Residential Tenancies and Rooming …...2.1 Amendment of the Residential Tenancies and Rooming Accommodation Act 2008 3 2.1.1 Notice to leave because of serious breach 4 2.1.2 Application

Residential Tenancies and Rooming Accommodation

and Other Legislation Amendment Bill 2013

Report No. 35Transport, Housing and Local Government CommitteeOctober 2013

Parliamentary

Residential Tenancies and Rooming Accommodation and Other

Legislation Amendment Bill 2013

Report No. 35 Transport, Housing and Local Government Committee October 2013

Transport, Housing and Local Government Committee iii

Transport, Housing and Local Government Committee

Chair Mr Howard Hobbs MP, Member for Warrego

Deputy Chair Mrs Desley Scott MP, Member for Woodridge

Members Mr John Grant MP, Member for Springwood

Mr Darren Grimwade MP, Member for Morayfield

Mr Carl Judge MP, Member for Yeerongpilly

Mr Anthony Shorten MP, Member for Algester

Mr Jason Woodforth MP, Member for Nudgee

Mr Tim Mulherin MP, Member for Mackay*

Committee Staff Ms Kate McGuckin, Research Director

Ms Erin Pasley, Research Director, SDIIC

Ms Danielle Cooper, Principal Research Officer

Ms Rachelle Stacey, Principal Research Officer

Ms Kelly Longworth, Principal Research Officer

Ms Lisa Van Der Kley, Executive Assistant

Ms Deb Mohi, Executive Assistant

Technical Scrutiny of Legislation Secretariat

Ms Renee Easten, Research Director

Ms Marissa Ker, Principal Research Officer

Mr Karl Holden, Principal Research Officer

Ms Tamara Vitale, Executive Assistant

Contact details Transport, Housing and Local Government Committee Parliament House George Street Brisbane Qld 4000

Telephone +61 7 3406 7486

Fax +61 7 3406 7070

Email [email protected]

Web www.parliament.qld.gov.au/thlgc

Acknowledgements The Committee thanks those who briefed the Committee, made submissions, gave evidence and participated in its inquiry. * Mr Mulherin replaced Mrs Desley Scott at the Public briefing and hearing held on 1 October 2013.

mailto:[email protected]

http://www.parliament.qld.gov.au/thlgc

iv

Transport, Housing and Local Government Committee v

Contents

Abbreviations vii

Recommendations ix

1 Introduction 1 1.1 Role of the Committee 1 1.2 Policy objectives of the Residential Tenancies and Rooming Accommodation and Other Legislation Amendment Bill 2013 1

2 Examination of the Residential Tenancies and Rooming Accommodation and Other Legislation Amendment Bill 2013 3

2.1 Amendment of the Residential Tenancies and Rooming Accommodation Act 2008 3 2.1.1 Notice to leave because of serious breach 4 2.1.2 Application to QCAT for termination orders for damage or injury, and for

objectionable behaviour 9 2.1.3 Length of notice to leave and vacation of premises 13 2.1.4 What QCAT may, must and must not consider when determining a termination

order 16 2.1.5 Definition of antisocial behaviour and acceptable behaviour agreements 21 2.1.6 Changes to existing tenancy agreements and the charging of bonds and service

charges 24 2.1.7 Consideration of vulnerable tenants, consistency of application of authority and

support for tenants to understand rights and responsibilities 30 2.1.8 Consistent application of authority 35 2.1.9 Information about rights and responsibilities 36 2.1.10 Appeal rights and rights to review 38

2.2 Amendment of the Queensland Building and Construction Commission Act 1991 42 2.2.1 Replacement of section 42 of the QBCC Act – (Unlawful carrying out of building

work) 42 2.2.2 Amendment of section 83 of the QBCC Act – (Proceeding in tribunal stops action by

commission) 44 2.3 Amendment of the Guide, Hearing and Assistance Dogs Act 2009 47

2.3.1 Access rights to places of accommodation 47 2.3.2 New offence provisions 48 2.3.3 Identification procedures 48 2.3.4 Complaint process 49 2.3.5 Consultation 50

3 Fundamental legislative principles 52 3.1 Rights and liberties of individuals 52

3.1.1 Clause 11 – inserting new section 296A 52 3.1.2 Clauses 13 and 17 – inserting new sections 297A and 345A 53 3.1.3 Clause 20 – inserting new sections 527A and 527D 54

vi

3.1.4 Clause 20 – inserting new section 527C – replacement of standard and special terms for certain tenancies 55

3.2 Possible discriminatory provisions 56 3.3 Proportion and relevance 57 3.4 Administrative power 58 3.5 Natural justice concerns 59 3.6 Independence of the judiciary 62 3.7 Explanatory Notes 63 3.8 Consultation on the Bill 63

