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Residential Tenancies and Other
Consumer Acts Amendment Bill 2012
Introduction Print
EXPLANATORY MEMORANDUM
General
The Bill amends the Residential Tenancies Act 1997 to place a duty on a
rooming house owner to ensure that any room, facility, service or common
area provided to a resident of the rooming house complies with any
applicable rooming house standard. This new duty will be enforceable in the
Victorian Civil and Administrative Tribunal under existing provisions of the
Residential Tenancies Act 1997.
The Bill amends the Residential Tenancies Act 1997 to establish a state-
wide Register of Rooming Houses. The Director of Consumer Affairs
Victoria will establish and maintain the Register, but Councils will be
responsible for recording information on the Register about rooming houses.
Certain information recorded on the Register will be made publicly available,
through an online portal.
The Bill will also amend Part 4A of the Residential Tenancies Act 1997, to
enable purchasers of Part 4A dwellings to rescind purchase agreements for
those dwellings in certain circumstances. The Victorian Civil and
Administrative Tribunal will be able to make certain orders following the
rescission of a Part 4A dwelling purchase agreement.
The Bill amends the Public Health and Wellbeing Act 2008 in relation to
the registration of rooming houses, in particular to enable Councils to take
compliance with rooming house standards into consideration when
considering whether to issue, transfer or renew a rooming house registration.
The Business Licensing Authority Act 1998 is amended to enable the
Business Licensing Authority to delegate all of its powers and functions,
other than prescribed powers or functions and its delegation power.
571300 1 BILL LA INTRODUCTION 15/8/2012
Finally, the Bill amends the Sale of Land Act 1962 and the Consumer
Affairs Legislation Amendment (Reform) Act 2010. Part 7 of the
Consumer Affairs Legislation Amendment (Reform) Act 2010 amended
Part 1 of the Sale of Land Act 1962 to require certain warnings to be
included on the front page of contracts for off-the-plan sales of land. The Bill
will--
replace the requirement that the warnings be placed on the front page
of the contract with a requirement that the warnings be contained in a
conspicuous notice in the contract; and
remove a purchaser's right to rescind the contract before its
completion due to non-compliance with this requirement.
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the main purposes of the Bill. These are--
to amend the Residential Tenancies Act 1997 to--
impose further duties on rooming house owners;
and
provide for a State-wide register of rooming
houses; and
make further provision for matters relating to site
agreements and Part 4A dwellings; and
to amend the Public Health and Wellbeing Act
2008--
to make further provision for registration of
rooming houses; and
to provide for municipal Councils to record
information concerning rooming houses on the
State-wide register; and
to amend the Business Licensing Authority Act 1998
to make further provision for delegation powers under
that Act; and
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to amend the Consumer Affairs Legislation
Amendment (Reform) Act 2010 and the Sale of Land
Act 1962 to make further provision for contracts for
off-the-plan sales of land.
Clause 2 provides for the commencement of the Bill.
Part 1, sections 5 and 23 and Part 5 come into operation on the
day after the day on which the Bill receives the Royal Assent.
Division 1 of Part 2 (except section 5) comes into operation on
31 March 2013. This Division provides for a new duty on
rooming house owners to comply with applicable rooming house
standards. The commencement date of 31 March 2013 aligns
with the date on which the rooming house standards prescribed
by the Residential Tenancies (Rooming House Standards)
Regulations 2012 will apply.
Part 6, which amends the Sale of Land Act 1962, will come
into operation on 1 December 2012, if not proclaimed earlier.
This ensures that the amendment to remove the right to rescind a
contract for an off-the-plan sale of land due to a failure to comply
with the requirement to include certain warnings in that contract
will commence on the same day as the provision in the
Consumer Affairs Legislation Amendment (Reform) Act
2010 that introduces the warning requirement.
Division 2 of Part 2, which provides for the rescission of Part 4A
dwelling purchase agreements, and Division 3 of Part 2, which
makes consequential amendments relating to the jurisdiction of
the Victorian Civil and Administrative Tribunal, will come into
operation on 1 July 2013, if not proclaimed earlier. Part 4, which
amends the Business Licensing Authority Act 1998, also has a
default commencement date of 1 July 2013.
