb) if the rent was purportedly increased under section 55(2a)—whether the tenant was put under undue pressure to agree to the increase; and

This amendment is consequential, if you like, on the previous amendment in relation to rent increases by mutual agreement during tenancies. It is a protection that has been included for the benefit of tenants and it aims to protect tenants, particularly the vulnerable and disadvantaged, from landlords who may use the proposal under clause 29 of the bill to place undue pressure on tenants to agree to a rent increase.

The amendment is an addition to the matters to be taken into consideration by the tribunal when determining if rent is excessive under section 56 of the act. This will enable the tribunal to reduce the rent payable under the agreement if it is found that the tenant was put under undue pressure to agree to a rent increase purported to be mutually agreed pursuant to the new section 55(2a) under clause 29 of the bill.

Amendment carried; clause as amended passed.

Clauses 31 to 34 passed.

Clause 35.

The Hon. M. PARNELL: I move:

Page 16, lines 20 to 30 [clause 35(4) to (8) (inclusive)]— Delete subclauses (4) to (8) and substitute:

(4) Section 61(2)—delete subsection (2)

This is an amendment which, when I first drafted it, I did so on the basis that it was an unfair provision, but since drafting it and considering it in the light of other government amendments it has a more sinister application now that I will speak to briefly.

In a nutshell, the section that I am amending is about the ability of a landlord every two years to go to the tenant and say, 'Your bond no longer represents the appropriate amount of bond'—either the four-week or six-week bond. The reason it no longer represents four or six weeks' rent is that the rent has gone up but the bond has not. There is no interest payable on the bond, so the bond devalues over time, so there is a provision which says that the landlord is allowed to get the bond topped up. I think that is unfair. I think the bond is the bond and whatever you paid, if you are still there and you are still a good tenant and you are still paying your rent, then that is the bond that should see you through the remainder of the tenancy agreement.

That was my starting position but when I said that there was another consequence—and I will get the minister's view on this because I need to know whether I am wrong—it is that unless this chamber agrees to this amendment the pet bond is retrospective. The pet bond means that anyone who currently has a cat or dog with the permission of their landlord will be required to stump up an extra 400 bucks when the landlord seeks a bond review.

The reason for that is that the wording of the section is that there is a maximum amount of bond and that maximum amount is about to increase as a result of the pet bond. My understanding of it—and again I will take advice if the minister thinks that I have this wrong—is that if the maximum bond goes from four weeks to five weeks or from six weeks to seven weeks, on the occasion of bond review when the landlord goes to the tenant and says, 'Your bond no longer represents the maximum that I am allowed to take from you, I want you to top it up,' they can then retrospectively get the pet bond.

I think that is a problem, and I think it is a problem for a number of reasons. First of all, I do not think it is fair; and, secondly, I would be interested in the response of animal groups like the RSPCA. If you have someone who, out of the blue, is required to find an extra $400 or $500 in order to be able to keep their pet, then I think that would be a terrible outcome. What we do not want to see are people abandoning their pets.

If I have got this wrong then I would love to hear the minister's explanation, but it seems to me that a combination of the pet bond being legally applied by way of setting the maximum amount of bond and given that this section talks about landlords being able to top the bond up to the maximum amount which now includes the pet bond, I think makes the pet bond retrospective. I might get a response from the minister to that proposition before we proceed with this because it may sway some members as to how they view this amendment.

The Hon. G.E. GAGO: The government rises to oppose this amendment. The amendment seeks to repeal the provision that landlords will no longer be able to top up a bond during a long-term tenancy. The government, as I said, opposes this. Currently the landlord is able to request a four-week bond if weekly rent is $250 or less and a six-week bond if weekly rent is higher. Since the $250 bond limit was set, weekly rentals have increased considerably, costs have also increased and many landlords find the bond does not cover their losses at the end of the tenancy.

