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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-12-03 Daily Xml
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Residential Tenancies (Renting with Pets) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 23 September 2020.)

The Hon. C. BONAROS (16:33): I rise to speak on behalf of SA-Best on the Residential Tenancies (Renting with Pets) Amendment Bill 2020. As we know, the bill seeks to enshrine the rights of tenants to keep pets, in the absence of a SACAT ruling to the contrary. I think we can all appreciate it is certainly well intended. It is aimed at reducing the number of pets surrendered to rescue organisations every year due to tenants of rental properties being unable to secure suitable accommodation where a landlord allows pets.

Just by way of note, the RSPCA says it has seen a 13 per cent increase in the number of animals surrendered in the 2019-20 financial year due to their owners being unable to obtain pet-friendly accommodation. There is no doubt that this is sad for all concerned.

My dog, Millie, is absolutely an important part of my family. I cannot imagine having to give her up purely because of the fact that I cannot secure a rental property that will allow me to keep a pet. The benefits, if you like, that she provides to my family and to me are, in my view, priceless. I absolutely understand the intent of this piece of legislation.

Studies certainly show and continue to show that pets have a very positive impact on our mental and physical health. Dog ownership, for example, has been found to be associated with lower blood pressure. Pets have the potential to keep us active as well as help alleviate stress and loneliness. They can provide important non-verbal emotional support to children and adults. If you are Millie, they can cost you a lot at the vet. But such benefits are generally enjoyed by two-thirds of South Australian households.

We know renters already face huge barriers in securing accommodation without taking into account the lack of pet-friendly inventory in the market. The 2020 Rental Affordability Index report released this week ranks Adelaide as the second least affordable capital city in Australia for rental properties when comparing rental prices relative to household incomes, and it is clear many households are under huge financial stress, even with pets taken out of the equation. I note the ACT and Victoria have commenced similar legislation in the last year. The NT has also passed renting with pets legislation, which has been put on the backburner due to the COVID pandemic.

There is, of course, a counterargument to all of this debate, particularly by some landlords, who might ask: what if I do not want a pet living in my property? What if I intend to move back into the property and I have allergies, I have health conditions or I just simply do not like them? What if I have spent a considerable amount of money planting a new garden and a new tenant wants to bring along a puppy or a full-grown dog or other animal who could cause considerable damage? What are the rights of property owners?

That is really, I suppose, the dilemma in this debate. I am sure the mover of the bill would say that the landlord would have the opportunity to make an application to SACAT to exempt the property, and on the current bill this would need to be done within 14 days and at the landlord's expense. Then there is the risk that more rental properties will come off the market, instead being listed on short-term rental sites like Airbnb, reducing even further the number of pet-friendly rentals on the market.

So I suppose there are lots of factors at play here which need to be explored, and I genuinely think there are valid points being made on both sides. I suppose the difficulty and the dilemma that we have is potentially striking the right balance in relation to those concerns. I understand the Attorney has sought to have further discussions about this bill, and I am very hopeful that in those discussions with the member we might be able to iron out some of the concerns of individuals and particularly landlords—because I think that is predominantly who we are dealing with in terms of the concerns about the proposals—some of which were raised in the recent submission by the Law Society of South Australia.

With those words, can I indicate our support for the second reading of this bill. We would also reserve our position based on those further discussions that we know will be taking place with the Attorney regarding the complex nature of the relationships that we are talking about and the issues I have just outlined.

The Hon. R.P. WORTLEY (16:38): I rise to speak today on the Residential Tenancies (Renting with Pets) Amendment Bill 2020. Pets are part of the Australian way of life. Sixty-eight per cent of South Australian families include a pet as a member of their household. There has been research into elderly people who own pets, and it has been found quite conclusively that elderly people who own pets live a lot longer and happier lives. This is mainly because they have something to look forward to when they go home. It also gets them out of the house to walk the dog. So it is a very important part of growing older that you are able to keep a pet with you when you live in a rented property.

Yet, it is estimated that little over 20 per cent of South Australian rental properties will consider a tenant with a pet. This can mean that many people seeking a rental property are either forced into giving their pets to friends or family or surrendering their beloved pets to a shelter to ensure they can maintain a roof over their heads. The RSPCA says that in the 2019-20 financial year they had a 13 per cent increase in the number of animals surrendered due to their owners being unable to obtain a pet-friendly rental property. It is clear that more needs to be done to ensure that South Australians with pets can obtain secure rental accommodation.

