Western Australian Numbered Acts Western Australian Numbered Acts After section 81
insert:
Part VIA — Residential tenancy databases
In this
Part —
agent , of a lessor, means a person employed, or
otherwise authorised, by the lessor to act as the lessor’s agent;
database means a system, device or other thing
used for storing information, whether electronically or in some other form;
database operator means an entity that operates a
residential tenancy database;
inaccurate , in relation to personal information
in a residential tenancy database, includes information that is inaccurate
because —
(a) the
information indicates that the person owes a lessor an amount that is more
than the security bond for a residential tenancy agreement; and
(b) the
amount owed was paid to the lessor more than 3 months after the amount
became due;
list , personal information about a person in a
residential tenancy database —
(a)
means —
(i)
to enter the personal information into the database; or
(ii)
to give the personal information to a database operator
or someone else for entry into the database;
and
(b)
includes to amend personal information about a person in the database to
include additional personal information about the person;
out-of-date , in relation to personal information
in a residential tenancy database, means the information is no longer accurate
because —
(a) for
a listing made on the basis the person owes a lessor an amount that is more
than the security bond for a residential tenancy agreement — the
amount owed was paid to the lessor within 3 months after the amount
became due; or
(b) for
a listing made on the basis a court has made an order terminating the
residential tenancy agreement — the order has been set aside on
appeal;
personal information means information (including
an individual’s name) or an opinion, whether true or not, about an
individual whose identity is apparent, or can reasonably be ascertained, from
the information or opinion;
residential premises includes a long-stay site in
a residential park as those terms are defined in the Residential Parks
(Long-stay Tenants) Act 2006 ;
residential tenancy agreement includes a long-stay
agreement as defined in the Residential Parks (Long-stay Tenants)
Act 2006 ;
residential tenancy database means a
database —
(a)
containing personal information —
(i)
relating to, or arising from, the occupation of
residential premises under a residential tenancy agreement; or
(ii)
entered into the database for reasons relating to, or
arising from, the occupation of residential premises under a residential
tenancy agreement;
and
(b) the
purpose of which is for use by lessors or agents of lessors for checking a
person’s tenancy history to decide whether a residential tenancy
agreement should be entered into with the person;
tenant includes a long-stay tenant as defined in
the Residential Parks (Long-stay Tenants) Act 2006 .
This Part does not
apply to a residential tenancy database kept by an entity (including a
government department of this State, another State or a Territory) for use
only by that entity or its officers, employees or agents.
Division 2 — Tenancy database information
82C. Notice of usual use of database
(1) This section
applies if —
(a) a
person (the applicant ) applies to a lessor, whether or not through the
lessor’s agent, to enter into a residential tenancy agreement; and
(b) the
lessor or, if the application is made through the lessor’s agent, the
lessor or agent usually uses one or more residential tenancy databases for
deciding whether a residential tenancy agreement should be entered into with a
person.
(2) The lessor or
agent must, when the application is made, give the applicant written notice
stating the following —
(a) the
name of each residential tenancy database the lessor or agent usually uses, or
may use, for deciding whether a residential tenancy agreement should be
entered into with a person;
(b) that
the reason the lessor or agent uses a residential tenancy database mentioned
in paragraph (a) is for checking an applicant’s tenancy history;
(c) for
each residential tenancy database mentioned in paragraph (a), how persons
may contact the database operator who operates the database and obtain
information from the operator.
Penalty: a fine of $5 000.
(3)
Subsection (2) applies in relation to a residential tenancy database
whether or not the lessor or agent intends to use the database for deciding
whether a residential tenancy agreement should be entered into with the
applicant.
(4) However, the
lessor or agent is not required to give the written notice mentioned in
subsection (2) if a written notice stating the matters mentioned in the
subsection was given to the applicant not more than 7 days before the
application was made.
82D. Notice of listing if database used
(1) This section
applies if —
(a) a
person (the applicant ) applies to a lessor, whether or not through the
lessor’s agent, to enter into a residential tenancy agreement; and
(b) the
lessor or, if the application is made through the lessor’s agent, the
lessor or agent uses a residential tenancy database for checking whether
personal information about the applicant is in the database; and
(c)
personal information about the applicant is in the database.
(2) The lessor or
agent must, as soon as possible but within 7 days after using the
database, give the applicant a written notice stating —
(a) the
name of the database; and
(b) that
personal information about the applicant is in the database; and
(c) the
name of each person who listed the personal information in the database; and
(d) how
and in what circumstances the applicant can have the personal information
removed or amended under this Part.
Penalty: a fine of $5 000.
(3) However,
subsection (2)(c) requires the written notice to state the name of a
person only if the person is identified in the residential tenancy database as
the person who listed the personal information in the database.
82E. Listing can be made only for particular
breaches by particular persons
(1) A lessor,
lessor’s agent or database operator must not list personal information
about a person in a residential tenancy database unless —
(a) the
person was named as a tenant in a residential tenancy agreement that has
ended; and
(b) the
person has breached the agreement; and
(c)
because of the breach, either —
(i)
the person owes the lessor an amount that is more than
the security bond for the agreement; or
(ii)
a court has made an order terminating the residential
tenancy agreement;
and
(d) the
personal information —
(i)
relates only to the breach; and
(ii)
is accurate, complete and unambiguous.