Consideration was given to increasing the bond limit, but housing affordability is a significant problem, and increasing the limit would place extra stress on low income tenants, so the proposal was not pursued. Therefore, it is important to enable landlords to retain the option of increasing the bond for long-term tenancies so that it may be sufficient to cover the cost of any cleaning, rent and repairs owing at the end of the tenancy.

The Hon. K.L. VINCENT: I hope very much that this is a silly question, but just to get it on the record so we are absolutely clear: I assume that the pet bond would in no way apply to assistance animals, such as guide dogs, hearing dogs and so on? Could a landlord charge the pet bond for an assistance animal, such as a guide dog?

The Hon. G.E. GAGO: I have been advised that it could apply to all animals, including guide dogs.

The Hon. K.L. VINCENT: Is the minister aware that that would be in breach of the Disability Discrimination Act? I have never seen such a clear breach.

The Hon. G.E. GAGO: I will have to take that question on notice. There is confusion. I will take it on notice and bring back a response.

The Hon. K.L. VINCENT: What is the confusion exactly?

The Hon. G.E. GAGO: In supplying an answer at this particular time—I do not have the advice available.

The Hon. K.L. VINCENT: It is a very clear-cut breach of the Disability Discrimination Act.

The Hon. G.E. GAGO: You may be right.

The Hon. K.L. VINCENT: I am, I assure you. If and when it does become clear that this is a very evident breach of the Disability Discrimination Act, will the minister undertake to amend the bill so that this breach does not occur?

The Hon. G.E. GAGO: The advice I have received is that they are unsure now whether or not it applies to guide dogs, so that is why I am seeking further advice about the matter.

The Hon. K.L. VINCENT: But, if it did apply, will the minister undertake to amend it so that it will not? Surely, you would not want that.

The Hon. G.E. GAGO: Obviously, we will not breach that or any other legislation. The government would not put forward anything that is in breach. If you have drawn to our attention an area that is potentially in breach, then that would be addressed, irrespective of which legislation it would apply to.

The Hon. S.G. WADE: I seek a commitment from the minister that she will either report progress now or give an undertaking to the committee that, if it is in breach of any obligations of the state or the parliament, she will recommit the clause at a later stage.

The Hon. G.E. Gago: I have already given that commitment.

The Hon. S.G. WADE: No, you have not.

The CHAIR: Minister, you have given that commitment.

The Hon. G.E. Gago: Quite clear—you don't listen.

The Hon. M. PARNELL: The minister may have given a commitment to recommit if it turns out that there is an unlawful discrimination against guide animals, for example, but a few minutes ago I posed a question about whether the ability of a landlord to get a bond topped up to 'the relevant amount' means that the pet bond is retrospective, or is the minister taking that question on notice as well?

The Hon. G.E. GAGO: I am advised that it is in fact not correct to say that the pet bond is retrospective. I am advised that it is about maintaining the value of the bond over time.

The Hon. S.G. WADE: Do I take from the minister's answer that, if the pet bond was not sought at the beginning of the tenancy, it would not be able to be incorporated in subsequent adjustments to the bond? My understanding of the advice the minister gave the Hon. Mark Parnell was that there was no retrospectivity, so therefore, presumably, if a pet bond is not sought at the beginning of the tenancy it cannot be incorporated into any top up under this provision.

The Hon. M. Parnell: The words are 'the relevant amount' and that now includes the pet bond.

The Hon. S.G. WADE: Yes.

The Hon. M. PARNELL: Just for the benefit of the minister, my concern is that the maximum amount that the bond can be topped up to is an amount that is called 'the relevant amount'. What it says is that the relevant amount in the case of an agreement under which the tenant is permitted at the request of the tenant to keep an animal at the residential premises is five weeks' rent under the agreement. It does not say that it is new requests for new animals.