There has been a raft of legislative changes across Australia in this space. These need to be examined closely to ensure that we in South Australia get the right balance between tenants' and landlords' rights. In Queensland, as the legislation currently stands, a tenant must obtain written permission via their tenancy agreement to have a pet in their rental property. The tenancy agreement in Queensland also stipulates that a tenant with a pet is responsible for any damage caused to the property by their pets.

The Queensland government is seeking to further reform its act so that a landlord can only refuse a request if they can provide reasonable grounds to not allow a pet on their rental property. Importantly, the Queensland legislation would seek to define the reasonable grounds that a landlord can use to refuse permission for pets in their property.

It is also investigating the option of a pet bond to cover the cost of pet damage at the end of the tenancy. The pet bond issue is a cause of much disagreement between those advocating for tenants and landlords. There is concern on the tenant's side that a pet bond would make pet ownership unaffordable for those on low and fixed incomes. On the other hand, landlords raise concerns about potential for additional property damage not being secured by a bond. Further investigations must be conducted on this vexed issue.

Earlier this year, the Northern Territory government passed a bill to allow pets in rental properties when a tenant provides written notice to a landlord, yet this reform has not progressed following the COVID emergency and the new legislation has not been implemented to date. As it stands, we cannot take anything away from the territory's legislative changes to determine the potential for South Australian tenants.

In Western Australia, tenants are required to obtain consent from landlords and the pet must be listed on the lease. Western Australia also makes provisions for landlords to seek a pet bond of up to $260. The Victorian government recently passed legislation, which this bill is largely based on. Tenants are required to request their landlord's consent to bring a new pet into a rental property. However, a landlord must not unreasonably refuse to allow a pet and may only do so with an order from the VCAT stating that it is reasonable to refuse the request.

It is clear that there is a shift occurring across Australia in relation to ensuring that tenants are allowed pets in rental properties. We all know that pet ownership has its health benefits. However, before we dive headlong into changing our legislation we must reflect on the changes that have been made interstate. The experiences interstate will enable us to determine the best model for South Australia to achieve the best result for both tenants and landlords.

As this bill currently stands, there are shortcomings that must be addressed. Landlords effectively have no choice in determining what type of pet can be housed in their rental property or whether their rental property is suitable to accommodate pets without incurring the time and cost of seeking an order through SACAT. Landlords are not provided with recourse in the bill to secure a bond against any potential damage caused to the property.

We look forward to examining how the legislative changes interstate affect tenants and landlords so that the best option can be presented to the parliament to ensure that we can achieve the right balance between the rights of tenants and the rights of landlords.

The Hon. R.I. LUCAS (Treasurer) (16:43): I rise on behalf of government members to address the second reading. As I think the Hon. Mr Parnell has indicated, the Attorney-General on behalf of the government has indicated a willingness to further engage in discussion with the Hon. Mr Parnell. To that end, the government is prepared to support the second reading but will reserve its position, obviously, during the committee stage and finally at the third reading.

The government's party room is probably not too dissimilar to some of the issues the Hon. Mr Wortley has raised, which were obviously raised in the opposition party room and probably in the community as well; that is, there are those who are sympathetic to the landlords' view of the world and there are those who are sympathetic to the tenants' view of the world. The issue is what sort of model, from the selection that is emerging across the country, should we support, if we are going to support any change at all.

Our party room, the government's party room, I suspect is no different to the broader community and that is that there are some who are sympathetic to the landlord view of the world and some who are more sympathetic to the tenant view of the world but are prepared to further engage through the Attorney-General in terms of discussions with the Hon. Mr Parnell, and indeed others, to see whether any sort of agreement can be reached or not.

My office has produced a quick summary, which was useful from my viewpoint, and I think the Hon. Mr Wortley actually in part addressed a number of these issues. My office has produced their summary, and this is only my office's view of the flavour, if I could put it that way, of the equivalent legislation in the other jurisdiction.

Under the characterisations, the more tenant-oriented pieces of legislation, the first example is the one that this is modelled on which is the Victorian legislation: since reforms in March 2020, if you want to keep a pet, you must give your landlord a completed pet request form and your landlord can be only refuse a pet request if the Victorian Civil and Administrative Tribunal (VCAT) orders that it is reasonable to do so. Only in recent times is this is a tenant-friendly or tenant-oriented piece of legislation in terms of issues in relation to pets within tenancies.

