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TASMANIA
__________
RESIDENTIAL TENANCY AMENDMENT BILL
2011
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Section 3 amended (Interpretation)
5. Section 8 amended (General functions and powers of
Commissioner)
6. Section 25 amended (Security deposits)
7. Section 27 substituted
27. Forms relating to security deposit
8. Part 4C inserted
PART 4C - Residential Tenancy Databases
48U. Interpretation
48V. Application of Part
48W. Notice of usual use of database
48X. Notice of listing if database used
48Y. Listing can be made only for particular breaches by
particular persons
48Z. Further restrictions on listing
48ZA. Ensuring quality of listing - owner's or agent's
obligation
48ZB. Ensuring quality of listing - database operator's
obligation
48ZC. Providing copy of personal information listed
[Bill 47]-VI
48ZD. Notifying relevant non-parties of Commissioner
order about listing
48ZE. Keeping personal information listed
48ZF. Civil proceedings to enforce compliance with Part
9. Section 49 amended (Subletting)
10. Section 49A inserted
49A. Transfer of residential tenancy agreement
11. Section 67A substituted
67A. Transitional and savings provisions consequent on
Residential Tenancy Amendment Act 2011
12. Schedule 2A substituted
Schedule 2A - Security Deposit Transitional
13. Repeal of Act
2
RESIDENTIAL TENANCY AMENDMENT BILL
2011
This Public Bill originated in the House of Assembly, and, having this day passed, is
now ready for presentation to the Legislative Council for its concurrence.
P. R. ALCOCK, Clerk of the House
22 September 2011
(Brought in by the Minister for Corrections and Consumer
Protection, the Honourable Nicholas James McKim)
A BILL FOR
An Act to amend the Residential Tenancy Act 1997
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
1. Short title
This Act may be cited as the Residential
Tenancy Amendment Act 2011.
2. Commencement
This Act commences on the day on which this
Act receives the Royal Assent.
[Bill 47] 3
Residential Tenancy Amendment Act 2011
Act No. of
s. 3
3. Principal Act
In this Act, the Residential Tenancy Act 1997* is
referred to as the Principal Act.
4. Section 3 amended (Interpretation)
Section 3(1) of the Principal Act is amended by
omitting the definition of "claim form" and
substituting the following definition:
"claim form" means the form specified in
section 27(b);
5. Section 8 amended (General functions and powers
of Commissioner)
Section 8 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1) "The
function of the Commissioner is" and
substituting "The functions of the
Commissioner are";
(b) by omitting from subsection (1)
"deposits" and substituting "deposits, the
residential tenancy database";
(c) by omitting from subsection (2)
"section 48I." and substituting
"sections 48I and 48ZF.".
*No. 82 of 1997
4
Residential Tenancy Amendment Act 2011
Act No. of
s. 6
6. Section 25 amended (Security deposits)
Section 25 of the Principal Act is amended as
follows:
(a) by omitting subsection (2) and
substituting the following subsection:
(2) A person paying a security
deposit under subsection (1) must
pay the deposit -
(a) to the Authority; or
(b) if the residential premises
are managed on the
owner's behalf by a
property agent, within the
meaning of the Property
Agents and Land
Transactions Act 2005, to
the Authority or that
property agent.
Penalty: Fine not exceeding 50
penalty units.
(b) by inserting the following subsection
after subsection (3):
(3A) A person who pays a security
deposit to the Authority under
subsection (2)(a), or deposits a
security deposit with the
Authority under subsection (3), is
to include with the deposit the
form specified in section 27(a).
5
Residential Tenancy Amendment Act 2011
Act No. of
s. 7
7. Section 27 substituted
Section 27 of the Principal Act is repealed and
the following section is substituted:
27. Forms relating to security deposit
The following forms are to be in a form
approved by the Director of Consumer
Affairs and Fair Trading:
(a) a form to lodge a security deposit
with the Authority;
(b) a form to claim the disbursement
of a security deposit.