The remaining provisions of the Bill will come into operation on
a day or days to be proclaimed. If any of the provisions of the
Bill do not come into operation before 1 July 2014, clause 2(7)
provides for their commencement on that day.
The default date of 1 July 2014 has been chosen to ensure that
there is sufficient time after the passage of the Bill to develop
and implement the State-wide register of rooming houses.
This implementation will involve the development of an
appropriate technological platform, and extensive consultation
with Councils.
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PART 2--MISCELLANEOUS AMENDMENTS TO THE
RESIDENTIAL TENANCIES ACT 1997
Division 1--Amendments Relating to Rooming House Standards
Clause 3 inserts a definition of rooming house standard into section 3(1)
of the Residential Tenancies Act 1997.
Clause 4 inserts new section 120A into the Residential Tenancies Act
1997. Section 120A provides that a rooming house owner must
ensure that a room, facility or service provided to a resident of a
rooming house, or a common area provided for access by a
resident, complies with any applicable rooming house standard.
New section 120A will enable a rooming house resident to serve
the owner of a rooming house (the definition of which includes a
person who conducts the business of operating a rooming house)
with a breach of duty notice, requiring a breach of any applicable
rooming house standard to be rectified within the required time
period. In the event a breach is not rectified as required, a
resident may apply to the Victorian Civil and Administrative
Tribunal for a compensation or compliance order relating to the
breach of section 120A.
Clause 5 inserts a reference to the Director of Consumer Affairs Victoria
into section 142C(2)(h) of the Residential Tenancies Act 1997.
The Director will be able to determine or approve matters or
things from time to time as set out in regulations made under that
section.
Clause 6 inserts section 209A(ab) into the Residential Tenancies Act
1997, to require the Victorian Civil and Administrative Tribunal
to urgently hear an application for a compensation or compliance
order relating to a breach of new section 120A. The Tribunal
must hear an application within 5 business days of the application
being made.
Clause 7 inserts section 211(bb) into the Residential Tenancies Act 1997.
New paragraph (bb) ensures that the Victorian Civil and
Administrative Tribunal may take into account, in hearing an
application under section 209 of the Residential Tenancies Act
1997 relating to a breach of an applicable rooming house
standard, whether the rooming house owner has been convicted
of or found guilty of an offence under section 142B of the
Residential Tenancies Act 1997 for the same breach.
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Section 142B establishes offences relating to breaches of
prescribed standards for rooming houses by rooming house
owners.
Division 2--Amendments Relating to Part 4A
Clause 8 inserts new section 206JA in the Residential Tenancies Act
1997. New section 206JA provides that a site tenant may rescind
a Part 4A dwelling purchase agreement within 20 days after
being provided with a proposed site agreement, or if the site
tenant has entered into a site agreement, at the time the site tenant
rescinds the site agreement under section 206J of the Residential
Tenancies Act 1997. Rescission is effected by giving written
notice that the agreement is rescinded to the site owner or the site
owner's agent.
New section 206JA(5) provides that, upon rescission of the
Part 4A dwelling purchase agreement, the site tenant is entitled to
a full refund of any money paid under that agreement.
New section 206JA(6) voids any term in a Part 4A dwelling
purchase agreement to the extent that it purports to exclude,
restrict or modify section 206JA.
New section 206JA applies where a site tenant (or his or her
agent) enters into an agreement to purchase a Part 4A dwelling
from a site owner (whether acting as site owner or as agent for
another person), and the Part 4A dwelling is located or intended
to be located on a Part 4A site that is let or intended to be let by
the site owner to the site tenant under a site agreement.
A reference to an agent for the purposes of this section includes
employee, contractor or subcontractor.
The term proposed site agreement is defined to include a copy
of a proposed site agreement and any other document which
contains terms that are proposed to form part of the site
agreement or a copy of that document.
The term site owner includes a related party of the site owner.
Related parties are captured to ensure that the rescission rights
available to the purchaser of a Part 4A dwelling under
section 206JA are not circumvented by complex contractual
arrangements designed to keep the site owner at arms' length
from the Part 4A dwelling purchase agreement.
