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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Residential Tenancies (Domestic Violence Protections)
Amendment Bill 2015
A BILL FOR
An Act to amend the
Residential
Tenancies Act 1995
.
Contents
Part 2—Amendment of Residential
Tenancies Act 1995
4Amendment of section
3—Interpretation
5Amendment of section 5—Application of
Act
6Amendment of section 72—Right of
entry
89ATermination based on domestic
abuse
8Amendment of section 99F—Listing can be
made only for particular breaches by particular persons
105UATermination based on abuse of
rooming house resident
10Amendment of section 112—Restraining
orders
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Residential Tenancies (Domestic Violence
Protections) Amendment Act 2015.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Residential Tenancies
Act 1995
4—Amendment
of section 3—Interpretation
(1) Section 3(1)—before the definition of ancillary
property insert:
abuse and act of abuse have the same meaning as
in the
Intervention
Orders (Prevention of Abuse) Act 2009
;
(2) Section 3(1)—after the definition of Commissioner
insert:
co-tenant means a tenant who is 1 of 2 or more
tenants under a residential tenancy agreement;
(3) Section 3(1)—after the definition of Deputy
Registrar insert:
domestic abuse means an act of abuse committed by a person
against a domestic associate or a former domestic associate of the
person;
domestic associate—2 persons are domestic
associates, 1 of the other, if—
(a) they are
married to each other; or
(b) they are
domestic partners; or
(c) they are in
some other form of intimate personal relationship in which their lives are
interrelated and the actions of 1 affect the other; or
(d) 1 is the child, stepchild or grandchild, or is under the
guardianship, of the other (regardless of age); or
(e) 1 is a child, stepchild or grandchild, or is under the
guardianship, of a person who is or was formerly in a relationship with the
other under paragraph (a), (b) or (c) (regardless of age);
or
(f) 1 is a child and the other is a person who acts in loco
parentis in relation to the child; or
(g) 1 is a child who normally or regularly resides or stays with the
other; or
(h) they are brothers or sisters or brother and sister; or
(i) they are otherwise related to each other by or through blood,
marriage, a domestic partnership or adoption; or
(j) they are related according to Aboriginal or Torres Strait Islander
kinship rules or are both members of some other culturally recognised family
group; or
(k) 1 is the carer (within the meaning of the
Carers
Recognition Act 2005
) of the other;
(4) Section 3(1)—after the definition of domestic facility
requiring instructions insert:
domestic partner means a person who is a domestic partner
within the meaning of the
Family
Relationships Act 1975
, whether declared as such under that Act or not;
(5) Section 3(1)—after the definition of housing improvement
notice insert:
intervention order means an intervention order issued by a
court under the
Intervention
Orders (Prevention of Abuse) Act 2009
;
5—Amendment
of section 5—Application of Act
Section 5(2)—after paragraph (ca) insert:
(cb) section 89A (Termination based on domestic abuse);
6—Amendment
of section 72—Right of entry
Section 72(1)—after paragraph (c) insert:
or
(ca) to inspect the premises in accordance with an order of the Tribunal
under section 89A(4)(b); or
After section 89 insert:
89A—Termination based on domestic
abuse
(1) The Tribunal
may, on application by a tenant or a co-tenant, terminate a residential tenancy
from a date specified in the Tribunal's order if satisfied—
(a) that an
intervention order is in force against a person who resides at the residential
premises for the protection of—
(i) the applicant; or
(ii) a domestic associate of the applicant who normally or regularly
resides at the residential premises; or
(b) that a person who
resides at the residential premises has committed domestic abuse
against—
(i) the applicant; or
(ii) a domestic associate of the applicant who normally or regularly
resides at the residential premises.
(2) 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—
(a) that an
intervention order is in force against the tenant for the protection of a person
who normally or regularly resides at the residential premises; or
(b) that the tenant
has committed domestic abuse against a person who normally or regularly resides
at the residential premises.
(3) For the purposes of an application under this section, the applicant,
the landlord and any tenant or co-tenant under the residential tenancy agreement
are parties to proceedings concerning the tenancy dispute.
(4) The Tribunal may,
on application by a party to proceedings under this section, make 1 or
more of the following additional orders:
(a) subject to this
section, 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;
(b) 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 this section;
(c) an order for possession of the premises on a date specified by the
Tribunal;
(d) if the Tribunal is satisfied that—
(i) the applicant did not cause or reasonably cause a breach of the
residential tenancy agreement; or
(ii) the nature of any breach of the residential tenancy agreement
resulted from an act of abuse or domestic abuse against the applicant,
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).
(5) The Tribunal must not make an order under
subsection (4)(a)
requiring the landlord to enter into a new residential tenancy agreement
with a co-tenant who is—
(a) the person referred to in
subsection (1)(a)
against whom an intervention order is in force; or
(b) the person referred to in
subsection (1)(b)
whom the Tribunal is satisfied has committed domestic abuse against an
applicant or a domestic associate of the applicant who normally or regularly
resides at the residential premises,
if the landlord indicates, as part of proceedings before the Tribunal, that
the landlord considers it would be unreasonable for such an order to be
made.
(6) Before making an
order under
subsection (4)(a)
, the Tribunal must be satisfied—
(a) that any tenant or co-tenant under the new residential tenancy
agreement could reasonably be expected to comply with the obligations under the
agreement; and
(b) in a case where the landlord is the South Australian Housing Trust or
a subsidiary of the South Australian Housing Trust—that any tenant under
the new residential tenancy agreement meets the eligibility requirements of the
Trust.
(7) If the landlord or any co-tenant objects to an application for the
making of an order under
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.
