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Residential Tenancies Amendment Bill
2010
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purposes of the Bill.
Clause 2 provides that the Bill will come in to operation on a day or days
to be proclaimed. If the Bill (except for Part 7) is not
proclaimed before 31 March 2012, then it commences on that
date. This commencement period is necessary to enable
regulations to be made and for the development and
implementation of an education program and other non-
legislative matters incidental to the commencement of the Bill.
Clause 3 provides that in the Bill the Residential Tenancies Act 1997 is
referred to as the Principal Act.
PART 2--AMENDMENTS TO PARTS 1 AND 4 OF THE
PRINCIPAL ACT
Clause 4 amends section 1 of the Principal Act to expand the purposes of
the Principal Act to include providing for regulation of
agreements between site owners and site tenants in respect of
Part 4A sites and Part 4A dwellings.
Clause 5 amends section 3(1) of the Principal Act by inserting a number
of definitions consequential to the insertion of a new Part 4A in
the Principal Act. The key definitions inserted are--
Part 4A dwelling. The term means a dwelling fully or partially
owned by a site tenant--
· designed, built or manufactured to be transported from
one place to another for use as a residence; or
561461 1 BILL LA INTRODUCTION 11/8/2010
· any other prescribed Part 4A dwelling--
but does not include--
· a registrable moveable dwelling; or
· a registrable moveable dwelling with an annexe
attached; or
· a dwelling that was previously a registrable moveable
dwelling but that has been modified to the extent that it
no longer satisfies the definition of a registrable
moveable dwelling, unless it was so modified before the
commencement of section 5 of this Bill.
Examples of a Part 4A dwelling include an unregistrable
movable dwelling, or other like dwellings commonly known as
manufactured homes, prefabricated or transportable homes that
are designed, built or manufactured to be transported from one
place to another for use as a residence. For avoidance of doubt,
a traditional caravan (used in its ordinary sense) would not be a
Part 4A dwelling.
Part 4A park. The term means an area of land where sites of
land are available for occupation under a site agreement,
Part 4A dwellings may be situated on those sites and common
areas or facilities are available for the use of a person occupying
a Part 4A site. The term includes a caravan park if the caravan
park contains any Part 4A sites.
Part 4A site. The term means a site that is available for
occupation under a site agreement.
site agreement. The term means an agreement under which a
person lets land as a Part 4A site for the purposes of the
occupation of a Part 4A dwelling on that land by the Part 4A
dwelling owner as a residence.
site owner. The term means the person by whom a Part 4A site
is let under a site agreement or is to be let under a proposed site
agreement.
site tenant. The term means the person by whom a Part 4A site
is let under a site agreement; or is to be let under a proposed site
agreement.
Other definitions inserted in the Principal Act by clause 5 are
annexe, fixed term site agreement, periodic site agreement,
registrable movable dwelling, site agreement provisions and
unregistrable movable dwelling.
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The clause also amends a number of existing definitions in the
Principal Act consequent upon the insertion of Part 4A,
specifically, the definitions of bond, common area, facilities,
rent, resident and visitor.
Division 2--Amendments to Part 1--Residential Tenancies--
Tenancy agreements
Clause 6 inserts new Subdivision 4--Application to site agreements, into
Division 2 of Part 1 of the Principal Act.
New section 23A clarifies the application of the Principal Act to
assignees or transferees under a site agreement. Section 23A
provides that the Principal Act applies to a person to whom the
rights and duties of a site owner under a site agreement or a site
tenant under a site agreement have been assigned or transferred
or have passed by operation of law in the same manner as the
Principal Act applies to the person by whom the rights were
assigned or transferred or from whom the rights and duties have
passed by operation of law.
New section 23B provides that the Principal Act applies to a site
agreement whether or not the initial term of the site agreement
exceeds 5 years.
New section 23C provides that the Principal Act does not apply
to a site agreement created or arising under the terms of a
contract of employment or entered into in relation to a contract
of employment.
New section 23D provides that the Principal Act applies to a
site agreement if the Part 4A site the subject of the agreement is
used primarily for residential purposes even if a trade,
profession or business is also carried on by the site tenant on
that site.
New section 23E provides that the Principal Act does not apply
to a site agreement if the Part 4A site the subject of the site
agreement is ordinarily used for holiday purposes.
New section 23F provides that the Principal Act does not apply
to--
· a Part 4A site if that site is a prescribed Part 4A site or is
included in a class of prescribed Part 4A site; or
· a site agreement if the site agreement is a prescribed site
agreement or is included in a prescribed class of site
agreement.
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New section 23G provides that certain provisions of the
Landlord and Tenant Act 1958 and the Property Law Act
1958 do not apply to site agreements.
Clause 7 amends section 24 of the Principal Act by inserting new
subsection (3) which enables a site owner or site tenant to apply
to the Tribunal for an order declaring that a provision of the
Principal Act does not apply to a site agreement.
Clause 8 amends section 25 of the Principal Act by inserting new
subsection (2A) which enables the Tribunal, on hearing an
application made under section 24(3), to make an order that a
provision of the Principal Act does not apply to a site
agreement.
Division 3--Amendments to Part 4--Caravan parks and
moveable dwellings--residency rights and duties
Clause 9 inserts Division 1AA into Part 4 of the Principal Act.
New section 143AA(1) extends the application of Part 4 to
include a person who is--
· a resident of a caravan park who has a right to reside on
a caravan park site and a right to reside in a caravan
situated on that site; and
· a resident of a caravan park who has a right to reside on
a caravan park site and who owns a caravan that is
situated on that site, unless that caravan is a Part 4A
dwelling; and
· a person who resides in a Part 4A dwelling on a Part 4A
site (other than under a site agreement) and who does
not own that Part 4A dwelling in whole or in part.
Section 143AA(2) provides that Part 4 does not apply to site
agreements.
This amendment deals with the interaction between Part 4 and
Part 4A. There are circumstances where a caravan park may
have residents as well as site tenants. In this case, the caravan
park would satisfy the definition of a caravan park and a
Part 4A park and the owner would have obligations under both
Part 4 and Part 4A. A resident in a caravan park (and not a site
tenant under a site agreement) would be covered by Part 4.
A site tenant under a site agreement would be covered by
Part 4A.
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PART 3--NEW PART 4A
New Part 4A sets out provisions regulating site agreements between site
tenants and site owners.
Clause 10 inserts new Part 4A--Site agreements and site-tenant owned
dwellings into the Principal Act.
Division 1--General requirements for site agreements
New Division 1 of Part 4A of the Principal Act sets out the
general requirements for site agreements and clarifies the nature
of a site agreement.
New section 206B sets out rights of site tenants to provide that,
subject to the Act and the terms of a site agreement, a site tenant
has the right--
· to occupy and use the Part 4A site to which their site
agreement applies; and
· to situate their Part 4A dwelling on the site the subject
of their agreement; and
· to use facilities and common areas of the Part 4A park
in which the site is located.
New section 206C provides that, despite any Act or law to the
contrary, including the common law, a Part 4A dwelling owned
by a site tenant is not a fixture of the Part 4A site on which it is
situated.
New section 206D provides that a site agreement cannot be
entered into in relation to Crown land.
New section 206E(1) provides that a site agreement must be in
writing. Subsection (2) provides that a site owner must not
enter into a site agreement with a site tenant that is not in
writing. A penalty of 60 penalty units is prescribed for non-
compliance. Subsection (3) provides that a failure to comply
with section 206E does not make the site agreement illegal,
invalid or unenforceable or affect the application of the Act to
the site agreement.
New section 206F sets out a number of requirements concerning
the terms of a site agreement. Subsection (1) provides that a
site agreement--
· must include any prescribed terms;
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· may include any other term that is not inconsistent with
the Principal At or a with a prescribed term; and
· must contain any other prescribed matters.
Subsection (2) provides that if a site agreement does not include
a prescribed term, the agreement is taken to include the
prescribed term. Subsection (3) provides that a term in a site
agreement is void to the extent that--
· it is inconsistent with the Principal Act; or
· it purports to exclude, restrict or modify the application
of or exercise of a right conferred by the Principal Act;
or
· it is inconsistent with a prescribed term or other
prescribed matters.
New section 206G provides that a site tenant may apply to the
Tribunal for an order declaring invalid or varying a term of a
site agreement where it is satisfied that the term is harsh and
unconscionable or is such that a court of equity would grant
relief. An order made under section 206F will have effect
according to its terms.
New section 206H requires site owners who renew or enter into
new site agreements to offer a minimum fixed term of 5 years if
the agreement relates to a Part 4A site situated in a Part 4A park
that is registered as a caravan park under Part 14 of the
Principal Act on or after the commencement of section 10 of the
Residential Tenancies Amendment Act 2010. Any site
agreement to which subsection (1) applies that is entered into
for a period of less than 5 years is deemed by new section
206G(2) to be a site agreement for a fixed term of 5 years.
New section 206I provides for a period to allow consideration
of a proposed site agreement.
Subsection (1) provides that a site owner must not give a site
tenant a proposed site agreement or any other document that
contains terms that are proposed to form part of the site
agreement to sign unless they have given the site tenant a copy
of that agreement or other document at least 20 days earlier.
Failure to comply is subject to a penalty of 20 penalty units.
Subsection (2) provides that at the time that a site owner gives
the site tenant a proposed site agreement or other document they
must give the site tenant a notice in the prescribed form of the
cooling off period and the site tenant's right to rescind the site
agreement under new section 206I.
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New section 206J provides for a cooling off period of
5 business days during which a site tenant may rescind a site
agreement. The new section sets out the process for rescission
during the cooling off period and allows the site owner to retain
$100 or, if a greater amount is prescribed, that prescribed
amount.
Division 2--Bonds
New Division 2 of Part 4A of the Principal Act provides for the
payment of a bond by a site tenant who enters into a site
agreement with a site owner. The bond provisions replicate the
existing bond provisions for tenancy agreements.
New section 206K provides for the maximum bond in relation
to a site agreement. Subsection (1) provides a limit on the
amount that may be demanded or accepted as a bond in relation
to a site agreement. A penalty of 20 penalty units is prescribed
for non-compliance. Subsection (2) provides that the limit
imposed under section 206K(1) does not apply to a site
agreement if the amount of rent payable under the site
agreement for one week exceeds $350 or, if a greater amount is
prescribed for the purposes of the section, that greater amount.
New section 206L enables a site owner who wishes to demand a
bond which exceeds the limit set out in section 206K to apply to
the Tribunal for an order determining the maximum amount of
the bond.
New section 206M enables the Tribunal, on an application
under section 206L, to make an order determining the
maximum bond if it considers it is reasonable to increase the
bond having regard to the character and condition of the Part 4A
site.
New section 206N provides that a person must not demand or
accept a bond for a subsequent site agreement under which a
site tenant continues in occupation of the Part 4A site if that site
tenant--
· has paid a bond for the initial site agreement under
which the amount of rent payable for one week does not
exceed $350 or if a greater amount is prescribed, the
greater amount; and
· continues in occupation of the Part 4A site under the
subsequent site agreement.
A penalty of 20 penalty units is prescribed for contravention of
section 206N.
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New section 206O(1) provides that if a site tenant pays a bond,
then before the site tenant enters into occupation of a Part 4A
site, the site owner must give the site tenant two copies of a
condition report signed by or on behalf of the site owner.
The condition report must specify the state of repair and general
condition of the Part 4A site on the day specified in the report.
In the case of non-compliance, a penalty of 10 penalty units will
apply.
Subsection (2) provides that within three business days after
entering into occupation of the Part 4A site, the site tenant must
return one copy of the condition report to the site owner signed
by or on behalf of the site tenant or with an endorsement to the
effect that the site tenant agrees or disagrees with the whole or
any specified part of the condition report.
New section 206P provide that a statement in a condition report
is evidence of the state of repair or general condition of the
Part 4A site on the specified date except where it could not
reasonably have been discovered on reasonable inspection or
where the site tenant disagrees under an endorsement on the
report.
New section 206Q prohibits a person demanding or requiring
a site tenant to obtain a guarantee for the performance of any
of the site tenant's duties in relation to the site agreement if
the site tenant has paid or agreed to pay a bond. A penalty of
20 penalty units is imposed for doing so. The new section does
not apply to a site agreement referred to in section 206K(2).
A guarantee obtained in contravention of these sections is
invalid and unenforceable.
New section 206R provides that where a site tenant has not paid
or not been required to pay a bond and has obtained a guarantee,
the guarantee is unforceable if it exceeds an amount payable for
one month's rent. The new section does not apply to a site
agreement referred to in new section 206K(2).
Division 3--Rents and other charges
New Division 3 of Part 4A of the Principal Act governs the
imposition and payment of rents, fees and other charges under
site agreements.
New section 206S sets out details of what must be included in a
site agreement and prohibits the site owner requiring payment
of any amount under the site agreement if the amount has not
been disclosed in the site agreement in accordance with this
section.
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New section 206T makes it an offence for a site owner to
require a site tenant to pay rent more than 1 month in advance.
20 penalty units may be imposed for contravention of
section 206T.