Appendices 65

Dissenting report 67

Residential Tenancies and Rooming Accommodation and Other Legislation Amendment Bill 2013 Abbreviations

Transport, Housing and Local Government Committee vii

Abbreviations

ABA Acceptable behaviour agreement

ADCQ The Anti-Discrimination Commission Queensland

ASB Anti-Social Behaviour

CHP Community Housing Provider

CRA Commonwealth Rent Assistance

Department or DHPW Department of Housing and Public Works

DSDIP Department of State Development, Infrastructure and Planning

EDQ Economic Development Queensland

NTL Notice to leave

NTRB Notice to Remedy Breach

PPPs Public Private Partnerships

QBCC Queensland Building and Construction Commission

QBCC Act Queensland Building and Construction Commission Act 1991

QBSA Queensland Building Services Authority

QBSA Amendment Act Queensland Building Services Authority Amendment Act 2013

QCAT or the Tribunal Queensland Civil and Administrative Tribunal

RTRAA 2008 Residential Tenancies and Rooming Accommodation Act 2008

RTRAOLA Bill or the Bill Residential Tenancies and Rooming Accommodation and Other Legislation Amendment Bill 2013

SPV special purpose vehicle

STA State tenancy agreement

TAASIN The Tenant Advice and Advocacy Service – Inner North

Chair’s foreword Residential Tenancies and Rooming Accommodation and Other Legislation Amendment Bill 2013

viii

Chair’s foreword This report presents a summary of the Committee’s examination of the Residential Tenancies and Rooming Accommodation and Other Legislation Amendment Bill 2013.

The Committee’s task was to consider the policy outcomes to be achieved by the legislation, as well as the application of fundamental legislative principles – that is, whether it has sufficient regard to rights and liberties of individuals and to the institution of Parliament.

The public examination process allows the Parliament to hear view from the public and stakeholders they may not have otherwise heard from, which should make for better policy and legislation in Queensland.

On behalf of the Committee I thank those individuals and organisations who lodged written submissions on this Bill, and others who have informed the Committee’s deliberations: the Committee’s secretariat, officials from the Department of Housing and Public Works and the Department of Communities, Child Safety and Disability Services, and the Technical Scrutiny of Legislation secretariat.

I commend the report to the House.

Howard Hobbs, MP Chair October 2013

Residential Tenancies and Rooming Accommodation and Other Legislation Amendment Bill 2013 Recommendations

Transport, Housing and Local Government Committee ix

Recommendations

Recommendation 1 2

The Committee recommends that the Residential Tenancies and Rooming Accommodation and Other Legislation Bill 2013 be passed.

Recommendation 2 9

The Committee recommends the addition of the word ‘persistently’ to proposed section 290A(1)(b)(iii) so that it reads “interfered persistently with the reasonable peace, comfort or privacy of another tenant” to increase the gravity of this breach to align with other serious breaches described in this provision.

Recommendation 3 15

The Committee recommends that the Minister for Housing and Public Works consider including a provision in this Bill which provides for tenants to vacate a premises before handover date without penalty where notice to leave has been given.

Recommendation 4 20

The Committee recommends the removal of subsection 345A(3)(c)(ii) from the Bill (the requirement that QCAT consider the needs of persons awaiting housing assistance from the State when determining if behaviour warrants the termination of a tenancy agreement).

Recommendation 5 20

The Committee recommends the amendment of proposed new section 345A(3) to provide that QCAT must consider all relevant circumstances of the tenant and any vulnerable members of the tenant’s household in determining whether to make a termination order.

Recommendation 6 21

The Committee recommends the removal of the word ‘littering’ in the definition of ‘antisocial behaviour’ in section 527A and the addition of the phrase ‘or excessive rubbish on or around the premises or on neighbouring premises’ so that the definition reads: “includes making excessive noise, dumping cars or excessive rubbish on or around the premises or on neighbouring premises, vandalism and defacing property.”

Recommendation 7 29

The Committee recommends that section 527C be redrafted to provide that changes to existing State tenancy agreements (which transition to a Community Housing Provider) may only be made under the Act (and not by regulation) and that the only changes that may be made to the existing State tenancy agreements are: • where they are administratively necessary to affect the transition (for example, the name of the lessor and the requirement for the provision of household information) and • upon the natural end of the tenancy agreement (whether through expiration or transfer or renewal) or the agreement is breached, whichever occurs first.

Recommendation 8 29

The Committee recommends that section 527F be redrafted to provide that changes to existing State tenancy agreements (which remain with the State as lessor) may only be made upon the natural end of the tenancy agreement (whether through expiration or transfer or renewal) or when the agreement is breached, whichever occurs first.