8. Part 4C inserted
After section 48T of the Principal Act, the
following Part is inserted:
PART 4C - RESIDENTIAL TENANCY DATABASES
48U. Interpretation
In this Part -
"database" means a system, device or
other thing used for storing
information, whether
electronically or in some other
form;
6
Residential Tenancy Amendment Act 2011
Act No. of
s. 8
"database operator" means an entity
that operates a residential tenancy
database;
"inaccurate", in relation to personal
information in a residential
tenancy database, includes
information that is inaccurate
because -
(a) the information indicates
that the person owes an
owner an amount that is
more than the security
deposit for a residential
tenancy agreement; and
(b) the amount owed was
paid to the owner more
than 3 months after the
amount became due;
"list", personal information in a
residential tenancy database -
(a) means -
(i) enter the personal
information into
the database; or
(ii) give the personal
information to a
database operator
or someone else
for entry into the
database; and
7
Residential Tenancy Amendment Act 2011
Act No. of
s. 8
(b) includes amend personal
information about a
person in the database to
include additional
personal information
about the person;
"out of date", in relation to personal
information in a residential
tenancy database, means the
information is no longer accurate
because -
(a) for a listing made on the
basis the person owes an
owner an amount that is
more than the security
deposit for a residential
tenancy agreement, the
amount owed was paid to
the owner within 3
months after the amount
became due; or
(b) for a listing made on the
basis the Court has made
an order under section 41
terminating the residential
tenancy agreement, the
order has been revoked
following a review of the
making of the order;
"personal information" means
information (including an
individual's name) or an opinion,
8
Residential Tenancy Amendment Act 2011
Act No. of
s. 8
whether true or not, about an
individual whose identity is
apparent, or can be reasonably
ascertained, from the information
or opinion;
"residential tenancy database"
means a database -
(a) containing personal
information -
(i) relating to, or
arising from, the
occupation of
residential
premises under a
residential tenancy
agreement; or
(ii) entered into the
database for
reasons relating to,
or arising from,
the occupation of
residential
premises under a
residential tenancy
agreement; and
(b) with an intended purpose
of use by owners or
agents of owners for
checking a person's
tenancy history for
deciding whether a
9
Residential Tenancy Amendment Act 2011
Act No. of
s. 8
residential tenancy
agreement should be
entered into with the
person.
48V. Application of Part
This Part does not apply to a residential
tenancy database kept by an entity,
including a department of the
government of a State or Territory, for
use only by that entity or its officers,
employees or agents.
48W. Notice of usual use of database
(1) This section applies if -
(a) a person ("the applicant")
applies to an owner, whether or
not through the owner's agent, to
enter into a residential tenancy
agreement; and
(b) the owner or, if the application is
made through the owner's agent,
the owner or agent usually uses
one or more residential tenancy
databases for deciding whether a
residential tenancy agreement
should be entered into with a
person.
10
Residential Tenancy Amendment Act 2011
Act No. of
s. 8
(2) The owner or agent must, when the
application is made, give the applicant
written notice stating the following:
(a) the name of each residential
tenancy database the owner or
agent usually uses, or may use,
for deciding whether a residential
agreement should be entered into
with a person;
(b) that the reason the owner or agent
uses a residential tenancy
database specified under
paragraph (a) is for checking an
applicant's tenancy history;
(c) for each residential tenancy
database specified under
paragraph (a), how persons may
contact the database operator who
operates the database and obtain
relevant information from the
operator.
(3) Subsection (2) applies in relation to a
residential tenancy database whether or
not the owner or agent intends to use the
database for deciding whether a
residential tenancy agreement should be
entered into with the applicant.
(4) However, the owner or agent is not
required to give the written notice
referred to in subsection (2) if a written
notice stating the matters mentioned in
11
Residential Tenancy Amendment Act 2011
Act No. of
s. 8
the subsection was given to the applicant
not more than 7 days before the
application was made.
48X. Notice of listing if database used
(1) This section applies if -
(a) a person ("the applicant")
applies to an owner, whether or
not through the owner's agent, to
enter into a residential tenancy
agreement; and
(b) the owner or, if the application is
made through the owner's agent,
the owner or agent uses a
residential tenancy database for
checking whether personal
information about the applicant is
in the database; and
(c) personal information about the
applicant is in the database.
(2) The owner or agent must, as soon as
practicable but within 7 days after using
the database, give the applicant a written
notice stating -
(a) the name of the database; and
(b) that personal information about
the applicant is in the database;
and
12
Residential Tenancy Amendment Act 2011
Act No. of
s. 8
(c) the name of each person who
listed the personal information in
the database; and
(d) how and in what circumstances
the applicant can have the
personal information removed or
amended under this Part.
Penalty: Fine not exceeding 50 penalty
units.
(3) However, subsection (2)(c) requires the
written notice to state the name of a
person only if the person is identified in
the residential tenancy database as the
person who listed the personal
information in the database.
48Y. Listing can be made only for particular
breaches by particular persons
(1) An owner, owner's agent or database
operator must not list personal
information about a person in a
residential tenancy database unless -
(a) the person was a tenant under a
residential tenancy agreement
that has ended; and
(b) the person has breached the
agreement; and
(c) because of the breach, either -
13
Residential Tenancy Amendment Act 2011
Act No. of
s. 8
(i) the person owes the
owner an amount that is
more than the security
deposit for the agreement;
or
(ii) the Court has made an
order under section 41
terminating the residential
tenancy agreement; and
(d) the personal information -
(i) relates only to the breach;
and
(ii) is accurate, complete and
unambiguous.
Penalty: Fine not exceeding 50 penalty
units.
(2) Without limiting subsection (1)(d)(ii), the
personal information must indicate the
nature of the breach.