My interpretation of this is that if you keep a dog, for example, at your premises and you have done that for some time with the permission of the landlord, now that pet bonds have been introduced the landlord has an opportunity to say, 'Okay, on the bond review, in two years' time when you are topping it up, you are not topping it up to four weeks' rent, you are now topping it up to five weeks' rent.' That means existing families with existing pets could be up for a bond of $400 or $500 or more. Some families, I am sure, will not be able to afford that.

If the minister wants to put on the record categorically for the purposes of Hansard and send it to the Residential Tenancies Tribunal that this is not retrospective, that there is no way that a landlord can insist on a retrospective pet bond, then I would love to get that on the record. Otherwise, I think I am looking for a commitment to recommit this clause until we can get an answer to that question.

The Hon. G.E. GAGO: I have been advised that what the Hon. Mark Parnell has just outlined is correct and that is, yes, next time the bond is reviewed, a pet bond can be included into the future, so that is for the next 12 months' rent or whatever it is. What I meant by saying there is no retrospectivity is that the landlord cannot charge the person bond money from the previous 12 month tenancy; they can only include that or make changes to the bond for the period ahead.

The Hon. M. PARNELL: I thank the minister for her answer. That means that every family who owns a pet in a rental property, with the permission of the landlord, however long they have been there, runs the risk that, when that bond is reviewed—and it can be reviewed every two years—they will be forced to pay an extra $400 or $500 or more for the ability to keep their pet that they already have permission to keep. So the consequence of members not voting for my amendment is that that retrospectivity, in other words, a bond for an existing pet, will be able to be applied in the future.

The Hon. G.E. GAGO: I have been advised that, yes, that is correct. This enables a landlord to adjust the value of the bond to include potential damage, maintenance, etc., that could be caused by an animal. In the past, they have not been able to do this; they have not had access to that provision so they have just had to wear it. This enables them to have that protection for the future.

The Hon. A. BRESSINGTON: I would like to make a point with the minister and I also have a question. If somebody has had a dog at a rental property for 10 years and there has been no damage, the landlord has not had a problem with it, there have been no disagreements between the landlord and the tenant, when this legislation comes into being what would justify the same landlord, with the same dog, the same house, same tenant, being able to charge extra money for a pet that has not been a problem for 10 years, or maybe five years?

The Hon. M. PARNELL: While we are waiting, I have another observation. At the risk of stating the obvious, whilst I have talked about having to find an extra $400 or $500, it does represent bond, and of course there is the potential that they might get that bond back, but that does not take us away from the fact that a person has to find that cash up-front in order to pay that extra bond. If they do not have it, then the landlord, I believe, would be within their rights to say they have breached the tenancy agreement because they have not topped up the bond to the maximum amount allowed and therefore it could put their tenure in jeopardy.

The Hon. G.E. GAGO: Just in response to the Hon. Ann Bressington's question, the short answer is yes. What she says is so. This provision would allow that. However, what I can clarify is that the bond provides for the potential damage, so damage that could be done; whether it is done or not is not the issue. The issue is that the animal could potentially create that damage to property—and I remind honourable members that if there is no damage the person gets their bond back. If there is no damage, that is returned.

The Hon. A. BRESSINGTON: I find that just extraordinary, that if you already have a record with a landlord and there has been no problem with a pet all of a sudden you now have to pay extra for having that same pet. I was wondering if the minister would be open to an amendment along the lines that, if the landlord can prove that the pet has caused damage, then the landlord, in the future, could charge a bond.

The Hon. D.G.E. HOOD: Just very briefly, I think this whole thing can be fixed by just applying it to future tenancies rather than any of those in the past, but in the absence of that, then Family First will be supporting the amendment.

The CHAIR: The Hon. Mr Hood is supporting the amendment?

The Hon. D.G.E. HOOD: I am supporting the amendment in the absence of the government deciding to apply this particular provision to future tenancies.

