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2018
THE LEGISLATIVE
ASSEMBLY FOR THE
AUSTRALIAN CAPITAL TERRITORY
RESIDENTIAL TENANCIES AMENDMENT
BILL 2018
EXPLANATORY
STATEMENT
Presented by
Gordon Ramsay
MLA
Attorney-General
RESIDENTIAL TENANCIES AMENDMENT BILL 2018
This explanatory statement relates to the Residential Tenancies Amendment Bill 2018 (the Bill) as presented to the Legislative Assembly. It has been prepared in order to assist the reader of the Bill and to help inform debate on it. It does not form part of the Bill and has not been endorsed by the Assembly.
The statement is to be read in conjunction with the Bill. It is not, and is not meant to be, a comprehensive description of the Bill.
Overview
Purpose of the Bill
The Bill will amend the Residential Tenancies Act 1997 to provide an improved framework for residential tenancy agreements. The Bill amends and clarifies provisions which disproportionately affect vulnerable tenants, including social housing tenants. These amendments were developed following the recommendations of the 2016 report on the review of the Residential Tenancies Act 1997 (RTA).
The Bill proposes the following amendments:
• replace the conditional termination and possession order (CTPO) provisions with a new concept of a payment order
• provide that there is no self-executing component of the new payment order provisions so that a breached order will not automatically end a tenancy
• give the lessor the right to apply for a termination and possession order and a warrant for eviction within 60 days if a breach of a payment order occurs
• provide that if the lessor does not pursue a breach of a payment order within 60 days of the breach occurring, the tenancy continues and the debt remains with the tenancy, with this rule applying to further breaches of the payment order, and
• automatically deem CTPOs in force immediately before the commencement day to be payment orders.
The Bill may reduce the need for litigation processes by clarifying and streamlining the former CTPO process. These amendments enhance security of tenure for affected tenants, as their tenancy agreements will no longer be automatically ended in a process which allows a lessor to apply to the Registrar for a warrant for the tenant’s eviction.
The amendments will commence on a day fixed by the Minister by written notice, with a default commencement of six months from its notification day.
Human rights implications
The Bill supports several rights under the Human Rights Act 2004.
Right to equality before the law
Section 8 of the
Human Rights Act 2004 provides that ‘everyone has the right to
equal and effective protection against discrimination on any ground’. This
Bill supports this right by resolving a concern which disproportionately applies
to social housing residents.
Social housing tenants generally have lower
incomes and may be disproportionately affected by vulnerabilities such as lived
experience of disability, health concerns or exposure to family violence. Social
housing tenants can include members of culturally and linguistically diverse
backgrounds who may face practical barriers accessing services which reduce
isolation in the community. By ensuring that payment orders are not
self-executing, this Bill resolves a risk that social housing residents may be
more likely to be discriminated against due to their accommodation status and
associated socio-economic experiences in the community.
Right to
protection of the family and children
Section 11 of the Human
Rights Act 2004 provides that ‘the family is the natural and basic
group unit of society and is entitled to be protected by society’ and that
‘every child has the right to the protection needed by the child because
of being a child, without distinction or discrimination of any kind’. This
Bill promotes the protection of the family and children by clearly outlining the
processes a lessor must follow to initiate the eviction of a tenant who has
breached a payment order. Clear notification of this process provides additional
security for families and children as they can be certain in the security of
their tenancy and well informed about ways to reduce their risks of eviction.
Right to a fair trial
The Bill supports the right to a
fair trial, including the right to have ‘rights and obligations recognised
by law, decided by a competent, independent and impartial court or tribunal
after a fair and public hearing’. By replacing the self-executing CTPOs
with a payment order, tenants have more opportunity to participate in the legal
process. A lessor must apply to the ACAT for a termination and possession order
to be made regarding the affected property. Tenants will be a party to the
proceeding before the Tribunal and can participate in the decision-making
process regarding their rights and obligations under the Act.
Regulatory impact analysis
The Bill proposes changes to the property rights of lessors who are party to
CTPOs. On balance, the benefit to vulnerable tenants in the proposed amendments
is considered to be greater than the effect on lessors through changes to
property rights.
