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1
Residential Services and Other Legislation Amendment
Bill 2004
RESIDENTIAL SERVICES AND OTHER
LEGISLATION AMENDMENT BILL 2004
EXPLANATORY NOTES
GENERAL OUTLINE
Short Title
The short title of the Bill is the Residential Services and Other
Legislation Amendment Bill 2004.
Policy Objectives of the Legislation
The policy objectives of the Residential Services and Other Legislation
Amendment Bill 2004 are to:
� exempt residential service-style independent student
accommodation services from the Residential Services
(Accreditation) Act 2002; and
� ensure residents and operators of residential service-style
independent student accommodation services are subject to the
Residential Services (Accommodation) Act 2002.
Reasons for Policy Objectives
The reasons for exempting independent student accommodation services
from the Residential Services (Accreditation) Act 2002 are:
� student accommodation was never intended to be captured by the
Residential Services (Accreditation) Act 2002, yet some forms of
this accommodation have been inadvertently captured by that
Act's generic definition of a "residential service";
� exemption from the Residential Services (Accreditation) Act
2002 already exists for a service conducted as a part of, or under
an agreement with, a school or other educational institution
mainly to provide accommodation to students or employees of
the school or institution. Also exempt are services conducted
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Residential Services and Other Legislation Amendment
Bill 2004
with financial assistance from the Department of Education
mainly to provide accommodation to school students. However,
room-only student accommodation services operated by industry
independently from educational institutions or such financial
assistance are not covered by these exemptions;
� the policy intent of the Residential Services (Accreditation) Act
2002 was to regulate operators and premises housing an
extremely vulnerable consumer group who suffer significant
social, financial, physical and intellectual disadvantages, and are
therefore often unable to exercise the consumer choices that
might otherwise allow them to avoid situations of long-term
exploitation, abuse or poor accommodation standards. Students
are not considered subject to the same vulnerabilities as this
target group. This is because students are able to exercise
consumer choice in a growing and competitive market
specifically aimed at providing a range of accommodation
options for them, there are reports of a generally good standard
of student accommodation, and the potentially higher incomes of
international students;
� the student accommodation sector of the rental accommodation
industry was not consulted in the policy development of the
residential services regulatory regime;
� independent research into this sector of the rental
accommodation industry has not provided evidence of poor
accommodation standards or exploitation of residents. This
suggests that application of the Residential Services
(Accreditation) Act 2002 may result in unnecessary regulation of
the industry;
� the continued application of the Residential Services
(Accreditation) Act 2002 to student accommodation would lead
to anomalies between premises rented by four or more students
on a room-only basis (where the premises have to meet the
registration and accreditation requirements of the Residential
Services (Accreditation) Act 2002), and similar accommodation
where students have the right to occupy the whole of the
premises they reside in and which is governed by the Residential
Tenancies Act 1994 (thus avoiding the obligations of the
Residential Services (Accreditation) Act 2002); and
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Residential Services and Other Legislation Amendment
Bill 2004
� planning for the rollout of the Residential Services
(Accreditation) Act 2002 did not factor in the impact of
regulating student accommodation. As a consequence, the
intended focus of the Residential Services (Accreditation) Act
2002 on vulnerable residents in boarding houses and hostels may
be diluted in addressing the unintended capture of student
accommodation.
The reason for ensuring residential service-style independent student
accommodation services are subject to the Residential Services
(Accommodation) Act 2002 is that, while registration and accreditation is
not considered necessary for the student sector, it is important students in
room-only accommodation remain entitled to basic legislated tenancy
rights. The loss of such rights would lead to an inconsistency of tenancy
rights between students in room only accommodation who would have no
legislated tenancy protection, and students accommodated in share houses
who are afforded protection by virtue of the Residential Tenancies Act
1994.
How Policy Objectives will be Achieved
The policy objective of exempting independent student accommodation
services from the Residential Services (Accreditation) Act 2002 will be
achieved by including in that Act's list of services that are not "residential
services" services mainly providing accommodation to students enrolled in
approved courses.
