HOUSING AND OTHER LEGISLATION AMENDMENT BILL 2011 Explanatory Statement

Northern Territory Explanatory Statements

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HOUSING AND OTHER LEGISLATION AMENDMENT BILL 2011

HOUSING AND OTHER LEGISLATION AMENDMENT BILL

SERIAL No. 177

LEGISLATIVE ASSEMBLY OF THE NORTHERN TERRITORY

MINISTER FOR HOUSING

EXPLANATORY STATEMENT

GENERAL OUTLINE

This Bill amends the Housing Act and other legislation.

The purpose of this Bill is to create Public Housing Safety Officers with the authority to address and diffuse antisocial behaviour at public housing premises. It provides Public Housing Safety Officers with the power to give directions to people on public housing premises when such people are offending or behaving in an anti-social manner.

Previous provisions in relation to acceptable behaviour agreements are relocated and improved and there are provisions for review mechanisms in relation to directions given by Public Housing Safety Officers.

The Bill specifies how Public Housing Safety Officers are to be appointed as well as qualification, identity card and code of conduct requirements. There is a schedule of minor amendments to modernise the Act and a minor consequential amendment to the Residential Tenancies Act.

NOTES ON CLAUSES

Part 1 Preliminary matters

Clause 1. Short title

This is a formal clause which provides for the citation of the Bill. The Bill, when passed, will be cited as the Housing and Other Legislation Amendment Act 2011.

Clause 2. Commencement

After the Act has been made by the Administrator, it will take effect from the date notified by the Administrator in a Gazette notice.

Part 2 Amendment of Housing Act

Clause 3. Act amended

This clause indicates that, in this part, the Act being amended is the Housing Act.

Clause 4. Long title amended

This clause amends the long title of the Act so that it includes matters covered by this amendment. The new long title will be “An Act to provide for the provision of housing and other accommodation for letting or sale, matters relating to tenants and others on leased housing or other accommodation, and for related purposes.”

Clause 5. Section 5 amended

(1) Section 5 is the definitions section. The words “unless the contrary intention appears” are deleted to clarify that the definitions are not subject to any contrary intention throughout the Act.

(2) This subclause omits the definitions of “acceptable behaviour agreement” and “antisocial behaviour” because they are redefined with the new set of definitions to be inserted.

(3) This subclause inserts definitions for “acceptable behaviour agreement”, “affected person”, “antisocial behaviour”, “appointed PHSO”, “CEO”, “common property”, “dangerous article”, “disqualifying offence”, “liquor”, “on”, “original decision”, “prescribed offence”, “public housing development”, “public housing premises”, “public housing safety officer”, “reasonably believes”, “recognised occupier”, “reconsidered decision”, “tenant of public housing premises”, and “unit”.

(4) This rewords paragraph (a) in the definition of “house” so that it will now say:

“(a) an apartment, flat, hostel, townhouse, transportable home or unit; and”.

Note that “unit” is now defined in the definitions section.

(5) This subclause rewords paragraph (b) in the definition of “house” by replacing the words “notice in the

Gazette

” to “

Gazette

notice”.

Clause 6. Section 5A inserted

This clause inserts a new section which provides that Part IIAA of the Criminal Code applies to an offence against the Act. This is appropriate because this amendment introduces new offences. A note explains that Part IIAA of the Criminal Code concerns principles of responsibility, defences and burden of proof as well as other concepts relevant to offences.

Clause 7. Section 18A repealed

This clause repeals section 18A, however, the subject matter of section 18A (acceptable behaviour agreements) is now at the new section 28C.

Clause 8 Parts 5, 6 and 7 inserted

This clause provides for the insertion of new Parts 5, 6 and 7.

Part 5

The heading for Part 5 is “Behaviour on public housing premises”. Part 5 contains new sections 28A, 28B, 28C, 28D, 28E, 28F and 28G.

New section 28A

provides the meaning of “antisocial behaviour”.

New section 28B

provides the meaning of “acceptable behaviour agreement”. It is an agreement, in writing, by the tenant not to engage in antisocial behaviour on public housing premises and within 50 metres of those premises. (The 50 metre provision is new and a transitional provision validating existing agreements is at new section 51.)

New section 28C

provides the requirements in relation to making an antisocial behaviour agreement. This topic was previously covered by section 18A.

This section gives the Chief Executive Officer (Housing) the power to require a tenant to enter into an acceptable behaviour agreement. The requirement is made by giving the tenant a notice that must contain information specified at subsection (2). If the notice does not contain this information, the acceptable behaviour agreement is of no effect (see subsection 6).

