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Plumbing and Drainage and Other Legislation Amendment Bill 2015
Plumbing and Drainage and Other Legislation
Amendment Bill 2015
Explanatory Notes
Short title
The short title of the Bill is the Plumbing and Drainage and Other Legislation
Amendment Bill 2015.
Policy objectives and the reasons for them
Summary
The policy objectives of the Bill are to:
• establish a dedicated plumbing industry regulatory body, to be called the Service
Trades Council, within the Queensland Building and Construction Commission
(QBCC);
• implement uniform national law provisions on tenancy databases;
• allow approved housing providers to give tenancy guarantees to private lessors;
and
• introduce a provision which deems that any development work for properties
approved or used as public housing has been or will be lawfully carried out in
accordance with the relevant legislation applying at the time.
Amendment of Housing Act 2003
The Bill amends the Housing Act 2003 to provide that all development and building
work for properties approved or used as public housing has been done lawfully in
accordance with relevant laws at the time. The provision applies to all past, existing
and future public housing.
Amendment of Plumbing and Drainage Act 2002 and the Queensland Building and
Construction Commission Act 1991
The Bill will give effect to the Queensland Government's election commitment to 're-
establish a dedicated plumbing industry regulatory body, within the broader State
wide construction industry regulatory organisation, to replace the Plumbing Industry
Council, which was disbanded in 2014'.
Before its abolition on 10 November 2014, the Plumbing Industry Council (PIC) was
responsible for issuing occupational licences allowing individuals to carry out
plumbing and drainage work. It was also responsible for taking disciplinary action
against licensees. The PIC was disbanded and its functions were transferred to the
State wide construction industry regulatory organisation, the QBCC, following the
Transport, Housing and Local Government Committee's Report Number 14 - Inquiry
into Operation and Performance of the Queensland Building Services Authority.
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Plumbing and Drainage and Other Legislation Amendment Bill 2015
The new regulatory body is to be known as the Service Trades Council (the council).
The Bill will establish the body as a new entity that will form part of the QBCC. Its
membership will include a range of expert industry and government representatives.
Amendment of Residential Tenancies and Rooming Accommodation Act 2008
Tenancy guarantees
The Bill amends the Residential Tenancies and Rooming Accommodation Act 2008 to
allow approved housing providers to give tenancy guarantees to private lessors.
Tenancy databases
The Bill also amends the Residential Tenancies and Rooming Accommodation Act
2008 to introduce the national uniform law on residential tenancy databases adopted
by the Ministerial Council on Consumer Affairs (MCCA) in December 2010, with
some additions and minor variations to ensure the provisions operate effectively in
Queensland.
The model provisions are similar to the existing provisions in chapter 9 of the
Residential Tenancies and Rooming Accommodation Act 2008 in that they recognise
the rights of lessors and their agents to list former tenants on a residential tenancy
database, while introducing limitations and obligations on lessors and their agents to
ensure tenancy databases are used fairly for the benefit of those investing in the
residential property rental sector.
Residential Tenancy Databases (RTDs) are privately owned databases that contain
information about an individual's tenancy history. Most real estate agents subscribe to
one or more RTDs and use them to screen prospective tenants for the purpose of
renting private residential properties.
Queensland was the first jurisdiction in Australia to develop legislation to regulate
listings on tenancy databases by amending the Residential Tenancies Act 1994
(repealed) in 2003. Subsequently, a national working party was established by the
Standing Committee of Attorneys-General (SCAG) and the MCCA to develop
national uniform legislation and maintain consistency between states and territories.
In July 2008, the SCAG removed the development of the model provisions from its
agenda, leaving the task to be managed solely by the MCCA. At this time,
Queensland, the Australian Capital Territory and New South Wales had enacted laws
specifically dealing with the use of RTDs. South Australia and the Northern Territory
included provisions relating to RTD listing practices in their Fair Trading legislation.
However, Victoria, Western Australia and Tasmania did not specifically regulate the
use of RTDs.
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Plumbing and Drainage and Other Legislation Amendment Bill 2015
The model provisions were drafted in accordance with the recommendations in the
final report of the joint SCAG/MCCA working party, released on 30 March 2006
titled Report on Residential Tenancy Databases and the associated Regulatory Impact
Statement. The national consultation process for the draft model provisions occurred
between November 2009 and January 2010. Queensland consulted on the draft
Residential Tenancies and Rooming Accommodation Amendment Bill 2009, which
showed how the model provisions would be implemented in Queensland.
The MCCA formally adopted a revised set of model provisions in December 2010. By
this time, the New South Wales Parliament had already passed an earlier version of
the model provisions in June 2010, as part of their new Residential Tenancies Act
2010. The tenancy database provisions included some drafting and substantive
variations from the model provisions to address local circumstances. Similarly, in
September 2010, the Victorian Parliament passed the Residential Tenancies
Amendment Act 2010. The legislation inserted the tenancy database provisions
approved by the MCCA with some jurisdictional variations.
Implementation of the uniform law by states and territories will ensure national
consistency in relation to minimum standards. As noted in relation to New South
Wales and Victoria, a jurisdiction may add to the rights, obligations or limitations by
including or adopting a higher standard for them. This consistency in minimum
standards across jurisdictions provides certainty and clarity for tenants, who may
move within Australia as it potentially standardises the regulatory regime for tenancy
database operators that operate in more than one jurisdiction.
This Bill implements the national uniform legislation for residential tenancy databases
in Queensland with some local variations. The new provisions are similar to the
existing provisions on tenancy databases in the Residential Tenancies and Rooming
Accommodation Act 2008. However, there are some new obligations for lessors,
lessors' agents and database operators. The impact of these provisions is to strengthen
and offer additional safeguards and protections for tenants.
Achievement of policy objectives
Amendment of Housing Act 2003
The amendments to the Housing Act 2003 will provide a deeming provision to clarify
that any development work (which includes building work) for properties approved or
used as public housing has been or will be lawfully carried out in accordance with the
relevant legislation applying at the time.
Under the Sustainable Planning Act 2009, the construction of public housing and
associated developments are exempt from development approvals, and building work
is self-assessable by the department against applicable codes. The proposed deeming
provision will provide security and certainty for future owners and financiers by
removing any uncertainty arising from normal approvals not being in place.
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Plumbing and Drainage and Other Legislation Amendment Bill 2015
Amendment of Plumbing and Drainage Act 2002 and the Queensland Building and
Construction Commission Act 1991
The Bill includes amendments of the Plumbing and Drainage Act 2002 (Plumbing
and Drainage Act) that will establish the council, provide for its functions and powers
and set out how the council is to operate. The key functions of the council are:
• conferring on national policy development and implementation for the plumbing
and drainage trade;
• reporting to the Minister on -
− any issue relating to the plumbing and drainage trade referred to it by the
Minister; or
− any issue relating to the plumbing and drainage trade the council considers the
Minister should know about;
• making recommendations to the QBCC commissioner about the performance of
any of the commissioner's functions under the Plumbing and Drainage Act;
• establishing a panel of the council to assist the QBCC commissioner to effectively
and efficiently perform the commissioner's functions relating to licensing for the
plumbing and drainage trade; and
• undertaking internal reviews of decisions made by the QBCC commissioner in
relation to disciplinary matters involving plumbers and drainers.