The Hon. G.E. GAGO: In terms of the question asked by the Hon. Ann Bressington about applying the bond to damage that has been proved, it does not make sense. Bonds are security against potential future damage; that is what bonds are all about. However, I remind honourable members that the pet bond is not a compulsory or obligatory thing. Landlords can choose to apply it where they believe there is the potential for damage.

In terms of the scenario that the Hon. Ann Bressington outlined, of a good tenant with an animal who has been there for 10 years and has caused no damage at all, why would a landlord want to apply a pet bond in that situation? They would have no reason to do that. Obviously, they have a good relationship with the tenant, a reliable tenant, an animal that does not cause any damage to the property, so why would the landlord choose to make any changes to that? However, the Hon. Ann Bressington is correct that ultimately the landlord could, if they chose to.

In terms of the question asked regarding whether the government would consider a potential amendment that would mean pet bonds could apply only to brand-new leases, not revised leases where there are existing pets, I am advised that the government would be prepared to consider that. Obviously, we will not be able to complete this tonight, but we would be happy to continue to progress this as far as we could. I think the Hon. Mark Parnell can attend to this legislation only until 6pm, and we will consider the proposed changes along the lines that the Hon. Dennis Hood has outlined.

The Hon. M. PARNELL: I thank the minister for her response but, to make it crystal clear, when we do get to talk about pet bonds proper, then that is something that the government is prepared to consider, making sure that it is not retrospective. In terms of my—

The Hon. G.E. Gago interjecting:

The Hon. M. PARNELL: What I am saying is that pet bonds should not apply to existing pets, only to new pets; that is what I mean by retrospective. The point for now is that my amendment relates to topping up bonds so that as part of the process of dealing with the Hon. Dennis Hood's points, if the minister will commit to recommitting the whole clause, when we are looking at pet bonds we can also look at the topping-up provisions, because that is what my amendment relates to. I have moved my amendment, and I want to put it now, but I want to be able to recommit if we do have to revisit pet bonds and whether they apply to existing pets or only to new tenancies and new pets.

The Hon. G.E. GAGO: As I have indicated, the government opposes the top-up part of this amendment. Because they are together, we cannot separate them at this point in time but, as I said, we are prepared to consider the proposal that the Hon. Dennis Hood put forward in terms of applying pet bonds only to future leases and recommit.

The committee divided on the amendment:

AYES (5)
Bressington, A. Darley, J.A. Franks, T.A.
Parnell, M. (teller) Vincent, K.L.
NOES (16)
Brokenshire, R.L. Dawkins, J.S.L. Finnigan, B.V.
Gago, G.E. (teller) Hood, D.G.E. Hunter, I.K.
Kandelaars, G.A. Lee, J.S. Lensink, J.M.A.
Lucas, R.I. Maher, K.J. Ridgway, D.W.
Stephens, T.J. Wade, S.G. Wortley, R.P.
Zollo, C.

Majority of 11 for the noes.

Amendment thus negatived.

The Hon. M. PARNELL: My amendment [Parnell-1] 6 is consequential. Therefore, I move:

Page 16, lines 37 and 38 [clause 35(9), inserted subsection (3)(a)(i)]—Delete 'an animal' and substitute 'a cat or a dog'

These are the [Parnell—2] amendments, and there are three amendments. These amendments relate squarely to the pet bond that we have already started talking about.

The Hon. G.E. GAGO: I am advised that it would be worthwhile to test these issues on the floor of the chamber now. That goes to the definition of what is involved, and it would be worthwhile to know what the views are on this issue.

The CHAIR: The Hon. Mr Wade, were you going to express an opinion?

The Hon. S.G. WADE: I defer to the minister's wisdom.

The Hon. M. PARNELL: The words in the bill, in relation to what we have all been calling pet bonds, are, in fact, animal bonds. The word 'animal' is not defined. Basically, anyone who wants to keep an animal, and they are given permission by the landlord, is potentially liable, if the landlord seeks to ask for it, to have to pay the pet bond. The pet bond applies to a cricket, stick insect, goldfish in a bowl, lizard in a tank or a skink in a jar. Basically, it applies to all animals because it is not defined.