The Chief Executive Officer (Housing) can only require a tenant to enter into an acceptable behaviour agreement if the Chief Executive Officer (Housing) reasonably believes that the tenant, or a recognised occupier, is likely to engage in antisocial behaviour. That belief must be based on matters specified at subsection (3).

Acceptable behaviour agreements will operate in relation to the behaviour of recognised occupiers and other people who are occupying the premises with the consent of the tenant. If a person, occupying the premises with the consent of the tenant, engages in behaviour in breach of the agreement, then the tenant is taken to have breached the agreement, subject to the provisions at section 99A(3) of the

Residential Tenancies Act

New section 28D

gives a public housing safety officer the power to require a person to state their name and address if the officer reasonably believes the person has engaged, is engaging, or is about to engage in behaviour that constitutes a prescribed offence or antisocial behaviour on public housing premises, or if the officer reasonably believes that the person may be able to help with an investigation of a prescribed offence or antisocial behaviour on public housing premises.

If the public housing safety officer reasonably believes the person is under 18, they can ask the person’s age. Evidence of a person’s name can be required if the public housing safety officer reasonably believes the information provided is false.

It is an offence not to provide this information if required, and the public housing safety officer must advise the person accordingly. The maximum penalty is 20 penalty units. There is a defence if the person establishes a reasonable excuse.

New section 28E

gives a public housing safety officer the power to direct a person if the officer reasonably believes the person has been, is, or will be engaging in, or permitting, antisocial behaviour or behaviour that constitutes a prescribed offence on public housing premises.

The direction a public housing safety officer can give is, as far as necessary to prevent the antisocial behaviour or behaviour that constitutes a prescribed offence, a direction to not engage in the conduct or to stop engaging in the conduct.

If the person is not a tenant or a recognised occupier, the public housing safety officer may direct the person to leave and not return for a specified period, not more than 12 months. (For example, if the person had close connections with the tenant and has a good reason to visit, they might be directed to leave and stay away for 24 hours, but if the person was unwelcome by the tenant, the public housing safety officer might direct them to stay away for a much longer period.)

It is an offence not to leave when directed and the maximum penalty is 20 penalty units. There is a defence if the person establishes a reasonable excuse.

New section 28F

provides that a direction described above (in section 28E regarding conduct or to leave) must be given in writing but can be given orally if it is not practicable to give it in writing. If given orally, it must be followed up, within 2 days after it was given, by a written notice, or the direction ceases to have effect.

Subsection (4) indicates the matters that a written direction must include regarding conduct and also in relation to a direction to leave. An oral direction which does not state one of these matters is not invalid if that is the only reason it does not meet requirements.

New section 28G

gives a public housing safety officer the power to seize an article or a container located on common property or in a common area which is not in the immediate control of an adult. To exercise this power, the public housing safety officer must reasonably believe that the article is a dangerous article or that the container contains liquor.

A public housing safety officer may also seize a container located anywhere within the public housing premises if the public housing safety officer reasonably believes that the container contains liquor and its location within the premises is in contravention of specified sections of the

Liquor Act

(that is, having, bringing, consuming or selling liquor in restricted areas or restricted premises).

If a public housing safety officer seizes a dangerous article they must keep it or give it to a police officer. In relation to a seized container of liquor, if the container is open, the public housing safety officer must empty the container immediately. Where the container is not opened, they must either keep it or give it to a police officer.

At the time of seizure of a dangerous article or a container of liquor, the public housing safety officer must affix a receipt about the seizure of the article or container to something at the place of seizure. This is so that the receipt is available to an owner who wishes to reclaim the item later. (It is intended that regulations will specify what information must be in the receipt including how the item may be reclaimed.)

The seized article or container must be returned within 3 months to a person who claims to be the owner and who the public housing safety officer reasonably believes is the owner. Otherwise, the seized article or container is forfeited to the Territory at the end of the 3-month period. The 3-month time limit does not apply where the public housing safety officer or a police officer decides, in writing, that the seized article or container must be retained as evidence of an offence.

Part 6

The heading for Part 6 is “Review of decisions”. Part 6 contains new sections 28H, 28J, 28K, 28L, 28M, 28N and 28P.

New section 28H

explains which decisions of public housing safety officers are original decisions. Original decisions include directions to a person regarding conduct on, or to leave, public housing premises and decisions to seize a dangerous article or a container of liquor. The sections under which original decisions are made are 28E(2), 28E(3), 28G(2) and 28G(3).

Original decisions may also be prescribed in the regulations.