The council will consist of members appointed by the Governor in Council. The Bill
provides that the membership must include:
• the assistant commissioner as a representative of the QBCC;
• representatives of a range of relevant departments and industry entities; and
• a member who will represent consumers.
The Bill also includes a range of consequential amendments of the Queensland
Building and Construction Commission Act 1991 (QBCC Act). Some of the
amendments will alter the constitution of the QBCC so it includes the council. Other
amendments will allow the council to conduct internal reviews of decisions made by
the QBCC commissioner in relation to disciplinary matters involving plumbers and
drainers.
Amendment of Residential Tenancies and Rooming Accommodation Act 2008
Tenancy guarantees
Tenancy guarantees are part of the Department of Housing and Public Work's Rent
Connect suite of products that assists people to access or sustain private rental. A
tenancy guarantee is an undertaking to pay up to a stated amount to a lessor if the
lessor experiences loss or expense through a breach by a tenant where a tenant's rental
bond is insufficient to cover the amount owing. This amendment allows approved
housing providers to give tenancy guarantees to private lessors.
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Plumbing and Drainage and Other Legislation Amendment Bill 2015
Tenancy databases
The objectives are achieved by amending and adding to the existing tenancy database
provisions in the Residential Tenancies and Rooming Accommodation Act 2008 with
the model provisions in the Bill. In accordance with the national uniform law, the new
provisions specify restrictions on listing for lessors, their agents and database
operators, which include an obligation to consult with former tenants before making a
listing.
In addition, in accordance with the national uniform law, the new provisions also
require:
• lessors and their agents who use residential tenancy databases to advise
prospective tenants of the databases they use, the reason for which they use them,
and how the database operators can be contacted;
• lessors and their agents to advise prospective tenants that they are listed on a
tenancy database and in particular, advise them of the person that listed them and
how they can challenge the listing;
• lessors, their agents and database operators to take steps to update the information
on the database when necessary to ensure the listings are accurate;
• lessors, their agents and database operators to provide persons listed by them with
a copy of the person's personal information on the database on request;
• information is to be listed for a restricted period of time on a tenancy database.
Alternative ways of achieving policy objectives
Amendment of Housing Act 2003
There are no other viable alternatives to amending the Act that will achieve the policy
objective.
Amendment of Plumbing and Drainage Act 2002 and the Queensland Building and
Construction Commission Act 1991
There are no other viable alternatives to amending the Act that will achieve the policy
objective.
Amendment of Residential Tenancies and Rooming Accommodation Act 2008
Tenancy guarantees
There are no other viable alternatives to amending the Act that will achieve the policy
objective.
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Plumbing and Drainage and Other Legislation Amendment Bill 2015
Tenancy databases
In the Report on Residential Tenancy Databases and the Regulatory Impact Statement
the national working party on residential tenancy databases concluded that the issues
raised by the use of RTDs were best addressed by regulatory action, given the
significant consequences of a negative listing for prospective tenants and the lack of
an industry body that covered database operators that could facilitate an effective
form of self-regulation or quasi-regulation, including the provision of an efficient self-
regulatory dispute resolution process.
In particular, the working party recommended that the states and territories develop
agreed uniform model legislation on the use by lessors, their agents and listing parties
of RTDs. The creation of a Commonwealth legislative scheme for RTDs and their use
by real estate agents was not considered appropriate given the existing state and
territory responsibilities for real estate agents and tenancy issues.
Estimated cost for government implementation
Amendment of Housing Act 2003
Any costs that may be incurred by the Department of Housing and Public Works in
implementing the amendments to the Housing Act 2003 will be met through the
existing departmental budget and resources.
Amendment of Plumbing and Drainage Act 2002 and the Queensland Building and
Construction Commission Act 1991
The cost of the remuneration and allowances of members of the council and the
panels will be met from the QBCC's budget.
Any costs that may be incurred by the QBCC in implementing these legislative
amendments will be met through the existing resources of the QBCC.
Amendment of Residential Tenancies and Rooming Accommodation Act 2008
Tenancy guarantees
Any costs that may be incurred by the Department of Housing and Public Works in
implementing the amendments to the Residential Tenancies and Rooming
Accommodation Act 2008 will be met through the existing departmental budget and
resources.
Tenancy databases
Any financial implications arising out of amendments to the Residential Tenancies
and Rooming Accommodation Act 2008 will be met by the Residential Tenancies
Authority. A public information campaign will be conducted on the amendments to
the Act. The cost of the campaign will be met from the normal operating budget of the
Residential Tenancies Authority, which administers the legislation.
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Plumbing and Drainage and Other Legislation Amendment Bill 2015
Consistency with fundamental legislative principles
Housing Act 2003
The provisions of the Bill are consistent with the standards required to be met under
the Legislative Standards Act 1992 (LS Act).
Amendment of Plumbing and Drainage Act 2002 and Queensland Building and
Construction Commission Act 1991
The amendments of the Plumbing and Drainage Act and the QBCC Act are generally
consistent with the standards required to be met under the LS Act. However, some
potential breaches of fundamental legislative principles have been identified.
Section 4(2)(a) of the LS Act requires legislation to have sufficient regard to the rights
and liberties of individuals. Clause 7 of the Bill inserts a new section into the
Plumbing and Drainage Act that allows the chief executive to obtain criminal history
reports of individuals. The new section might be considered to be inconsistent with
section 4(2)(a) of the LS Act. However, it is considered that the new section is
justified on the basis that criminal history checks are necessary for the process of
deciding whether a person is suitable to be a member of the council. Also, it is
considered that the following aspects of the section will limit any potential breach of
fundamental principles:
• the section is limited to the purpose of deciding whether a person is suitable to be
a member of the council; and
• the section does not displace the 'rehabilitation period' provisions of the Criminal
Law (Rehabilitation of Offenders) Act 1986 (the Rehabilitation Act); and
• the section uses a definition of 'criminal history' that is consistent with the
meaning of criminal history under the Rehabilitation Act; and
• the section contains safeguards, including an offence for disclosure of criminal
history information and an obligation for the chief executive to retrieve and
destroy any information obtained under the section, as soon as practicable after it
is no longer needed for the purposes for which it was requested.
Clause 7 of the Bill also inserts the following offences into the Plumbing and
Drainage Act, which might be also be considered to be inconsistent with section
4(2)(a) of the LS Act:
• new section 20, which makes it an offence for a person not to disclose any
changes in the person's criminal history. The maximum penalty for the offence is
100 penalty units;
• new section 21, which makes it an offence to disclose criminal history information
other than under that section. The maximum penalty for the offence is 100 penalty
units.