48Z. Further restrictions on listing
(1) An owner, owner's agent or database
operator must not list personal
information about a person in a
residential tenancy database unless the
owner, agent or operator -
(a) has, without charging a fee -
14
Residential Tenancy Amendment Act 2011
Act No. of
s. 8
(i) given the person a copy of
the personal information;
or
(ii) taken other reasonable
steps to disclose the
personal information to
the person; and
(b) has given the person at least 14
days to review the personal
information and make
submissions -
(i) objecting to its entry into
the database; or
(ii) about its accuracy,
completeness and clarity;
and
(c) has considered any submissions
made.
Penalty: Fine not exceeding 50 penalty
units.
(2) Subsection (1) does not apply if the
owner, owner's agent or database
operator can not locate the person after
making reasonable enquiries.
(3) Subsection (1)(b) and (c) do not apply -
(a) to information that, at the time of
the listing, is contained in
15
Residential Tenancy Amendment Act 2011
Act No. of
s. 8
publicly available Court records;
or
(b) to a listing involving only an
amendment of personal
information about a person under
section 48ZA.
48ZA. Ensuring quality of listing - owner's or
agent's obligation
(1) This section applies if an owner or
owner's agent who lists personal
information in a residential tenancy
database becomes aware that the
information is inaccurate, incomplete,
ambiguous or out of date.
(2) The owner or agent must, within 7 days,
give written notice of the following to the
database operator who keeps the
database:
(a) if the information is inaccurate,
incomplete or ambiguous -
(i) that the information is
inaccurate, incomplete or
ambiguous; and
(ii) how the information must
be amended so that it is
no longer inaccurate,
incomplete or ambiguous;
16
Residential Tenancy Amendment Act 2011
Act No. of
s. 8
(b) if the information is out of date,
that the information is out of date
and must be removed.
Penalty: Fine not exceeding 50 penalty
units.
(3) The owner or agent must keep a copy of
the written notice for one year after it
was given under subsection (2).
48ZB. Ensuring quality of listing - database
operator's obligation
(1) This section applies if an owner or
owner's agent who has listed personal
information in a tenancy database gives
the database operator who operates the
database a written notice stating that the
personal information must be -
(a) amended in a stated way to make
it accurate, complete and
unambiguous; or
(b) removed.
(2) The database operator must amend the
personal information in the stated way, or
remove the personal information, within
14 days after the operator is given the
written notice.
Penalty: Fine not exceeding 50 penalty
units.
17
Residential Tenancy Amendment Act 2011
Act No. of
s. 8
48ZC. Providing copy of personal information
listed
(1) An owner or owner's agent who lists
personal information about a person in a
residential tenancy database must, if
asked in writing by the person, give the
person a copy of the information within
14 days after the request is made.
Penalty: Fine not exceeding 50 penalty
units.
(2) A database operator must, if asked in
writing by a person whose personal
information is in the residential tenancy
database kept by the operator, give the
person a copy of the information within
14 days after the request is made.
Penalty: Fine not exceeding 50 penalty
units.
(3) If an owner or owner's agent charges a
fee for giving personal information under
subsection (1), or a database operator
charges a fee for giving personal
information under subsection (2), the
subsection applies only if the fee has
been paid.
(4) An owner or owner's agent charging a
fee for giving personal information under
subsection (1), or a database operator
charging a fee for giving personal
information under subsection (2), must
ensure that the fee -
18
Residential Tenancy Amendment Act 2011
Act No. of
s. 8
(a) is not excessive; and
(b) applies to the giving of the
information and not to the
lodging of a request for the
information.
Penalty: Fine not exceeding 50 penalty
units.
48ZD. Notifying relevant non-parties of
Commissioner order about listing
(1) This section applies if -
(a) under section 48ZF, the
Commissioner makes an order
that a person must, in relation to a
residential tenancy database -
(i) amend personal
information in a stated
way; or
(ii) remove all or particular
personal information
about a person; and
(b) the person against whom the
order is made ("the relevant
person") is not a party to the
proceeding for the dispute.
(2) The Commissioner must ensure a copy of
the order is given to the relevant person.
19
Residential Tenancy Amendment Act 2011
Act No. of
s. 8
48ZE. Keeping personal information listed
(1) In this section -
"national privacy principles" means
the principles stated in Schedule
3 of the Privacy Act 1988 of the
Commonwealth.
(2) A database operator must not keep
personal information about a particular
person in the operator's residential
tenancy database for longer than -
(a) 3 years; or
(b) if, under the national privacy
principles, the operator of the
database is required to remove
the personal information before
the end of the 3-year period
mentioned in paragraph (a), the
period ending when the
information must be removed
under the national privacy
principles.
