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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2015-07-30 Daily Xml
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Bills

Residential Tenancies (Domestic Violence Protections) Amendment Bill

Introduction and First Reading

The Hon. G.E. GAGO (Minister for Employment, Higher Education and Skills, Minister for Science and Information Economy, Minister for the Status of Women, Minister for Business Services and Consumers) (15:20): Obtained leave and introduced a bill for an act to amend the Residential Tenancies Act 1995. Read a first time.

Second Reading

The Hon. G.E. GAGO (Minister for Employment, Higher Education and Skills, Minister for Science and Information Economy, Minister for the Status of Women, Minister for Business Services and Consumers) (15:21): I move:

That this bill be now read a second time.

The Residential Tenancies (Domestic Violence Protections) Amendment Bill 2015 amends the Residential Tenancies Act 1995 to provide further protections to victims of domestic violence in the tenancy sector to terminate a residential tenancy or rooming house agreement where the South Australian Civil and Administrative Tribunal (SACAT) is satisfied domestic abuse has occurred or there is an intervention order in force against a person residing at the premises.

Domestic violence continues to have a profound impact on the South Australian community. It is found across all cultures, ages and socioeconomic groups, but the majority of those who experience domestic violence are women. However, it is not possible to measure the true extent of the problem, as most incidents of domestic violence go unreported. Australian women are most likely to experience physical and sexual violence in their home, at the hand of a male current or ex-partner. For 62 per cent of women who have experienced physical assault by a male perpetrator, the most recent incident was in fact in their home.

The Weatherill government has made a strong commitment to addressing domestic violence in our community. Last year, the Premier reaffirmed domestic violence prevention as a priority for this government with the release of the 'Taking A Stand—Responding to Domestic Violence' paper. Since then, the government has embarked on a series of initiatives to address domestic violence in our community. To build on these initiatives, the government is pursuing changes to strengthen the level of protection afforded to victims of domestic violence in the tenancy sector.

As currently structured, the residential tenancies legislation does not provide sufficient protection to victims of domestic violence in the tenancy sector. Presently, a tenant or landlord may apply to SACAT to terminate a residential tenancy based on hardship, and SACAT may consider any special circumstances that may result in undue hardship to the tenant or landlord. However, SACAT's powers are limited in cases where the tenant is a co-tenant with the person being violent towards them. Co-tenants are jointly and severally liable.

It flows from this that SACAT cannot terminate a residential tenancy unless the other tenant joins the application, indicates no opposition to it, or SACAT is satisfied that the other tenant has abandoned the residential tenancy. This means that where a tenant has established that there are grounds which would ordinarily have met the test required to terminate a tenancy based on hardship, because the person is a co-tenant, SACAT is unable to terminate the tenancy unless one of those other situations that I mentioned occurs.

SACAT is also unable to make an order that one tenant in a co-tenancy is liable for compensation to the landlord (to the exclusion of the other co-tenants). In situations of domestic violence this generally results in the victim being required to pay for damage caused to the property by the perpetrator, either out of the bond or as compensation, or in some cases both. This may also lead to a victim of domestic violence being listed on a Residential Tenancy database, often referred to as a 'tenant blacklist', as a result of damage caused to the property by the perpetrator from a situation of domestic violence.

On application by a landlord where there is risk that a tenant (or person permitted on the premises by the tenant) may cause serious damage to property or personal injury, SACAT may make an order restraining the tenant or other persons on the premises from engaging in certain conduct. However, at present it is not explicit that the tenant may apply for a restraining order against the co-tenant or person permitted on the premises by the co-tenant.

The Intervention Order (Protection of Abuse) Act 2009 (the IO Act) contains measures to help victims of abuse safely stay in their home. It allows an intervention order to prohibit the perpetrator from being anywhere near the family home, even though the perpetrator may own or rent it. The aim is to encourage victims of abuse and their children to stay in the family home if they want to and to prevent their lives being unnecessarily disrupted. It also offers a means of longer-term security to protected persons who wish to stay in the home.

The IO Act allows the court, when making an intervention order that excludes a defendant from rented premises in which the defendant lives with the protected person, to make another order by which the defendant's interest in the tenancy agreement is assigned to the protected person or to some other person or persons other than the defendant. This measure takes into account the needs of the landlord and prevents the order being made if incompatible with the legal obligations of the landlord. These orders do not terminate the tenancy agreement but allow it to continue in terms that are consistent with the assignment of a tenant's rights in a residential tenancy agreement under the act.