It is considered that section 20 is justified on the basis that it will deter a member,
deputy member or temporary member of the council from failing to disclose a change
in their criminal history that could affect their suitability to continue as a member,
deputy member or temporary member of the council.
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Plumbing and Drainage and Other Legislation Amendment Bill 2015
It is considered that new section 21 is justified on the basis that it will deter
individuals from inappropriately disclosing highly sensitive personal information.
Amendment of Residential Tenancies and Rooming Accommodation Act 2008
Tenancy guarantees
The provisions of the Bill are consistent with the standards required to be met under
the LS Act.
Tenancy databases
The proposed amendments are generally consistent with fundamental legislative
principles.
Consultation
Amendment of Housing Act 2003
Consultation on the content of the Bill was undertaken with the Department of the
Premier and Cabinet, Queensland Treasury and Department of Justice and Attorney-
General.
Amendment of Plumbing and Drainage Act 2002 and the Queensland Building and
Construction Commission Act 1991
The election commitment has been publically available since July 2014. The
department met with industry stakeholders on 19 March 2015 to develop a model for
the proposed regulatory body. An exposure draft of the Bill was released to key
industry stakeholders on 17 July 2015 for a five week consultation period, closing on
21 August 2015. The department received nine submissions, five of which were from
industry and four of which were from government bodies.
Consultation on the content of the Bill was undertaken with the Department of the
Premier and Cabinet, Queensland Treasury, Department of Justice and Attorney-
General and the Office of the Queensland Parliamentary Counsel.
Given that the election commitment has been publically available since July 2014, it
was decided that no further community consultation was required. It is anticipated
that there will be community support for the establishment of the council as it will
assist in the protection of public health and safety and the environment.
Amendment of Residential Tenancies and Rooming Accommodation Act 2008
Tenancy guarantees
Consultation on the content of the Bill was undertaken with the Department of the
Premier and Cabinet and Queensland Treasury.
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Plumbing and Drainage and Other Legislation Amendment Bill 2015
Tenancy databases
Targeted consultation on an exposure draft of the Bill's tenancy database provisions
was undertaken in September 2015. Representatives from the Real Estate Institute of
Queensland (REIQ), Property Owners' Association of Queensland (POAQ), Tenants'
Queensland, QShelter, and Caravanning Queensland were given the opportunity to
comment over a three week period.
The consultation focused on whether the draft Bill accurately reflected the required
changes to meet the national minimum standards. The intention was not to debate the
established policy positions.
Feedback was received from: the REIQ, POAQ, and QShelter. Feedback from the
sector has been considered and incorporated into the draft Bill in consultation with the
Office of the Queensland Parliamentary Counsel, where appropriate. However many
comments were on policy matters which were outside the scope of consultation.
Consistency with legislation of other jurisdictions
Amendment of Housing Act 2003
The Bill is specific to the State of Queensland and does not introduce uniform or
complementary legislation.
Amendment of Plumbing and Drainage Act 2002 and the Queensland Building and
Construction Commission Act 1991
The Bill is specific to the State of Queensland and does not introduce uniform or
complementary legislation.
Amendment of Residential Tenancies and Rooming Accommodation Act 2008
Tenancy guarantees
The Bill is specific to the State of Queensland and does not introduce uniform or
complementary legislation.
Tenancy databases
The Bill will give effect, in Queensland, to the national uniform law on residential
tenancy databases adopted by the MCCA in December 2010. To the extent that the
law is uniformly adopted by jurisdictions, the tenancy database provisions in the
Residential Tenancies and Rooming Accommodation Act 2008 will be the same as
other Australian jurisdictions.
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Plumbing and Drainage and Other Legislation Amendment Bill 2015
Notes on provisions
Part 1 Preliminary
Clause 1 provides that the short title of the Act is the Plumbing and Drainage and
Other Legislation Amendment Act 2015.
Clause 2 provides that Part 5, other than sections 24 and 25, commences on a day to
be fixed by proclamation. The remainder of the Bill will commence on royal assent
under section 15A of the Acts Interpretation Act 1954.
Part 2 Amendment of Housing Act 2003
Clause 3 provides that this part amends the Housing Act 2003.
Clause 4 inserts a new part 8, division 2B (Development of public housing premises)
which includes new sections 94F to 94H.
New section 94F provides definitions for various terms used in division 2B including
'applicable laws', 'development' 'public housing premises' and 'relevant public
housing'.
New section 94G provides that the section applies to development of public housing
premises carried out by the State or a statutory body representing the State before or
after the commencement. The development is taken to have been carried out in
accordance with all applicable laws.
New section 94H(1) provides that for the Sustainable Planning Act 2009 the transfer
of public housing premises as defined in this new part 8, division 2B does not result in
a material change of use of the premises if the transferor is an entity that uses the
premises to provide relevant public housing or a housing service.
New section 94H(2) provides that without limiting subsection (1), the transfer
mentioned in subsection (1) may include a transfer from the provider of relevant
public housing to an individual or to an entity that provides a housing service that is
not the provision of relevant public housing or a transfer from an entity that provides
a housing service that is not the provision of relevant public housing to an individual.
New section 94H(3) provides that without limiting subsection (1), an entity is taken to
use premises to provide relevant public housing or a housing service if the premises
are held by the entity for the purpose of providing relevant public housing or a
housing service.
New section 94H(4) provides that subsection (3) applies even if the premises
immediately before the transfer are not occupied by an individual as a residence or
have never been occupied by an individual as a residence.
New section 94H(5) provides that section 94H(1) does not affect the transferee's
obligation to comply with all applicable laws for any development of the premises
started on or after the transfer of the premises.
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Plumbing and Drainage and Other Legislation Amendment Bill 2015
Part 3 Amendment of Plumbing and Drainage Act 2002
Clause 5 provides that Part 3 amends the Plumbing and Drainage Act 2002. The
clause includes a note to inform the reader of the existence of minor amendments in
schedule 1 to the Bill.
Clause 6 includes a consequential amendment. The amendment renumbers part 2,
divisions 2 and 3 as part 2, divisions 6 and 7.
Clause 7 replaces part 2, division 1 of the Plumbing and Drainage Act with a new
version of part 2, division 1.
New division 1 of part 2 introduces provisions that deal with the establishment,
functions and powers of the Service Trades Council.
New section 5 establishes the Service Trades Council.
The note after section 5 informs the reader that under section 6(c) of the QBCC Act,
the council constitutes part of the QBCC. As a part of the QBCC, the council will be
subject to the guidance and leadership provided by the Queensland Building and
Construction Board (QBC board), which is the QBCC's governing body. In addition
to providing guidance and leadership, the QBC board decides the strategies and the
operational, administrative and financial policies to be followed by the QBCC. It also
ensures the QBCC performs its functions and exercises its powers in a proper,
effective and efficient way.
New section 6 sets out the functions the council is required to perform. Although the
functions of the council are similar to those of the former PIC, they differ in some
respects.