(8) A new
residential tenancy agreement entered into by order of the Tribunal under
subsection (4)(a)
must be on the same terms and conditions as the terminated tenancy
agreement, subject to any changes determined by the Tribunal.
(9) In considering an application under this section, the Tribunal must
have regard to such of the following orders and proceedings (if any) as are
relevant to the application:
(a) an order,
injunction, undertaking, plan, recognisance or other form of obligation imposed
or agreement made under the Family Law Act 1975 of the
Commonwealth;
(b) an order made
under the
Children's
Protection Act 1993
;
(c) an order made
under the
Intervention
Orders (Prevention of Abuse) Act 2009
;
(d) a pending application for an order referred to in
paragraph (a)
,
(b)
or
(c)
;
(e) any other relevant legal proceedings.
(10) If a residential
tenancy is terminated under this section because of an intervention order in
force against a co-tenant under the residential tenancy agreement, or because a
co-tenant under the agreement has committed domestic abuse, the Tribunal may
order the 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
subsection (4)
.
(11) If the Tribunal
finds, in relation to a residential tenancy that is terminated under this
section, 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).
(12) If 1 or more, but
not all, of the co-tenants under a residential tenancy agreement are liable
under
subsection (10)
or
(11)
for making a payment of compensation, 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
(1) Section 99F(1)—delete "must not list personal information about
a person in a residential tenancy database unless" and substitute:
may only list personal information about a person in a residential tenancy
database if
(2) Section 99F(1)—after paragraph (d) insert:
and
(e) the Tribunal has not made an order under section 89A(4)(d) prohibiting
the listing.
After section 105U insert:
105UA—Termination based on abuse of rooming house
resident
(1) The Tribunal may,
on application by a resident, terminate a rooming house agreement from a date
specified in the Tribunal's order if satisfied—
(a) that an
intervention order is in force against a person who resides in the same rooming
house as the applicant (whether or not under the same rooming house agreement as
the applicant) for the protection of—
(i) the applicant; or
(ii) a domestic associate of the applicant who normally or regularly
resides in the rooming house; or
(b) that a person who
resides in the same rooming house as the applicant (whether or not under the
same rooming house agreement as the applicant) has committed domestic abuse
against—
(i) the applicant; or
(ii) a domestic associate of the applicant who normally or regularly
resides in the rooming house.
(2) For the purposes of an application under this section, the applicant,
the proprietor and any other resident under the rooming house agreement are
parties to proceedings concerning the tenancy dispute.
(3) If the Tribunal
makes an order under
subsection (1)
—
(a) the Tribunal may,
subject to this section, 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; and
(b) 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.
(4) The Tribunal must not make an order under
subsection (3)
requiring the proprietor to enter into a new rooming house agreement with
a resident under the terminated rooming house agreement who is—
(a) the person referred to in
subsection (1)(a)
against whom an intervention order is in force; or
(b) the person referred to in
subsection (1)(b)
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.
(5) The Tribunal
must, before making an order under
subsection (3)
requiring a proprietor to enter into a new rooming house agreement, be
satisfied that the resident or residents under the new rooming house agreement
could reasonably be expected to comply with the obligations under the new
agreement.
(6) If a party to proceedings on an application under this section objects
to an application for the making of an order under
subsection (1)
or
(3)
, 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 in the rooming house 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.
(7) In considering an application under this section, the Tribunal must
have regard to such of the following orders and proceedings (if any) as are
relevant to the application:
(a) an order,
injunction, undertaking, plan, recognisance or other form of obligation imposed
or agreement made under the Family Law Act 1975 of the
Commonwealth;
(b) an order made under
the
Children's
Protection Act 1993
;
(c) an order made under
the
Intervention
Orders (Prevention of Abuse) Act 2009
;
(d) a pending application for an order referred to in
paragraph (a)
,
(b)
or
(c)
;
(e) any other relevant legal proceedings.
(8) If a rooming
house agreement is terminated under this section because of an intervention
order in force against a resident under the agreement, or because a resident
under the agreement has committed domestic abuse, the Tribunal may order the
resident to make a payment of compensation to the proprietor for loss and
inconvenience resulting, or likely to result, from the termination of the
agreement or from an order under
subsection (3)
.
(9) 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).
(10) If 1 or more, but not all, of the residents under a rooming house
agreement are liable under
subsection (8)
or
(9)
for making a payment of compensation, the Tribunal may give a direction
under section 110(1)(i) that the bond (if any) be paid to the proprietor
and any resident under the agreement 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
Section 112—after subsection (1) insert:
(1a) If the Tribunal is
satisfied, on application by a tenant, that there is a risk that a co-tenant or
a person permitted on the premises by a co-tenant may—
(a) cause serious damage to property; or
(b) cause personal injury; or
(c) if the co-tenant is a domestic associate or former domestic associate
of the tenant—commit an act of domestic abuse,
the Tribunal may make a restraining order restraining the co-tenant and
other persons on the premises from engaging in conduct of a kind described in
the order.
(1b) In considering an application under
subsection (1a)
, the Tribunal must have regard to such of the following orders and
proceedings (if any) as are relevant to the application:
(a) an order,
injunction, undertaking, plan, recognisance or other form of obligation imposed
or agreement made under the Family Law Act 1975 of the
Commonwealth;
(b) an order made
under the
Children's
Protection Act 1993
;
(c) an order made
under the
Intervention
Orders (Prevention of Abuse) Act 2009
;
(d) a pending application for an order referred to in
paragraph (a)
,
(b)
or
(c)
;
(e) any other relevant legal proceedings.