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STATUTE LAW AMENDMENT ACT 2017 (NO 2) (NO. 28 OF 2017) - SCHEDULE 1

Schedule 1     Minor amendments

(see s 5)

Part 1.1     Annual Reports (Government Agencies) Act 2004

[1.1]     New section 9A

in part 3, insert

9A     Responsible Minister for state of the service report

The responsible Minister for a state of the service report is the Chief Minister.

Explanatory note

Under section 5 of the Act, the head of service must prepare a state of the service report about the operation of the public service during the reporting year. This amendment inserts a new section to provide that the Chief Minister is the responsible Minister for a state of the service report. The section is consistent with other sections in part 3 of the Act, which state who the responsible Minister is for a director-general annual report, a public sector body annual report and a territory entity annual report.

Part 1.2     City Renewal Authority and Suburban Land Agency Act 2017

[1.2]     Section 63

omit

Minister

substitute

Treasurer

Explanatory note

This amendment revises section 63 to give the Treasurer the function of making directions relating to land acquisition by the city renewal authority or the suburban land agency. This is consistent with the Treasurer's responsibilities under the Act in relation to financial matters of the authority and agency and under the Financial Management Act 1996

in relation to statements of intent.

[1.3]     Section 63 (as amended)

relocate to part 4

Explanatory note

This amendment relocates section 63 from part 3 (Suburban land agency) to part 4 (Miscellaneous). Part 4 is a more appropriate location for the section because it deals with land acquisition by the city renewal authority or the suburban land agency, whereas the provisions in part 3 (apart from section 63) relate only to the suburban land agency.

Part 1.3     Residential Tenancies Act 1997

[1.4]     Smoke alarms
Section 11B (b)

substitute

        (b)     the smoke alarms, and the installation of the smoke alarms, comply with the requirements prescribed by regulation.

Note     Other requirements may apply in relation to the installation of smoke alarms, for example, requirements under the Building Act 2004

.

    (2)     A regulation made for subsection (1) may apply, adopt or incorporate a law or instrument as in force from time to time.

Explanatory note

Section 11B provides that a lessor must not enter into a residential tenancy agreement with a tenant in relation to premises unless the premises have smoke alarms installed. 

This amendment substitutes a new section 11B (b) so that requirements in relation to smoke alarms can be prescribed by regulation rather than by reference to the building code, volume 2, part 3.7.2.

The intention of section 11B when it was included in the Act was to allow lessors to install a hard-wired or a battery-operated smoke alarm that meets the relevant Australian Standard for smoke alarms (AS 3786).

However, calling up the requirements of the building code, volume 2, part 3.7.2 has created some uncertainty for two reasons:

              •     the building code, volume 2 is expressed to apply to class 1 and class 10a buildings only; and

              •     part 3.7.2 requires a smoke alarm to be connected to the consumer mains power where consumer mains power is supplied to the building. 

Referring to the building code, volume 2, part 3.7.2 in section 11B has had the unintended consequence of requiring lessors of existing buildings (to which the building code would not otherwise apply) to install a hard-wired alarm rather than having the choice of installing a hard-wired or a battery-operated alarm.

There is also some uncertainty that the requirements apply to all classes of building that are subject to a residential tenancy agreement.

This amendment revises section 11B to provide for requirements in relation to smoke alarms to be specified by regulation.  In addition, the amendment inserts a new subsection (2) so that the regulation may incorporate requirements from AS 3786 as in force from time to time.

The Residential Tenancies Regulation 1998

is revised by another amendment as a consequence of this amendment. The new regulation will apply to all classes of building that are subject to a residential tenancy agreement.

[1.5]     Sections 145 and 146

omit

building code, volume 2, part 3.7.2

substitute

requirements prescribed by regulation for section 11B

Explanatory note

This amendment modifies the application of part 13, which contains the transitional provisions for section 11B. Section 145 provides a transitional period of up to 12 months for smoke alarms to be installed for premises that were under an existing residential tenancy agreement at the time section 11B commenced. Section 146 places an obligation on a tenant of an existing residential tenancy agreement to replace a battery in a smoke alarm as necessary so that a tenant will be under the same obligation as a tenant under a new residential agreement entered after section 11B commenced. This amendment revises sections 145 and 146 to be consistent with the changes to section 11B made by another amendment.