In terms of cutting to the chase, what we are really talking about, in terms of animals, are cats and dogs. People can say, 'What about horses, goats, pigs and things like that?' If the landlord is happy to have those things, so be it, but generally they are going to say no, they are not going to let you have a horse, goat or a sheep in your backyard as a pet. The real action here—I would suggest that 95 or 99 per cent of the action—is cats and dogs, in which case, why not say what we mean when we are drafting legislation?

Under the present arrangements, if you have a green tree frog in a tank or a goldfish in a bowl and you seek and obtain the permission of the landlord to keep that animal, they can charge you an extra week's rent by way of bond. You might think, 'Surely the frog in a tank is not going to cause any damage, so I am sure I will get my bond back in the future.' That may well be, but the point is that you still have to find that money up-front. The approach I have taken, through these amendments, is to have a look at how they handled this issue in Western Australia.

In Western Australia, they also wanted to introduce pet bonds and so they constrained them to cats and dogs. They went one step further—which I will get to later on—in terms of what sorts of issues the bond is to be used for. In Western Australia, it is mainly around fleas, smell and fumigation of premises because, in terms of damage, the general bond already covers damage and, as many people have pointed out, children can cause as much damage as a cat. However, leaving that to one side (that is a later amendment), my amendment is saying that if we are talking about bonds for cats and dogs, why not say so? Get rid of the word 'animal' and put in 'cats and dogs'.

Of course, the Hon. Kelly Vincent has done us a great service today by reminding us that even within cats and dogs (dogs in particular) you have an extra category of working animals, if you like, that deserve to be specially treated. I think it would be inappropriate for a person who is vision impaired and who has a guide dog to be caught up with a bond that is overwhelmingly aimed at companion dogs and cats. I think that is probably the way I would summarise it.

The amendment I am putting forward now is quite simple: it replaces the word 'animal' with the words 'cat and dog'. No extra bond can be collected for the stick insect, the cricket, the frog in a tank, the guinea pig or the bunny in a hutch in the backyard—it is about cats and dogs.

The Hon. G.E. GAGO: The government rises to oppose this amendment. We believe that the amendment put by the Hon. Mark Parnell is too narrow in its application, just to apply to cats and dogs. We believe the proposal should be broad enough to give landlords and tenants flexibility to negotiate a pet bond for the pet in question. It does not make sense to exclude other animals that might be kept as pets by tenants that may cause damage to the premises, such as a cockatoo that is allowed about the house and encouraged to perch by providing feed.

In relation to the application, clearly it would be in the landlord's interest to apply something that is reasonable. A fish in a little fishbowl or a jar is unlikely to be able to cause any potential or real damage. However, a large aquarium, if smashed or leaking, could inflict considerable damage, particularly if it is in an upstairs apartment and the water leaks down walls and other cavities into apartments below. One has to apply what is going to be reasonable in each situation.

The Hon. S.G. WADE: I do not know whether I need to declare an interest in relation to Hodge and Lily, my cats, or whether I need to just send them a cheerio. However, in relation to this amendment, the opposition is inclined to support the government view. We see the government's primary amendment as basically pro animal. It will offer the possibility of additional bonds for pets, and that reform is likely to encourage more landlords to allow more pets, not fewer. We think it discriminates against insects, frogs and so forth, in not letting them be part of the bond movement. The Hon. Mark Parnell talks about the 95 per cent of cats and dogs that cohabit, but I cannot see why we should support discrimination against the 5 per cent.

We do not support an arbitrary selection of animals, such as cats and dogs, preventing a landlord from requesting an additional bond for other pets. A landlord who may have allowed pets like goldfish or rabbits if an additional bond was taken would not have the option to require it under the Hon. Mark Parnell's amendments, so instead a blanket 'no pets' condition, as is commonly the case at present, would be likely to continue to apply. We join the government in opposing this amendment and predict that on that basis it is unlikely to receive the support of committee.