The bill aims to support victims of domestic violence in the tenancy sector to leave a hostile environment or to remove the perpetrator from the environment without incurring further unfair expenses caused by the perpetrator and to minimise any further dealings with the person in relation to the tenancy in the future. Domestic violence is not limited to physical and sexual assault; it is violent, threatening or other behaviour that controls a member of the person's family or causes the family member to be fearful. It is not always between partners; it can be perpetrated by grandchildren, cousins, brothers, sisters uncles, aunts, mums or dads.

Domestic violence can include a wide range of behaviour between family members. It is proposed to adopt existing definitions under the IO Act, including, abuse, act of abuse, and domestic abuse in the act. 'Domestic association' is a new term; however it reflects the relationships outlined in the IO Act for the purposes of domestic abuse, which includes a broad range of intimate, family and informal care relationships. It is also proposed to define a co-tenant for classification purposes.

There are some sort of definitions here, so I am inclined at this stage, Mr President, to seek leave to have the remainder of the second reading explanation and the explanation of the clauses inserted in Hansard without my reading it.

Leave granted.

Under the Bill a tenant may apply to SACAT to terminate a residential tenancy based on domestic abuse in the following circumstances:

where there is a Court issued intervention order in force against a person residing at the premises for the protection of the applicant or a domestic associate of the applicant residing at the premises. The inclusion of domestic associates aims to extend these protections to children or other domestic associates that are not named on the tenancy agreement. An intervention order may relate to domestic or non-domestic abuse. This aims to afford a level of protection to victims of non-domestic abuse. Requiring a Court issued intervention order provides a level of protection to the landlord against applicants fabricating evidence of non-domestic (or domestic) abuse in order to terminate a residential tenancy agreement; or

where a person who resides at the premises has committed domestic abuse against the applicant. Without limiting the evidence that may satisfy SACAT that domestic abuse has occurred, it may include a South Australia Police report or report from a domestic violence service provider.

Under the proposed Bill, on application to terminate a residential tenancy based on domestic abuse, SACAT may make an order terminating the residential tenancy and:

requiring a new tenancy agreement be entered into on the same terms and conditions for the remainder of the tenancy between the landlord, applicant and /or any co-tenants, subject to any objections by the landlord or any co-tenants. SACAT must not make an order effectively creating a new tenancy agreement if the hardship likely to be suffered by the objector, is greater than the hardship likely to be suffered by the applicant (or domestic associate of the applicant), if the order was not made. This aims to support the victim to remain in the premises and remove the perpetrator from the residential tenancy; or

requiring a new tenancy agreement be entered into on the same terms and conditions for the remainder of the tenancy between the landlord, perpetrator and any co-tenants, if the landlord has not indicated that it would be unreasonable to do so. This aims to support the victim to leave the residential tenancy and no longer be liable for any damage caused to the premises.

However, SACAT must not make an order requiring a new tenancy agreement, unless satisfied that any co-tenant under the new agreement could reasonably be expected to comply with obligations under the agreement. This aims to ensure that any co-tenants remaining at the premises under a new agreement are not caused hardship.

The Bill extends these protections to rooming house residents and empowers SACAT to terminate the rooming house agreement of either the applicant or the perpetrator. This takes into consideration the nature of rooming houses and the likelihood of the applicant having a separate agreement to the perpetrator at the same premises.

It is proposed that SACAT may find that one or more, but not all, co-tenants are responsible for compensation to the landlord, either in relation to the early termination of a tenancy or for damage to the premises or ancillary property. The Bill empowers SACAT to make an order that the responsible co-tenant/s are liable (to the exclusion of other co-tenants) for a payment of compensation to the landlord. SACAT may direct the bond be paid in such proportions as it thinks fit, to the landlord and any co-tenant who is not liable for making a payment of compensation, but not so as to unduly disadvantage the landlord. In making such a direction, SACAT should consider which co-tenants were liable for a payment of compensation to the landlord, which co-tenants contributed to the bond and in what proportions, and the existing principles of the Act, including the intended purpose of the bond. These amendments aim to provide a balance between the victim's interest in the bond, if any, and the landlord's right to compensation out of the bond. However, compensation exceeding the bond will be an order against the responsible co-tenants only.

Where SACAT makes an order requiring a new tenancy be entered into, the tenant (or co-tenants) to the new agreement may be required to lodge a new bond, at the request of the landlord. It is proposed that SACAT will consider the payment of any bond when making the order and may make a self-executing order terminating the new tenancy agreement if the new bond is not lodged by the date specified in the order.

Under these proposed amendments, a tenant may apply for a restraining order against a co-tenant and SACAT may prohibit a tenant's personal information being listed on a Residential Tenancy Database in certain circumstances relating to domestic abuse.