Under the CTPO provisions, if a tenant failed to pay
rent, the tenancy automatically terminated, the lessor became entitled to
possession of the premises and all rent payable was payable immediately.
Termination occurred even if the delay in paying rent was due to circumstances
beyond the tenant’s control such as processing delays for Centrelink
payments. The position of the tenant was legally uncertain where the breach of a
CTPO had occurred, and the tenant remained in the premises.
In the 2015
ACT Supreme Court decision Commissioner for Social Housing v Moffat
[2015] ACTSC 4, Master Moffat identified difficulties in statutory
interpretation of the CTPO provisions. Master Mossop commented: “...there
are conflicting indications in the [RTA] as to the effect of a failure to comply
with a CTPO. Some provisions indicate that the tenancy is terminated while
others appear to be only consistent with it remaining on foot” and
identified a need for statutory
amendment.[1]
The removal of
the self-executing provisions means that the lessor is no longer entitled to
immediate possession of the premises if the tenant fails to pay rent under a
payment order. However, the provisions have been developed with the purpose of
being as consistent with the CTPO process as possible. The process is similar to
the application by the lessor for a warrant for eviction under sections 42A and
42B of the RTA, which provide that the application is listed for hearing no
earlier than one week after the day notice is given to the tenant, and that if
the application is allowed, the ACAT must direct the Registrar to issue a
warrant for eviction. Under the proposed amendments, this is now an application
for a termination and possession order, but the listing time and direction to
issue a warrant remain the same.
Section 42B of the RTA, which will be
removed on commencement of the Bill, provides that ACAT hears an application for
a warrant for eviction in the event of a breach of a CTPO as if it were an
application for a termination and possession order under section 49. Section
49(5) of the RTA provides that ACAT may suspend a termination and possession
order for up to three weeks if satisfied that the tenant would suffer
significant hardship if the order was not suspended, and this hardship would be
greater than the hardship that would be suffered by the lessor if the order was
suspended. The Bill maintains this protection in new section 49C.
CLAUSE NOTES
Clause 1 Name of Act
This clause provides that the name of the Act is the Residential Tenancies Amendment Act 2018.
Clause 2 Commencement
This clause enables the Act to commence on a day nominated by the Minister in a commencement notice. The provisions for a commencement notice are set out in section 77 of the Legislation Act 2001.
If the Minister does not commence the Act six months after the Act is notified on the Legislation Register, then the Act automatically commences the following day. The provisions for automatic commencement are set out in section 79 of the Legislation Act 2001.
Delayed commencement of the Act provides the opportunity for agencies affected by these to do the necessary implementation work to effectively manage the transitional period outlined in Part 15 of the Bill.
Clause 3 Legislation Amended
This clause identifies the legislation amended by the Bill is the Residential Tenancies Act 1997
Clause 4 Sections 41 to 42B
This clause substitutes 41 to 42B of the Act with a new section 41.
This clause is a consequential amendment to changes made by Clause 5. It substitutes section 41 to provide that on application by a lessor, the registrar must issue a warrant for the eviction of a person where ACAT has made a termination and possession order and the person fails to vacate the premises. Section 41 previously referred to an unconditional termination and possession order. This section has been revised to reflect that the Bill has removed conditional termination and possession orders (CTPOs) from the Act. This clause also includes a note stating that ACAT must also direct the registrar to issue a warrant for the eviction of a tenant if it makes a termination and possession order under new section 49C.
This clause also removes sections 42 (Conditional orders) 42A (Failure to comply with conditional order) and 42B (Hearing of application) from the Act, as these sections apply to CTPOs.
Clause 5 Section 49
This clause substitutes section 49 of the Act.
This clause inserts a new section 49 into the Act which clarifies the actions ACAT may take when hearing an application for a termination and possession order. It identifies that ACAT may make a termination and possession order, make a payment order or refuse to make an order where the tenant has paid rent that has become payable, is likely to do so in future, and it just and appropriate to refuse to make an order. ACAT may suspend a termination and possession order for a period of up to three weeks where it is satisfied that failure to suspend the order would result in the tenant suffering significant hardship, and this hardship would be greater than that suffered by the lessor if the order were suspended.
