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This is a Bill, not an Act. For current law, see the Acts databases.
RESIDENTIAL TENANCIES AMENDMENT BILL 2005
2005
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
Residential
Tenancies Amendment Bill 2005
Contents
Page
2005
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
Residential Tenancies
Amendment Bill 2005
A Bill for
An Act to amend the
Residential Tenancies Act
1997, and for other purposes
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Residential Tenancies Amendment Act 2005.
This Act commences on a day fixed by the Minister by written
notice.
Note 1 The naming and commencement provisions automatically commence
on the notification day (see Legislation Act, s 75 (1)).
Note 2 A single day or time may be fixed, or different days or times
may be fixed, for the commencement of different provisions (see Legislation Act,
s 77 (1)).
Note 3 If a provision has not commenced within 6 months beginning on
the notification day, it automatically commences on the first day after that
period (see Legislation Act, s 79).
This Act amends the Residential Tenancies Act 1997.
Note This Act also amends the Residential Tenancies Regulation
1998 (see s 27).
4 Standard
residential tenancy termsSection
8
omit
A residential tenancy agreement—
substitute
(1) A residential tenancy agreement—
insert
(aa) if the lessor and tenant agree—may contain a fair clause for
posted people; and
renumber paragraphs when Act next republished under Legislation
Act
insert
(2) In this section:
fair clause for posted people means the following
clause:
Termination because of posting
(1) The tenancy agreement may be terminated—
(a) if the lessor is posted to Canberra in the course of the
lessor’s employment—by the lessor giving the tenant at least 4 weeks
written notice; or
(b) if the tenant is posted away from Canberra in the course of the
tenant’s employment—by the tenant giving the lessor at least
4 weeks written notice.
(2) The tenancy ends—
(a) 4 weeks after the day a notice is received under subclause (1);
or
(b) if a later date is stated in the notice—on the stated
date.
8 Lessor’s
obligationsSection 12 (3)
(c)
substitute
(c) for the premises that are the subject of the proposed residential
tenancy agreement—
(i) a copy of an energy efficiency rating statement (if any) for the
habitable part of the premises; or
(ii) a copy of a fresh energy efficiency rating statement for the
habitable part of the premises if—
(A) building work under the Building Act 2004, section 6 has
been carried out on the premises that affects the energy efficiency rating of
the habitable part of the premises; and
(B) before the building work was carried out, an energy efficiency rating
statement had been prepared for the habitable part of the premises;
(d) if the premises are crisis accommodation provided by a declared crisis
accommodation provider—a statement explaining that the lessor can
terminate the agreement on 4 weeks notice if the lessor needs the premises
to use as crisis accommodation for someone other than the tenant.
insert
(4) In this section:
declared crisis accommodation provider means a crisis
accommodation provider declared under section 126.
10 Rent
or a bond onlyNew section 15
(5)
insert
(5) This Act does not prevent the commissioner for housing from requiring
a tenant to agree to pay an outstanding amount owed by the tenant to the
commissioner for housing in relation to a previous tenancy in consideration for
giving the tenant a right to occupy premises if the tribunal has, under section
10, endorsed the term of the lease requiring the payment.
substitute
23 Deposit of bond by lessor
(1) The tenant must pay the bond to the lessor.
(2) Subsection (1) does not apply if the lessor and tenant agree that the
tenant will deposit the bond with the Territory.
(3) If the tenant pays the bond to the lessor and not to the
lessor’s agent, the lessor must, before the prescribed period ends,
deposit with the Territory—
(a) the amount of the bond; and
(b) a notice in accordance with section 25.
Maximum penalty: 20 penalty units.
(4) If the tenant pays the bond to the lessor’s agent, the agent
must, before the prescribed period ends, deposit with the
Territory—
(a) the amount of the bond; and
(b) a notice in accordance with section 25.
Maximum penalty: 20 penalty units.
(5) An offence against this section is a strict liability
offence.
(6) In this section:
prescribed period means—
(a) 2 weeks after the day the lessor receives the bond; or
(b) if another period is prescribed by regulation—the prescribed
period.