The other one that my office has characterised as more tenant oriented is the ACT legislation, which has been summarised for me as follows: if a landlord wants to refuse consent for having a pet, they must do so with the approval of the ACT Civil and Administrative Tribunal (ACAT). Landlords are required to apply to the ACAT within 14 days of the tenant's request.

At the other end of the continuum my officers summarised are South Australia and Tasmania, for example, as current law stands, and it is currently up to the landlord as to whether a tenant can have a pet or not. The other one is New South Wales. Landlords may include a clause restricting or prohibiting pets in a residential tenancy agreement; however, note that as of very recently no apartment building in New South Wales is allowed to have a blanket ban on pets, following a New South Wales Court of Appeal ruling in October—so that is very recent—that overturned the right to pass bylaws prohibiting animals. That decision, I am advised, from the New South Wales Court of Appeal, was just over a month ago. I might note, that is the advantage of having to two Crown lawyers in my office now as my own in-house Crown counsel, so I am indebted to them.

Then in this more landlord-oriented area of legislation is Western Australia. It is currently up to the landlord as to whether the tenant can have a pet; however, note that the government recently completed a consultation paper on changing the law to adopt a similar approach to Victoria. So Western Australia is actually looking at the Victorian model, given that it is recent, which is what the Hon. Mr Parnell is suggesting. Whilst they have made no decision, I am advised, they have not gone out to consultation and would appear to be considering seriously amendments similar to Victorian legislation.

I am also advised that Western Australia is currently the only state where a landlord can legally ask for a pet bond, although I did note some of the comments from the Hon. Mr Wortley there. That is the advice I have. Queensland's legislation is also more landlord oriented. Landlords may include a clause restricting or prohibiting pets in a residential tenancy agreement; however, note that the government recently completed a consultation on changing the law to adopt a similar approach to Victoria.

Queensland and Western Australia, both Labor administrations, are currently looking at the Victorian Labor government's introduction of reform in this particular area. No decision has been taken, but they are contemplating the Victorian model. Finally, in the middle, my office has summarised a compromise position from the Northern Territory. It is up to the landlords as to whether the pets are allowed; however, a tenant can apply to the NTCAT to remove or change a no pets clause on the grounds of it being harsh or unconscionable.

My office has characterised them as two jurisdictions with tenant-oriented pieces of legislation. Including South Australia, there are five who are more landlord oriented. We have Western Australia and Queensland contemplating the Victorian model, and of course Mr Parnell is asking South Australia to contemplate the Victorian model as well, and the compromise position is the Northern Territory position in the middle.

The Hon. Mr Wortley summarised a number of the reasons from a tenant's viewpoint as to why this is an important issue for a significant number of people. Before I address the tenant's viewpoint, I acknowledge absolutely, as I am sure some of my colleagues would wish, that there are important issues here on behalf of landlords.

A landlord who owns a property that ends up getting trashed or significantly damaged through a pet being kept on the premises clearly is going to be mightily concerned if they are left out of pocket as a result of any legislative change to that end. So the Hon. Mr Wortley raised the issue of pet bonds and those sort of issues. There may well be other ways of addressing that.

I do not know whether any jurisdiction looks at the fact that—I can imagine someone who owns an inside cat, if I can describe it that way, as opposed to a very large dog that requires lots of room to bound around and the capacity to cause significant damage inside a particular house, or others who have pet pigs or whatever it might happen to be within their premises, the nature of the pet from my viewpoint, if I was a landlord, would be that I would feel more comfortable if someone had an inside cat that was being kept as opposed to a Doberman, a bulldog, or whatever it might happen to be, inside a premises.

The Hon. Mr Wortley raised the issue in terms of the importance of animals to in particular older South Australians. If you have had to, for whatever reason—the death of a partner or unfortunate financial circumstances—move from a house at a property location and you have had to move into rented premises, and you have had a pet for 10 or 15 years—the connectivity between an individual and his or her pet is significant.

Many of us probably have within our friendship groups or family circles people who treat their long-term family pet almost as well or maybe even better than other human members of their family, and love them probably as much if not more because they are there all the time and they are a constant companion for them. That is important.