The policy objective of ensuring residential service style student
accommodation is covered by the Residential Services (Accommodation)
Act 2002 will be achieved by amending the definition of a "residential
service" in that Act to include services mainly providing accommodation to
students enrolled in approved courses, where that service would, but for the
exemption, satisfy the meaning of a "residential service" in the Residential
Services (Accreditation) Act 2002.
Options to Achieve the Policy Objectives of this Bill
Four alternative options were identified to address this issue.
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Residential Services and Other Legislation Amendment
Bill 2004
Alternative One
Amend the accreditation requirements to remove accreditation for the
entire category of services that student accommodation falls under. This
would result in exempting all boarding houses from the Residential
Services (Accreditation) Act 2002 and would defeat the fundamental
objective of the Residential Services (Accreditation) Act 2002 to protect the
rights of vulnerable residents.
Alternative Two
Place the tenancy provisions of the reform package into the Residential
Tenancies Act 1994 as a new class of tenancy. In addition to the substantial
amendments required to achieve this, the tenancy provisions under the
Residential Tenancies Act 1994 are not considered appropriate for multiple
occupancy room-only tenancies involving common areas and house rules.
These issues are already dealt with under the Residential Services
(Accommodation) Act 2002.
Alternative Three
No change. This would result in the unintended capture of a significant
number of service providers who were not consulted before the enactment
of the reform package for residential services. It would also result in the
unintended capture of students who generally enjoy a good standard of
accommodation and who are not considered part of the vulnerable
consumer group the residential services reforms target. Industry would
incur costs and an administrative burden in having to meet the legislative
compliance requirements, and government resources would be diverted
from effectively focusing on the target group of the legislation. It would
represent an overregulation of a sector of industry where no evidence for
regulation has been identified.
Alternative Four
Exempt student accommodation from the Residential Services
(Accreditation) Act 2002, but maintain coverage under the Residential
Services (Accommodation) Act 2002. This is the method adopted to achieve
the policy objectives of this Bill. This method is reasonable and appropriate
as it:
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Residential Services and Other Legislation Amendment
Bill 2004
a. removes unnecessary burden on industry associated with meeting
registration and accreditation requirements;
b. allows this issue to be addressed before the deadlines for industry
to comply with requirements under the legislation;
c. allows more efficient use of government resources in
administering the legislative scheme and maintaining a focus on
the intended target group of the legislation;
d. ensures tenancy rights for room-only student accommodation;
e. preserves coverage of non-student accommodation under the
Residential Services (Accreditation) Act 2002; and
f. does not require substantial legislative amendments.
Administrative Cost
There are no anticipated administrative costs to government, including
staffing and program costs, as a result of this legislation.
Fundamental Legislative Principles
One potential infringement of fundamental legislative principles is the
term "approved course" being defined with reference to Commonwealth
legislation and a Commonwealth instrument. Incorporation by reference of
the contents of external documents has a tendency to undermine the
institution of Parliament by effectively delegating the making of
Queensland law to outside bodies. Subsequent changes to that legislation
or instrument by the Commonwealth could potentially change the scope of
the services covered by this definition.
It is recognised however, that there are cases where there are practical
arguments in favour of use of this drafting device. The following reasons
justify use of the Commonwealth definition in this exemption:
a. the Commonwealth definition provides a necessary element for
defining the relevant kind of service in the most appropriate way.
The relevant approved courses are set out in the Determination.
The Determination is brief, concise and uses a clear table of all
types of tertiary and secondary courses and institutions that it
applies to - all in the one location;
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Residential Services and Other Legislation Amendment
Bill 2004
b. the practical effect of the current Commonwealth definition is to
refer to courses approved by the relevant State accrediting
bodies; and
c. a change of the Commonwealth definition affecting the scope of
the Residential Services (Accreditation) Act 2002 is likely to be
preceded by consultation with Queensland, allowing time for
making any necessary amendments.
In addition, the following issue has been raised. There is an argument
that the exemption of student accommodation from the Residential
Services (Accreditation) Act 2002 affects the rights of some student
residents by removing an implied right to have their accommodation
accredited pursuant to the Residential Services (Accreditation) Act 2002.