Recommendations Residential Tenancies and Rooming Accommodation and Other Legislation Amendment Bill 2013

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Recommendation 9 34

The Committee recommends that the Minister review the Western Australian model of managing vulnerable tenants in the social housing system with a view to identifying elements which may be adopted into the current Queensland system.

Recommendation 10 35

The Committee recommends that a new provision be drafted for inclusion in the Bill which: • requires social housing lessors to consider the circumstances of tenants when administering the Residential Tenancies and Rooming Accommodation Act 2008, and • provides a specific definition of ‘circumstances of tenants’ in the Bill.


The Committee recommends that the Minister ensure that the processes and standards that should be followed by State and Community Housing Provider employees in exercising any authority under this Act be fully documented and consistently implemented across the sector, regardless of the lessor.


The Committee recommends that a review be undertaken of the support mechanisms available to social housing tenants to ensure they fully understand their rights and responsibilities under the Act and under their tenancy agreement.


The Committee recommends that the notes to the offence provisions, specifically new section 12A, ‘Obligations of persons exercising control of places of accommodation’, and current section 13, ‘Obligations of persons exercising control of public places and public passenger vehicles’ outline a person’s right of action under the Anti-Discrimination Act 1991 (Qld).


The Committee recommends that for future Bills, the Explanatory Notes endeavour to clearly identify and address all applicable fundamental legislative principles and provide a more comprehensive discussion of the proposed policy changes.


The Committee recommends that the Department of Housing and Public Works consult extensively on all future Bills to ensure the views of stakeholders and representative bodies are taken into consideration.

Point of Clarification 1 41

The Committee seeks the Minister’s advice on the Department’s process for approving CHPs decision review and dispute resolution policies and processes, and whether these are consistent and comparable to the Department’s policies and processes.

Point of clarification 2 48

The Committee seeks clarification from the Minister in relation to the discrepancy between the definitions of ‘accommodation’ provided by the Anti-Discrimination Act 1991 and the Residential Tenancies and Rooming Accommodation and Other Legislation Amendment Bill.

Residential Tenancies and Rooming Accommodation and Other Legislation Amendment Bill 2013 Introduction

Transport, Housing and Local Government Committee 1

1 Introduction

1.1 Role of the Committee

The Transport, Housing and Local Government Committee (the Committee) was established by resolution of the Queensland Legislative Assembly on 18 May 2012, consisting of government and non-government members.

Section 93 of the Parliament of Queensland Act 2001 provides that a portfolio committee is responsible for considering:

the policy to be given effect by the Bill the application of the fundamental legislative principles to the Bill.

The Residential Tenancies and Rooming Accommodation and Other Legislation Amendment Bill 2013 (the Bill) was referred to the Committee on 10 September 2013, and the Committee is required to report to the Legislative Assembly by 22 October 2013.

The Committee was briefed by the Department of Housing and Public Works and the Department of Communities, Child Safety and Disability Services, and received 12 submissions from stakeholders (see Appendix A).

The Committee held a public hearing on 1 October 2013 and heard from 13 witnesses (see Appendix B).

Transcripts of the public briefing and hearing, submissions received and accepted by the Committee and other advice received from the Department are published on the Committee’s webpage at www.parliament.qld.gov.au/committees.

1.2 Policy objectives of the Residential Tenancies and Rooming Accommodation and Other Legislation Amendment Bill 2013

The Explanatory Notes state that the objectives of the Bill are to amend the:

Residential Tenancies and Rooming Accommodation Act 2008 to: allow for a smooth transition of tenancies from direct Government management to

management by a community Housing Provider (CHP) achieve greater consistency between public housing and community housing support the implementation of the Government's new Anti-Social Behaviour policy.

Queensland Building and Construction Commission Act 1991 to facilitate commercial development, by amending the licensing requirements and removing restrictions regarding retention money for Public Private Partnership (PPP) and an amendment to facilitate earlier resolution of building disputes.

Guide, Hearing and Assistance Dogs Act 2009 to provide rights of access to places of accommodation of people with a disability who rely on guide, hearing and assistance dogs, and make it an offence for a person to refuse accommodation to a person with a disability who relies on a certified guide, hearing or assistance.

Committee comment

While the Committee supports the general objectives of the Bill it has raised issues in relation to some specific provisions. These issues are discussed in detail in the following sections of the Report.

http://www.parliament.qld.gov.au/committees

Introduction Residential Tenancies and Rooming Accommodation and Other Legislation Amendment Bill 2013

2

Recommendation 1

The Committee recommends that the Residential Tenancies and Rooming Accommodation and Other Legislation Bill 2013 be passed.