New section 206U(1) provides that a person who receives
payment of rent from a site tenant must give a written receipt to
the person making the payment. The section prescribes the
timeframes for provision of receipts and the relevant record
keeping requirements.
New section 206V(1) requires a site owner to give at least
60 days notice in the prescribed form of a proposed rent
increase and subsections (2) and (3) set out notice requirements.
Subsection (4) provides that rent must not be increased at
intervals of less than 6 months. This new section invalidates
any rent increase in contravention of this section despite
anything to the contrary in the site agreement.
New section 206W enables a site tenant to apply to the Director
to investigate and report if a site tenant considers proposed rent
under a notice he or she has received is excessive. It sets out
the matters that must be considered in the Director's report and
requires the Director to prepare and give to the site tenant a
written report of that investigation.
New section 206X provides that, following receipt of a report
from the Director under section 206W, a site tenant may apply
to the Tribunal for an order declaring the proposed rent
excessive. Such an application must be made within 30 days of
the site tenant receiving the Director's report.
New section 206Y sets out the orders the Tribunal can make
in determining an application under new section 206X.
Subsection (2) provides that the Tribunal must have regard
to the Director's report obtained under section 206W.
When making its determination, the Tribunal must take into
consideration--
· the rent payable for a similar Part 4A site in the Part 4A
park;
· the rent payable for a similar Part 4A site in a similar
Part 4A park in a similar location;
· the state of repair and general condition of the Part 4A
site and the Part 4A park;
· any variation in the cost of providing facilities or
services that the site owner provides;
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· any changes in the rent and the condition of the Part 4A
site or facilities in the Part 4A park since the site tenant
first occupied the Part 4A site and since the last rent
increase;
· the number, amount and timing of rent increases in the
preceding 24 months;
· any improvements made to the Part 4A site which
should not result in an increase because they were made
by the site tenant;
· the terms of the existing or proposed site agreement
(if any).
Where the Tribunal makes an order declaring rent to be
excessive, a site owner cannot require a site tenant to pay an
amount of rent greater than that specified in the order for a
period of six months after the day on which the order comes
into operation. The amount specified in the order must not be
less than the amount payable by the site tenant immediately
before the notice of a rental increase was given under
section 206V.
New section 206Z requires the payment of the lesser of the
increased rent or 110% of the previous rent pending the
Tribunal's decision. Where an order has been made under new
section 206Y, the Tribunal may also make an order for a refund
and specify the procedure for a refund.
New section 206ZA provides that a site owner may charge a
site tenant an additional charge for any visitor who stays in a
Part 4A dwelling on the Part 4A site that is occupied by the site
tenant. It also provides for a review of such charges by the
Tribunal if the site tenant considers the charge unreasonable and
enables the Tribunal to make an order in relation to the amount
to be paid.
New section 206ZB requires, despite anything to the contrary
in the site agreement, a site owner to reduce a site tenant's rent
if services in relation to the Part 4A site are reduced. In the
absence of any agreement about the amount of the rent
reduction, the Tribunal may make an order following
application by either party for a reduction in rent or a refund
of any excess rent paid.
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New section 206ZC makes it an offence for a person to take or
dispose of a site tenant's goods or Part 4A dwelling on account
of rent owing by the site tenant. A penalty of 20 penalty units
may be imposed for contravention of this new section.
Division 4--Other charges
New Division 4 of Part 4A of the Principal Act provides for the
imposition and payment of charges under a site agreement other
than rent.
New section 206ZD permits a site owner to charge a reasonable
initial fee for the supply of a key or a device enabling a site
tenant to gain vehicular access to the Part 4A park.
New section 206ZE sets out the liability of a site tenant for all
charges for supply or use of electricity, gas, water, drainage
and sewerage to a Part 4A site while the site tenant occupies the
Part 4A site, if they are separately metered, and for bottled gas.
New section 206ZF sets out the liability of a site owner for
installation costs and charges in respect of the initial
connection to a Part 4A site of any electricity, water or gas
(including bottled gas) supply service. Site owners are also
liable for--
· the costs of all services to a Part 4A site if those services
are not separately metered; and
· charges for water to a separately metered Part 4A site
that are not based on supply; and
· all charges relating to the supply or use of sewerage and
drainage services to or at a separately metered Part 4A
site that are not based on the extent of use of the
services.
New section 206ZG requires that a site owner or site tenant be
reimbursed if the site owner or site tenant makes payments for
which the other is liable in accordance with new section 206ZE
or 206ZF. Such reimbursement must take place within 28 days
of receipt of a written request. A site owner is not required to
reimburse a site tenant where a site owner directly bills the site
tenant under a resale agreement with a supply authority.
New section 206ZH(1) makes it an offence for a site owner to
seek overpayment for utility charges for which 20 penalty units
may be imposed. Subsection (2) provides that if a utility
supplier has issued an account to a site owner, a site owner
cannot recover from the site tenant any amount that includes
11
any amount that could have been claimed as a concession or
rebate by or on behalf of the site tenant from the relevant
supplier of the utility. Subsection (2) does not apply if the
concession or rebate is claimable by the site tenant and the site
owner has given the site tenant the opportunity to claim the
concession but the site tenant does not do so by the payment
date or, alternatively, if the concession is paid directly to the site
tenant as a refund.
Division 5--General duties of site tenants
New Division 5 of Part 4A of the Principal Act sets out the
general duties of site tenants.
New section 206ZI requires a site tenant to use the Part 4A site
for residential purposes only and in accordance with the site
agreement and to use the Part 4A park and facilities in a proper
way and ensure that any visitors do the same.
New section 206ZJ provides that a site tenant must not use the
Part 4A site for any illegal purpose whether at common law or
under an Act.
New section 206ZK requires a site tenant to pay rent, fees and
other charges agreed with the site owner on the due dates and in
the manner agreed.
New section 206ZL provides that a site tenant must not interfere
with the privacy and peace and quiet of other occupants of the
Part 4A park or interfere with the proper use and enjoyment of
the park by other occupants. A site tenant must also not allow
his or her visitors to interfere with the privacy and peace and
quiet of other occupants of the Part 4A park or with the proper
use and enjoyment of the park by other occupants.
New section 206ZM provides that a site tenant--
· must keep the Part 4A site clean and tidy; and
· must maintain the Part 4A site and their Part 4A
dwelling in a manner and condition that do not detract
from the general standard of the Part 4A park as set by
the site owner from time to time.
New section 206ZN states that a site tenant must not erect any
structures (other than a Part 4A dwelling) on the Part 4A site or
in the Part 4A park, without the written consent of the site
owner.
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New section 206ZO(1) provides that apart from fair wear and
tear, if any damage is caused to a Part 4A site or any facility in
a Part 4A park by a site tenant or his or her visitors, the site
tenant must either repair the damage or notify the site owner of,
and pay compensation for, the damage. Subsection (2) requires
that a site tenant report to the site owner any known damage to,
or breakdown of, communal facilities.
New section 206ZP provides that a site tenant must not allow
more than the number of persons agreed with the site owner to
reside on the Part 4A site.
New section 206ZQ requires a site tenant to observe all Part 4A
park rules made from time to time in accordance with the
Principal Act.
Division 6--General duties of site owners
New Division 6 of Part 4A of the Principal Act sets out the
duties of site owners under site agreements.
New section 206ZR provides for the site owner to give the site
tenant certain information.
Subsection (1) provides that before entering into a site
agreement, the site owner must give the site tenant a written
statement in the form approved by the Director of Consumer
Affairs Victoria, setting out in summary form the rights and
duties of a site owner and site tenant under the Principal Act.
A penalty of 20 penalty units applies for non-compliance.
Subsection (2) provides that before entering a site agreement, a
site owner must give the site tenant a written statement of any
other prescribed matters. A penalty of 20 penalty units applies
for non-compliance.
Subsection (3) provides that if a site owner supplies false
information to the site tenant in the statements provided or fails
to supply all the information required by the section, the site
tenant may, within 28 days of the date that the site agreement
was entered into, rescind an agreement entered into on the basis
of that information.
Subsection (4) provides that if a notice of intention to acquire
land has been served under section 6 of the Land Acquisition
and Compensation Act 1986 and the land is subject to a site
agreement, then the site tenant may rescind the site agreement at
any time within 28 days of the date that the site agreement was
entered into.
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New section 206ZS(1) requires that before entering a site
agreement, site owners must provide site tenants with a plan
of the Part 4A park identifying the Part 4A site on which the
site tenant's dwelling is to be located. A penalty of 20 penalty
units applies for non-compliance. If a site owner fails to
provide a site tenant with a plan, the site tenant may apply to the
Tribunal for an order that the site owner give the site tenant a
plan as required by subsection (1).
New section 206ZT provides for the access to be granted by a
site owner to a site tenant. A site owner must provide--
· 24 hours vehicular access to all site tenants to all
Part 4A sites; and
· 24 hour access for all site tenants to a Part 4A park; and
· access during all reasonable hours for site tenants to the
recreational areas and laundry and communal facilities
that the site tenant is entitled to access under the terms
of a site agreement.
New section 206ZU provides for a site owner's duty in respect
of quiet enjoyment.
Subsection (1) provides that a site owner must not unreasonably
restrict or interfere with the privacy, peace and quiet or proper
use and enjoyment of a Part 4A dwelling, Part 4A site and
communal facilities by a site tenant.
Subsection (2) provides that a site tenant must not unreasonably
restrict or interfere with a site tenant's occupation of a Part 4A
dwelling.
New section 206ZV requires a site owner to keep the common
areas, facilities, gardens, roadways, paths and recreation areas
in the Part 4A park clean and in a safe condition. This includes
arranging for the collection of the garbage of site tenants and
other garbage from the Part 4A park.
New section 206ZW requires a site owner to maintain, repair
and keep clean and tidy all communal facilities in a Part 4A
park. A site owner must also minimise inconvenience and
disruption in the event of repairs or maintenance, for example,
by providing substitute temporary facilities if necessary.
New section 206ZX requires a site owner to provide additional
information to a site tenant. This information relates to the
contact details of the person to contact in the event of an
emergency or for authorisation for urgent repairs. Failure to
14
provide the required information is an offence liable to a
maximum of 10 penalty units.
Division 7--Part 4A park rules
New Division 7 of Part 4A to the Principal Act sets out the
requirements relating to Part 4A park rules.
New section 206ZY provides that a site owner may make
Part 4A park rules relating to the use, enjoyment, control and
management of the Part 4A park. Subsection (2) sets out
specific examples of matters that may be addressed by the
Part 4A park rules.
Subsection (3) imposes an obligation on the site owner to--
· provide a copy of the Part 4A park rules to a site tenant
before entering into a site agreement with the site
tenant; and
· take all reasonable steps to ensure that the Part 4A park
rules are observed by all site tenants; and
· ensure that the Part 4A park rules are reasonable and are
enforced and interpreted consistently and fairly.
New section 206ZZ sets out the process that must be followed if
Part 4A park rules are to be amended. This includes a
requirement that the site owner consult with the site tenants in
respect of any proposed change to the Part 4A park rules.
Failure to consult is an offence that attracts a maximum of
20 penalty units.
New section 206ZZA authorises a site tenant to apply to the
Tribunal for an order that a Part 4A park rule is unreasonable.
If the Tribunal considers the rule is unreasonable, it may declare
the rule invalid. The new section sets out the factors to which
the Tribunal must have regard in making an order.
Division 8--Site tenants' committees
New Division 8 of Part 4A of the Principal Act sets out the
general requirements in relation to site tenants' committees.
New section 206ZZB entitles a site tenant to participate in any
site tenants' committee formed in respect of the Part 4A park of
which they are a site tenant.
New section 206ZZC provides that a site owner must not
unreasonably interfere with a site tenant's right to participate in
a site tenants' committee. A penalty of 20 units applies for
15
non-compliance. A site owner must also allow the site tenants
to use suitable communal park facilities for meetings of a site
tenants' committee.
Division 9--Assignment and sub-letting
New Division 9 of Part 4A of the Principal Act sets out the
circumstances in which a site agreement may be assigned or
sub-let.
New section 206ZZD provides for assignment of a site
agreement by a site tenant with the written consent of the site
owner. The consent of the site owner must not be unreasonably
withheld. An assignment without the site owner's consent is
invalid unless the Tribunal has determined that consent is not
required.
New section 206ZZE provides for sub-letting of a Part 4A site
by a site tenant. The section provides that a site tenant must not
sub-let the whole or any part of the Part 4A site to which a site
agreement applies without the written consent of the site owner.
The consent of the site owner must not be unreasonably
withheld. A sub-letting of the whole or part of a Part 4A site
without the site owner's consent is invalid unless the Tribunal
has determined that consent is not required.
New section 206ZZF provides that a site tenant may apply to
the Tribunal for a determination that the consent of the site
owner is not required to an assignment of a site agreement or to
the sub-letting of the whole or a part of Part 4A site where--
· the site owner withholds consent; and
· the site tenant believes that the withholding of consent
is unreasonable.
Under subsection (2), the Tribunal may order that consent is not
required.
New section 206ZZG makes it an offence for a landlord to ask
for a fee for giving consent to an assignment or sub-letting.
A penalty of 20 penalty units may be imposed for non-
compliance.