I would not downplay the significance of the connection younger people have with their pets as well. The Hon. Mr Wortley talked about what happens, that animals get handed in to animal welfare or RSPCA because they have had to give them up, or a variety of other options, but the other option, which is not uncommon amongst some younger tenants, is that as soon as the landlord comes around, particularly if they have an indoor cat or a small indoor dog, someone has to hop in a car and drive around for a couple of hours whilst the landlord does an inspection of the premises.

The pet, the animal and the kitty litter (or whatever else it happens to be) is removed for a period of two hours while the landlord does the inspection, and then the pet returns to the premises after the landlord has completed the inspection. There are all sorts of devices or processes that tenants go through in terms of trying to stay connected to their pet.

For all those reasons, the government through the Attorney-General is prepared to engage in further discussion. At this stage, it is only a commitment to support the second reading, as I said. I should again speak on behalf of my colleagues. There are some who are very strongly opposed to any contemplation of a move down this particular path. Our party room has not arrived at a final position until there has clearly been further discussion with the mover and other stakeholders to see the final nature of the bill, but we are prepared to support the second reading at this particular stage of the debate.

The Hon. M.C. PARNELL (16:55): I will start by thanking the Hon. Connie Bonaros, the Hon. Russell Wortley and the Hon. Rob Lucas for their contributions and also for the fact that all those contributions have kept an open mind on the possibilities for reform in this area. I note that the Hon. Rob Lucas, now that apparently he has half the South Australian bar on his staff, has access to excellent legal research. I think he has reasonably accurately summarised the state of play around the country. One thing all the contributions had in common is they all reflected that this is an exercise in the balancing of rights and responsibilities. Clearly, that is what this exercise is.

The Hon. Rob Lucas categorised the approaches in different jurisdictions as either landlord oriented, tenant oriented or somewhere in the middle. That is one way of looking at it but, at its most basic level, in this balance of rights and responsibilities there is one person who owns a freehold title to a piece of land with bricks and mortar—that is their interest—and there is another person for whom those bricks and mortar represent their home, the community in which they live and the home in which they raise their children, look after their elderly parents, or whatever it might be.

Clearly, there are important and valid interests on both sides of this debate, and the challenge for us as legislators is to get that balance right. I brought this bill forward because I think there is in fact no balance at all. It is entirely one-sided at present because the law is that, if the landlord says 'no pets', it does not have to be reasonable that they have said that. They can just say it and that is it, no ifs or buts. No pets, no debate to be entered into; that is the final word. That is not a balancing act: that is a one-sided contractual arrangement.

I think we can do better than the status quo. I know, and some members raised this, there is always the fear that, if we make standards or we make the law too onerous, there will be a vacation of the field and people will not want to rent their houses anymore. If we make rental properties subject to minimum standards, for example, or we pass pet laws, no-one will want to rent properties anymore. They will all go to Airbnb instead.

I do not accept that. In fact, it is the same argument against minimum wages, that if we could pay people less, if we could drop the standards a bit, we might get more people employed. It is an age-old argument. I do not accept that it strikes the right balance. Certainly, people have raised issues of things that can go wrong with pets. I just add the point that things can go wrong in many families. I can think of many more children of my acquaintance who cause far more damage than a lot of pets.

I think we do need to keep this debate going. I am grateful to the Attorney-General for keeping an open mind. No-one so far has denied the importance of animals in people's lives. No-one has denied it because it is clearly factual and true that pets are important to so many people. No-one has denied that. It is a question of, as legislators, getting the balance right, so I am looking forward to resuming this discussion in the new year.

For the record, and I think I said this in my second reading contribution, we have consulted with landlords, we have consulted with real estate agents and we have consulted with tenancy groups. It is not as if we have come to this on a whim. As the Leader of the Government acknowledged, all states are going through this very same process. I am keen to work with the Attorney-General. I think we can do better than the current one-sided arrangement. I think this bill is the way to go, but let us see what the balance of opinion is in the parliament. If there are other changes that people want to put forward, then of course we will look at those.

I am very pleased that this bill will be read for a second time today, and I look forward to engaging with members, and with the government in particular, to see if we can get something in place fairly early in the New Year. I am pleased this bill will be read a second time today.

Bill read a second time.

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