Related party is also defined for the purposes of the section.
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Division 3--Amendments Relating to the Jurisdiction of the
Tribunal
Clause 9 inserts new section 446(bb) into the Residential Tenancies Act
1997, to ensure that the Victorian Civil and Administrative
Tribunal has jurisdiction to hear and determine an application
under the Residential Tenancies Act 1997 regarding any matter
arising in relation to the rescission of a Part 4A dwelling
purchase agreement under section 206JA.
Clause 10 amends section 447(1) and section 447(1A)(d) to include
references to Part 4A dwelling purchase agreements in those
sections. Section 447 specifies monetary jurisdictional limits of
the Victorian Civil and Administrative Tribunal for matters under
the Residential Tenancies Act 1997.
Clause 11 inserts new section 452(3A)(ab) into the Residential Tenancies
Act 1997, to ensure that a site owner or site tenant may apply to
the Victorian Civil and Administrative Tribunal if a dispute arises
about the rescission of a Part 4A dwelling purchase agreement
under section 206JA.
Clause 12 inserts new section 472(1)(dc) and (dd) into the Residential
Tenancies Act 1997. These new paragraphs provide that the
Victorian Civil and Administrative Tribunal may make any
orders it thinks fit to require the refund of money paid under a
rescinded Part 4A dwelling purchase agreement, or to order the
return of a Part 4A dwelling under such an agreement.
PART 3--AMENDMENTS RELATING TO REGISTRATION
OF ROOMING HOUSES
Division 1--Amendments to the Residential Tenancies Act 1997
Clause 13 inserts new section 1(e) into the Residential Tenancies Act
1997, to ensure that it is one of the purposes of that Act to
provide for the establishment of the Rooming House Register.
Clause 14 inserts definitions of Council, proprietor, registered rooming
house and Rooming House Register into section 3(1) of the
Residential Tenancies Act 1997.
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Clause 15 substitutes the heading to Division 9 of Part 3 of the Residential
Tenancies Act 1997 to reflect that it will now contain provisions
establishing and regulating the Rooming House Register.
Clause 16 consequentially amends section 142D of the Residential
Tenancies Act 1997 to reflect the new definitions of Council and
registered rooming house inserted by clause 14 of the Bill.
Clause 17 inserts new sections 142E to 142L into the Residential
Tenancies Act 1997. These sections provide as follows--
Section 142E provides that the Director of Consumer Affairs
Victoria must establish and maintain a register of rooming
houses, to be known as the Rooming House Register.
New section 142E(2) provides that the purpose of the Rooming
House Register is to provide a consolidated State-wide register of
information held by Councils about rooming houses.
The establishment of the Rooming House Register will assist
Councils and the Director of Consumer Affairs Victoria to
monitor compliance with relevant legislation applying to rooming
houses, and enable research into, and evaluation of, Victoria's
rooming house sector.
The establishment of the Register will also promote compliance
with section 142D of the Residential Tenancies Act 1997,
which requires an owner of a building (or that owner's agent) to
notify the Council of the district in which the building is located
if the owner or agent has reason to believe that the building is an
unregistered rooming house.
Finally, the Register will assist the general public to identify
registered rooming houses and their proprietors.
Section 142F sets out the information that the Rooming House
Register is to contain. This includes--
relevant information required in an application for the
issue, transfer or renewal of a rooming house
registration under the Public Health and Wellbeing
Act 2008;
any conditions imposed on a rooming house registration
under section 73(2) of the Public Health and
Wellbeing Act 2008;
the expiry date of a registration;
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the date and grounds for the cancellation, suspension,
transfer or variation of a rooming house registration
(if applicable); and
contact details of the owner of the rooming house
premises and the proprietor of the rooming house.
The Register is also to contain information about a rooming
house for which a registration has been cancelled, or for which
renewal of registration has been refused.
Subsection (3) provides that the Register may contain certain
information in respect of rooming houses for which applications
for registration have been refused.
Finally, the Director of Consumer Affairs Victoria may record in
the Register information concerning an exemption he or she has
granted to a rooming house owner from a rooming house
standard.