New section 206ZZH enables a site owner to enter into an
agreement with a site tenant or former site tenant to sell a
Part 4A dwelling on their behalf. However a site owner--
· can be penalised 40 penalty units for requiring such an
arrangement; and
16
· can be penalised 10 penalty units for charging a
commission for the sale unless the scale or amount of
commission has been disclosed in accordance with
section 206S of this Act; and
· can be penalised 60 penalty units in the case of a natural
person and 300 penalty units in the case of a body
corporate for obstructing or hindering the sale of a
Part 4A dwelling by act or omission.
Division 10--Rights of entry
New Division 10 of Part 4A of the Principal Act provides for
entry to a Part 4A site by a site owner or site owner's agent in
certain circumstances.
New section 206ZZI sets out the circumstances under which a
site owner or their agent may enter a Part 4A site occupied by a
site tenant. These include--
· if the site tenant agrees at the time entry is sought; or
· if there is an emergency and immediate entry is
necessary to save life or valuable property; or
· if the Tribunal has made an abandonment order under
section 317W; or
· for a purpose set out in section 206ZZJ, at any time
between 8am and 6pm on any day (except a public
holiday) if at least 24 hours notice has been given to the
site tenant in accordance with section 206ZZL.
Subsection (2) sets out requirements for entry of a Part 4A
dwelling to include--
· if the site tenant agrees at the time entry is sought; or
· if there is an emergency and immediate entry is
necessary to save life or valuable property; or
· if the Tribunal has made an abandonment order under
section 317W.
New section 206ZZJ sets out the grounds for entry of a Part 4A
site.
New section 206ZZK sets out the manner in which a right of
entry must be exercised.
New section 206ZZL sets out what must be in a notice of entry.
17
New section 206ZZM requires a site tenant to permit a person
exercising a right of entry in accordance with Division 10 of
Part 4A of the Principal Act to enter the Part 4A site or Part 4A
dwelling.
New section 206ZZN provides that a site tenant may apply to
the Tribunal for a compensation order if the site owner or the
site owner's agent causes damage to the site tenant's goods on
the Part 4A site. Damage to goods under this section includes
damage to the site tenant's Part 4A dwelling.
New section 206ZZO provides that where a site owner or the
site owner's agent fails to comply with Division 10 of Part 4A
of the Principal Act when exercising a right of entry, the site
tenant may apply to the Tribunal for an order restraining the site
owner or the site owner's agent from exercising a right of entry
except for certain purposes.
New section 206ZZP makes it an offence for a site owner or
a site owner's agent, without reasonable excuse, to enter a site
occupied by a site tenant otherwise than in accordance with
Division 10 of Part 4A of the Principal Act. A penalty of
10 penalty units may be imposed for non-compliance.
PART 4--AMENDMENTS CONSEQUENTIAL ON NEW
PART 4A
Division 1--Amendments to Part 5--Compensation and
compliance
Clause 11 amends the following definitions in Part 5 of the Principal Act
to support the insertion of Part 4A--
duty provision is extended to include, in relation to Part 4A
parks, section 206ZZM (site tenant's duty to permit entry) and
any provision of Division 5 or 6 of Part 4A. Division 5 contains
the general duties of site tenants. Division 6 contains the
general duties of site owners.
required time is extended to provide for the required time for a
site tenant or site owner in breach of a duty under Part 4A to
remedy the breach or compensate the person to whom the duty
is owed. The required times are as follows--
· 14 days for breach of a duty to permit entry for a
purpose set out in subsections (a), (c), or (e) of
section 206ZZJ (grounds for entry of Part 4A site);
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· Three days for breach of a duty to permit entry for
a purpose set out in subsections (b) or (d) of
section 206ZZJ; or
· 14 days for a breach of a duty under Division 5 or 6 of
Part 4A.
Clause 12 extends section 208 of the Principal Act to enable a person to
give a breach of duty notice to another person for breach of a
duty in respect of a site agreement. The effect of this
amendment is that it makes certain remedies for failure to
comply with a breach of duty notice available in the site
agreement context.
Clause 13 extends the requirement under section 209A that the Tribunal
urgently hear applications relating to a breach of a right of entry
to apply to a breach of a right of entry to a Part 4A site.
Clause 14 inserts new section 210B into the Principal Act. The new
section enables a party to a site agreement to apply to the
Tribunal for an order for payment of compensation to the
applicant by the other party to the site agreement.
An application may be made under this new section if loss or
damage has been suffered by the applicant due to a failure of
the other party to the site agreement to comply with duties
under the site agreement or if the applicant has paid a greater
amount than required under this Act or the terms of the site
agreement. The new section does not apply to a breach of a
duty under a duty provision or in respect of a failure by the site
owner to provide the site tenant certain information under new
section 206ZR.
Clause 15 enables the Tribunal, upon hearing an application under
sections 209 or new section 210B in relation to a site
agreement, to take into account the following matters--
· the remaining term of the site agreement;
· the costs of finding an alternative Part 4A site or
entering into a new site agreement;
· the costs of relocation--including costs of disassembly,
transport and reassembly--of the Part 4A dwelling;
· the costs of disposing of the Part 4A dwelling, and any
other prescribed matters.
These matters which may be considered are additional to the
existing considerations in section 211.
19
Clause 16 amends section 212 of the Principal Act so that the Tribunal can
make orders or declarations in relation to an application relating
to site agreements or Part 4A provisions. Specifically, the
Tribunal may--
· make an order for compensation in the case of an
application under new section 210B;
· declare a Part 4A rule invalid.
Further, the amendments require an order against a site tenant to
specify that if the order is not complied with, the site tenant may
be given a notice to vacate their Part 4A site. In the case of an
order for compensation in favour of a site tenant, the order may
specify that the compensation be in the form of a refund or
reduction of rent payable by the site tenant.
Clause 17 inserts new section 213AA into the Principal Act. This new
section prohibits site owners from claiming compensation from
a site tenant in respect of unpaid rent unless the rent is unpaid
for at least 30 days after it is due. However, this section does
not apply if the failure to pay rent has occurred at least two
other times under the same site agreement.
Clause 18 extends section 213A of the Principal Act to apply in relation to
site agreements, thus allowing applications to the Tribunal for
payment of rent arrears from a bond if a site tenant has failed to
pay rent. The Tribunal's power is extended so it is able to make
a determination of the amount owing to a site owner and
directing that, when the site agreement ends, the Residential
Tenancies Bond Authority pay to the site owner an amount in
respect of the rent owing.
Clause 19 extends section 213B of the Principal Act to apply to site
agreements. If a possession order is made under Part 7 as a
result of a failure by a site tenant to pay rent, an application by a
site owner for compensation for loss or damage suffered by the
site owner as a result of the failure of the site tenant to pay rent
must be made within 28 days after the site tenant delivers up
vacant possession of the Part 4A site.
Clause 20 inserts new section 214A into the Principal Act. This section
applies where a site tenant has repudiated a fixed term site
agreement before the expiry of the term under section 317E
or 317I. The site tenant's liability for loss suffered by the site
owner in the form of loss of rent under the terminated site
agreement is limited to the lesser of the rent otherwise
payable--
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· under the terms of the site agreement for a period of
12 months from the day of termination; or
· until the Part 4A site is occupied by another site tenant
or occupant; or
· for the remaining term of the site agreement (if it had
not been terminated).
This new section does not limit a site owner's right to claim
compensation on other grounds for early termination of the site
agreement but the site owner is required to take reasonable steps
to mitigate any losses arising from the early termination.
Clause 21 expands the powers of the court in section 215 of the Principal
Act where a party to a site agreement is convicted of an offence
against the Principal Act. On an application by the other party
to the site agreement, the court may order that compensation be
paid to the applicant for loss or damage suffered by the
applicant because of the commission of the offence.
Division 2--Amendments to Part 6--Termination
Clause 22 inserts new Division 3A into Part 6 of the Principal Act to deal
with the termination of site agreements in Part 4A parks,
mirroring existing Part 6 termination provisions where relevant.
Subdivision 1--When can a site agreement be
terminated
New section 317A provides that despite any Act or law to the
contrary, a site agreement does not terminate and must not be
terminated except in accordance with this Division or Part 7
(Regaining possession--Possession orders and warrants) or
Part 8 (Violence on certain premises).
New section 317B provides that a site agreement may be
terminated by agreement of the site owner and site tenant.
New section 317C provides that a site agreement may be
terminated if the site tenant vacates the Part 4A site with the site
owner's consent which, once given, it irrevocable.
New section 317D provides that a site agreement terminates if
the site owner or the site tenant gives notice to vacate or a
notice of intention to vacate the Part 4A site on or after the
termination date specified in the notice or the site agreement
terminates in accordance with section 334 (Effect of possession
order for rented premises or Part 4A site).
21
New section 317E provides that a site agreement terminates if
the site tenant abandons the Part 4A site.
New section 317F provides for termination of a site agreement
where the site tenant is not in possession, occupation or use of
the Part 4A site because they have sub-let it and a notice to
vacate or notice of intention to vacate is given and the notice
period specified has expired.
New section 317G provides for termination of a site agreement
if the site owner gives notice to vacate in accordance with new
section 317ZE and the site tenant vacates the Part 4A site on or
after the specified termination date or in accordance with
section 334 of the Principal Act.
New section 317H provides for termination of a site agreement
by merger, that is, where the interests of the site owner and site
tenant become vested in one person.
New section 317I provides for termination by disclaimer, that
is, for example, on repudiation of the agreement by the site
tenant accepted by the site owner.
New section 317J provides for termination if the site tenant has
not yet entered into occupation or use of the Part 4A site where
the site tenant has given notice of termination on one of the
ground that the Part 4A site--
· is unsafe; or
· is not legally available for use as a Part 4A site; or
· is for any other reason unavailable for occupation.
New section 317K provides for offences relating to interference
with rights, mirroring existing provisions in the Principal Act
(sections 273 and sections 295) where relevant.
Subsection (1) provides for a penalty of 60 penalty units in the
case of a natural person and 300 penalty units in the case of a
body corporate if a person requires, compels or attempts to
compel a site tenant to vacate a Part 4A site except in
accordance with the Act.
Subsection (2) provides for a penalty of 60 penalty units in the
case of a natural person and 300 in the case of a body corporate
where a person (except in accordance with the Act) excludes or
attempt to exclude a site tenant from, or restrict or attempt to
restrict a site tenant's access to their Part 4A dwelling, the
Part 4A site on which it is situated or the Part 4A park in which
that site is situated.
22
Subsection (3) provides for a penalty of 60 penalty units in the
case of a natural person and 300 in the case of a body corporate
where a person (except in accordance with the Act) interferes
with the peace, comfort or privacy of a site tenant for the
purpose of causing them to abandon the Part 4A site.
Subsection (4) provides for a penalty of 60 penalty units in the
case of a natural person and 300 in the case of a body corporate
where a person (except in accordance with the Act) causes a site
tenant to abandon a Part 4A site by restricting or withdrawing
reasonably required services or facilities, preventing the site
tenant from using any facilities, or doing any other act or thing
intended or designed to cause the site tenant to abandon the
Part 4A site.
Subdivision 2--Variations or creations of site
agreements
Subdivision 2 of new Division 3A of Part 6 of the Principal Act
sets out the circumstances where a periodic site agreement is
created, and where variations of site agreements may be made
in the event of a final family violence intervention order or
severe hardship.
New section 317L deals with the creation of periodic site
agreements at the end of fixed term site agreements and is
modelled on existing provisions in the Principal Act
(e.g. section 230). This new section provides that a periodic
site agreement is created if the term of a fixed term site
agreement ends and the site tenant continues in occupation of
that site under that site agreement.
If the rental period under the fixed term site agreement was
more than 1 month, the periodic site agreement rental period
will be monthly, and if it was one month or less, the periodic
site agreement rental period will be the equivalent of that rental
period. The periodic site agreement is on the same terms so far
as applicable as the terms of the fixed term site agreement,
except in relation to rental periods as stated in subsection (2).
On application of the site owner or the site tenant, the Tribunal
may make any variations to the terms of the periodic site
agreement necessary for or appropriate to the continuation of
the periodic site agreement.
New section 317M deals with the circumstances relating to final
family violence intervention orders, modelled on existing
provisions in the Principal Act (e.g. section 233A).
23
This new section applies where a site tenant is excluded from a
Part 4A dwelling on a Part 4A site under an exclusion condition
included in a final order, and a protected person under the final
order is also a party to the site agreement for the Part 4A site or
is the owner or co-owner of the Part 4A dwelling in law or
equity. The new section provides that the protected person may
apply to the Tribunal for an order to terminate the existing site
agreement and require the site owner to enter into a site
agreement with the protected person and any other site tenant
of the Part 4A site (other than the excluded site tenant).
Where there is an application to the Tribunal, the protected
person, the site owner, the excluded site tenant and any other
existing site tenants are included as parties to the proceeding.
A final order means a final order within the meaning of the
Family Violence Protection Act 2008.
New section 317N enables the Tribunal, on application under
new section 317M, to make an order terminating the existing
site agreement and requiring the site owner to enter into a new
site agreement with the protected person and any other persons
(if any) specified in the application and sets out matters on
which the Tribunal must be satisfied. Where an order is made,
the new site agreement must not be any more onerous than the
existing site agreement. The existing site agreement is
terminated upon the signing of the new site agreement.