New section 6(a) provides that the council is required to confer on national policy
development and implementation for the plumbing and drainage trade. The PIC also
had this function.
Under new section 32C, the council will be able to receive reports about licensing and
disciplinary functions performed by the QBCC commissioner and also penalty
infringement notices served on licensees by the QBCC. The information in the reports
will keep the council informed of issues relating to the trade and will therefore assist
the council to confer on national policy development.
As a key industry stakeholder, the council will confer regularly with the department,
which is responsible for developing strategic policy for the State, and contributing to
the development of national policy.
New section 6(b) allows the council to report to the Minister on any issue relating to
the trade that the Minister refers to it or the council considers the Minister should
know about. The PIC also had this function. The reports mentioned above will assist
the council to deal with any issues the Minister refers to it and help to ensure it can
report to the Minister on important issues relating to the trade.
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Plumbing and Drainage and Other Legislation Amendment Bill 2015
New section 6(c) allows the council to make recommendations to the QBCC
commissioner about the performance of the commissioner's functions under the
Plumbing and Drainage Act. If, for example, a licensee has received a number of
penalty infringement notices for offences committed under the Plumbing and
Drainage Act, the council might decide to recommend that if the licensee commits
another offence the QBCC commissioner consider taking disciplinary action in
relation to the licensee. Alternatively, the council might decide to recommend that the
commissioner conduct an audit program under section 33TB, to find out whether
licensees have been complying with the requirement to notify the commissioner when
they have completed notifiable work.
New section 6(d) deals with the requirement for the council to establish a panel to
assist the QBCC commissioner to effectively and efficiently perform the
commissioner's functions under part 3, divisions 1 to 6, which relate to licensing for
the plumbing and drainage trade. New section 29 requires the council to establish a
panel to assist the QBCC commissioner to carry out the commissioner's licensing
functions. It is intended that the panel will assist the commissioner to make decisions
relating to complex licence applications, by providing advice and recommendations to
the commissioner. For example, it is intended that the panel will provide advice and
recommendations to the commissioner about applications made by plumbers who
have acquired their qualifications and experience overseas. A committee established
by the PIC provided advice and recommendations to the PIC on similar applications.
New section 6(e) allows the council to establish other panels to assist the council to
effectively and efficiently perform its functions. For example, the council might
decide to establish a panel to conduct research that will assist the council to perform
one or more of its functions.
New section 6(f) refers to the council's power, under the QBCC Act, to conduct
internal reviews of decisions about disciplinary matters made by the QBCC
commissioner.
The PIC made original decisions on licensing and disciplinary matters for the
plumbing and drainage trade. The QBCC commissioner now makes those decisions.
The commissioner has implemented service delivery practices that have resulted in
improved decision making timeframes. In recognition of the faster service provided
by the commissioner, the commissioner will continue to make those decisions.
The QBCC has established a contemporary complaint management process for the
plumbing and drainage trade. A licensee who is dissatisfied with an original decision
made by the QBCC commissioner on a licensing or disciplinary matter currently has
two options. They can apply for an internal review of the original decision, which will
be undertaken by a senior officer of the QBCC. If dissatisfied with the internal review
decision, they can apply for an external review of the internal review decision.
Alternatively, they can apply for an external review undertaken by the Queensland
Civil and Administrative Tribunal (QCAT) without first applying for an internal
review of the original decision.
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Plumbing and Drainage and Other Legislation Amendment Bill 2015
The QBCC will continue to be responsible for conducting internal reviews of original
decisions on licensing matters. However, the council will assume responsibility for
undertaking internal reviews of original decisions about disciplinary matters. This will
allow a licensee who is not satisfied with an original decision on a disciplinary matter
made by the QBCC commissioner to apply for an internal review of the decision to be
undertaken by the council, or to apply for an external review of the original decision
to be undertaken by QCAT, or both. This will provide industry with a direct voice on
particular contentious disciplinary decisions affecting licensees.
New section 6(g) allows the council to perform other functions relating to the trade
given to the council under the Plumbing and Drainage Act or another Act.
New section 7 sets out the powers of the council. The council has the power to do all
things reasonably necessary to be done for performing its functions, including the
powers given to it under the Plumbing and Drainage Act or another Act. Under the
QBCC Act, the council has the power to conduct internal reviews of decisions about
disciplinary matters made by the QBCC commissioner under the Plumbing and
Drainage Act, section 68.
New division 2 introduces provisions about the membership of the council.
New section 8 provides that the council consists of members appointed by the
Governor in Council. The membership must include a member who will represent
consumers, and the assistant commissioner as a representative of the QBCC. It must
also include at least one representative of each of the departments and industry
entities mentioned in new section 8(3)(b).
New section 9 allows the Governor in Council to appoint a person to act for a member
as a deputy member during the member's absence.
It is intended that when appointing a member, the Governor in Council will also
appoint a deputy member who will act for the member during any absence of the
member that may occur in the future. Importantly, in appointing a deputy member to
act for a member, the Governor in Council must appoint a person who represents the
entity or interest that the member represents.
New section 10 deals with the appointment of temporary members of the council. It
allows the Minister to appoint a person to act for a member of the council while the
member is absent on approved leave if there is no deputy member for the member or
the deputy member for the member is unable to act for the member during the leave of
absence. A temporary member has the same duties, powers, protection and rights,
other than for sections 14 and 15, as the member, during the member's leave of
absence.
New section 11 provides that a person is disqualified from becoming, or continuing
as, a member, deputy member or temporary member in the circumstances mentioned
in section 11(1)(a) to (d). It also provides that a person cannot be appointed if the
person does not consent to the chief executive asking the Commissioner of Police for
a report and other information about the person's criminal history (if any) under
section 19.
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Plumbing and Drainage and Other Legislation Amendment Bill 2015
New section 11(3) defines the term 'recorded conviction' which is used in section
11(1)(a). The definition is based on the definition of the term in the QBCC Act.
New section 12 allows the Governor in Council to decide the remuneration and
allowances a member or deputy member is entitled to. The section also allows the
Governor in Council to decide other conditions of a member or deputy member for
matters not already provided for by the Plumbing and Drainage Act.
New section 13 provides that the term of an appointment of a member or deputy
member is no more than 4 years unless the appointee is disqualified earlier on the
grounds mentioned in section 11.
New section 14 requires the Governor in Council to appoint a member as the
chairperson of the council. The section allows the Governor in Council to appoint a
person as a member and the chairperson of the council at the same time. It provides
that when a person's appointment as a member ends the person's appointment as
chairperson also ends.
New section 15 requires the Governor in Council to appoint a member as the deputy
chairperson of the council.
The section allows the Governor in Council to appoint a person as a member and the
deputy chairperson of the council at the same time. The role of the deputy member is
to act as chairperson during a vacancy in the office of chairperson and during periods
when the chairperson cannot perform as chairperson. It provides that if a person's
appointment as a member ends during the term of their appointment, the person's
appointment as a deputy chairperson also ends.