Section 142G sets out the information each Council must enter in
the Rooming House Register.
A Council must enter in the Register the required information for
each rooming house registered in its municipal district, as well as
the required information for each rooming house in its municipal
district for which registration has been cancelled or refused to be
renewed.
Councils have discretion as to whether to enter in the Register the
information specified in section 142F(3) for rooming houses for
which applications for registration have been refused.
Under new section 142G(3), the information that Councils are
required to enter must be entered at the time a Council issues,
renews, transfers, varies, cancels, refuses to renew or suspends
registration of a rooming house.
Section 142G(4) is a transitional provision providing that
information relating to rooming houses that are registered at the
date of commencement of section 142G must be entered in the
Rooming House Register within 2 months of that date.
Section 142H provides that the Rooming House Register may be
kept in any form the Director of Consumer Affairs Victoria
thinks appropriate, and that the Director may publish the
Rooming House Register, or any details in it, in any manner or
form that the Director considers appropriate.
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Section 142I provides that the Director has access to the
Rooming House Register and must provide Councils with access
to the Register. A Council may amend or revoke an entry about a
rooming house in its municipal district, and the Director may
amend an entry about an exemption from a rooming house
standard, in order to maintain the accuracy of the information on
the Rooming House Register.
Section 142J provides that the Director of Consumer Affairs
Victoria must allow certain persons to inspect the Rooming
House Register for the purposes of carrying out that person's
functions or duties. The persons are the Secretaries to the
Departments of Justice, Human Services and Health, and persons
employed in those departments under Part 3 of the Public
Administration Act 2004.
Section 142J further provides that the Director may permit a
member of the public to inspect, free of charge, certain
information from the Rooming House Register about each
registered rooming house. That information is--
the address of the registered rooming house;
if the proprietor of the registered rooming house is a
body corporate, its name and Australian Business Name
or Australian Company Name;
if the proprietor of the registered rooming house is an
individual, the person's name and, if applicable, the
person's Australian Business Name; and
any other prescribed information.
A member of the public is not entitled to inspect information that
has been restricted by the Director under section 142K, or
information that relates to applications for registration of a
rooming house which have been refused by a Council.
Section 142K enables an applicant for rooming house registration
or the proprietor of a registered rooming house to apply to the
Director of Consumer Affairs Victoria to restrict public access to
some or all of the individuals personal information.
Personal information is defined to have the same meaning as in
the Information Privacy Act 2000.
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Section 142K only applies to personal information in the
Rooming House Register that is available for inspection by the
public, and applications to restrict information are limited to
applicants and proprietors who are individuals.
The Director may restrict public access to some or all of the
personal information if the Director is satisfied that exceptional
circumstances exist justifying the restriction of public access to
that information. The restriction of personal information may be
subject to conditions and for a period that the Director thinks fit.
Section 142K also provides for a person to apply to the Director
for the release of restricted personal information. If the Director
is satisfied that it is in the public interest to release restricted
personal information, the Director may do so and may impose
conditions on the release.
However, the Director must notify the person whose restricted
personal information is to be released of his or her decision and
must not release the information without the consent of that
person unless 28 days have passed and the person has not sought
a review of the decision or the Victorian Civil and Administrative
Tribunal has upheld the Director's decision to release the
information.
Section 142L provides for a right of review to the Victorian Civil
and Administrative Tribunal for persons whose interests are
affected by a decision of the Director under section 142K.
This will enable individuals who have--
applied to have personal information restricted without
success; or
sought access to restricted personal information without
success; or
objected to the release of their restricted personal
information--
to apply to the Tribunal for a review of the Director's decision.
Clause 18 expands the range of matters that can be prescribed in regulations
under the Residential Tenancies Act 1997 by inserting new
section 511(1)(ga). New section 511(1)(ga) provides that
regulations can prescribe particulars to be included in, and other
matters in relation to, the Rooming House Register.
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Division 2--Amendments to the Public Health and Wellbeing
Act 2008
Clause 19 inserts new section 71(ca) in the Public Health and Wellbeing
Act 2008. This provides that an application relating to
registration of a rooming house must contain the applicant's
Australian Business Name or Australian Company Name (if the
applicant is a body corporate) or the applicant's Australian
Business Name or date of birth (if the applicant is an individual).