[1.6]     New part 14

insert

Part 14     Transitional—Statute Law Amendment Act 2017 (No 2)

148     Meaning of commencement day —pt 14

In this part:

"commencement day" means the day the Statute Law Amendment Act 2017 (No 2) commences.

149     Residential tenancy agreement entered contrary to s 11B

    (1)     This section applies to a lessor who entered into a residential tenancy agreement with a tenant in contravention of section 11B (b) (the relevant requirement ) as in force immediately before the commencement day.

    (2)     The lessor is taken to have complied with the relevant requirement if the smoke alarm was installed in compliance with the requirements prescribed by regulation for section 11B.

150     Expiry—pt 14

This part expires 12 months after the commencement day.

Note     Transitional provisions are kept in the Act for a limited time. A transitional provision is repealed on its expiry but continues to have effect after its repeal (see Legislation Act

, s 88).

Explanatory note

This amendment inserts a new transitional part which will have the effect of deeming a smoke alarm that meets the new requirements in section 11B (as amended by amendment 1.4) to have met the requirements of that section as in force immediately before this amendment commences.

[1.7]     Schedule 1, clause 53A (2)

omit

building code, volume 2, part 3.7.2

substitute

requirements prescribed by regulation for the Residential Tenancies Act, section 11B

Explanatory note

Schedule 1 of the Act sets out the standard residential tenancy terms. Clause 53A was inserted in the standard residential tenancy terms by the Residential Tenancies Legislation Amendment Act 2016

to reflect the obligation imposed on the lessor by section 11B of the Act to install smoke alarms on premises before entering into a residential tenancy agreement with a tenant in relation to those premises. This amendment revises clause 53A (2) so that it is consistent with the changes to section 11B made by another amendment.

Part 1.4     Residential Tenancies Regulation 1998

[1.8]     New sections 1B and 1C

insert

1B     Smoke alarms and installation of smoke alarms—Act, s 11B

    (1)     A smoke alarm installed at premises subject to a residential tenancy agreement—

        (a)     must—

              (i)     comply with AS 3786; and

              (ii)     be functional; and

              (iii)     be installed on or near the ceiling; and

        (b)     may be—

              (i)     battery-operated; or

              (ii)     hard-wired.

Note     AS 3786 requires a hard-wired smoke alarm to also have a secondary power source.

    (2)     A smoke alarm must be installed in premises subject to a residential tenancy agreement—

        (a)     in each storey of the premises containing a bedroom—

              (i)     in every corridor or hallway associated with a bedroom; and

              (ii)     if there is no corridor or hallway—between each part of the premises containing a bedroom and the remainder of the premises; and

        (b)     in each storey of the premises not containing a bedroom.

Note     Other requirements may apply in relation to the installation of smoke alarms, for example, requirements under the Building Act 2004

.

    (3)     In this section:

AS 3786 means Australian Standard 3786 Smoke alarms using scattered light, transmitted light or ionization as in force from time to time.

1C     Disapplication of Legislation Act, s 47 (6)

    (1)     The Legislation Act

, section 47 (6) does not apply to AS 3786 under section 1B.

Note     AS 3786 does not need to be notified under the Legislation Act

because s 47 (6) does not apply (see Legislation Act

, s 47 (7)). The standard may be purchased at www.standards.org.au

.

    (2)     However, the director-general must make a copy of AS 3786 available for inspection by members of the public during ordinary business hours at a place decided by the director-general.

Explanatory note

This amendment inserts 2 new sections as a consequence of changes made to the Residential Tenancies Act 1997

, section 11B by another amendment.

Proposed section 1B sets out the types of smoke alarms that may be installed at residential premises that are subject to a residential tenancy agreement and where the smoke alarms must be installed.

Proposed section 1C incorporates AS 3786 into the regulation. The Legislation Act

, section 47 (6) provides that an incorporated document, and any amendment or replacement of such a document, are taken to be notifiable instruments. A notifiable instrument must be notified on the legislation register under the Legislation Act

. However, the Legislation Act

, section 47 (6) may be displaced by the authorising law (the Act) or the incorporating instrument (this regulation) (see section 47 (7)). Proposed section 1C displaces the Legislation Act

, section 47 (6) because the incorporated standards are subject to copyright and may be purchased over the internet. Proposed section 1C (2) provides that a copy of the standard must be available for inspection by members of the public.



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