New section 317O provides that where a Tribunal makes an
order under new section 317N, the Tribunal may determine
certain liabilities under the existing site agreement.
The termination of a site agreement under proposed
section 317N does not of itself give rise to a right to claim
compensation on the part of any party to the site agreement
for early termination of the site agreement.
New section 317P provides that in a hearing for proceedings for
a new site agreement, an excluded site tenant must not
personally cross-examine a protected person without leave of
the Tribunal. The section provides that the Tribunal may grant
this leave with or without certain conditions.
New section 317Q provides that following the application of a
party to a fixed term agreement, the Tribunal may make an
order to reduce the term of the site agreement and make any
necessary variations to the terms of the site agreement because
of the reduction. The Tribunal may only make such an order
where is it satisfied that severe hardship would be imposed due
to an unforseen change in the applicant's circumstances.
24
Subdivision 3--Notice of intention to vacate or
abandonment by site tenant
Subdivision 3 of new Division 3A of Part 6 of the Principal Act
provides for the circumstances in which a site tenant may give a
notice to vacate a Part 4A site and when a site tenant is taken to
have abandoned a Part 4A site.
New section 317R provides that a site tenant may give a site
owner notice of intention to vacate a Part 4A site, which must
specify a termination date that is not less than 28 days after the
date on which the notice is given.
New section 317S provides that a notice of intention to vacate
given under proposed section 317R in respect of a fixed term
site agreement is of no effect if it specifies a termination date
earlier than the end of the term of the site agreement.
New section 317T describes the circumstances whereby a
reduced period of notice of intention to vacate the Part 4A site
may be issued by a site tenant--
· if a site tenant has been given a notice to vacate under
new section 317ZF (Notice under fixed term site
agreement);
· if a site tenant requires special or personal care (as
defined) and needs to vacate the Part 4A site in order to
obtain that care;
· if a site tenant has received a written offer of public
housing from the Director of Housing; or
· if a site tenant requires temporary crisis accommodation
and needs to vacate the Part 4A site in order to obtain
that accommodation.
New section 317U states that a site tenant may give a site owner
a notice of intention to vacate a Part 4A site if the site owner
failed to comply with an order of the Tribunal under section 212
of the Principal Act. The notice must state a termination date
that is not less than 14 days after the date on which the notice is
given.
New section 317V provides that a site tenant under a fixed term
site agreement may give a site owner notice of intention to
vacate a Part 4A site if the site owner has breached a site
owner's duty provision that site owner has breached on two
previous occasions and the site tenant or their agent has on each
occasion given a breach of duty notice to the site owner under
25
section 208 of the Principal Act. The notice must specify a
termination date that is not less than 14 days after the date on
which notice is given.
New section 317W enables a site owner to apply to the Tribunal
for an order where the site owner believes a site tenant has
abandoned a Part 4A site. The Tribunal must hear the
application within five business days and may declare the site
abandoned on a day specified, that day being the day the site
tenant is taken to have abandoned the Part 4A site.
Subdivision 4--Notice by site owner or mortgagee
New section 317X enables a site owner to give a site tenant
notice to vacate a Part 4A site if the site tenant or the site
tenant's visitor intentionally or recklessly causes or allows
serious damage to occur to a Part 4A site, Part 4A park or
facilities in the Part 4A park. The notice may require the site
tenant to vacate the Part 4A site immediately.
New section 317Y enables a site owner to give a site tenant
notice to vacate a Part 4A site if the site tenant or the site
tenant's visitor, by act or omission, causes danger to any person
or property in the Part 4A park, except if a notice to leave under
section 368 of the Principal Act has been given in respect of
that act or omission. The notice may require the site tenant to
vacate the Part 4A site immediately.
New section 317Z enables a site owner to give a site tenant
notice to vacate a Part 4A site if the site tenant or the site
tenant's visitor seriously interrupts the quiet and peaceful
enjoyment of the Part 4A park by other occupiers. The notice
may require the site tenant to vacate the Part 4A site
immediately.
New section 317ZA enables a site owner to give a site tenant
notice to vacate a Part 4A site if the site tenant fails to comply
with an order of the Tribunal under section 212 (Orders of
Tribunal) of the Principal Act. The notice must specify a
termination date that is not less than 14 days after the date on
which notice is given.
New section 317ZB enables a site owner to give a site tenant
notice to vacate a Part 4A site if there has been breach of a duty
provision within the meaning of Part 5 that the site tenant has
breached on two previous occasions and the site owner or the
site owner's agent has on each occasion given a breach of duty
notice to the site tenant under section 208. The notice must
specify a termination date that is not less than 14 days after the
date on which notice is given.
26
New section 317ZC enables a site owner to give a site tenant
notice to vacate a Part 4A site if the site tenant has used the
Part 4A dwelling on the Part 4A site, or permitted its use for
any illegal purpose. The notice must specify a termination date
that is not less than 14 days after the date on which notice is
given.
New section 317ZD enables a site owner to give a site tenant
notice to vacate a Part 4A site if the site tenant has assigned or
sub-let or purported to assign or sub-let the whole or any part
of the Part 4A site without the consent of the site owner.
The notice must specify a termination date that is not less than
14 days after the date on which notice is given.
New section 317ZE provides that where a site owner under a
site agreement is not the owner of a Part 4A site, the owner may
exercise the right of the site owner to give the site tenant notice
to vacate, to recover possession or to give a breach of duty
notice under Part 5 that applies to the site agreement. The new
section provides that a notice under that section does not have
effect unless it specifies a termination date on or after the day
on which the site owner's interest in the Part 4A site ends.
Where an owner exercises a right in relation to a site agreement
on behalf of the site owner, new Division 3A of Part 6 and
Parts 5 and 7 of the Principal Act have effect as if a reference to
a site owner under a site agreement included a reference to the
owner of the land.
New section 317ZF enables a site owner under a fixed term site
agreement to give a site tenant notice to vacate a Part 4A site at
the end of the fixed term. The notice to vacate must specify a
termination date that is on or after the date of the end of the
term. The notice to vacate must specify a termination date that
is not less than 365 days after the date on which the notice to
vacate is given.
New section 317ZG enables a site owner under a periodic site
agreement to give a site tenant notice to vacate a Part 4A site.
The notice to vacate must specify a termination date than is not
less than 365 days after the date on which notice is given.
New section 317ZH provides that a notice under a fixed term
site tenancy under section 317ZF is of no effect if it was given
in response to the exercise or proposed exercise by the site
tenant of a right under this Act or the site agreement. If any
application is to be made to the Tribunal on this basis, it must
be made within 60 days of the date on which notice was given.
27
New section 317ZI enables a mortgagee of a Part 4A park to
give a site tenant a notice to vacate a Part 4A site if the
mortgagee becomes entitled to possession of, or to exercise a
power of sale in respect of, the Part 4A park under the
mortgage. The notice to vacate must specify a date not less than
365 days from the date of the notice to vacate, unless the site
agreement was entered into after the mortgage was entered into
and is inconsistent with the terms of the mortgage agreement, in
which case the minimum period is 90 days notice.
Clause 23 extends section 318(1) of the Principal Act to ensure that a
notice of intention to vacate a site in a Part 4A park is not valid
unless it is in writing.
Clause 24 extends section 319 of the Principal Act to ensure that a notice
to vacate a site in a Part 4A park is not valid unless certain
requirements are met.
Division 3--Amendments to Part 7--Regaining possession--
possession orders and warrants
Clause 25 inserts proposed section 324A into the Principal Act, to enable a
site owner to apply to the Tribunal for a possession order for a
Part 4A site if the site owner has given the site tenant a notice to
vacate the site. A site owner may apply to the Tribunal for a
possession order if the site tenant has given the site owner a
notice of intention to vacate the Part 4A site.
Clause 26 expands section 325 of the Principal Act by inserting new
subsection (4). The new subsection enables a mortgagee of a
Part 4A site to apply to the Tribunal for a possession order if
the mortgagee has given the site tenant a notice to vacate the
Part 4A site in accordance with proposed section 317ZK and
the site tenant fails to vacate the site by the date specified in the
notice.
Clause 27 extends section 326 of the Principal Act to apply time
restrictions to applications by site owners under section 324A
for a possession order for a Part 4A site.
Clause 28 expands requirements in section 327 of the Principal Act
for composite notices to vacate to include applications for
possession orders by site owners under proposed
section 324A(1).
Clause 29 expands section 330 of the Principal Act with the effect that the
circumstances in which the Tribunal is required to make a
possession order include circumstances involving arrangements
between site tenants and site owners.
28
Clause 30 amends section 331 of the Principal Act. The effect of the
amendment is that the Tribunal's power to dismiss or adjourn an
application for a possession order under section 331 include, in
the case of a Part 4A site, circumstances where a notice to
vacate has been given under proposed section 317ZB in respect
of successive breaches of the duty to pay rent.
Clause 31 expands section 332 of the Principal Act in relation to orders
that the Tribunal must not make in certain circumstances to
include a possession order where an application is supported by
a notice to vacate given under proposed section 317V or if the
application is supported by a notice to vacate given under
proposed section 317ZB.
Clause 32 amends section 333 of the Principal Act in relation to contents
of possession orders. The amendment requires that a possession
order in respect of a Part 4A site include the day by which the
site tenant must vacate the Part 4A site and remove the Part 4A
dwelling situated on the Part 4A site, if the Part 4A dwelling is
to be removed. The order must also include a direction to the
site tenant to vacate the site by the day specified in the order.
In addition, a possession order for a site in a Part 4A park must
include a warning that, if the site tenant and any other person
residing at the Part 4A site fails to comply with the direction
referred to in section 333(1)(b) of the Principal Act, the site
tenant and any other person residing at the Part 4A site in the
Part 4A dwelling may be forcibly removed.
Clause 33 expands section 334 of the Principal Act to provide that if a
possession order is made under Division 1 of Part 7 in respect
of a Part 4A site, the site agreement terminates at the end of the
day before the day on which possession of the Part 4A site is
delivered up to the landlord or mortgagee.
Clause 34 amends section 351 of the Principal Act in relation to issue of
warrants of possession to extend the application of that section
to site tenants.
Clause 35 amends section 352 of the Principal Act to enable the Tribunal
to provide in a possession order in relation to a Part 4A site that
the issue of warrant of possession be postponed and to ensure
that site tenants and site owners are considered when an
assessment of hardship is being made.
29
Clause 36 amends section 353 of the Principal Act to enable the Tribunal
to make an order that a warrant of possession be issued during
any period of postponement where a site tenant has failed to pay
rent or has failed to comply with the site agreement.
Clause 37 proposed section 358(2) makes it an offence by a person who is
removed from a Part 4A site under a warrant of possession to
re-enter a rooming house, site or caravan. 20 penalty units may
be imposed for commission of this offence.
Division 4--Amendments to Part 8--Violence on certain premises
Clause 38 amends the following definitions in Part 8 of the Act to make
allowance for the insertion of Part 4A--
managed premises is amended to include a Part 4A park;
manager is amended to include a site owner;
resident is amended to include a site tenant.
Clause 39 amends section 370 of the Principal Act to include a Part 4A
site and a site agreement in relation to what happens when a
notice to leave is given.
Clause 40 amends the offence in section 372 of the Principal Act, for
which 20 penalty units may be imposed, to include re-entry of a
Part 4A site by a person whose site agreement has been
suspended.
Clause 41 amends section 374 of the Principal Act to enable a site owner
to make urgent application to the Tribunal, if a site agreement is
suspended under Part 8 of the Principal Act, for an order that
the site agreement be terminated. An application must be made
before the end of two business day after the suspension of the
site agreement.
Clause 42 expands section 376 of the Principal Act to enable the Tribunal
to make certain orders after hearing an urgent application under
section 374.
Clause 43 inserts a new subsection 370(3A) into the Principal Act, which
provides that it is an offence for a site owner to allow a person
who is not a party to a site agreement that is suspended under
section 370 of the Principal Act to occupy the Part 4A site to
which that site agreement applies during the period of
suspension. The penalty for this offence is a maximum of
60 penalty units in the case of a natural person and 300 penalty
units in the case of a body corporate.
30
Clause 44 expands section 377A of the Principal Act to include notice to
leave under proposed section 317ZA.
Division 5--Amendments to Part 9--Goods left behind by tenants
and residents
Clause 45 amends the heading of Part 9 of the Principal Act as a
consequence of the insertion of Part 4A by including "site
tenants". It now reads "Goods left behind by tenants, residents
and site tenants".
Clause 46 amends section 378 of the Principal Act to apply Part 9 to, in
the case of a Part 4A site, a situation where the site agreement
has been terminated and goods have been left behind.
Clause 47 amends the following definitions in Part 9 of the Act as a
consequence of the insertion of Part 4A--
owner of premises is amended to include the site owner in
relation to a Part 4A site;
stored goods is amended to include, in relation to a Part 4A site,
goods left behind on the Part 4A site, which may include a
Part 4A dwelling, of which a site owner must take reasonable
care in accordance with proposed section 388A.