Penalty: a fine of $5 000.
(2) Without limiting
subsection (1)(d)(ii), the personal information must indicate the nature
of the breach.
82F. Further restriction on listing
(1) A lessor,
lessor’s agent or database operator must not list personal information
about a person in a residential tenancy database unless the lessor, agent or
operator —
(a) has,
without charging a fee —
(i)
given the person a copy of the personal information; or
(ii)
taken other reasonable steps to disclose the personal
information to the person;
and
(b) has
given the person at least 14 days to review the personal information and
make submissions —
(i)
objecting to its entry into the database; or
(ii)
about its accuracy, completeness and clarity;
and
(c) has
considered any submissions made.
Penalty: a fine of $5 000.
(2)
Subsection (1) does not apply if the lessor, lessor’s agent or
database operator cannot locate the person after making reasonable enquiries.
(3)
Subsection (1)(b) and (c) do not apply —
(a) to
information that, at the time of the listing, is contained in publicly
available court or tribunal records; or
(b) to a
listing involving only an amendment of personal information about a person
under section 82G.
82G. Ensuring quality of listing —
lessor’s or agent’s obligation
(1) This section
applies if a lessor or lessor’s agent who lists personal information in
a residential tenancy database becomes aware that the information is
inaccurate, incomplete, ambiguous or out-of-date.
(2) The lessor or
agent must, within 7 days, give written notice of the following to the
database operator who operates the database —
(a) if
the information is inaccurate, incomplete or ambiguous —
(i)
that the information is inaccurate, incomplete or
ambiguous; and
(ii)
how the information must be amended so that it is no
longer inaccurate, incomplete or ambiguous;
(b) if
the information is out-of-date — that the information is
out-of-date and must be removed.
Penalty: a fine of $5 000.
(3) The lessor or
agent must keep a copy of the written notice for one year after it was given
under subsection (2).
Penalty: a fine of $5 000.
82H. Ensuring quality of listing —
database operator’s obligation
(1) This section
applies if a lessor or agent of a lessor who has listed personal information
about a person in a residential tenancy database gives the database operator
that operates the database written notice that the personal information must
be —
(a)
amended in a stated way to make it accurate, complete and unambiguous; or
(b)
removed.
(2) The database
operator must amend the personal information in the stated way, or remove the
personal information, within 14 days of the notice being given.
Penalty: a fine of $5 000.
82I. Providing copy of personal information listed
(1) A lessor or
lessor’s agent who lists 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 after the request is
made.
Penalty: a fine of $5 000.
(2) A database
operator must, if asked in writing by a person whose personal information is
in the residential tenancy database kept by the operator, give the person a
copy of the information within 14 days after the request is made.
Penalty: a fine of $5 000.
(3) If a lessor or
lessor’s agent charges a fee for giving personal information under
subsection (1), or a database operator charges a fee for giving personal
information under subsection (2), the subsection applies only if the fee
has been paid.
(4) A fee charged by a
lessor or lessor’s agent for giving personal information under
subsection (1) or by a database operator for giving personal information
under subsection (2) —
(a) must
not be excessive; and
(b) must
not apply to lodging a request for the information.
(1) A person may apply
to a competent court for an order under this section if personal information
about the person has been listed in a residential tenancy database.
(2) The court may make
an order under this section if it is satisfied that —
(a) the
residential tenancy database includes personal information about the applicant
that is inaccurate, incomplete, ambiguous or out-of-date; or
(b) the
inclusion of the applicant’s name or other personal information about
the applicant is unjust in the circumstances, having regard to all of the
following —
(i)
the reason for the listing;
(ii)
the tenant’s involvement in any acts or omissions
giving rise to the listing;
(iii)
any adverse consequences suffered, or likely to be
suffered, by the tenant because of the listing;
(iv)
any other relevant matter.
(2) The court may
order personal information about a person in a residential tenancy database to
be wholly or partly removed, amended in a stated way or not listed in a
residential tenancy database.
(3) The court must
give a copy of the order to the lessor, tenant and database operator.
(4) If the court makes
an order directing a person other than a lessor or agent to remove, amend or
not list information in a residential tenancy database, the court must give a
copy of the order to the person.
82K. Keeping personal information listed
(1) In this
section —
national privacy principles means the principles
stated in the Privacy Act 1988 (Commonwealth).
(2) A database
operator must not keep personal information about a particular person in the
operator’s residential tenancy database for longer than —
(a)
3 years; or
(b) if,
under the national privacy principles, the operator of the database is
required to remove the personal information before the end of the 3 year
period mentioned in paragraph (a) — the period ending when the
information must be removed under the national privacy principles; or
(c) if
the person —
(i)
was a minor as defined in section 59A(1) when the
information was listed in the database; and
(ii)
reaches 18 years of age before the end of the 3 year
period mentioned in paragraph (a),
the period ending when
the person reaches 18 years of age.
Penalty: a fine of $5 000.
(3) However, a
database operator may keep the person’s name in the operator’s
residential tenancy database for longer than the period stated in
subsection (2)(a) or (b) if —
(a)
other personal information about the person in the database is attached to the
name; and
(b) the
other personal information is not required to be removed under
subsection (2) or another law.
(4) This section does
not limit the operation of another provision of this Part or of another law
that requires the removal of the personal information.