The Hon. A. BRESSINGTON: I just want to make the point that this is what happens when we draft legislation that basically starts to control every aspect of our lives, whether we have a pet, whether we do not, or what kind of pet we have. I do not believe this is what we are here to do. I intend to support the Hon. Mark Parnell's amendment on principle, but the flip side of that is that if you only make it cats and dogs then someone could have a horse. It goes both ways.

I would like to ask the minister: who put forward this idea of bonds on animals? What evidence is there to say that this is actually a necessary piece of law when we are talking about the Residential Tenancies Act, because they already pay a bond and if a pet has caused damage then that bond can already be used to repair the damage? I think this is pointless, but that is just my opinion.

The Hon. M. PARNELL: The minister in some ways put her finger on it, I think, by talking about the range of animals that might cause damage. Where she misses the point is that there is nothing in the government's bill to say that extra week's bond is only to be used for damage caused by the animal. Basically, it could be used for anything. As anyone who has been involved in the rental sector would know, a big chunk of bonds, especially in a tenancy agreement that has gone pear-shaped, is used to pay the back rent. A tenant who has four weeks' bond sitting there could be thinking, 'Well, we'll just not pay rent for the last four weeks and we'll use our bond up.'

So, effectively what we are doing here is we are giving landlords the ability to claim extra bond which may bear no relationship whatsoever to the risk caused by the animal allegedly on whose behalf the bond was collected. There is no nexus, there is no connection between that bond and pet damage. While the minister said that common sense would prevail and if all you had was a little fish in a bowl or a frog in a tank then of course the landlord would not charge you the extra bond—yes, they would, because extra bond can be used for anything that goes wrong in the tenancy. Of course they are going to charge the maximum bond they can because that is what people do.

What I am trying to do is to remove the unintended consequence of people subverting, if you like, the maximum bond levels using reasons such as pets, most of whom will not cause a problem, which is why I am saying that for those that genuinely do, let us name them. Let us talk about cats and dogs. There are a whole range of other amendments we could put forward to say that one week's extra bond relating to the pet is only to be used for pet damage and cannot be used for back rent. There are a whole lot of situations that start to emerge once we tease this out.

I have moved my amendment and I would like to test it. I appreciate that this is part of clause 35 and we are going to come back and revisit a range of issues in clause 35. So, in the interests of time I will not be dividing on it tonight if it does not go the Greens' way.

The Hon. G.E. GAGO: You do not have the numbers.

The Hon. M. PARNELL: It does not matter. I can divide, but I will not divide because we are going to recommit clause 35 and we can explore those issues in their entirety. I think there is some serious redrafting that needs to be done to accommodate not just frogs and fish but also seeing eye dogs and the other issues the Hon. Kelly Vincent raised, and also the retrospectivity of the pet bond, but for now I move the amendment.

The Hon. G.E. GAGO: Very quickly, if there is no damage then the bond is repaid. There is a level of discretion in terms of what the landlord can use the bond on. I do not believe we should be too prescriptive in terms of saying: this proportion for rent, this proportion for cleaning, this proportion for maintenance, etc., I think that would be a bridge too far. So, there is an element of discretion and I think that is reasonable.

This provision is about being pro animals, pro pets. We know that many landlords discriminate against tenants with pets because they see that the potential for damage is increased so they simply say, 'No, no pets,' so this has been identified to assist those households. We know how pets can enrich people's lives and we believe this will afford more leases that will allow more tenants to enjoy living with their pets, a whole range of pets, so we see this as a very pro pet and a very positive family amendment.