12 Condition
reportsNew section 29
(6)
insert
(6) To remove any doubt, a condition report for premises may, but need
not, contain a list of items at the premises, other than goods leased with the
premises.
13 TerminationSection
36 (j) (iii)
substitute
(iii) the tenant vacates the premises;
(k) for crisis accommodation—if the lessor—
(i) gives the tenant 4 weeks notice to terminate the agreement;
and
(ii) has given the tenant information about alternative accommodation;
and
(iii) needs the premises to use as crisis accommodation for someone other
than the tenant.
substitute
40 Content of warrant
(1) A warrant issued under this part must—
(a) authorise any police officer to take appropriate action, with any
necessary and reasonable assistance, to evict a named person, or a named person
and everyone else on the premises, within the period stated in the warrant;
and
(b) require a police officer to give the named person not less than
2 days notice of the proposed eviction.
(2) Subsection (1) (b) does not apply if the registrar believes
on reasonable grounds that—
(a) there are exceptional circumstances; and
(b) it would be inappropriate to give the notice required by subsection
(1) (b).
(3) A regulation may prescribe what is, or is not, appropriate action to
be taken under a warrant.
substitute
42 Conditional orders
(1) If the enforcement of a termination and possession order is subject to
a condition (an enforcement condition), the order expires on a day
stated by the tribunal in the order.
Example of enforcement
condition
that a person fails to pay rent arrears to the lessor within 6 months after
the day the termination and possession order is made
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) The expiry day must not be more than 1 year after the day the order is
made.
(3) However, subsection (2) does not apply if the tribunal believes on
reasonable grounds that—
(a) there are exceptional circumstances; and
(b) it would be inappropriate to state an expiry day in accordance with
subsection (2).
42A Failure to comply with conditional
order
(1) A lessor may apply to the registrar for a warrant for the eviction of
a person if—
(a) the tribunal has issued a termination and possession order subject to
an enforcement condition; and
(b) the order has not expired; and
(c) the lessor satisfies the registrar that the enforcement condition has
been satisfied; and
(d) the person to whom the order was directed continues to live at the
premises.
(2) On receiving an application for a warrant, the registrar
must—
(a) list the application for hearing before the tribunal not earlier than
1 week after the day the notice under paragraph (b) is given to the person;
and
(b) give notice to the person to whom the termination and possession order
is directed stating—
(i) that an application for a warrant for eviction has been made;
and
(ii) the time when, and the place where, the application is to be heard;
and
(iii) that the person should seek legal advice about the application if
the person wants to continue to live at the premises.
42B Hearing of application
(1) An application under section 42A must be decided as if it were an
application under section 49 for a termination and possession order.
(2) After considering the application and hearing the parties who attend
the hearing, the tribunal must—
(a) allow the application; or
(b) dismiss the application.
(3) If the tribunal allows the application, the tribunal must direct the
registrar to issue a warrant for the eviction of the person.
(4) If the tribunal dismisses the application, the tribunal
may—
(a) confirm the termination and possession order subject to the
enforcement condition; or
(b) make another termination and possession order subject to an
enforcement condition; or
(c) set aside the termination and possession order.
16 Damage,
injury or intention to damage or
injureSection 51 (c)
substitute
(c) if the lessor is a corporation—injury to a representative of the
corporation or a member of a representative’s family; or
(d) serious or continuous interference with the quiet enjoyment of nearby
premises by an occupier of the premises.
in division 6.5, insert
107A Substitution of tenant
(1) This section applies if a court has made an order to remove the
tenant, or a cotenant, (the removed person) from the
premises.
(2) An occupant of the premises, other than the removed person, (the
occupant) may apply to the tribunal to be the tenant or cotenant
under the residential tenancy agreement for the premises instead of the removed
person.
(3) To remove any doubt, an application may be made by the occupant even
though the occupant is not a tenant or cotenant under the residential tenancy
agreement.
(4) The application must—
(a) be in writing; and
(b) include a copy of the court order removing the removed person from the
premises.