New section 16 provides for the resignation from office of a member, deputy member
or temporary member. It also provides for the resignation from the roles of
chairperson or deputy chairperson. The provision allows a person to resign by giving
a signed notice to the Minister. It also allows a person resigning from the office of
chairperson or deputy chairperson to continue to be a member.
New section 17 sets out the circumstances in which a member, deputy member or
temporary member is taken to have vacated office.
New section 18 allows the Minister to approve a leave of absence of 3 or more
meetings for a member. The provision also provides that if the deputy chairperson is
absent on approved leave, the Minister may appoint another member to act in the
deputy chairperson's office during the deputy chairperson's absence.
New section 19 allows the chief executive of the department to ask the Commissioner
of Police to provide information concerning the criminal history, if any, of a person
being considered for appointment as a member, deputy member or temporary
member. However, the chief executive may request the information only if the person
has given their consent for the request to be made.
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Plumbing and Drainage and Other Legislation Amendment Bill 2015
The requirement for consent ensures that the person has the option to refuse to give
their consent for the chief executive to request the information. This is appropriate
given that the information is highly sensitive personal information. However, under
new section 11(2), a person will be disqualified from becoming a member, deputy
member or temporary member if the person does not give their consent for the request
for information.
It is intended that information about a person's criminal history will inform the
decision about whether the person is a suitable person to be appointed to the council.
A definition of 'criminal history' has been inserted in the dictionary for the Plumbing
and Drainage Act. The definition excludes spent convictions. A definition of 'spent
conviction' has also been inserted in the dictionary.
New section 20 requires a member, deputy member or temporary member to give to
the chief executive written notice of any change in their criminal history immediately
after the change occurs, unless the person has a reasonable excuse.
The section is intended to capture a change in the person's criminal history resulting
from a conviction being recorded against the person for an offence after a criminal
history check carried out under section 19 has been undertaken.
Failure to give notice under the section is an offence carrying a maximum penalty of
100 penalty units. The value of a single penalty unit in Queensland is currently
$117.80 (current from 1 July 2015). Therefore, the maximum penalty for a failure to
comply with the restrictions is currently $11,780.
New section 21 imposes restrictions on the disclosure of information about a person's
criminal history. Those restrictions are appropriate given that the information is
highly sensitive personal information and the fact that inappropriate disclosure of the
information could be detrimental to the person.
Failure to comply with the restrictions is an offence carrying a maximum penalty of
100 penalty units. The value of a single penalty unit in Queensland is currently
$117.80 (current from 1 July 2015). Therefore, the maximum penalty for a failure to
comply with the restrictions is currently $11,780.
New division 3 deals with the business of the council.
New section 22 provides that, in the division, a reference to a member includes a
reference to a deputy member or a temporary member who is acting for a member
while the member is absent.
New section 23 allows the council to conduct its business as it considers appropriate,
subject to the restrictions imposed in division 3.
New section 24 allows the chairperson to set the times and places for meetings of the
council in most cases. However, the section requires the chairperson to call a meeting
in the circumstances set out in the section, including following receipt of notice about
an internal review application to be decided by the council as internal reviewer. The
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Plumbing and Drainage and Other Legislation Amendment Bill 2015
purpose of section 24(2)(b) is to ensure the council deals with an internal review
applications in a timely manner. Typically, such an application would be made by a
licensee if the QBCC commissioner has decided to take disciplinary action against the
licensee under section 68 of the Plumbing and Drainage Act and the licensee is
dissatisfied with the decision. Under the QBCC Act, section 86C the council has the
power to make an internal review decision about the QBCC commissioner's decision.
Although the section requires the chairperson to decide the time and places for
meetings of the council, it is the assistant commissioner who gives notice of a meeting
to each member of the council. This is because the assistant commissioner has
responsibility for helping the council to perform its functions, including by providing
the council with administrative support.
New section 25 provides that a quorum for a meeting of the council 4 members.
New section 26 requires the chairperson to preside at meetings where the chairperson
is present and sets out alternative arrangements that apply for a meeting if the
chairperson is not present at the meeting.
New section 27 provides for how meetings of the council must be conducted. It
determines how decisions of the council may be made. It allows a meeting to be held
using technology such as teleconferencing, as well as in person.
New section 28 requires the council to keep minutes of each meeting and a record of
its resolutions. The assistant commissioner is responsible for helping the council
perform its functions. It is intended that the assistant commissioner will keep minutes
of the council's meetings and records of the council's resolutions.
New section 29 requires the council to establish a panel and provides for the functions
of the panel. Those functions include assisting the QBCC commissioner to perform
the commissioner's functions under part 3, divisions 1 to 6, which deal with the
licensing of individuals.
It is intended that a key function of the panel will be to assist the commissioner to
make decisions relating to complex licence applications, for example, applications
made by plumbers who have acquired their qualifications and experience overseas.
The panel will do so by providing advice and making recommendations to the
commissioner. A committee established by the PIC provided advice and
recommendations to the PIC on similar applications.
It is important to note that the role of the panel established under new section 29(1) is
purely an advisory role. The panel will provide advice and recommendations in
relation to particular licensing matters, but the commissioner is not bound to act on
the advice or the recommendations. If the panel gives the commissioner advice about
a matter, the commissioner must make an independent decision on the matter after
taking into account all relevant information, including the advice of the panel.
The new section will also allow the council to establish other panels to assist the
council to perform its functions effectively and efficiently. The section will, for
example, allow the council to establish panels to conduct research that will assist the
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Plumbing and Drainage and Other Legislation Amendment Bill 2015
council to perform one or more of its functions, such as research on national policy
development and on issues relating to the trade that the Minister refers to it.
New section 30 deals with panel members and other matters about panels. It allows
the council to appoint a person to a panel and to decide the terms of reference of a
panel. It also allows the council to decide other matters about the panel that are not
provided for under the Plumbing and Drainage Act. In addition, the section allows the
Governor in Council to decide the fees and allowances of panel members.
New section 31 is intended to ensure a member of the council (or a deputy member or
temporary member who is acting for a member), or a panel member, who has a
conflict of interest in relation to a decision can be excluded from the process for
making the decision. It does so by requiring such a person to disclose the conflict of
interest at a council meeting or panel meeting, and prohibiting the person from taking
part in a decision about the issue giving rise to the conflict of interest, unless the
council or panel otherwise directs.
New division 4 deals with the role of the QBCC commissioner in relation to plumbing
and drainage. It introduces new section 32.
New section 32 sets out the functions for plumbing and drainage that the QBCC
commissioner is required to perform, all of which are generally operational in nature.
The commissioner's role in relation to plumbing and drainage was established in
legislation in November 2014 and it remains unchanged under the amendments. The
commissioner's functions continue to include administering the licensing scheme for
plumbing and drainage, and approving audit programs and auditing licensees to
monitor and enforce compliance with part 4.
The new functions of the QBCC commissioner also include performing any other
functions relating to plumbing and drainage given to the commissioner under the
Plumbing and Drainage Act, for example approving forms for use under the Plumbing
and Drainage Act.