Clause 48 amends section 380 of the Principal Act to include personal
documents left behind by a site tenant.
Clause 49 expands the application of section 382 of the Principal Act,
which relates to reclaiming personal documents before their
disposal, to include a site tenant or other person who has lawful
right to personal documents left on a Part 4A site to reclaim
those documents.
Clause 50 inserts proposed section 388A into the Principal Act to ensure
that a site owner who takes possession of a Part 4A site vacated
by a site tenant takes reasonable care of any goods left behind
(other than certain goods) when the site tenant vacated the
Part 4A site. Additionally, the new section requires that the site
owner takes reasonable steps to notify the former site tenant as
to when and where the goods left behind can be collected.
Clause 51 amends section 389 of the Principal Act, which enables a
rightful owner of goods to reclaim stored goods, to include a
site tenant or any other person who is a rightful owner of the
stored goods to reclaim those goods.
31
Clause 52 expands section 390 of the Principal Act to treat as stored goods
a caravan that is owned by a resident, abandoned on site and
subject to an abandonment order. This clarifies that the
provisions relating to the treatment of stored goods apply
equally to a caravan, if the caravan has been left behind on an
abandoned site.
Clause 53 inserts proposed section 390A into the Principal Act to provide
that if a Part 4A dwelling owned by a site tenant has been
abandoned and an abandonment or possession order has been
made, the site owner may deal with the Part 4A dwelling as if it
were stored goods.
Clause 54 amends section 394 of the Principal Act, which relates to a
purchaser taking good title, to include a reference to a site
tenant. The effect of this amendment is that a purchaser of
stored goods sold in accordance with Part 9 of the Principal Act
has good title unless there is notice of a defect in title or want of
title in the former site tenant.
Clause 55 expands section 395 of the Principal Act, which relates to
situations when proceeds of sale are not sufficient to cover costs
incurred in dealing with goods under Part 9 of the Principal Act,
to include a site agreement. The effect of the amendment is that
an application may be made under this amended section for
compensation to cover the costs of removal, storage,
notification and sale of goods that have been left behind on a
Part 4A site.
Clause 56 expands section 396 of the Principal Act, which relates to goods
or documents being wrongfully disposed of, to include a
reference to a site tenant. The effect of this amendment is that,
if a former site tenant's goods or personal documents are
destroyed otherwise than in accordance with Part 9 of the
Principal Act, the former site tenant who has a lawful right to
those goods or documents may apply to the Tribunal for
compensation.
Clause 57 expands section 397 of the Principal Act, which relates to goods
or documents being wrongfully detained, to include a site
tenant. The amended section will provide that if a former site
tenant's goods are wrongfully retained, the former site tenant
who has lawful right to those goods or personal documents may
apply to the Tribunal to have them returned, for compensation
or both.
32
Clause 58 expands section 398 of the Principal Act, which relates to goods
or documents being damaged or lost, to include a reference to a
site tenant. The amendment section will provide that if a former
site tenant's stored goods or personal documents are wilfully or
recklessly damaged or lost, the former site tenant who has
lawful right to those goods or personal documents may apply to
the Tribunal for compensation.
Clause 59 expands section 399 of the Principal Act to include a reference
to a site tenant. The amended section will provide that if a
former site tenant's stored goods have been sold, the former site
tenant who has lawful right to those goods may apply to the
Tribunal for a declaration that the money dealt with in
accordance with Part 3 of the Unclaimed Money Act 2008 be
paid to him or her.
Clause 60 expands section 400(2) of the Principal Act to include a
reference to a site agreement. The effect of this amendment is
where personal documents left behind on a Part 4A site have
been disposed of, the owner of premises may apply to the
Tribunal for compensation for the cost of removal, taking
reasonable care of the documents and notification.
Division 6--Amendments to Part 10--Bonds and the Residential
Tenancies Bond Authority
Clause 61 amends the following definitions in Part 10 of the Act as a
consequence of the insertion of Part 4A--
Director of Housing voucher is expanded to include a site
tenant;
landlord is expanded to include a site owner;
rented premises is expanded to include a Part 4A site;
tenancy agreement is expanded to include a site agreement;
tenant is expanded to include a former site tenant.
Division 7--Amendments to Part 11--Functions of the Tribunal
Clause 62 extends the jurisdiction of the Tribunal in section 446 of the
Principal Act to enable to the Tribunal to hear and determine
any matters arising in relation to a site agreement or a proposed
site agreement in respect of a Part 4A site.
33
Clause 63 extends the jurisdiction of the Tribunal in section 447 of the
Principal Act to hear applications for compensation orders in
relation to the site agreement provisions for claims of up to
$100 000 and applications by a site owner or a site tenant in
relation to the site agreement provisions or a site agreement that
involve a monetary claims of up to $100 000.
Clause 64 amends section 452 of the Principal Act to enable a site owner
or site tenant to apply to the Tribunal if a dispute arises in
respect of a site agreement or an agreement relating to a site
agreement or if there has been a breach of duty under the site
agreement provisions.
Clause 65 amends section 472 of the Principal Act to provide that the
Tribunal may make any order it thinks fit to restrain any action
in breach of a site agreement or the provisions of the Principal
Act relating to the site agreement or to require any action in the
performance of a site agreement or of duties under the Principal
Act relating to the site agreement. The amended provision will
also allow the Tribunal to make any orders it thinks fit for the
return of goods unlawfully taken or removed from a Part 4A
dwelling or a Part 4A site by a site owner or site tenant.
Division 8--Amendments to Part 12 and 13--Administration and
General
Clause 66 expands the functions of the Director under section 486 of the
Principal Act to include investigating any application made to
the Director under Part 4A in relation to excessive rent and to
investigate, if the Director considers is appropriate, on the
written application of a site tenant or site owner, any matter
arising under the site agreement provisions.
Clause 67 amends section 501 of the Principal Act to make it an offence to
make a false and fraudulent representation in relation to a term
to be included in a site agreement or proposed site agreement or
a matter affecting a person's rights or duties under the Principal
Act or a site agreement or proposed site agreement. A penalty
of 60 penalty units in the case of a natural person or 300 penalty
units in the case of a body corporate may be imposed for this
offence.
Clause 68 amends section 502 of the Principal Act to make it an offence
to, by threat or intimidation, persuade or attempt to persuade a
party to a site agreement or proposed site agreement not to
exercise rights or take or continue proceedings under the
Principal Act. 60 penalty units in the case of a natural person,
34
or 300 penalty units in the case of a body corporate, may be
imposed for this offence.
Clause 69 amends section 503 of the Principal Act to make it an offence to
aid, abet, counsel or procure commission of offence in relation a
site agreement or proposed site agreement. 60 penalty units in
the case of a natural person, or 300 penalty units in the case of a
body corporate, may be imposed for this offence.
Clause 70 amends section 505 of the Principal Act to make it an offence
for a person demanding or accepting payment from a site tenant
for failure by the site tenant to comply with the site agreement
or with any provisions of the Principal Act that relate to the site
agreement.
Clause 71 amends section 506 of the Principal Act in relation to service of
documents to provide that, in the case of a notice or document
to be served on or given to a site owner, in addition to existing
requirements, a notice or document may be served or given by
delivering it to the site owner or to their agent or the person who
usually collects the rent or by posting it to the site owner at their
address for service or to their agent at their place of business or
by giving it to a person employed in the office of the site
owner's agent. It also sets out requirements for service of a
notice or other document or notice to vacate by delivery on a
site tenant.
Clause 72 expands section 510 of the Principal Act to allow an application
to be made to the Supreme Court, the County Court or the
Magistrates' Court in relation to any matter arising in relation a
site agreement in respect of a Part 4A site.
Clause 73 expands section 511 of the Principal Act to enable the Governor
in Council to make regulations for or with respect to site
agreements.
PART 5--ROOMING HOUSES AMENDMENTS
Clause 74 inserts new section 102A into the Principal Act to allow the
Director to investigate changes in rent in rooming houses,
whether or not there has been an application made by a rooming
house resident under section 102. It provides that, if the
Director considers it appropriate to do so, the Director may
investigate--
· where a rooming house resident has received notice of a
rent increase, whether the proposed rent is excessive; or
35
· where a rooming house resident's rent has been reduced
as a result of an increase in the room capacity of the
resident's room, whether the reduction is insufficient
and the rent is excessive.
If the Director carries out an investigation into the level of rent,
he or she must give a written report to the resident and a copy of
the report to the rooming house owner.
Clause 75 inserts new section 131A into the Principal Act to allow the
Director to investigate certain matters relating to rooming
houses, whether or not there has been an application made by a
rooming house resident under section 131. It provides that, if
the Director considers it appropriate to do so, the Director may
investigate whether a rooming house owner--
· is in breach of a duty to ensure a room or rooming house
is maintained in good repair; or
· has failed to comply with the prescribed standards of
privacy, safety, security and amenity of a room, facility,
service or common area of a rooming house.
If the Director carries out an investigation, he or she may
negotiate arrangements for the carrying out of repairs if satisfied
that the rooming house owner is in breach of the duty to
maintain the rooming or rooming house in good repair, or has
failed to comply with the prescribed standards. The Director
must also give a written report to any resident affected as well
as the rooming house owner.
Clause 76 inserts new Division 8 into Part 3 of the Principal Act to
provide for a regulation-making power to prescribe minimum
standards for rooming houses and offence provisions for breach
of the prescribed standards.
New section 142B creates an offence with 60 penalty units for a
natural person and 300 penalty units for a body corporate where
a rooming house owner provides the following to a resident of a
rooming house that does not comply with the prescribed
privacy, safety, security and amenity standards--
· a room; or
· a facility or service; or
· access to a common area.
36
New Section 142C provides that the Governor in Council may
make certain regulations with respect to prescribing privacy,
safety, security and amenity standards in relation to rooming
houses, for the purposes of Division 7 of the Principal Act.
Clause 77 inserts new Division 9 into Part 3 of the Principal Act to
provide for miscellaneous matters in relation to rooming houses.
New section 142D provides that an owner of a building who is
not a rooming house owner (or that person's agent), who has
reason to believe that the building that they own (or manage) is
being used as an unregistered rooming house, must notify the
municipal council of the district in which the building is
located. Failure to do so attracts a maximum of 20 penalty
units.
Clause 78 amends section 209 of the Principal Act by inserting new
subsection (2) to provide that the Director may make an
application for a compensation or compliance order to the
Tribunal on behalf of a resident who has given a notice for
breach of duty to the rooming house owner, without the
resident's consent. This is subject to section 105 of the Fair
Trading Act 1999.
Clause 79 inserts new section 289A into the Principal Act to oblige the
owner of a building (or the owner's agent), who is not a
rooming house operator, to issue each resident of the rooming
house a separate minimum notice to vacate. This is required
where the owner issues the lessee of the building, who is using
the building to operate a rooming house, a notice to vacate.
It provides that--
· the notice to the resident must provide at least 45 days
notice to vacate; and
· the owner (or their agent) must make reasonable
enquiries to identify each resident for the purpose of
giving a notice to vacate, however, a notice is taken to
be served on a resident if a copy of the notice is affixed
to the door of the resident's room; and
· where a notice to vacate is provided to a rooming house
resident, the resident may continue to occupy their room
on the same terms and must pay rent to the owner,
unless the resident can demonstrate that he or she has
paid rent for the notice period to the rooming house
operator. However, the owner is not subject to the
rights, obligations and duties of a rooming house owner
under Part 3.
37
Clause 80 inserts new section 399A into the Principal Act to allow the
Director to make an application under sections 396, 397 or 399
relating to goods or documents that have been left behind by
a rooming house resident on behalf of a former resident or
other person with a lawful right to the goods or documents.
The Director may make an application without the consent of
the former resident or person who has a lawful right if he or she
is satisfied that it is in the public interest to do so. This section
applies subject to section 105 of the Fair Trading Act 1999.
Clause 81 amends section 486 of the Principal Act by--
· amending subsection (b)(ii) so that a function of the
Director is to investigate, if the Director considers it
appropriate to do so, any matter arising under the
rooming house provisions, without having a written
application of a resident or rooming house owner; and
· inserting new subsection (ca) to provide that an
additional function of the Director is to report on an
investigation under paragraph (b)(ii) to any person to
whom the matter under investigation relates.
Clause 82 amends section 507A of the Principal Act by--
· inserting new subsection (1)(ab) to provide that the
reference in new section 121A(2) to "premises that is
used for residential purposes" is taken to exclude a
common area in a rooming house. This allows an
inspector within the meaning of the Fair Trading Act
1999 to enter any common area in a rooming house to
monitor compliance with the Principal Act or
regulations; and
· amending subsection (2) to insert a reference to
section 106I of the Fair Trading Act 1999 so that the
Director's powers to obtain information and documents
under that section also extend and apply to the Principal
Act (except for Part 14).
PART 6--CARAVAN PARKS AND MOVEABLE DWELLINGS
Clause 83 inserts new section 515A which allows the Governor in Council
to make regulations in respect of fire safety and emergency
management planning in caravan parks, including regulations
pertaining to fees for carrying out fire safety inspections and
preparing reports in respect of these inspections.