By this Bill, the Government strengthens its commitment to women's safety in South Australia, which is reinforced through A Right to Safety the next phase of the Women's Safety Strategy 2011-2022. A key part of our Government's agenda is supporting women to remain in their homes when it is safe to do so rather than a response that results in the woman and any children she may have being displaced from their familiar surroundings, social supports, school and employment. The Government is committed to ensuring victims are respected and supported and not suffering hardships associated with relocating. This can often mean leaving employment which leads to financial hardship, and leaving community connections and support, impacting their children's education and isolating them further.

If these reforms are enacted, Parliament will send a clear message that the use of violence to control or intimidate another person will not be tolerated, particularly in a domestic setting. Consequences of violence should not have further negative impact on victims and the Bill aims to ensure that victims are supported and can remain in their homes when it is safe to do so.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Residential Tenancies Act 1995

4—Amendment of section 3—Interpretation

The clause inserts several definitions into the Act to support provisions in the measure.

5—Amendment of section 5—Application of Act

This amendment is consequential on proposed section 89A(2).

6—Amendment of section 72—Right of entry

This amendment is consequential on proposed section 89A(4)(b).

7—Insertion of section 89A

This clause inserts a new section:

89A—Termination based on abuse of tenant

Proposed subsection (1) provides that the Tribunal may, on application by a tenant or co-tenant, terminate a residential tenancy from a date specified in the Tribunal's order if satisfied that an intervention order is in force against a person who resides at the residential premises for the protection of the applicant or a domestic associate of the applicant who normally or regularly resides at the residential premises. Alternatively, the tenancy may be terminated if the Tribunal is satisfied that a person who resides at the residential premises has committed domestic abuse against the applicant or a domestic associate of the applicant who normally or regularly resides at the residential premises.

Proposed subsection (2) provides that the Tribunal may, on application by the South Australian Housing Trust or a subsidiary of the South Australian Housing Trust, terminate a residential tenancy from a date specified in the Tribunal's order if satisfied that an intervention order is in force against a tenant for the protection of a person who normally or regularly resides at the residential premises, or if the Tribunal is satisfied that the tenant has committed domestic abuse against a person who normally or regularly resides at the residential premises. The applicant, the landlord and any tenant or co-tenant under the agreement are all parties to proceedings concerning a tenancy dispute (proposed subsection (3)).

Proposed subsection (4) sets out a number of orders the Tribunal may make on application by a party to proceedings under the proposed section including:

an order requiring the landlord to enter into a new residential tenancy agreement with the applicant or a co-tenant under the terminated agreement (or both) for the remainder of the term of the tenancy. The Tribunal must be satisfied that the co-tenants under the new residential tenancy agreement could reasonably be expected to comply with the obligations under the agreement and, if the landlord is the South Australian Housing Trust, meet the Trust's eligibility requirements (proposed subsection (6)). The new agreement must be on the same terms and conditions as the terminated tenancy agreement subject to any changes made by the Tribunal (proposed subsection (8)). The Tribunal must not make an order requiring the landlord to enter into a new residential tenancy agreement with a co-tenant under the terminated agreement if the co-tenant is the person against whom an intervention order is in force, or who has committed domestic abuse against the applicant or a domestic associate of the applicant who normally or regularly resides at the residential premises, if the landlord indicates that the landlord considers it would be unreasonable for such an order to be made (proposed subsection (5));

an order that the landlord may enter the residential premises at a time determined by the Tribunal to inspect the premises before a determination is made under the proposed section;

an order for possession of the premises on a date specified by the Tribunal;

an order that the landlord, landlord's agent or a database operator must not list the applicant's personal information in a residential tenancy database under section 99F(1) if the Tribunal is satisfied that the applicant did not cause or reasonably cause a breach of the residential tenancy agreement, or if the nature of any breach of the residential tenancy agreement resulted from an act of abuse or domestic abuse against the applicant.

Proposed subsection (7) provides that if a landlord or co-tenant objects to the making of an order under proposed subsection (1) or (4)(a), the Tribunal must not make the order unless satisfied that the hardship likely to be suffered by the applicant or a domestic associate of the applicant who normally or regularly resides at the residential premises would, if the order were not made, be greater than any hardship likely to be suffered by the objector as a consequence of the making of the order.

Proposed subsection (9) lists a number of orders and proceedings the Tribunal must have regard to in considering an application under the proposed section.

Proposed subsection (10) provides that if a residential tenancy is terminated under the proposed section, the Tribunal may order a co-tenant to make a payment of compensation to the landlord for loss and inconvenience resulting, or likely to result, from the termination of the tenancy or from any additional order made under proposed section 89A(4).