Under new section 6(c), the council may make recommendations to the commissioner
about the performance of the commissioner's functions under the Plumbing and
Drainage Act.
New division 5 deals with the role of the assistant commissioner in relation to
plumbing and drainage. It introduces new sections 32A to 32D.
New section 32A requires the QBCC commissioner to appoint a person as assistant
commissioner. The new section provides that the assistant commissioner must be
employed under the QBCC Act, section 29F.
New section 32B establishes the role, functions and powers of the assistant
commissioner, which are similar to those of the former registrar of the PIC. It is
intended that the assistant commissioner will provide the council with any
administrative support it needs. This support includes arranging meetings of the
council and taking minutes at those meetings.
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Plumbing and Drainage and Other Legislation Amendment Bill 2015
New section 32C allows the chairperson or 4 members of the council to ask the
assistant commissioner to give the council a report about the functions performed by
the QBCC commissioner under the Plumbing and Drainage Act, including the
licensing and disciplinary functions performed by the QBCC commissioner.
A report may include details of licensing and disciplinary functions performed by the
commissioner and any offences under the Plumbing and Drainage Act for which the
QBCC commissioner or an investigator has served a penalty infringement notice
(otherwise known as a PIN).
The section will allow a request for a report to be made from time to time or a
standing request to be made for a report to be provided for each meeting of the
council. A report that is requested must be given to the chairperson within a
reasonable period.
The reports will keep the council informed of issues relating to the regulation of the
plumbing and drainage trade. The council may use information contained in a report
as a basis for making a recommendation to the QBCC commissioner about the
performance of one or more of the commissioner's functions for the trade, under new
section 6(c). If, as a result of reading a report, the council becomes aware of issues
relating to the trade that the council considers the Minister should know about, the
council may report to the Minister on the issues, under new section 6(b)(ii).
New section 32D deals with the representation of the council at proceedings at
QCAT.
After the QBCC commissioner has issued a show cause notice to a licensee about a
disciplinary matter and has considered the accepted representations about the show
cause notice, the commissioner may decide to take disciplinary action against the
licensee. Under the QBCC Act, the licensee may make an application to the council
for an internal review of the commissioner's decision. If the licensee is dissatisfied
with the decision made by the council on internal review, the licensee may make an
application to QCAT for an external review of the council's decision. New section
32D allows the assistant commissioner to act on behalf of the council in a proceeding
before QCAT for the external review. The purpose of this provision is to ensure it is
not necessary for each member of the council who made the internal review decision
to attend the QCAT proceeding for the external review.
Clause 8 inserts into the Plumbing and Drainage Act new section 33Y. New section
33Y provides that a document made by the council is sufficiently made if it is signed
by the assistant commissioner. The provision will allow the assistant commissioner to
sign documents on behalf of the council.
Clause 9 expands the scope of section 128RA which deals with false or misleading
statements. The clause ensures it will be an offence for a person to state anything to
the council that the person knows is false or misleading.
Clause 10 expands the scope of section 128S which deals with false or misleading
documents. The clause ensures it will be an offence for a person to give the council a
document containing information that the person knows is false or misleading.
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Plumbing and Drainage and Other Legislation Amendment Bill 2015
Clause 11 inserts into the Plumbing and Drainage Act new section 144A. New section
144A allows the council to delegate some of its functions under the Plumbing and
Drainage Act or another Act, to a relevant officer of the QBCC or a panel member.
The new section expressly prohibits delegation of the council's power to conduct an
internal review of a decision made by the QBCC commissioner on a disciplinary
matter. The reason for the prohibition is that it is considered that the council's role as
an internal reviewer is too important to the industry for it to be delegated to a relevant
officer of the QBCC or a panel member. The new section also prohibits delegation of
the power to delegate, ensuring that a person to whom a function is delegated under
the section is not allowed to delegate the function to another person.
The new section also allows the assistant commissioner to delegate most of his or her
functions under the Plumbing and Drainage Act to a relevant officer of the QBCC.
The new section prohibits the delegation of the power to delegate, ensuring that a
person to whom a function is delegated under the section may not delegate the
function to another person.
Clause 12 amends the dictionary for the Plumbing and Drainage Act. It inserts in the
dictionary a range of definitions required for the amendments of that Act included in
the Bill. It also includes a number of consequential amendments required as a result of
particular amendments included in the Bill. The clause also omits the definition of
'appropriately qualified employee' from the dictionary. As a result, the definition of
the term 'appropriately qualified' in the Acts Interpretation Act 1954 applies.
Part 4 Amendment of Queensland Building and Construction
Commission Act 1991
Clause 13 provides that new part 4 amends the QBCC Act. The clause includes a note
to inform the reader of the existence of minor amendments in schedule 1 to the Bill.
Clause 14 expands the constitution of the QBCC to include the council. As a result of
the clause, the QBCC will consist of the QBC board, the QBCC commissioner and the
organisational unit under the control of the commissioner, and also the council. As the
QBCC's governing body, the QBC board decides the strategies and the operational,
administrative and financial policies to be followed by the QBCC. It also ensures the
QBCC performs its functions and exercises its powers in a proper, effective and
efficient way. As a part of the QBCC, the council will be subject to the governance of
the board.
Clause 15 expands the range of functions of the QBC board, the QBCC's governing
body board to include new functions of the board that relate to the council. The clause
restricts the scope of the expansion of the board's role so it does not include providing
guidance and leadership to the council in relation to the council's function of
conferring on national policy development and implementation for the trade under the
Plumbing and Drainage Act. This reflects the specific role of the council in relation to
these issues.
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Plumbing and Drainage and Other Legislation Amendment Bill 2015
Clause 16 inserts in section 85A the definition internal reviewer. This definition is
required as a result of the council acquiring power to conduct internal reviews in
relation to disciplinary matters. The definition reflects the fact that the internal
reviewer for an internal review application may be either the council or the QBCC,
depending on the nature of the application.
Clause 17 includes a consequential amendment that replaces a reference to the QBCC
in section 86A(1) with a reference to the internal reviewer.
Clause 18 includes a consequential amendment that replaces a reference to the QBCC
in section 86B(a)(ii) with a reference to the internal reviewer.
Clause 19(1) includes a consequential amendment that replaces references to the
QBCC in section 86C(1) and (3) with references to the internal reviewer.
Clause 19(2) includes a consequential amendment that confines section 86C(4) so it
only applies to an application for which the QBCC is the internal reviewer.
Clause 20 includes a consequential amendment that replaces a reference to the QBCC
in section 86D(1) with a reference to the internal reviewer.
Clause 21 amends section 114 of the QBCC Act, which provides the State and
particular individuals with protection from civil liability. It ensures that if the QBCC
commissioner, a relevant officer of the QBCC, or a member, deputy member or
temporary member of the council, makes an honest mistake in the performance of
functions under the Plumbing and Drainage Act, any civil liability for the mistake will
not attach to the person themselves or the State. Any civil liability for the mistake will
instead attach to the QBCC.