New section 28J

provides that an affected person can apply to the CEO for reconsideration of an original decision. The application must be in writing and be made within 28 days after the original decision was given to the person. The decision remains effective during the review process.

New section 28K

provides that the CEO must reconsider the original decision in any way the CEO considers appropriate, and provide a written reconsidered decision to the applicant within 28 days. The section stipulates what a notice about a reconsidered decision must include.

New section 28L

provides for the applicant who had applied for a reconsidered decision to apply to the Local Court for a review of the merits of the reconsidered decision within 28 days after the day they receive notice or become aware of the decision. However, the court can extend this time period.

New section 28M

provides that, although a reconsidered decision remains effective during the review process, the Local Court can make an order which stays or modifies the operation or implementation of the reconsidered decision as appropriate, until the Court decides the application.

New section 28N

provides that when the Local Court reviews the merits of the reconsidered decision, the Court must consider the matter afresh. The Court is not bound by anything considered by the CEO and may admit evidence not considered by the CEO or refuse evidence which was taken into account by the CEO.

New section 28P

gives the options available to the Court. It may confirm, vary or set aside the reconsidered decision and make appropriate orders to give effect to the Court’s decision. The decision is then treated as if it were a decision of the CEO.

Part 7

The heading for Part 7 is “Public housing safety officers”. Part 7 contains new sections 28Q, 28R, 28S, 28T, 28U, 28V, 28W and 28X.

New section 28Q

explains that the CEO can appoint a public sector employee to be a public housing safety officer if they have been suitably trained. Certain convictions (disqualifying offences) preclude appointment as a public housing safety officer.

An applicant must authorise the CEO to obtain their full criminal record, including spent convictions, and the CEO may take this record into account when deciding whether to appoint a public housing safety officer. This applies regardless of the

Criminal Records (Spent Convictions) Act

and the

Anti-Discrimination Act

If the person is appointed, The CEO may keep the criminal record for as long as the person is an appointed public housing safety officer.

New section 28R

provides that appointed

public housing safety officers must be issued an identity card and details what must be included on the identity card. Note that while police officers are public housing safety officers, they are not “appointed public housing safety officers” so this, and some following sections, do not apply to police officers.

New section 28S

ensures that, when an appointed public housing safety officer ceases to be appointed, they must return their identity card. Not returning the card is an offence with a maximum penalty of 20 penalty units.

New section 28T

provides that an appointed

public housing safety officer must hold an identity card and produce it, wherever practicable, for inspection before exercising powers. If a person is not shown an identity card by the appointed public housing safety officer in a situation where it was practicable to do so, it is a defence to a charge that the person did not comply with a direction of an appointed public housing safety officer.

New section 28U

requires an appointed public housing safety officer to notify the CEO if they are charged with or convicted of, a disqualifying offence. They must report the fact as soon as possible but at least within 7 days. If they have been charged, the CEO may suspend their appointment as a public housing safety officer. If they have been convicted, the CEO must revoke their appointment.

New section 28V

provides that the CEO may make a code of conduct for appointed public housing safety officers. It must be on the Agency’s website. A breach of the code is dealt with as a disciplinary matter under the

Public Sector Employment and Management Act.

Police are public housing safety officers but not appointed public housing safety officers so this does not apply to police. Police are subject to their own general orders regarding conduct pursuant to the

Police Administration Act.

New section 28W

advises how this Act interacts with other Acts. Where the

Youth Justice Act

would apply if a police officer were exercising the powers, the requirements of the

Youth Justice Act

apply similarly to public housing safety officers.

Despite the

Residential Tenancies Act

, public housing safety officers may access all external areas on public housing premises for the purpose of exercising their duties or powers but they may not go inside the residence (actual house or unit) except with the consent of the tenant.

A public housing safety officer may stay in the external area (eg yard or garden) as long as they reasonably believe necessary, but if a public housing safety officer goes inside a residence, they must leave the residence (actual house or unit) if asked to do so by the tenant.

New section 28X

provides that there must be an administrative review system to deal with complaints about the conduct of

public housing safety officers and it must be published on the Agency’s website.

This does not detract from a person’s ability to complain to the Ombudsman under the

Ombudsman Act

or to make a public interest disclosure under the

Public Interest Disclosure Act.

Clause 9

Sections 31 to 31B replaced

This clause repeals section 31, 31A and 31B. The subject matters of these provisions are now covered in the new Division 2 starting at the new section 36. Sections 31 to 31B are replaced by new sections 30A, 31 and 31A.