Proposed subsection (11) provides that if the Tribunal finds, in relation to a residential tenancy that is terminated under proposed section 89A, that 1 or more, but not all, of the co-tenants under the residential tenancy agreement are responsible for damage to the residential premises or ancillary property, the Tribunal may determine that the responsible co-tenant or co-tenants are liable (to the exclusion of other co-tenants) for making any payment of compensation ordered under section 110(1)(c).

Proposed subsection (12) provides that if a payment for compensation is ordered under subsection (10) or (11), the Tribunal may give a direction under section 110(1)(i) that the bond (if any) be paid to the landlord and any co-tenant who is not liable for making the payment in such proportions as the Tribunal thinks fit, but not so as to unduly disadvantage the landlord.

8—Amendment of section 99F—Listing can be made only for particular breaches by particular persons

These amendments are consequential on proposed section 89A(4)(d).

9—Insertion of section 105UA

This clause inserts a new section:

105UA—Termination based on abuse of rooming house resident

Proposed subsection (1) provides that the Tribunal may, on application by a resident, and from a date specified in the order, terminate a rooming house agreement if satisfied that an intervention order is in force against a person who resides in the same rooming house as the applicant for the protection of the applicant or a domestic associate of the applicant who normally or regularly resides in the rooming house. Alternatively, the agreement may be terminated if the Tribunal is satisfied that a person who resides in the same rooming house as the applicant has committed domestic abuse against the applicant or a domestic associate of the applicant who normally or regularly resides in the rooming house. The applicant, the proprietor and any other resident under the rooming house agreement are all parties to proceedings concerning the tenancy dispute (proposed subsection (2)).

Proposed subsection (3)(a) provides that if the Tribunal makes an order under proposed subsection (1) the Tribunal may also make an order requiring the proprietor to enter into a new rooming house agreement with the applicant or another resident under the terminated rooming house agreement (or both) for the remainder of the term of the agreement. Proposed subsection (3)(b) provides that the new rooming house agreement must be on the same terms and conditions as the terminated rooming house agreement, subject to any changes determined by the Tribunal. The Tribunal must also be satisfied that the residents under any new rooming house agreement could reasonably be expected to comply with the obligations under that agreement (proposed subsection (5)).

Proposed subsection (4) provides that the Tribunal must not order a new rooming house agreement between the proprietor and a resident against whom an intervention order is in force, or whom the Tribunal is satisfied has committed domestic abuse against an applicant or a domestic associate of the applicant who normally or regularly resides in the rooming house if the proprietor indicates, as part of proceedings before the Tribunal, that the proprietor considers it would be unreasonable for such an order to be made.

Proposed subsection (6) provides that if a party to proceedings objects to the making of an order, the Tribunal must not make the order unless satisfied that the hardship likely to be suffered by the applicant or a domestic associate of the applicant who normally or regularly resides at the residential premises would, if the order were not made, be greater than any hardship likely to be suffered by the objector as a consequence of the making of the order.

Proposed subsection (7) lists a number of orders and proceedings to which the Tribunal must have regard in considering an application under the proposed section.

Proposed subsection (8) provides that if a rooming house agreement is terminated under the proposed section, the Tribunal may order a resident to make a payment of compensation to the proprietor for loss and inconvenience resulting, or likely to result, from the termination or an order under proposed subsection (3).

Proposed subsection (9) provides that if the Tribunal finds, in relation to a rooming house agreement that is terminated under this section, that 1 or more, but not all, of the residents under the agreement are responsible for damage to the rooming house or property provided by the proprietor, the Tribunal may determine that the responsible resident or residents are liable (to the exclusion of other residents under the agreement) for making any payment of compensation ordered under section 110(1)(c).

Proposed subsection (10) provides that if a payment for compensation is ordered under proposed subsection (8) or (9) the Tribunal may give a direction under section 110(1)(i) that the bond (if any) be paid, to the proprietor and any resident who is not liable for making the payment in such proportions as the Tribunal thinks fit, but not so as to unduly disadvantage the proprietor.

10—Amendment of section 112—Restraining orders

This clause inserts new subsections 112(1a) and (1b). Proposed subsection 112(1a) provides power for the Tribunal, on the application of a tenant, to make a restraining order against a co-tenant or other person on the premises if the Tribunal is satisfied that the person may cause serious damage to property, cause personal injury, or if the co-tenant is a domestic associate of the tenant, commit an act of domestic abuse. Proposed subsection 112(1b) lists a number of orders and proceedings the Tribunal must have regard to in considering an application under proposed subsection 112(1a), as are relevant to the application.

Debate adjourned on motion of Hon. T.J. Stephens.

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