Clause 22 inserts into schedule 1 a new part 12. The new part introduces new section
69, which is a transitional provision.
New section 69 deals with transitional issues related to the transfer of power to
conduct internal reviews of decisions on disciplinary matters made by the QBCC
commissioner, from the QBCC to the council. The new section allows the QBCC
generally to deal with any application for an internal review of a decision on a
disciplinary matter if the application was made before the commencement of the
amendments. The section also allows a person affected by an internal review decision
made by the QBCC under section 69(2) to apply to QCAT for an external review of
the QBCC's decision.
Clause 23 amends the dictionary for the QBCC Act, by inserting into the dictionary
two new definitions that are required for particular amendments of the QBCC Act
included in the Bill.
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Plumbing and Drainage and Other Legislation Amendment Bill 2015
Part 5 Amendment of Residential Tenancies and Rooming
Accommodation Act 2008
Clause 24 provides that this part amends the Residential Tenancies and Rooming
Accommodation Act 2008.
Clause 25 amends section 180 (Tenancy guarantees) to omit the words "by the
department" in section 180(1) and insert new subsection (3) to provide that the
department or a community housing guarantor may give a tenancy guarantee for a
residential tenancy agreement between a lessor and a tenant.
Clause 25 also inserts a new subsection (4) to define "community housing guarantor"
to mean a community housing provider approved by the chief executive of the
department to give tenancy guarantees. "Department" is defined to mean the
department in which the Housing Act 2003 is administered
Clause 26 amends section 457 which defines the terms used in the chapter including
"tenancy database", and "database operator", "inaccurate", "list", "out of date", and
"personal information".
The term "tenancy database" is defined to mean a database containing information
that is personal information relating to, or arising from, the occupation of residential
premises under a residential tenancy agreement or is used for a purpose relating to
past, current or future occupation of residential premises under a tenancy agreement.
The term "database operator" means an entity that operates a tenancy database.
The term "inaccurate" is defined to clarify that information is inaccurate when it
indicates that a person who owed money has paid the amount more than three months
after the amount became due. In contrast, the term "out of date" applies to information
that is no longer accurate because either the amount owing was paid within three
months after the amount became due or because the proceeding for a termination
order was reopened or appealed under the QCAT Act and the termination order was
set aside.
"List" is defined to mean the entry of personal information into a database, giving
information to a database operator or someone else to enter personal information into
a tenancy database, and for personal information already stored in a tenancy database
it includes amending that information to include additional personal information
whether by entering it in a database or giving it to a database operator or someone else
for entry. The term "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. The definition of "personal information" is similar to the definition found in
section 6 of the Commonwealth Privacy Act 1988 with some modifications to reflect
the context.
Clause 27 inserts new ss 457A and 457B. The new section 457A defines references to
"lessors" and "tenants" in chapter 9. The section provides that without limiting
sections 8, 13 and 20, in this chapter, a reference to a lessor, lessor's agent or tenant
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Plumbing and Drainage and Other Legislation Amendment Bill 2015
includes the lessor, lessor's agent or tenant under a residential tenancy agreement that
has ended.
The new section 457B identifies the extra-territorial application of the chapter. It
provides that an act or omission done by a person outside the State and in relation to
personal information that would constitute an offence under the chapter, constitutes an
offence as if it were done or made by the person in Queensland under certain
conditions. These conditions are where the personal information is about a person
who resides in Queensland, or where the rental property was located in Queensland.
In addition, the section provides that the person who does the act or makes the
omission is guilty of an offence of the same kind and is liable to the same punishment
as if the act or omission had happened in the State. Section 457B(3) clarifies that the
section does not limit the Criminal Code, sections 12 to 14.
Clause 28 inserts new ss 458A and 458B. Section 458A applies where a lessor or their
agent usually uses a database for deciding whether to accept an applicant. Under the
section, the lessor or their agent must advise the applicant, when the application is
made, of any tenancy databases they usually use, the reason they use them, and how
persons may contact the database operators. Section 458A(3) clarifies that the section
applies even if the lessor or their agent does not intend to use the database to check
the history of the particular applicant. However, the section does not apply if the
lessor or their agent has given the applicant the notice not more than 7 days before the
application was made and the information in that previous notice is still current.
Section 458A(5) clarifies that the notice may be combined with another document the
lessor or agent gives to the tenant such as a written tenancy application document.
Section 458B applies where a lessor or their agent uses a tenancy database for
checking the tenancy history of the applicant and finds that the person is listed on the
database. Under section 458B(2) the lessor or their agent must within 7 days after
using the database, give written notice to the applicant advising that personal
information about them is in the database, stating the name of the database, details
about who is recorded as having listed the information, and how and in what
circumstances the applicant can have the personal information removed or amended
under the Act, and how they can obtain a copy of the personal information. The note
under 458B(2) clarifies that section 459C provides for when the lessor, lessor's agent
or database operator must give the applicant a copy of the personal information.
458B(3) clarifies that the requirement to give details of the listing entity applies only
if the details of the listing entity are contained in the tenancy database. For this
section, a listing entity means the lessor or agent who listed the personal information
on the tenancy database.
Clause 29 amends section 459 (Restriction on listing). The new section 459 sets out a
consultation requirement similar to that set out in the existing section 459 with some
additions. The section requires a listing person to, without charge, give the person
being listed a copy of the personal information to be listed on a tenancy database or
taken other reasonable steps to disclose the information to the person prior to making
the listing. In addition, the listing person must give the person to be listed at least 14
days to review the information and make submissions about the information, and must
consider the submissions. Section 459(3) clarifies that the listing person does not
commit an offence if they are unable to locate the person after making reasonable
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Plumbing and Drainage and Other Legislation Amendment Bill 2015
enquiries. The requirement to provide the 14 day period and consider submissions
does not apply to personal information that has already been published by a court or
tribunal. In addition, these obligations do not apply where an existing listing is
amended in accordance with section 461, in order to ensure amendments to a listing
made under section 461 are made promptly. Section 459(4) also provides that the
listing person must not list personal information about a person if they are aware that
the personal information is inaccurate, incomplete, ambiguous or out of date.
Clause 30 inserts new ss 459A to 459D. Section 459A provides that, where a lessor or
their agent who lists information about a person in a database becomes aware that the
information is inaccurate, incomplete, ambiguous or out of date, they must notify the
database operator in writing that for information that is inaccurate, incomplete, or
ambiguous, how it must be amended; or for information that is out of date that it must
be removed. Section 459A(2)(c) provides that in either case the database operator
must comply with their obligation to ensure the quality of listings as set out in section
459B. However, the obligation to provide written notice does not apply if the lessor or
their agent directly amends or removes the information from the database within
seven days of the lessor or agent becoming aware that the personal information is
inaccurate, incomplete, ambiguous or out date. In addition, the lessor or their agent
must keep a copy of the notice for one year after it was given to the database operator.