38
Clause 84 inserts new Division 3A--Fire Safety and Emergency
Management Procedures into Part 14 of the Principal Act.
This new Division provides for offences and maximum
penalties relating to fire safety and emergency management
requirements. This Division also empowers the relevant fire
authorities to inspect and report on compliance with fire safety
and emergency management measures.
New section 518A to the Principal Act defines the following
phrases for the purposes of the new Division 3A--
emergency management plan means an emergency
management plan prepared under section 518C;
emergency procedures means the emergency procedures
contained in an emergency management plan;
preventative measures means the preventative measures
contained in an emergency management plan;
public emergency warning means an emergency warning
issued to the general public by an emergency services agency
for an emergency, including a flood, fire, bushfire, storm or
tsunami.
New section 518B requires a caravan park owner to provide and
maintain fire fighting equipment in a caravan park in
accordance with the Regulations. It creates an offence for
breaches of these standards, which attract a maximum penalty
of 240 penalty units for a natural person and 1200 penalty units
for a body corporate.
New section 518C requires a caravan park owner to provide and
maintain space around movable dwellings and adjacent
structures in a caravan park to allow for fire fighter access and
fire separation distances in accordance with the Regulations.
It creates an offence for breaches of these standards, which
attract a maximum penalty of 240 penalty units for a natural
person and 1200 penalty units for a body corporate.
New section 518D requires a caravan park owner to prepare an
emergency management plan for the caravan park in accordance
with the Regulations. It also requires a caravan park owner to
display emergency procedures for the park. It requires a
caravan park owner to implement preventative measures for the
caravan park detailed in the emergency management plan and
implement the relevant emergency procedures in the event of an
emergency. It creates an offence for breaches of these standards
which attract a maximum penalty of 240 penalty units for a
natural person and 1200 penalty units for a body corporate.
39
New section 518E requires a caravan park owner to display a
public emergency warning in accordance with the Regulations
and to implement the relevant emergency procedures in the
event that such a warning is issued. It creates an offence for
breaches of these standards which attract a maximum penalty of
240 penalty units for a natural person and 1200 penalty units for
a body corporate.
New section 518F requires a municipal council, when it
determines that an emergency management plan is non-
compliant with the requirements to be prescribed for new
section 518C, to issue a notice to a caravan park owner.
Such a notice must specify the changes required to make the
emergency management plan compliant and specify a time
period for the changes which is not less than 14 days.
The section also provides for an offence for non-compliance
with such a notice of 240 penalty units for a natural person and
1200 penalty units for a body corporate.
Clause 85 amends section 525 of the Principal Act to update the name of
the relevant Government Department by substituting "Planning
and Community Development" for "Infrastructure". This clause
also amends section 525 to empower the Chief Officer of the
relevant fire authority, being the Metropolitan Fire Brigade or
the Country Fire Authority, to authorise an officer or employee
of the relevant fire authority to exercise powers of entry and
inspection under section 526 of the Principal Act.
Clause 86 amends section 526 of the Principal Act to substitute "Planning
and Community Development" for "Infrastructure" in relation
to the name of the relevant Government Department.
Clause 87 inserts a new section 526A into the Principal Act. The new
section applies when an authorised person carries out an
inspection under section 526 of the Principal Act, for the
purposes of assessing compliance with the fire safety or
emergency management planning provisions under the Principal
Act or the Regulations. The authorised person must provide a
written report of the inspection to the caravan park owner and
the local council within 10 days of the inspection.
PART 7--RESIDENTIAL TENANCY DATABASES
Clause 88 inserts new Part 10A into the Principal Act to introduce agreed
national model provisions to regulate residential tenancies
databases in Victoria.
40
New section 439A defines a number of terms for the purposes
of Part 10A--
database is defined to mean a system, device or other thing
used for storing information, whether electronically or in some
other form;
database operator is defined to mean an entity that operates a
residential tenancy database;
inaccurate in relation to personal information in a residential
tenancy database is defined to include information that is
inaccurate because it indicates that the person owes the landlord
an amount more than the bond and that amount was paid to the
landlord more than three months after it became due;
landlord is defined to include a rooming house owner, caravan
park owner, caravan owner, site owner and an agent of a
landlord, rooming house owner, caravan park owner, caravan
owner or site owner;
list personal information in a residential tenancy database, is
defined to include enter the personal information into the
database or to give the personal information to a database
operator or someone else for entry into the database, and
includes to amend personal information about the person;
out of date, in relation to personal information in a residential
tenancy database, is defined to mean that the information is no
longer accurate because--
· the listing was made on the basis that the person owes
the landlord an amount that is more than the bond but
the amount owed was paid to the landlord within three
months of it becoming due; or
· the listing was made on the basis that the Victorian Civil
and Administrative Tribunal (the Tribunal) has made a
possession order but the order has been revoked
following a review of the making of the order;
personal information is defined to mean information (including
an individual's name) or an opinion whether true or not, about
an individual whose identity is apparent or can be reasonably
ascertained from that information;
rented premises is defined to include a room, site, caravan and
Part 4A dwelling;
41
residential tenancy database is defined to mean a database--
· containing personal information--
· relating to or arising from, the occupation of
rented premises under a tenancy agreement; or
· entered into the database for reasons that relate to
or arise from the occupation of rented premises
under a tenancy agreement; and
· with an intended purpose of use by landlords for
checking a persons tenancy history to decide whether a
tenancy agreement should be entered into with that
person;
tenancy agreement is defined for the purposes of Part 10A to
include a residency right and a site agreement;
tenant is defined to include a resident, a site tenant, a former
tenant, former resident or former site tenant.
New section 439B provides that Part 10A of the Principal Act
does not apply to a residential tenancy database kept by an
entity (which term includes a state or territory government
department) for use only by that entity or its officers, employees
or agents.
New section 439C provides for notice to be given to a tenant or
prospective tenant of a landlord's use of a residential tenancy
database.
Section 439C(1) provides that section 439C applies if a person
(described as "the applicant") applies to a landlord to enter into
a tenancy agreement and the landlord usually uses one or more
residential tenancy databases for deciding whether a tenancy
agreement should be entered into with a person.
New section 439C(2) provides that when the application is
made, the landlord must give the applicant a written notice
stating--
· the name of each residential tenancy database that the
landlord usually uses, or may use, for deciding whether
a tenancy agreement should be entered into with a
person;
· that the reason the landlord uses the residential tenancy
database is for checking the applicant's tenancy history;
and
42
· in respect of each residential tenancy database notified
to the applicant, how persons may contact the database
operator and obtain information from that operator.
20 penalty units may be imposed for failure by a landlord to
provide notification as required by new section 439C(2).
New section 439C(3) provides that section 439C(2) applies in
relation to a residential tenancy database whether or not the
landlord intends to use the database for deciding whether a
tenancy agreement should be entered into with the applicant.
New section 439C(4) provides that the landlord is not required
to give the written notice referred to in section 439C(2) if a
written notice stating the matters referred to in subsection (2)
was given to the applicant not more than 7 days before the
present application was made.
New section 439D(1) provides that the provisions of
section 439D apply if--
· a person (referred to as the applicant) applies to a
landlord to enter into a tenancy agreement; and
· the landlord uses a residential tenancy database for
checking whether personal information about the
applicant is in the database; and
· personal information about the applicant is in the
database.
New section 439D(2) provides that the landlord must as soon as
possible but within seven days of using the database, give the
applicant a written notice stating--
· the name of the database; and
· that personal information about the applicant is in the
database; and
· the name of each person who listed the personal
information in the database; and
· how and in what circumstances the applicant can have
the personal information removed or amended under
new Part 10A.
20 penalty units may be imposed for failure by a landlord to
provide the required notice.
43
New section 439D(3) clarifies that it is only where a person is
identified in the residential tenancy database as the person who
listed the information that the requirement for the written notice
under section 439D(2) to include the name of each person who
listed personal information will apply.
New section 439E provides that a listing can only be made in a
residential tenancy database for the particular breaches and by
the particular persons specified in the section.
New section 439E(1) provides that a landlord or database
operator must not list personal information about a person in a
residential tenancy database unless--
· the person was named as a tenant in a tenancy
agreement that has ended; and
· the person has breached the tenancy agreement or has
breached specified sections of the Principal Act; and
· because of the breach, either--
· the person owes the landlord an amount that is
more than the bond; or
· the Tribunal has made a possession order in
respect of the tenancy; and
· the personal information relates only to the breach; and
· the personal information is accurate, complete and
unambiguous.
Section 439E(2) clarifies that the personal information must
indicate the nature of the breach. The sections of the Principal
Act specified in section 439E(1) are--
· sections 243, 278, 302 and 317X--damage;
· sections 244, 279, 303 and 317Y--danger;
· sections 246, 281 and 305--non-payment of rent;
· sections 248, 282, 307 and 317ZA--failure to comply
with a Tribunal order;
· sections 250, 282, 309 and 317ZC--use of premises,
room, site, caravan or Part 4A site for illegal purpose;
· sections 253 and 317ZD--assignment or sub-letting
without consent.
44
New section 439F provides for additional restrictions before
personal information can be listed in a residential tenancy
database.
Section 439F(1) provides that a landlord or database operator
must not list personal information about a person in a residential
tenancy database unless the landlord or operator has given the
person a copy of the personal information and provided that
person with an opportunity to make submissions about that
personal information. The landlord or database operator is
required to consider any submissions made under this new
section.
20 penalty units may be imposed for failure to comply with the
requirements of section 439F(1).
New section 439F(2) provides that the requirements of
subsection (1) do not apply if the landlord or database operator
cannot locate the person after making reasonable enquiries.
New section 439F(3) provides that the requirement in
subsection (1) to give the person 14 days to review the personal
information, to make submissions and to consider any
submission made do not apply--
· to information that at the time of the listing is contained
in publicly available court or tribunal records; or
· to a listing involving only an amendment of personal
information about a person under section 439G.
New section 439G sets out the landlord's obligation in respect
of ensuring the quality of a listing.
Section 439G(1) provides that the section applies if a landlord
who lists personal information in a residential tenancy database
becomes aware that the information is inaccurate, incomplete,
ambiguous or out of date.
Section 439G(2) provides that the landlord must, within seven
days of becoming aware that personal information is inaccurate,
incomplete, ambiguous or out of date, give written notice to the
database operator of that fact.
A penalty of 60 penalty units for a natural persons and
300 penalty units for a body corporate may be imposed for
contravention of section 439G(2).
New section 439G(3) provides that the landlord must keep a
copy of the written notice for one year after it was given under
subsection (2). 10 penalty units may be imposed for failure to
comply with this requirement.
45
New section 439H sets out the database operator's obligations in
respect of ensuring the quality of a listing.
Section 439H(1) provides that the section applies if a landlord
who has listed personal information in a residential tenancy
database gives the database operator a written notice stating that
the personal information must be--
· amended in a stated way to make it accurate, complete
or unambiguous; or
· removed.
New section 439H(2) provides that the database operator must
amend the personal information in the stated way or remove the
personal information within 14 days after the operator is given
the written notice.
New section 439I provides for access by a person to copies of
their personal information listed in a residential tenancy
database.
New section 439I(1) provides that a landlord who has listed
personal information about a person in a residential tenancy
database must, if asked in writing by the person, give the person
a copy of the information within 14 days of the request being
made. 20 penalty units may be imposed for non-compliance.
New section 439I(2) provides that a database operator must, if
asked in writing by a person whose personal information is in
their residential tenancy database, give the person a copy of the
information within 14 days after the request is made.
20 penalty units may be imposed for non-compliance.
New section 439I(3) provides that if a landlord or a database
operator charges a fee for giving personal information under
subsection (1) or (2), the subsection applies only if the fee has
been paid, i.e. the information is only required to be provided
after the fee has been paid.
New section 439I(4) provides that any fee charged by a landlord
or by a database operator for giving personal information under
subsection (1) or (2) must--
· not be excessive; and
· must not apply to lodging a request for accessing the
information.
New section 439J provides for notification of relevant non-
parties to a Tribunal order about a listing.
46
New section 439J(1) provides that section 439J applies if--
· under new section 439M the Tribunal makes an order
that a person must, in relation to a residential tenancy
database--
· amend personal information in a stated way; or
· remove all or particular personal information
about a person; and
· the person against whom the order is made (referred to
as the relevant person) is not a party to the proceeding
for the dispute.
New section 439J(2) provides that the Tribunal must ensure a
copy of the order is given to the relevant person.
New section 439K sets out requirements relating to the retention
of personal information listed on a residential tenancy database.
New section 439K(1) provides that a database operator must not
keep personal information about a particular person in the
operator's residential tenancy database for longer than--
· 3 years; or
· if, under the national privacy principles (established
under the Privacy Act 1988 of the Commonwealth) the
operator of the database is required to remove the
personal information before the three year period ends,
the period ending when the information must be
removed under the national privacy principles.
60 penalty units for a natural person and 300 penalty units for a
body corporate may be imposed for a breach of this
requirement.
New section 439K(2) provides that a database operator may
keep the persons name in the residential tenancy database for
longer than the period allowed by subsection (1) if--
· other personal information about the person in the
database is attached to the name; and
· the other personal information is not required to be
removed under subsection (1) or another law.