(3) However, a database operator may keep
the person's name in the operator's
residential tenancy database for longer
than the period stated in subsection (2)(a)
or (b) if -
(a) other personal information about
the person in the database is
attached to the name; and
20
Residential Tenancy Amendment Act 2011
Act No. of
s. 8
(b) the other personal information is
not required to be removed under
subsection (2) or another law.
(4) This section does not limit the operation
of another provision of these model
provisions or a provision of another law
that requires the removal of the personal
information.
48ZF. Civil proceedings to enforce compliance with
Part
(1) In this section -
"eligible person" means a person
affected by information kept
under this Part or a person
authorised by such a person as a
representative of the affected
person.
(2) An eligible person may apply to the
Commissioner for an order under this
section.
(3) The Commissioner may make any order
he or she thinks fit in respect of an
application under subsection (2) if the
Commissioner is satisfied that -
(a) personal information kept in the
residential tenancy database is
inaccurate, incomplete,
ambiguous or out of date; or
21
Residential Tenancy Amendment Act 2011
Act No. of
s. 8
(b) the inclusion of information that
affects the eligible person is
unjust in the circumstances,
having regard to the following:
(i) the reason for the listing
in the residential tenancy
database;
(ii) the eligible person's, or
the tenant's, involvement
in any acts or omissions
giving rise to the listing of
the information in the
residential tenancy
database;
(iii) any adverse consequences
suffered, or likely to be
suffered by the eligible
person because of the
listing of the information
in the residential tenancy
database;
(iv) any other matter the
Commissioner considers
relevant.
(4) The Commissioner may, by an order
under this section, fix a period for
compliance and impose any other
requirements the Commissioner
considers necessary or expedient for
enforcement of the order.
22
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Act No. of
s. 9
9. Section 49 amended (Subletting)
Section 49(1) of the Principal Act is amended by
omitting paragraph (b) and substituting the
following paragraph:
(b) unless the tenant -
(i) is also an occupier of the
premises; or
(ii) sublets the premises to one of his
or her employees.
10. Section 49A inserted
After section 49 of the Principal Act, the
following section is inserted in Part 5:
49A. Transfer of residential tenancy agreement
(1) The tenant is not to transfer his or her
rights and obligations under a residential
tenancy agreement without the consent of
the owner of the premises.
(2) An agreement to transfer the rights and
obligations of a tenant under a residential
tenancy agreement in contravention of
subsection (1) is invalid.
(3) If, under this section, a tenant transfers
his or her rights and obligations under a
residential tenancy agreement -
(a) the transferee -
23
Residential Tenancy Amendment Act 2011
Act No. of
s. 11
(i) becomes the tenant for the
purposes of this Act; and
(ii) is taken to be the tenant
under the residential
tenancy agreement for the
purposes of this Act; and
(b) the transferor is no longer the
tenant for the purposes of this
Act.
(4) The owner, transferor and transferee are
to -
(a) each sign a document recording
the transfer of the rights and
obligations under a residential
tenancy agreement and the date
the transfer took place; and
(b) each receive a copy of the signed
and dated record of the transfer
for his or her records.
(5) Failure to comply with subsection (4)
does not affect the validity of a transfer
under this section of rights and
obligations under a residential tenancy
agreement.
11. Section 67A substituted
Section 67A of the Principal Act is repealed and
the following section is substituted:
24
Residential Tenancy Amendment Act 2011
Act No. of
s. 12
67A. Transitional and savings provisions
consequent on Residential Tenancy
Amendment Act 2011
Schedule 2A has effect with respect to
the transitional and savings matters
consequent on the enactment of the
Residential Tenancy Amendment Act
2011.
12. Schedule 2A substituted
Schedule 2A to the Principal Act is repealed and
the following Schedule is substituted:
SCHEDULE 2A - SECURITY DEPOSIT
TRANSITIONAL
Section 67A
1. Retained security deposit to be paid to
Authority
(1) In this clause -
"2005 commencement date" means
the day on which the Residential
Tenancy Amendment Act 2005
commenced;
"2011 commencement day" means
the day on which the Residential
Tenancy Amendment Act 2011
commences;
25
Residential Tenancy Amendment Act 2011
Act No. of
s. 13
"pre-existing residential tenancy
agreement" means a residential
tenancy agreement that was in
force immediately before the
2005 commencement day.
(2) This clause applies to a security deposit
that -
(a) was held by an owner in respect
of a pre-existing residential
tenancy agreement immediately
before the 2005 commencement
day; and
(b) is still held by the owner
immediately before the 2011
commencement day.
(3) An owner who holds a security deposit to
which this clause applies must deposit
that money with the Authority within 40
working days after the 2011
commencement day unless the pre-
existing residential tenancy agreement is
earlier terminated.
Penalty: Fine not exceeding 50 penalty
units.
13. Repeal of Act
This Act is repealed on the ninetieth day from
the day on which it commences.
26 Government Printer, Tasmania