Clause 20 inserts a reference to regulations made under Division 8 of Part 3
of the Residential Tenancies Act 1997 in section 73(1)(c) of the
Public Health and Wellbeing Act 2008.
The effect of the amendment is to ensure that a Council may
require, before considering an application relating to registration
of a rooming house under section 71 of the Public Health and
Wellbeing Act 2008, alterations or improvements to the premises
so that they comply with regulations made under Division 8 of
Part 3 of the Residential Tenancies Act 1997. Alternatively, a
Council may issue, transfer or renew a registration subject to a
condition that a requirement to make alterations or improvements
is complied with within a specified timeframe.
Clause 21 inserts new section 73A in the Public Health and Wellbeing
Act 2008. New section 73A provides that a Council must enter
any information required under Division 9 of Part 3 of the
Residential Tenancies Act 1997 in the Rooming House
Register in relation to a rooming house that is registered, or for
which registration is cancelled or refused to be renewed.
New section 73A also provides Councils with the discretion to
enter in the Rooming House Register information in relation to
applications for registration of a rooming house which have been
refused by Councils.
Clause 22 inserts new section 76(2)(ab) in the Public Health and
Wellbeing Act 2008. Section 76(2) sets out the grounds on
which a Council may register or otherwise deal with an
application relating to registration of a rooming house.
New section 76(2)(ab) includes in those grounds whether the
applicant, registration holder, prescribed accommodation or the
premises does not meet or comply with applicable regulations
made under Division 8 of Part 3 of the Residential Tenancies
Act 1997.
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Clause 23 inserts the word "not" in section 221(8) of the Public Health and
Wellbeing Act 2008 after the word "does". This gives effect to
the original intention of section 221(8), which was that failing to
serve a notice under that Act on the occupier of premises does
not affect the validity of service of the notice on the owner of the
premises.
PART 4--AMENDMENTS TO THE BUSINESS LICENSING
AUTHORITY ACT 1998
Clause 24 substitutes section 11(a) of the Business Licensing Authority
Act 1998. The effect of the substitution is to ensure that the
Business Licensing Authority is able to delegate any of its
functions or powers (other than a prescribed power or function).
Section 11(b) continues to provide that the Business Licensing
Authority cannot delegate its own power to delegate its powers
and functions.
Clause 25 inserts new Part 4 into the Business Licensing Authority Act
1998. New section 26 in Part 4 enables the Governor in Council
to make regulations under the Act. Certain licensing-related
decisions are likely to be prescribed, in regulations authorised to
be made under this section, as decisions the Business Licensing
Authority may not delegate.
PART 5--AMENDMENT TO THE CONSUMER AFFAIRS
LEGISLATION AMENDMENT (REFORM) ACT 2010
Clause 26 amends section 57(2) of the Consumer Affairs Legislation
Amendment (Reform) Act 2010, which inserts proposed section
9AA(1A) into the Sale of Land Act 1962. Proposed section
9AA(1A) introduces a requirement that the front page of a
contract for an off-the-plan sale of land include a notice
containing certain warnings to the purchaser of the land.
Clause 26 amends proposed section 9AA(1A) to replace the
requirement that the warnings be included on the front page of a
contract with a requirement that the contract contain a
conspicuous notice that includes the warnings.
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PART 6--AMENDMENT TO THE SALE OF LAND ACT 1962
Clause 27 substitutes "9AA(1) or (2)" for "9AA" in section 9AE of the Sale
of Land Act 1962. This amendment ensures that a purchaser's
right to rescind a contract for an off-the-plan sale of land, under
section 9AE of the Sale of Land Act 1962, does not extend to
circumstances in which a vendor has failed to include warnings
required under section 9AA(1A) of that Act in the contract for
the sale of the lot.
PART 7--REPEAL OF AMENDING ACT
Clause 28 provides for the repeal of the Act on 1 July 2015. Section 15(1)
of the Interpretation of Legislation Act 1984 preserves the
operation of the amendments made by the Act, notwithstanding
its repeal.
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