(5) The tribunal may make an order substituting the occupant as the
tenant, or cotenant, if—
(a) the grounds of the application are proved; and
(b) the lessor has been given an opportunity to be heard on the
application.
(6) If the application is in relation to premises leased under a housing
assistance program under the Housing Assistance Act 1987, the
tribunal must not make an order under subsection (5) that is inconsistent with
the eligibility criteria of the program.
(7) The order is subject to any condition stated in it by the
tribunal.
before division 6.6, insert
Part 6A Tenancy
databases
107B Definitions for pt 6A
In this part:
personal information means—
(a) an individual’s name; or
(b) information or an opinion, whether true or not, about an identified
individual.
tenancy database means a database (whether or not stored in a
computer) containing personal information—
(a) relating to, or arising from, the occupation of residential premises
under a residential tenancy agreement; or
(b) entered into the database for reasons relating to, or arising from,
the occupation of residential premises under a residential tenancy
agreement.
107C Non-application to internal
databases
(1) This part does not apply to a tenancy database kept by an entity for
use only by the entity or its employees.
(2) In this section:
entity includes the commissioner for housing.
107D Restriction on inclusion of personal
information
(1) A person (the listing person) must not include personal
information about someone else (the ex-tenant) in a tenancy
database unless—
(a) the ex-tenant was named as a tenant in a residential tenancy
agreement; and
(b) the agreement has ended; and
(c) there is a reason prescribed by regulation for including the personal
information about the ex-tenant; and
(d) the maximum period prescribed by regulation for which information may
be included in the register has not ended; and
(e) the listing person has—
(i) given written notice to the ex-tenant about the personal information
the listing person proposes to include in the database (the information
proposed to be included); or
(ii) taken other reasonable steps to disclose to the ex-tenant the
information proposed to be included; and
(f) the listing person has given the ex-tenant a reasonable opportunity to
review the information proposed to be included.
(2) Subsection (1) (e) and (f) do not apply if the listing person cannot
find the ex-tenant after making reasonable enquiries.
(3) Subsection (1) (f) also does not apply in relation to personal
information that, immediately before its inclusion in the tenancy database, is
publicly available.
Example of publicly available
information
personal information obtained from publicly available court
records
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
107E Application to tribunal about
contravention
(1) An individual who claims that the individual’s personal
information has been included in a tenancy database in contravention of
section 107D may apply to the tribunal about the inclusion of the
information.
(2) The application must be made within 6 months after the day the
individual becomes aware of the inclusion of the information.
(3) If the tribunal decides there has been a contravention, it
may—
(a) order a person to take stated steps to remedy the contravention;
or
(b) make any other order it considers appropriate.
107F Application to tribunal about incorrect or
unjust inclusion in database
(1) An individual who has had personal information included in a tenancy
database may apply to the tribunal for an order under this section.
(2) The tribunal may order a person to take stated steps
to—
(a) have the individual’s name or other personal information about
the individual omitted from the database; or
(b) have stated changes made to the personal information about the
individual that is in the database.
(3) The tribunal may make the order only if satisfied—
(a) the database includes personal information about the individual that
is incorrect or misleading; or
(b) the inclusion of the individual’s name or other personal
information about the individual in the database is unjust in the circumstances,
having regard to—
(i) the reason for the inclusion of the personal information;
and
(ii) the individual’s involvement in the acts or omissions giving
rise to the reason for the inclusion of the personal information; and
(iii) the adverse consequences suffered, or likely to be suffered, by the
individual because of the inclusion of the personal information; and
(iv) any other relevant matter.
Example for par (a)
Information about Tania is included in a tenancy database because of a
minor matter. The database does not give details of the matter but includes a
notation implying that Tania may be responsible for a serious breach of the
Act.
Examples for par (b)
1 Information about Sally is included in a tenancy database because of
damage caused to premises by Sally’s domestic partner during a domestic
violence incident. Because of the inclusion of the information, Sally cannot
obtain appropriate and affordable accommodation.