New section 49A – Failure to pay rent
This clause adds new section 49A to the Act. Instead of making a termination and possession order, ACAT may make a payment order.
Payment orders require a tenant to pay the rent or stated part of the rent that has become payable, and future rent as it becomes payable. Where a payment order for part of rent payable has been made, section 49A gives the ACAT the option to make an order requiring the payment of the remaining part.
Payment orders must include an expiration date, which cannot be more than 1 year after the date of the order. The payment order must also state that the lessor can apply for a termination and possession order if the tenant fails to comply with the payment order. The section creates flexibility for tenants and lessors by allowing payment orders to be varied. A variation is permitted if both parties agree to the variation, the variation does not postpone the expiry date of the order, and the ACAT considers it just and appropriate to do so.
New section 49B – Failure to comply with a payment order
This clause adds new section 49B which sets out what happens when a tenant fails to comply with a payment order. Where a tenant fails to comply with a payment order the lessor has a 60 day timeframe to apply to the ACAT for a termination and possession order resulting from the first breach of the lease. This timeframe provides an opportunity for the lessor and tenant to negotiate a resolution to the failed payment, rather than automatically terminating the tenancy agreement. However, the lessor does not have to negotiate a resolution and is entitled to make an application for termination and possession as soon as the order is first breached. Once a lessor has made an application, the Registrar is required to notify the tenant details of the application and subsequent proceedings. The hearing date must be at least 1 week after notice is given to allow the tenant time to prepare and seek legal advice if needed.
In circumstances where the lessor does not apply to the ACAT within the 60 day period, the payment order, residential tenancy agreement and any debt accumulated under the residential tenancy agreement will not be affected by the compliance breach. This removes the self-executing nature of termination and possession orders and responds to the concerns raised by the ACT Supreme Court in Commissioner for Social Housing v Moffatt (2015) ACTSC 4. This section clearly outlines the implications of compliance breaches which reduces complexities for tenants engaging with the residential tenancies scheme.
Section 49C – Hearing of application – failure to comply with payment order
Section 49C outlines the options for ACAT when hearing an application for failure to comply with a payment order. The ACAT may make a termination and possession order or refuse to make a termination and possession order.
If ACAT makes a termination and possession order, ACAT must direct the registrar to issue a warrant for the eviction of the tenant and may make an order to pay any unpaid rent that is payable.
If the ACAT dismisses the application, it may confirm the payment order, make another payment order or set aside the payment order.
New section 49C also provides that ACAT may suspend a termination and possession order for up to three weeks if satisfied that the tenant would suffer significant hardship if the order was not suspended, and this hardship would be greater than the hardship that would be suffered by the lessor if the order was suspended. This maintains a protection available to tenants under former section 42B.
Clause 6 Part 15 – Transitional – Residential Tenancies Amendment Act 2018
This clause inserts a new part 15 into the Act.
New part 15 provides for transitional arrangements for CTPOs after the commencement of the Residential Tenancies Amendment Act 2018.
This Part provides that a CTPO made under the pre-amendment Act section 49(4), in force immediately before the commencement day, is deemed a payment order under this Act, section 49A.
Clause 7 Dictionary – definition of a conditional termination and possession order
This clause omits the definition of a conditional termination and possession order from the Act’s Dictionary, reflecting the fact that these orders will no longer be issued by the Tribunal.
Clause 8 Dictionary – definition of payment order
This clause inserts a definition of payment order into the Act’s dictionary which cross-references section 49A(2) of the Residential Tenancies Amendment Bill 2018. This clause clarifies that a payment order requires a tenant to pay all or part of the rent that has become payable and future rent as it becomes payable on terms the ACAT considers just and appropriate.
This clause reflects the fact that the ACAT will no longer issue conditional termination and possession orders.
[1] Commissioner for Social Housing v Moffat [2015] ACTSC 4, paras 23 and 71.