The Hon. A. BRESSINGTON: I get that you are trying to make this a pro pet exercise, but why would we not just allow for the two yearly bond increase, why do we have to mention the pet thing at all? We can make sure that bonds can be increased in a manner that is going to cover that aspect of it. Why can we not say that, if there is no proof that a pet has done damage in the past, they cannot start tacking on this increase now because, although this is pro pet, it is not actually pro family? There are going to be a lot of families with kids who have had pets for quite a while that have done no damage, that have not had to pay this bond, but who are going to have to pay it now. As the Hon. Mark Parnell said, that is going to put their bond up by maybe an extra $400 or $500. So in trying to be pro pet, can we not also try to be a bit pro family?

The Hon. G.E. GAGO: We have already debated this. We have now moved off the issue of what is in the definition, whether it is cats and dogs or broader. That is what we are talking about now. In terms of the issue of bonds applying to leases that currently have existing pets, I have already put on the record that we are prepared to re-look at that and consider making changes to that. What we need to do is concentrate on and debate the issue that is before us at the moment.

Amendment negatived.

The Hon. M. PARNELL: The second amendment is effectively consequential and, again, it is replacing the word 'animal' with 'cat and dog' so I will not move it, but we will revisit it on committal. I move:

Page 17, after line 10 [clause 35(9)]—After inserted subsection (3) insert:

(3a) If the amount of a bond is equal to the relevant limit under subsection (3)(a)(i) or (b)(i) because the tenant is permitted to keep a cat or a dog at the residential premises—

(a) an amount of the bond equal to 1 weeks rent (the relevant amount) may be used for the purpose of meeting the cost of fumigating the premises on the termination of the tenancy; and

(b) if fumigation is not required, or the cost of fumigation is less then the relevant amount, the relevant amount, or the balance of the relevant amount, must be paid to the tenant on application to the Commissioner under section 63.

As I have said before, this is the way the Western Australians did it. Western Australia confined their pet bonds to cats and dogs because that is where the action is and they also confined the use to which that bond could be put to—the word they use is 'fumigation'. Effectively what we are talking about are fleas and smell. As other members and the Hon. Ann Bressington said, damage is covered to premises already covered by the existing bond, so the additional one week pet bond goes towards fumigation. This is the system that works in Western Australia and I think it is a system that would work well here.

I would just like to say that, in response to something the minister said before, we are not arguing against pet bonds and we are not saying this is not a pro animal and pro family thing, that it does increase the likelihood that landlords will say yes to pets because they can claim the extra bond. No-one is arguing with the general principle, we are just trying to make sure that the amendments that we pass really do attach themselves to what we are trying to achieve. That is why I think it would be good to bring this back. This amendment constrains the use of the bond to fumigation as they do successfully in Western Australia.

The Hon. G.E. GAGO: I think I have already spoken about this previously. We believe that describing what specifically the bond can or cannot be spent on is too prescriptive and so therefore we oppose this amendment.

The Hon. S.G. WADE: The opposition also believes that this is too prescriptive. We have concerns that such a focused provision may actually lead to an increase in costs for fumigation for South Australians.

The Hon. J.A. DARLEY: Whilst I am sympathetic to the Hon. Mark Parnell's amendment, I do believe that it should not be confined just to fumigation.

The Hon. B.V. FINNIGAN: I want to clarify this with the Hon. Mr Parnell. When this clause is recommitted, as the government has indicated it will be after considering the question of existing bonds, is it your intention to re-litigate or re-move all these amendments that you have? I am trying to clarify whether this is the final point in relation to this amendment, or will you be discussing it again in the future?

The Hon. M. PARNELL: When clause 35 comes back, it will probably come back in a different shape and we will have different issues to consider. For the honourable member's benefit, I am paying attention to what the committee is saying in relation to issues like confining the bond to a particular type of damage or repair. If it does not have support, then it will not have support. I do not need to re-agitate all these issues, but I also do not want to be constrained to raising issues as they arise when we look at a new clause 35.

Amendment negatived; clause passed.

Clauses 36 to 39 passed.

Progress reported; committee to sit again.

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