New section 439K(3) provides that section 439K does not limit
the operation of new Part 10A or of a provision of another law
that requires the removal of personal information.
47
New section 439K(4) provides that in section 439K, national
privacy principles means the principles stated in Schedule 3 of
the Privacy Act 1988 of the Commonwealth.
New section 439L provides for an application to the Tribunal to
remove or amend a listing.
New section 439L(1) provides that a person may apply to the
Tribunal for an order--
· prohibiting a landlord or a database operator from
listing personal information about that person that the
landlord or operator proposes to list on a residential
tenancy database; or
· requiring a landlord or database operator to amend
personal information about a person that is listed or that
is to be listed in a residential tenancy database; or
· requiring a landlord or database operator to remove
personal information about that person that is listed in a
residential tenancy database--
if the landlord or database operator fails to comply with
section 439D, 439E, 439F or 439G in relation to a listing of
that personal information.
New section 439L(2) provides that a person may apply to the
Tribunal for an order requiring a database operator to remove
personal information about that person from a residential
tenancy database if the operator has failed to comply with
section 439H or 439K in relation to the listing of that personal
information.
New section 439L(3) provides that an application may be made
under section 439L irrespective of whether the personal
information in respect of which the application was made was
listed in a residential tenancy database before, on or after the
commencement of new Part 10A.
New section 439M provides for orders which can be made by
the Tribunal on an application under new Part 10A.
New section 439M(1) provides that if an application is made
under section 439L, the Tribunal may maker an order--
· prohibiting a landlord or database operator from listing
personal information about the applicant in a residential
tenancy database; or
48
· requiring a landlord or database operator to amend
personal information about the applicant that is or is to
be listed in a residential tenancy database; or
· requiring a landlord or database operator to remove
personal information about the applicant that is listed in
a residential tenancy database.
New section 439L(2) provides that the Tribunal may make an
order under section 439L(1) if it determines that--
· the landlord has not provided written notice to the
applicant in accordance with section 439D(2); or
· the personal information listed or to be listed in a
residential tenancy database by the landlord or database
operator does not comply with section 439E(1); or
· the landlord or database operator has not provided a
copy of the personal information listed or to be listed in
the residential tenancy database to the applicant in
accordance with section 439F(1), or has failed to accept
and consider submissions by the person under
section 439F(2) and (3); or
· the landlord has not provided written notice in
accordance with section 439G; or
· the period under section 439K for which the database
operator may keep personal information about the
applicant in a residential tenancy database has expired.
PART 8--MISCELLANEOUS AMENDMENTS
The penalty levels in the Principal Act have not been properly reviewed since
its introduction in 1997. Many of the penalties throughout the Principal Act
are no longer adequate and need to be adjusted. Accordingly, offences
attracting penalties of 5 penalty units have been adjusted to 10 penalty units,
offences attracting penalties of 10 penalty units have been adjusted to
20 penalty units. Particular offences attracting penalties of 5 or 10 penalty
units, such as for example, section 125 of the Principal Act (Owner to give
additional information to rooming house resident), have been adjusted to
60 penalty units, reflecting their significance. Other offences such as
section 504 of the Principal Act (Giving of false information) have been
adjusted to a penalty of 60 penalty for natural persons, and 300 penalty units
for bodies corporate, once again, reflecting their significance, and more
closely aligning them with penalties for comparable offences in the Fair
Trading Act 1999.
49
Division 1--Penalties and offences
Clause 89 increases the penalty units imposed by section 26(2) of the
Principal Act from 5 to 10 penalty units for failure by a landlord
or tenant to prepare a tenancy agreement that is not in the
prescribed form.
Clause 90 increases the penalty units imposed by section 29(1) and (2) of
the Principal Act from 5 to 10 penalty units for failure by a
landlord to provide a tenant with a copy of a proposed tenancy
agreement or any other document containing proposed terms to
sign unless they have also provided a copy for reference.
Clause 91 increases the penalty units imposed by section 30(1) of the
Principal Act from 5 to 10 penalty units for refusal, or
instruction or permission to refuse to let rented premises on the
grounds that the person intends to live on the premises with a
child.
Clause 92 increases the penalty units imposed by section 31(1) of the
Principal Act from 5 to 20 penalty units for demand or
acceptance of a bond in relation to a tenancy agreement in
excess of one month's rent unless in accordance with an order
of the Tribunal.
Clause 93 increases the penalty units imposed by section 34 of the
Principal Act from 10 to 20 penalty units for demand or
acceptance of more than 1 bond in respect of continuous
occupation of rented premises.
Clause 94 increases the penalty units imposed by section 35(1) of the
Principal Act from 5 to 10 penalty units for failure by a landlord
where a tenant has paid bond to provide 2 copies of a condition
report before the tenant enters into occupation specifying the
state of repair and general conditions of the premises on the day
stated in the report.
Clause 95 increases the penalty units imposed by section 37(1) of the
Principal Act from 10 to 20 penalty units for demand or
requirement of certain guarantees for the performance of any
tenant's duties under a tenancy agreement.
Clause 96 increases the penalty units imposed by section 40(1) of the
Principal Act from 10 to 20 penalty units for requirement by a
landlord for a tenant to pay rent more than 1 month in advance.
50
Clause 97 increases the penalty units imposed by section 41 of the
Principal Act from 10 to 20 penalty units for requirement by a
landlord that a tenant to pay rent more than two weeks in
advance under a weekly tenancy agreement.
Clause 98 increases the penalty units imposed by section 43(1), (2)
and (2A) of the Principal Act from 5 to 10 penalty units for
failure by a person who receives rent to provide receipts when
required and to keep records as required.
Clause 99 increases the penalty units imposed by section 49 of the
Principal Act from 10 to 20 penalty units for taking or disposing
of a tenant's goods on account of any rent owing.
Clause 100 increases the penalty units imposed by section 50 of the
Principal Act from 5 to 20 penalty units for failure to refund a
payment received as a sign of good faith in respect of a
proposed tenancy in certain circumstances.
Clause 101 increases the penalty units imposed by section 51(1), (2) and (3)
of the Principal Act from 10 to 20 penalty units for charging,
demanding or receiving certain charges in relation to renewal of
a tenancy agreement, inspection of a premises or the first issue
of a rent card or establishing direct debit facilities.
Clause 102 increases the penalty units imposed by section 56(1) of the
Principal Act from 10 to 20 penalty units for a landlord of
separately metered rented premises seeking overpayment for
utility charges.
Clause 103 increases the penalty units imposed by section 66(1), (2), (3)
and (4) of the Principal Act from 5 to 20 penalty units for
failure of a landlord to give a tenant certain information on or
before occupation day in a form approved by the Director
setting out in summary form the rights and duties of a landlord
and tenant under a tenancy agreement.
Clause 104 increases the penalty units imposed by section 84(1) of the
Principal Act from 10 to 20 penalty units for demand or receipt
by a landlord of a fee or payment for giving consent to an
assignment or sub-letting or refusing an assignment or sub-
letting on the ground that a fee has not been paid.
Clause 105 increases the penalty units imposed by section 91A of the
Principal Act from 5 to 20 penalty units for entry by a landlord
or agent onto rented premises without reasonable excuse or in
accordance with the Division.
51
Clause 106 increases the penalty units imposed by section 92C(1) of the
Principal Act from 5 to 10 penalty units for failure by a rooming
house owner to provide each proposed resident with a notice of
their residency rights containing the information specified by
section 92C.
Clause 107 increases the penalty units imposed by section 94B(1) of the
Principal Act from 5 to 60 penalty units for failure by a rooming
house owner to give notice and obtain consent from existing
residents prior to increasing the capacity of a room as specified
by sections 94C and 94D.
Clause 108 increases the penalty units imposed by section 96 of the
Principal Act from 10 to 20 penalty units for demand or
acceptance by a rooming house owner of a bond that exceeds
the equivalent of 14 days rent.
Clause 109 increases the penalty units imposed by section 97(1) of the
Principal Act from 5 to 10 penalty units for failure by a rooming
house owner to provide 2 copies of a condition report
containing certain information before the resident or proposed
resident commences occupation of a room where a bond is paid.
Clause 110 increases the penalty units imposed by section 99 of the
Principal Act from 10 to 20 penalty units for requirement by a
rooming house owner that a resident pay rent more than 14 days
in advance.
Clause 111 increases the penalty units imposed by section 100(1), (2)
and (2A) of the Principal Act from 5 to 10 penalty units for
receipt by a person of a payment of rent from a resident of a
rooming house, failing to provide receipts of rent, keep certain
records of payment received or provide copies of records when
requested in accordance with the Principal Act.
Clause 112 increases the penalty units imposed by section 107 of the
Principal Act from 10 to 20 penalty units for a person taking or
disposing of a resident's goods in a rooming house on account
of any rent owing.
Clause 113 increases the penalty units imposed by section 124 of the
Principal Act from 5 to 10 penalty units for failure by a rooming
house owner to display and provide a copy of a statement of
rights and house rules within the time specified.
Clause 114 increases the penalty units imposed by section 125(1), (2)
and (3) of the Principal Act from 5 to 60 penalty units for
failure by a rooming house owner where there is no agent to
52
provide additional contact and emergency information and
notice of change of information.
Clause 115 increases the penalty units imposed by section 127(1) of the
Principal Act from 5 to 10 penalty units for failure by a rooming
house owner to give a resident at least 7 days written notice of
any proposed change to house rules.
Clause 116 increases the penalty units imposed by section 142A of the
Principal Act from 5 to 20 penalty units for entry by a rooming
house owner or their agent without reasonable excuse into a
room occupied by a resident otherwise than in accordance with
Division 7 of Part 3 of the Principal Act.
Clause 117 increases the penalty units imposed by section 145 of the
Principal Act from 5 to 10 penalty units for failure by a caravan
park owner to notify a prospective resident of rights to enter
into a written agreement or the rights that arise without a written
agreement.
Clause 118 increases the penalty units imposed by section 146(3) of the
Principal Act from 10 to 20 penalty units for requirement by a
caravan park owner of a bond where there is no written
agreement in relation to residency of the caravan park.
Clause 119 increases the penalty to units imposed by section 147 of the
Principal Act from 10 to 20 penalty units for demand or receipt
by a caravan park owner or caravan owner of a bond that
exceeds the equivalent of the rent or hiring charge payable for a
period of 28 days.
Clause 120 increases the penalty units imposed by section 148(1) of the
Principal Act from 5 to 10 penalty units for failure by a caravan
park or caravan owner to provide a condition report containing
certain information before the resident or proposed resident
commences occupation of a caravan where a bond is paid.
Clause 121 increases the penalty units imposed by section 150(1) and (2) of
the Principal Act from 10 to 20 penalty units for requirement by
a caravan park owner that a resident pay rent more than 14 days
or a hiring change more than 28 days in advance.
Clause 122 increases the penalty units imposed by section 151(1), (2)
and (2A) of the Principal Act from 5 to 10 penalty units for a
person receiving payment of rent or a hiring charge from a
resident in a caravan park failing to provide receipts of rent,
keep certain records of payment received or provide copies of
records when requested in accordance with the Principal Act.
53
Clause 123 increases the penalty units imposed by section 160 of the
Principal Act from 10 to 20 penalty units for a person taking or
disposing of a resident's goods in a caravan park on account of
any rent or hiring charge owing.
Clause 124 increases the penalty units imposed by section 166(1) of the
Principal Act from 10 to 20 penalty units for a caravan park
owner seeking overpayment for utility charges.
Clause 125 increases the penalty units imposed 182 of the Principal Act
from 5 to 20 penalty units for failure by a caravan park owner to
provide a statement setting out rights of residents and a copy of
park rules within the time specified.
Clause 126 increases the penalty units imposed by section 183(1) of the
Principal Act from 5 to 20 penalty units for failure by a caravan
park owner to provide to a resident a statement setting out
certain charges, fees and commission. It also increases from
5 to 10 the penalty units imposed by section 183(2) for failure
to provide written notice within 7 days of any proposed changes
to these charges, fees or commission.
Clause 127 increases the penalty units imposed by section 184(1), (2) and
(3) of the Principal Act from 5 to 10 penalty units for failure by
an caravan park owner where there is no agent to provide
additional contact and emergency information and notice of
change of information.
Clause 128 increases the penalty units imposed by section 186(1) of the
Principal Act from 5 to 10 penalty units for failure by a caravan
park owner to give a resident at least 7 days written notice of
any proposed change to the caravan park rules.
Clause 129 increases the penalty units imposed by section 198(1) of the
Principal Act from 5 to 10 penalty units for entry by a caravan
park owner into an agreement to sell a caravan on behalf of a
resident or former resident without complying with commission
requirements in section 183 of the Principal Act. It also
increases from 20 to 60 the penalty units imposed in 198(2) of
the Principal Act where a caravan park owner who is a natural
person, by act or omission, obstructs or hinders the sale of a
caravan owned by a resident and adds a penalty of 300 units for
the commission of this offence by a body corporate.