Any such potential loss of rights would be justified on the following
grounds:
a. students do not form part of the vulnerable consumer group that
is the target of the Residential Services (Accreditation) Act 2002,
and therefore it was never the intention of the Residential
Services (Accreditation) Act 2002 to apply to independent
student accommodation services. As such, any rights, implied or
otherwise, that student residents may be entitled to under the
Residential Services (Accreditation) Act 2002 were not intended
to be conferred;
b. only one student accommodation service has been registered to
date, and none have been accredited. Therefore the effect of this
exemption will result in only minimal real practical effect or
direct change in the current circumstances of student residents;
and
c. one of the objects of the Residential Services (Accreditation) Act
2002 is the protection of the health, safety and basic freedoms of
residents. This is primarily achieved however, not by conferring
rights on residents, but by way of imposing obligations on, and
sanctions against, service providers. Only the Office of Fair
Trading has power under the Act to enforce these obligations
against non-compliant accommodation providers. With the
exception of a right to remedies in tort in limited types of
reprisals by a service provider against a person, the Residential
Services (Accreditation) Act 2002 does not expressly confer, nor
is it a stated intention of the Residential Services (Accreditation)
Act 2002 to confer, any other actionable rights on student
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Residential Services and Other Legislation Amendment
Bill 2004
residents, including a right for residents to have their
accommodation registered or accredited. This being the case,
only one potential right would be affected by the exemption.
Given that only one independently operated student
accommodation provider has been registered to date, the removal
of the reprisal right will have only minor consequences.
Consultation
A two-tiered consultation process was implemented with industry,
community and government.
Firstly, a written consultation paper outlining the issues, possible
solutions and requesting feedback was sent to 98 stakeholders in industry,
community and government. This included student accommodation
providers, university student accommodation services, university student
associations, peak industry bodies including Aged Care Queensland,
Australian Pensioners and Superannuants League, Supported
Accommodation Providers Association, ACROD, the Real Estate Institute
of Queensland, the Property Owners Association of Queensland, the
Tenants' Union of Queensland, Qld Shelter, Qld Youth Housing Coalition
Queenslanders with Disabilities Network, all relevant local governments,
the Local Government Association of Queensland, government agencies
represented on the Residential Services Sector Coordinating Committee as
well as the Department of Education and the Office of Youth Affairs. The
discussion paper was also published on the Residential Tenancies Authority
website and information published on the GENERATE website of the
Office of Youth Affairs. 12 written responses were received.
Secondly, the stakeholders outlined below were invited to attend targeted
consultation meetings.
Community and Industry
The following community and industry entities attended consultation
workshops:
Community Sector: the Queensland Shelter and the Tenants' Union of
Queensland.
Industry Sector: EL Property Management, Property Search, Unilodge
Brisbane, Budget Accommodation Solutions Pty Ltd and Monique and
Graham Bond.
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Residential Services and Other Legislation Amendment
Bill 2004
Student Services Sector: University of Queensland Accommodation
Services, Griffith University, Queensland University of Technology.
Government
Consultation occurred with the following Federal, State and Local
Government entities: Commonwealth Department of Education, Science
and Training; Centrelink; Department of the Premier and Cabinet;
Queensland Treasury; Office of Queensland Parliamentary Counsel;
Department of Education and the Arts; Department of Housing; Youth
Affairs; Department of Justice and Attorney General; Department of Main
Roads; Department of Primary Industries and Fisheries; Queensland Fire
and Rescue Service; Department of Employment and Training; Department
of Emergency Services; Department of Communities; Department of Local
Government and Planning; Local Government Association Queensland;
and Brisbane City Council.
Uniform or Complementary Legislative Scheme
This Bill is not part of a legislative scheme involving substantially
uniform or complementary legislation with the Commonwealth or other
States.
NOTES ON PROVISIONS
PART 1--PRELIMINARY
Clause 1 sets out the short title of the Act.
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Residential Services and Other Legislation Amendment
Bill 2004
PART 2--AMENDMENT OF RESIDENTIAL SERVICES
(ACCOMMODATION) ACT 2002
Clause 2 provides that Part 2 of the Bill amends the Residential Services
(Accommodation) Act 2002.