2 Information about Robert is included in a tenancy database because rent
remained unpaid by Robert months after it was payable. During that period,
Robert was in hospital recovering from a serious accident and unable to make
arrangements for payment.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
107G Application to tribunal about proposed inclusion
of personal information
(1) An individual who is aware that someone (the listing
person) intends to include personal information about the individual in
a tenancy database may apply to the tribunal for an order under this
section.
(2) The tribunal may—
(a) order the listing person, or someone else, not to include the
individual’s personal information in the tenancy database; or
(b) order the listing person, or someone else, not to include the
individual’s personal information except with stated changes or on stated
conditions; or
(c) make any other order it considers appropriate.
(3) The tribunal may make the order only if satisfied that, if the
personal information were included as proposed, the tribunal could make an order
in relation to the personal information under section 107E or section
107F.
107H Order for compensation
(1) This section applies if the tribunal makes an order against a person
under section 107E, section 107F or section 107G.
(2) The tribunal may also make an order requiring the person to pay to a
stated person, within a stated period, an amount the tribunal considers
appropriate as compensation for the loss or damage caused by including the
personal information.
(3) The amount of compensation must not exceed—
(a) $5 000; or
(b) if another amount is prescribed by regulation—that
amount.
substitute
Part 6B Enforcement
20 RefereesSection
116 (5) to (7)
substitute
(5) A referee may hear and decide an application and make any order the
tribunal may make.
(6) If a referee is hearing and deciding an application, division 6.5 and
part 6B apply to the hearing as if a reference to the tribunal were a reference
to the referee.
(7) However, a referee must not order the payment of—
(a) compensation for a breach of the standard residential tenancy terms or
standard occupancy terms; or
(b) any amount (other than unpaid rent) that cannot be ascertained by
reference to a receipt or statement of account.
in part 9, insert
126 Declared crisis accommodation
provider
(1) The Minister may, in writing, declare an entity to be a crisis
accommodation provider in relation to stated accommodation (crisis
accommodation).
(2) However, the Minister must not make the declaration in relation to
accommodation unless satisfied that the entity—
(a) provides, or intends to provide, the accommodation as emergency
accommodation for people in crisis; and
(b) provides, or intends to provide, information to people accommodated in
the accommodation, whether on or before termination, about alternative
accommodation and, if appropriate, other services.
(3) A declaration is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
insert
127A Transfer of public housing under
will
(1) A public housing tenancy agreement may provide that the tenant must
not give the tenant’s rights under the agreement by will to another person
who is not an occupant of the premises.
(2) If a person takes possession of public housing premises under a will,
the commissioner for housing may apply to the tribunal to adjust the rent, or
terminate the agreement.
(3) In considering an application under subsection (2), the tribunal
must have regard to the eligibility criteria under relevant housing assistance
programs under the Housing Assistance Act 1987.
23 Regulation-making
powerSection 136 (2)
(d)
substitute
(d) the keeping of records;
(e) tenancy databases.
24 Standard
residential tenancy termsSchedule 1, clause
23
substitute
23 The lessor must keep the condition report for a period of not less than
1 year after the end of the tenancy.
25 Schedule
1, new clause 55 (3)
insert
(3) This section does not require the tenant to notify the lessor about
anything that an ordinary tenant would reasonably be expected to do, for
example, changing a light globe or a fuse.
26 Dictionary,
new definitions
insert
crisis accommodation—see section 126.
enforcement condition—see section 42 (1).
personal information, for part 6A (Tenancy
databases)—see section 107B.
tenancy database—see section 107B.
27 Residential
Tenancies Regulation 1998, new section 4A
insert
4A Appropriate action under warrant—Act, s
40
It is appropriate for a police officer to physically remove a person from
premises—
(a) between 8 am and 6 pm from Monday to Thursday, other than on a public
holiday; or
(b) if authorised by the warrant in exceptional circumstances—at any
time.
Endnotes
1 Presentation speech
Presentation speech made in the Legislative Assembly on 2005.
2 Notification
Notified under the Legislation Act on 2005.
3 Republications of amended laws
For the latest republication of amended laws, see
www.legislation.act.gov.au.
© Australian Capital Territory
2005
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