New section 30A

provides protection from civil or criminal liability to a public housing safety officer where they act in good faith in exercising their powers and duties. However, this does not affect any liability the Territory would have for the act or omission.

New section 31

provides that if exercising powers or performing functions as a public housing safety officer results in an acquisition of property, it must be on just terms.

New section 31A

allows the CEO to delegate the CEO’s powers and functions under the Act to a public sector employee. (Under section 46A of the

Interpretation Act

, the power of delegation may not be delegated)

Clause 10

Section 36 replaced

This clause repeals the current section 36 and replaces it with a new heading, “Division 2 Further offences and related matters” and new sections 36, 36A, 36B, 36C, 36D and 36E.

New section 36

provides for the offence of knowingly giving a document with misleading information to the

Chief Executive Officer (Housing). The maximum penalty is 100 penalty units.

A person does not commit an offence if they bring the misleading aspect of the document to the attention of the Chief Executive Officer (Housing) and give information necessary to correct the document.

A prosecution under this section does not lessen the Chief Executive Officer (Housing)’s rights or remedy by civil process against the offender.

“Chief Executive Officer (Housing)” and “misleading information” are defined in this section to assist interpretation of the section.

New section 36A

provides for the offence of knowingly failing to notify the Chief Executive Officer (Housing) details about a change in income. This section applies in relation to an application for a rebate of rental or to participate in a housing scheme, where the application is granted.

It is an offence if income details change while a person is receiving the rebate or participating in the housing scheme and the person knows about the change but does not tell the Chief Executive Officer (Housing) or someone authorised by the Chief Executive Officer (Housing) about the change.

The maximum penalty is 100 penalty units.

New section 36B

provides for the offence of knowingly giving misleading information or a misleading document to a public housing safety officer or a police officer when the person knows that the public housing safety officer or police officer is exercising powers or performing functions pursuant to the Act. The maximum penalty is 20 penalty units.

A person does not commit an offence under this section if they bring the misleading aspect of the document to the attention of the public housing safety officer and gives information, as far as they reasonably can, necessary to correct the document.

“Misleading information” is defined in this section to assist interpretation of the section.

New section 36C

provides for the offence of knowingly obstructing a public housing safety officer or a police officer without reasonable excuse, when the person knows the public housing safety officer or police officer is exercising powers or performing functions pursuant to the Act. The maximum penalty is 50 penalty units.

“Obstruct” is defined in this section to assist interpretation of the section.

New section 36D

provides for the offence of interfering with, or causing damage to, a security camera or surveillance device on public housing premises without reasonable excuse. The maximum penalty is 100 penalty units.

New section 36E

provides that, in proceedings for an offence under this Act, a certificate signed by the CEO certifying that a person was, on a relevant day or during a particular period, a public housing safety officer, is admissible as proof of that fact.

A complaint may be made under the

Justices Act

in relation to an offence against sections 36, 36A or 36B within 2 years after the date the offence allegedly occurred.

Clause 11 Section 37 amended

(1) Omits section 37(1) and replaces it with more appropriate wording indicating that the Administrator may make Regulations under the Act.

(2) Omits wording to simplify the reading of 37(2) so that subsection (2) begins with the words “The Regulations may:”

(3) Adds the word “and” to the end of each paragraph (a) to (ea) in section 37(2).

(4) Replaces the words “the Commonwealth or the Territory in the administration of a Commonwealth or Territory housing” in section 37(2)(f) with the words “the Territory or the Commonwealth in the administration of a Territory or Commonwealth housing scheme”.

(5) Omits section 37(2)(fa) as this section is outdated and the section references within it no longer apply.

(6) This amends paragraph 37(2)(g) by replacing “shall be” with “is”.

(7) Changes the reference to a penalty of $1000, which is now outdated, to 8 penalty units.

Clause 12 Part 12 inserted

This clause inserts a new Part 12 after section 50 titled “Transitional provisions for Housing and Other Legislation Amendment Act 2011”. Part 12 contains new section 51.

New section 51

provides a transitional provision for acceptable behaviour agreements so that all existing agreements continue in force and notices given remain valid.

Clause 13 Act further amended

This clause gives effect to the schedule which contains minor amendments in relation to modernising the Act and updating terminology and numerical references.

Clause 14 Act amended

This clause indicates that this part amends the

Residential Tenancies Act.

Clause 17

Section 99A amended

This amends the

Residential Tenancies Act

so that where section 99A refers to section 18A of the

Housing Act

, it will now refer to section 28C of the

Housing Act

as the topic covered by section 18A (acceptable behaviour agreements) has been moved to section 28C.

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