Clause 3 clarifies the relationship between the Residential Services
(Accommodation) Act 2002 and the Residential Services (Accreditation)
Act 2002 as a consequence of the amendments proposed to be made by this
Bill.
Clause 4 provides a definition of "independent student accommodation
service" as a service conducted mainly to provide accommodation to
persons who are enrolled in courses that are approved courses of education
or study under the Social Security Act 1991 (Cwlth), section 569B, and that
would satisfy the other key components of the definition of a "residential
service" under the Residential Services (Accreditation) Act 2002.
It intends to remove doubt by confirming that services conducted as part
of, or under agreement with, a school or other educational institution
mainly to provide accommodation to students or employees of the school
or institution, or conducted with the financial assistance from the Education
Department mainly to provide accommodation to school students, or
conducted in a licensed premises under the Liquor Act 1992, remain
exempt from the Residential Services (Accommodation) Act 2002, even if
those services are conducted mainly to provide accommodation to students
enrolled in courses that are approved courses of education or study under
the Social Security Act 1991 (Cwlth), section 569B.
The words "mainly to provide" are intended to take into account that
student accommodation services can have a mix of students and non-
students at any one time, and, that over a period of time, the number of
student residents may fluctuate. It is not intended that having one or more
non-student residents in the accommodation service will necessarily mean
a service is no longer being conducted mainly to provide accommodation
to persons who are enrolled in courses that are approved courses of
education or study under the Social Security Act 1991 (Cwlth), section
569B, therefore requiring the service to meet the registration and
accreditation requirements of the Residential Services (Accreditation) Act
2002. In these cases however, the service provider is expected to establish
the service is still being conducted mainly to provide accommodation to
students who meet the above criteria.
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Residential Services and Other Legislation Amendment
Bill 2004
It is intended that the question of whether a service mainly provides
accommodation to students enrolled in an approved course be determined
on a case-by-case basis after considering all of the circumstances. The
primary consideration will be the number of residents in the
accommodation who, over an appropriate period of time, are enrolled in
approved courses. In cases where it is not clear whether the service mainly
provides accommodation to students, other factors might be taken into
account, including, but not limited to: the purpose the accommodation is
built for; the type of resident the accommodation is operated for and
marketed to; any "student-specific" facilities provided to residents; the
number and tenure of non-student residents who fall within the target group
of the Residential Services (Accreditation) Act 2002; and, the academic
year or normal time of year students would be enrolled in approved
courses.
The words "mainly to provide" are consistent with the wording of
several other exemptions already in the Residential Services
(Accreditation) Act 2002.
The term "approved course" is intended to preclude vague or subjective
notions of the term "study" that might otherwise exempt accommodation
not intended to be covered by this exemption. An "approved course" is
defined in "Determination No. 2002/1 of Education Institutions and
Courses Under Subsections 3(1) And 5d(1) of The Student Assistance Act
1973 (Cth)". Unlike the numerous State legislation and regulations that
apply to education services in Queensland, the Determination provides
concise coverage of the type of courses it applies to in one place. Further,
the practical effect of this Determination is that it incorporates by reference
courses accredited by the relevant State accrediting bodies. Use of the
Determination will be of assistance to industry, particularly to those
services accommodating a wide range of students studying courses in
institutions governed by different types of legislation or regulations.
As the Determination is used for assessing student assistance payments
under the Social Security Act 1991 (Cth) and also for determining what
secondary and tertiary courses will be GST-free, any changes to the
Determination are likely to be preceded by consultation with the State. This
would allow time for changes to be made to this exemption, should any be
required as a consequence of a change to the Determination. The use of
"approved course" is restricted to the meaning in the Determination. It is
not intended that other aspects of Austudy or Youth Allowance eligibility
are relevant.
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Residential Services and Other Legislation Amendment
Bill 2004
Clause 5 provides that for the purposes of the Residential Services
(Accommodation) Act 2002, a "residential service" means a residential
service under the Residential Services (Accreditation) Act 2002, or, an
independent student accommodation service. It also clarifies that for the
purposes of the Residential Services (Accommodation) Act 2002, an
"unregistered service" means a residential service that is not registered
under the Residential Services (Accreditation) Act 2002 or an independent
student accommodation service. This clause also makes another
consequential amendment.