Clause 130 increases the penalty units imposed by section 206A of the
Principal Act from 5 to 10 penalty units for entry by a caravan
park owner, a caravan owner or an owner's agent without
reasonable excuse of a caravan occupied by a resident otherwise
54
than in accordance with Division 8 of Part 4 of the Principal
Act.
Clause 131 replaces section 229 of the Principal Act to allow 60 penalty
units to be imposed on a natural person and 300 on a body
corporate where a landlord or person acting on their behalf,
except in accordance with the Principal Act requires or compels
or attempts to compel vacation of premises or possession by
entry, unless in the case of abandonment.
Clause 132 increases from 20 to 60 in the case of a natural person and 300
in the case of a body corporate the penalty units imposed in
section 264(1) of the Principal Act for a landlord or person
acting on their behalf, except in certain circumstances,
obtaining possession of rented premises in respect of which
certain notices to vacate have been given and letting the
premises to a person for their primary residence within
6 months of the notice being given.
Clause 133 increases from 20 to 60 in the case of a natural person and 300
in the case of a body corporate the penalty units imposed by
section 273(1) and (2) of the Principal Act for a person
requiring, forcing or attempting to require or force a resident to
vacate their room or take or attempt to take possession of a
resident's room or cause a resident to abandon their room in
certain circumstances.
Clause 134 increases the penalty units imposed by section 275(1) of the
Principal Act from 5 to 10 penalty units for a resident of a
rooming house who vacates without notice failing to pay rent
for the lesser of 2 days after vacating the room or until another
resident takes occupancy of the room provided the resident did
not vacate due to the rooming house being unsafe or unfit for
human habitation.
Clause 135 increases from 20 to 60 in the case of a natural person and 300
in the case of a body corporate the penalty units imposed by
section 287(1) of the Principal Act for a rooming house owner
renting a room within 6 months of certain notice being given
unless determined otherwise by the Tribunal or where repairs,
renovations or reconstruction has been completed.
Clause 136 increases from 20 to 60 penalty units in the case of a natural
person and 300 penalty units in the case of a body corporate the
penalty units imposed by section 295 of the Principal Act for
offences relating to interference with certain rights of residents
of caravan parks.
55
Clause 137 increases the penalty units imposed by section 298(1) of the
Principal Act from 5 to 10 penalty units for failure by a resident
who vacates a site without notice to pay to the caravan park
owner the lesser of 7 days' rent or until another resident takes up
occupancy of the site.
Clause 138 increases from 20 to 60 penalty units in the case of a natural
person and 300 penalty units in the case of a body corporate the
penalty units imposed by section 313(1) and (2) of the Principal
Act for a caravan park owner renting sites or hiring caravans
after notice is given in certain circumstances unless otherwise
ordered by the Tribunal.
Clause 139 increases the penalty units imposed by section 358(1) and (2) of
the Principal Act from 20 to 60 penalty units for a person who
has been removed from a rooming house or a site or caravan
under a warrant of possession re-entering and taking up
possession of that room, site or caravan.
Clause 140 increases the penalty units imposed by section 368A of the
Principal Act from 20 to 60 penalty units for a manager of
managed premises giving notice to leave or purported notice to
leave without reasonable grounds to believe there has been a
serious act of violence by a resident or visitor or that the safety
of any person on the managed premises is in danger from a
resident or visitor.
Clause 141 increases the penalty units imposed by section 369 of the
Principal Act from 10 to 20 penalty units for a person who has
been given notice to leave managed premises under section 368
of the Principal Act remaining on the premises after receipt of
that notice.
Clause 142 increases the penalty units imposed by section 372 of the
Principal Act from 10 to 20 penalty units for a resident whose
tenancy agreement or residency right has been suspended under
Part 8 of the Principal Act re-entering premises during
suspension.
Clause 143 increases the penalty units imposed by section 373 of the
Principal Act from 20 to 60 penalty units for failure by a
manager who has given notice to a resident to leave managed
premises to give written notice to the principal registrar of that
notice to leave.
56
Clause 144 increases from 20 to 60 penalty units in the case of a natural
person and 300 penalty units in the case of a body corporate the
penalty units imposed by section 377(1), (2) and (3) of the
Principal Act for a landlord of rented premises in a managed
high density building, a rooming house owner or a caravan park
owner allowing occupation by anyone not party to a suspension
notice pending application or hearing of a notice to leave.
Clause 145 increases from 20 to 60 penalty units in the case of a natural
person and 300 penalty units in the case of a body corporate the
penalty units imposed by section 382(2) of the Principal Act for
refusal by an owner of premises to provide personal documents
within a certain time before disposal where they have been left
behind.
Clause 146 increases the penalty units imposed by section 389(2) of the
Principal Act from 10 to 20 penalty units for an owner of
premises refusing to return stored goods before they are sold.
Clause 147 increases the penalty units imposed by section 405(1) and (4) of
the Principal Act from 5 to 10 penalty units for failure by a
landlord who has received bond to complete a bond lodgement
form, allow it to be signed and provide a copy on signing.
Clause 148 increases the penalty units imposed by section 406 of the
Principal Act from 10 to 60 penalty units for failure by a
landlord who has received bond to give the amount of the bond
to the Residential Tenancies Bond Authority within 10 business
days.
Clause 149 increases the penalty units imposed by section 424(1) and (3) of
the Principal Act from 10 to 20 penalty units for failure by a
landlord and assignee or transferee to provide notice of
assignment or transfer by the landlord to the Residential
Tenancies Bond Authority where rights have been assigned or
transferred and failure by a landlord to provide the tenant under
a tenancy agreement a copy of the notice of assignment or
transfer.
Clause 150 increases the penalty units imposed by section 425(1) of the
Principal Act from 10 to 20 penalty units for failure by the
landlord, tenant and transferee to provide notice of assignment
or transfer by the tenant to the Residential Tenancies Bond
Authority where rights have been assigned or transferred.
Clause 151 increases the penalty units imposed by section 428 of the
Principal Act from 10 to 20 penalty units for a tenant refusing to
pay rent on the ground that the bond or any part of the bond will
be used as rent.
57
Clause 152 increases the penalty under section 480(1) of the Principal Act
for failure to comply with a determination of the Tribunal from
10 to 20 penalty units and from 2 to 5 penalty units for each day
the non-compliance continues, up to a maximum of 60 penalty
units (formerly 20 penalty units).
Clause 153 increases the penalty units imposed by section 499(2) of the
Principal Act from 20 to 60 penalty units for directly or
indirectly breach of confidentiality requirements by a Director,
a person employed under the Public Administration Act 2004
or a person to whom the Director has delegated a function or
power.
Clause 154 increases the penalty units imposed by section 501 of the
Principal Act from 10 to 60 penalty units in the case of a natural
person and 300 penalty units in the case of a body corporate on
a person making certain false and fraudulent misrepresentations
in relation to a tenancy agreement or residency right.
Clause 155 increases the penalty units imposed by section 502 of the
Principal Act from 20 to 60 penalty units in the case of a natural
person and 300 penalty units in the case of a body corporate on
a person who persuades a person not to exercise rights or take
proceedings in relation to a tenancy agreement or proposed
tenancy agreement.
Clause 156 increases from 20 to 60 penalty units in the case of a natural
person and 300 penalty units in the case of a body corporate the
penalty units imposed by section 503 of the Principal Act for
aiding, abetting, counselling or procuring commission of an
offence under the Principal Act.
Clause 157 increases the penalty units imposed by section 504 of the
Principal Act from 10 to 60 penalty units in the case of a natural
person and 300 penalty units in the case of a body corporate for
knowingly giving false or misleading information to the
Residential Tenancies Bond Authority or the Director under the
Principal Act.
Clause 158 increases from 20 to 60 penalty units in the case of a natural
person and 300 penalty units in the case of a body corporate the
penalty units imposed by section 505(1), (2) and (3) of the
Principal Act on a person under a tenancy agreement, a rooming
house owner or a caravan park or caravan owner demanding or
accepting certain penalties.
58
Clause 159 repeals section 507A(1)(b) of the Principal Act in relation to
application of the Fair Trading Act 1999. The penalty for an
offence against section 134 of the Fair Trading Act 1999 is no
longer limited to 10 penalty units.
Clause 160 increases in section 511(h) of the Principal Act from 10 penalty
units to 20 penalty units the penalty that may be imposed under
regulations for a breach of the regulations.
Clause 161 increases the penalty units imposed by section 516(b) of the
Principal Act from 10 to 20 penalty units for a contravention of
any regulation made under Part 14 of the Principal Act.
Clause 162 increases the penalty units imposed in 522(3) of the Principal
Act from 50 to 120 penalty units in relation to compliance
notices and removes the daily penalty for a continuing offence
for failure to comply with a compliance notice issued under
section 522(1) of the Principal Act.
Clause 163 increases the penalty units imposed in 523(3) of the Principal
Act from 50 to 120 penalty units in relation to closure orders
and removes the daily penalty for a continuing offence for
failure to comply with a closure order issued under
section 523(1) of the Principal Act.
Division 2--Miscellaneous amendments to the Principal Act
Clause 164 inserts into the definition section of the Principal Act a
definition for GST. GST has the same meaning as it has in the
A New Tax System (Goods and Services Tax) Act 1999 of the
Commonwealth except that it includes notional GST of the kind
for which payments made be made under Part 3 of the National
Taxation Reform (Consequential Provisions) Act 2000 by a
person that is a State entity within the meaning of that Act.
Clause 165 amends section 72(2)(b) of the Principal Act to include GST in
the $1000 limit for payments for urgent repairs to rented
premises under section 72(1) of the Principal Act. The landlord
is liable to reimburse the tenant for the reasonable cost of the
repairs or $1000 (which includes any amount in respect of any
GST payable on the supply to which the urgent repairs relate),
whichever is less. It also amends section 73(1)(b) of the
Principal Act to include GST where an application is made to
the Tribunal for urgent repairs. The Tribunal may make an
order for repairs costing more than $1000 (which includes any
amount in respect of any GST payable on the supply to which
the urgent repairs relate), whichever is less.
59
Clause 166 amends section 129(2)(b) of the Principal Act to include GST
in the $1000 limit for payments for urgent repairs to a room or
rooming house under section 129(1) of the Principal Act.
The rooming house owner is liable to reimburse the tenant for
the reasonable cost of the repairs or $1000 (which includes any
amount in respect of any GST payable on the supply to which
the urgent repairs relate), whichever is less.
It also amends section 130(1)(b) of the Principal Act to include
GST where an application is made to the Tribunal for urgent
repairs. The Tribunal may make an order for repairs costing
more than $1000 (which includes any amount in respect of any
GST payable on the supply to which the urgent repairs relate)
whichever is less.
Clause 167 amends section 188(2)(b) of the Principal Act to include GST
in the $1000 limit for payments for urgent repairs to a caravan
under section 188(1) of the Principal Act. The caravan park
owner is liable to reimburse the tenant for the reasonable cost
of the repairs or $1000 (which includes any amount in respect
of any GST payable on the supply to which the urgent repairs
relate), whichever is less.
Clause 167 also amends section 189(1)(b) of the Principal Act
to include GST in the $1000 limit where an application is made
to the Tribunal for urgent repairs. The Tribunal may make an
order for repairs costing more than $1000 (which includes any
amount in respect of any GST payable on the supply to which
the urgent repairs relate), whichever is less.
Clause 168 expands the regulation making power under section 511 of the
Principal Act to allow regulations made under that section to
apply, adopt or incorporate in the regulations any standards or
other documents or methods, to confer discretionary authority
or impose a duty on specified persons or bodies and to provide
for the exemption of persons or things from the regulations.
PART 9--CONSEQUENTIAL AMENDMENTS TO OTHER
ACTS
Division 1--Duties Act 2000
Clause 169 amends certain definitions in the Duties Act 2000 as a
consequence of the insertion of Part 4A into the Principal Act--
site has the same meaning as it has in the Principal Act and
includes a Part 4A site;
60
caravan has the same meaning as it has in the Principal Act and
includes a Part 4A dwelling;
caravan park has the same meaning as it has in the Principal
Act.
Division 2--Fair Trading Act 1999
Clause 170 amends section 105 of the Fair Trading Act 1999 to provide
that the Director may institute, continue or defend proceedings
on behalf of a person, without that person's consent, where a
provision of an Act expressly provides that the consent of the
person on whose behalf the proceedings are instituted,
continued or defended is not required for the purpose of the
section.
Clause 171 amends sections 106(1A) and (1B) of the Fair Trading Act
1999 to provide that if the Director institutes, defends or
continues proceedings on behalf of a person without that
person's consent--
· the Director must compensate the person for any loss
suffered or out-of-pocket expenses incurred, and is
liable to pay any amount awarded against the person in
the proceedings; and
· any amount recovered by the Director that exceeds the
amount payable to the person under subsection (1A)
may be applied to the payment of the costs of, and
incidental to, the proceedings for which the Director is
liable or that are incurred by the Director in relation to
the proceedings.
PART 10--REPEAL OF AMENDING ACT
Clause 172 provides for the automatic repeal of this amending Bill on
31 March 2013. The repeal of this Bill does not affect in any
way the operation of the amendments made by it
(see section 15(1) of the Interpretation of Legislation Act
1984).
61