Section 459B provides that where a lessor or their agent gives written notice to a
database operator of a necessary amendment, the database operator must amend or
remove the personal information as directed within 14 days after the notice is given.
Section 459C(1) requires a lessor or their agent who lists personal information on a
tenancy database to give the listed person a copy of the information within 14 days
after it is requested and any fee for giving the information is paid by the listed person.
Similarly, under section 459C(2) a database operator must, on request, give a person
whose information is listed on the database a copy of the information within 14 days
of the request and any fee for giving the information is paid. Section 459C(3) clarifies
that any fee charged by a lessor, lessor's agent or database operator must not be
excessive and must not apply to lodging a request for the information.
Section 459D imposes a limit on the length of time a listing can be kept on a database.
The database operator must not keep personal information about a person on the
database for longer than three years. Further, as per the note to the provision, under
s459B(3) if a database operator is notified that the information is out of date where it
relates to an amount owed, then it must be removed within 14 days of being notified.
Clause 31 amends section 460 (Application to tribunal about breach) to make minor
amendments to section 460(1) to adjust wording for consistency with the Bill.
Clause 32 amends section 461 (Application to tribunal about incorrect or unjust
listing) to make minor amendments to section 461 to adjust wording for consistency
with the Bill.
Clause 33 amends section 462 (Application to tribunal about proposed listing) to
make minor amendments to section 462 to adjust wording for consistency with the
Bill.
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Plumbing and Drainage and Other Legislation Amendment Bill 2015
Clause 34 insertion of new Chapter 14, Part 4 outlines the transitional matters that
apply for tenancy database changes.
Section 558 defines the terms used in Part 4 including "existing database", "existing
listing", "former", and "new".
The term "existing database" means a tenancy database under the former chapter 9.
"Existing listing" means personal information in an existing database immediately
before commencement.
The term "former" is used in relation to a provision to mean the provision as in force
immediately before its amendment under the Plumbing and Drainage and Other
Legislation Amendment Act 2015. The term "new" is used in relation to a provision to
mean the provision as in force after amendment under the Plumbing and Drainage
and Other Legislation Amendment Act 2015.
Section 559 defines the meaning of particular terms and provides that if context
permits, a term used in this part and defined in new section 457 have the same
meaning.
Section 560 clarifies that new section 458B which requires a lessor or their agent to
within 7 days after using the database, give a written notice to the applicant of matters
related to the listing, does not apply to applications to enter into a tenancy agreement
made before commencement.
Section 561(1) states that this section applies if before commencement of the
amendment legislation, a person who was proposing to list personal information about
a tenant in an existing database, gave the tenant written notice under former section
459 and at commencement they had not listed the personal information in the tenancy
database (with or without variation). Section 561(2) provides that new section 459
applies to the proposed listing as if the notice was given to the tenant under the new
section 459(2)(a).
Section 562 provides that new sections 459A and 459B, which set out the obligations
for lessors, agents and databases operators to ensure the quality of listings, apply to an
existing listing as well as to personal information included in a tenancy database after
commencement.
Section 563 provides that new section 459C, which set out the obligations on lessors,
agents and database operators who list personal information on a tenancy database to
give the listed person a copy of the information, applies to an existing listing as well
as to personal information included in a tenancy database after commencement.
Section 564 sets out that new section 459D (1) which imposes a limit on the length of
time a database operator can keep personal information about a person on the
database, applies to an existing listing as well to personal information included in a
tenancy database after commencement, unless section 564(2) applies.
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Plumbing and Drainage and Other Legislation Amendment Bill 2015
Section 564(2) clarifies that if at the commencement, an existing listing had been kept
in a tenancy database for two years or more, then section 459D (1) applies as if the
reference to three years were a reference to one year after commencement. This has
the effect that existing listings of two or more years at the time of commencement will
be required to be removed one year after the section commences; whereas for existing
listings of less than two years at the time of commencement, the new Section 459D
will apply as drafted with listings required to be removed three years after the listings
were first made.
This amendment has a prospective operation, while it may be considered to impose
obligations retrospectively by applying the new provisions to listings made on
tenancy databases before commencement. It is considered that this is justified on the
grounds that database operators have been provided with a 12 month period after
commencement in which to update listings which are two or more years old, and is
not a breach of fundamental legislative principles.
Section 565 applies to existing and proposed listings about a tenant if the tenant
claims that, before commencement, there had been a breach of former section 459
Restriction on listing. Section 565(2) provides that new Chapter 9 applies for the
purpose of an application to the tribunal about a breach.
To remove any doubt, section 566 sets out that the new chapter 9 applies for the
purposes of an application to the tribunal about personal information included in an
existing listing or a proposed listing to which section 561 applies.
Section 567 establishes that if a tenant becomes aware of a proposed listing by a
lessor or lessor's agent of personal information about them on an existing database
before commencement, and at commencement they had not yet made an application
under the former section 462, then new chapter 9 section 567(2) applies for the
purposes of an application to the tribunal about a proposed listing.
Section 568 establishes that if an application to the tribunal under former sections
460, 461 or 462 was started before commencement and at commencement the
application had not been fully dealt with, then under 568(2), the tribunal must
continue to hear and decide the matter under the former chapter 9 as if the Plumbing
and Drainage and Other Legislation Amendment Act 2015 had not been enacted.
Clause 35 Amendment of Schedule 2 (Dictionary) amends the definition list to clarify
that:
• "database operator" for chapter 9 is defined under section 457 to mean an entity
that operates a tenancy database.
• An "existing database" for chapter 14, part 4, is defined under section 558 to mean
a tenancy database under former chapter 9.
• An "existing listing" for chapter 14, part 4, is defined under section 558 to mean
personal information in an existing database immediately before the
commencement.
• "Former" for chapter 14, part 4, is defined under section 558 and means, in
relation to the provision, the provision in force immediately before the amendment
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Plumbing and Drainage and Other Legislation Amendment Bill 2015
of the provision under the Plumbing and Drainage and Other Legislation
Amendment Act 2015.
• "Inaccurate", for chapter 9, refers to the definition of "inaccurate" in section 457
• "list", for chapter 9, refers to the definition of "list" in section 457.
• "new", for chapter 14 part 4, is defined under section 558 and means, in relation to
a provision, the provision as in force after the amendment of the provision under
the Plumbing and Drainage and Other Legislation Amendment Act 2015.
• "out of date", for chapter 9, refers to the definition of "out of date" in section 457.
The definition of "lessor" in Schedule 2 is replaced by a reference to sections 8 and 20
in general, and for chapter 9 "lessor" is defined in section 457.
The definition of "tenant" in Schedule 2 is replaced by a reference to sections 13 and
20, and for chapter 9 "tenant" is defined in section 457.
Part 6 Minor and consequential amendments
Clause 38 Schedule 1 to the Bill includes minor and consequential amendments of the
Plumbing and Drainage Act, QBCC Act and the Sustainable Planning Act 2009.
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