PART 3--AMENDMENT OF RESIDENTIAL SERVICES
(ACCREDITATION) ACT 2002
Clause 6 provides that Part 3 of the Bill amends the Residential Services
(Accreditation) Act 2002.
Clause 7 amends subsection 4(5) of the Residential Services
(Accreditation) Act 2002 by stating that a service conducted mainly to
provide accommodation to persons who are enrolled in courses that are
approved courses of education or study under the Social Security Act 1991
(Cwlth), section 569B, is not a residential service.
The words "mainly to provide" are intended to take into account that
student accommodation services can have a mix of students and non-
students at any one time, and, that over a period of time, the number of
student residents may fluctuate. It is not intended that having one or more
non-student residents in the accommodation service will necessarily mean
a service is no longer being conducted mainly to provide accommodation
to persons who are enrolled in courses that are approved courses of
education or study under the Social Security Act 1991 (Cwlth), section
569B, therefore requiring the service to meet the registration and
accreditation requirements of the Residential Services (Accreditation) Act
2002. In these cases however, the service provider is expected to establish
the service is still being conducted mainly to provide accommodation to
students who meet the above criteria.
It is intended that the question of whether a service mainly provides
accommodation to students enrolled in an approved course be determined
on a case-by-case basis after considering all of the circumstances. The
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Residential Services and Other Legislation Amendment
Bill 2004
primary consideration will be the number of residents in the
accommodation who, over an appropriate period of time, are enrolled in
approved courses. In cases where it is not clear whether the service mainly
provides accommodation to students, other factors might be taken into
account, including, but not limited to: the purpose the accommodation is
built; the type of resident the accommodation is operated for and marketed
to; any "student-specific" facilities provided to residents; the number and
tenure of non-student residents who fall within the target group of the
Residential Services (Accreditation) Act 2002; and, the academic year or
normal time of year students would be enrolled in approved courses.
The words "mainly to provide" are consistent with the wording of
several other exemptions already in the Residential Services
(Accreditation) Act 2002.
The term "approved course" is intended to preclude vague or subjective
notions of the term "study" that might otherwise exempt accommodation
not intended to be covered by this exemption. An "approved course" is
defined in "Determination No. 2002/1 of Education Institutions and
Courses Under Subsections 3(1) And 5d(1) of The Student Assistance Act
1973 (Cth)". Unlike the numerous State legislation and regulations that
apply to education services in Queensland, the Determination provides
concise coverage of the type of courses it applies to in one place. Further,
the practical effect of this Determination is that it incorporates by reference
courses accredited by the relevant State accrediting bodies. Use of the
Determination will be of assistance to industry, particularly to those
services accommodating a wide range of students studying courses in
institutions governed by different types of legislation or regulations.
As the Determination is used for assessing student assistance payments
under the Social Security Act 1991 (Cth) and also for determining what
secondary and tertiary courses will be GST-free, any changes to the
Determination are likely to be preceded by consultation with the State. This
would allow time for changes to be made to this exemption, should any be
required as a consequence of a change to the Determination. The use of
"approved course" is restricted to the meaning in the Determination. It is
not intended that other aspects of Austudy or Youth Allowance eligibility
are relevant.
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Bill 2004
PART 4--CONSEQUENTIAL AMENDMENTS
Clause 8 provides that the schedule amends the Acts mentioned in the
schedule.
SCHEDULE
CONSEQUENTIAL AMENDMENTS
Section 8
POLICE POWERS AND RESPONSIBILITIES ACT 2000
Clause 1 inserts a reference to "residential service" in section 372B(3) to
state that a "residential service" is defined in the Residential Services
(Accommodation) Act 2002 schedule.
RESIDENTIAL TENANCIES ACT 1994
Clause 2 replaces the existing schedule 3 definition of "residential
service" in the Residential Tenancies Act 1994 with the reference that a
"residential service" is defined in the Residential Services
(Accommodation) Act 2002 schedule.
� State of Queensland 2004