Residential Tenancies and Rooming Accommodation and Other Legislation Amendment Bill 2013 Examination of the Bill


2 Examination of the Residential Tenancies and Rooming Accommodation and Other Legislation Amendment Bill 2013

2.1 Amendment of the Residential Tenancies and Rooming Accommodation Act 2008

The objectives of amending the Residential Tenancies and Rooming Accommodation Act 2008 are to:

allow for a smooth transition of tenancies from direct Government management to management by a Community Housing Provider

achieve greater consistency between public housing and community housing support the implementation of the Government's new antisocial behaviour policy.1

The Department of Housing and Public Works (HPW) is strengthening the role of the not-for-profit sector by progressively transferring the management of department-owned and managed properties to the non-government sector.2 CHPs will become the property and tenancy managers of (formerly) department-owned properties which have State Tenancy Agreements (STAs) in place.3

STAs differ from general tenancy agreements (used in the private rental market) in that they allow the Department to:

increase rents without needing to give two months’ notice for a rent review for those in periodic leases

review and increase rents during the term of a fixed term tenancy require household information to be provided.4

The Bill amends the RTRAOLA to allow the standard and special terms of existing STAs to be replaced by regulation with a new set of standard and special terms when a CHP becomes the lessor under the tenancy agreement. These legislative amendments have been drafted to enable a CHP to access CRA in the rent charged to a tenant, levy a bond or other service charges and require household information to be provided by a tenant.5

On 1 July 2013 the new Anti-Social Behaviour (ASB) policy and strikes based process was introduced. The Department continues to have difficulty in obtaining termination orders from the Queensland Civil and Administrative Tribunal (QCAT or the Tribunal) and subsequently regaining timely possession of public housing dwellings in cases where serious antisocial behaviour has occurred.6

It is proposed that a notice to leave for ending of housing assistance may be used in public and community housing where a tenant has engaged in antisocial behaviour and exceeded the permitted number of strikes (three) under the ASB policy. 7

1 Explanatory Notes:1 2 Explanatory Notes:1 3 Explanatory Notes:2 4 Explanatory Notes:2 5 Explanatory Notes:3 6 Explanatory Notes:2 7 Explanatory Notes:8


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2.1.1 Notice to leave because of serious breach

Currently, a notice to leave the premises can be given to a tenant on the following grounds:

unremedied breach of the agreement (including but not limited to failure to pay rent) noncompliance with a tribunal order agreement frustrated (Non-liveability) compulsory acquisition sale contract/intention to sell ending of entitlement under employment ending of accommodation assistance ending of housing assistance without ground (for periodic and fixed terms agreements).

Each of these grounds attracts different notice periods ranging from two months (for a notice given without ground) to seven days (for a notice given because of an unremedied breach where that unremedied breach is a failure to pay rent).

The Bill proposes a new section 290A (Notice to leave because of serious breach) which provides that a lessor can give a tenant a notice to leave for ‘serious breach’ if the lessor reasonably believes the tenant has:

used the premises for an illegal activity destroyed or seriously damaged part of the premises endangered other persons or interfered with the reasonable peace, comfort or privacy of another tenant.

Under the definition of lessor in this provision (that is the chief executive of the Department or a CHP), this section will apply only to public housing and community housing tenants. No ‘notice to remedy’ is required prior to the ‘notice to leave’ being issued and a notice under section 290A may be given even if there has been no charge or conviction for an offence. Under proposed new section 329(2)(ia) (see discussion below), a ‘notice to leave because of serious breach’ attracts a notice period (known as ‘handover day’) of seven days.

In summary, the proposed new provision will enable the Department to evict tenants for a serious breach without having to apply to QCAT for a termination order.

The provision also applies to:

property adjoining or adjacent to the premises including any property that is available for use by the tenant in common with others and

an occupant, a guest of the tenant or a person allowed on the premises by the tenant.

The Explanatory Notes state that:

Section 290A is intended to allow action to be taken to end tenancies quickly where public housing or community housing properties are being used for illegal activity or where there are other serious breaches... The section… is not limited to drug related activities. It has been drafted widely to apply to illegal activities generally… This (provision) intentionally lowers the standard of proof and will allow the lessor to take prompt action to issue a notice



to leave for serious breach rather than having to await the outcome of criminal proceedings.8

The Department advised that, while the ASB policy was implemented on 1 July 2013, it continues to have difficulty in obtaining termination orders from QCAT and subsequently regaining timely possession of public housing dwellings in cases where serious antisocial behaviour has occurred.9

The Bill will also allow the Department and CHPs to act more swiftly and directly when serious and/or persistent antisocial behaviour is occurring in public and community housing.10

Ms Helen Underwood submitted that:

Forced eviction and/or any form or interference with one’s home have diabolical consequences to one’s health to begin with. The most important consequence is that once someone is homeless, they are no longer entitled to any Centrelink benefits as they have no fixed place of abode, taking away any small amount of income the person may have.11

The Tenant Advice and Advocacy Service – Inner North (TAASIN) submitted that:

Already in the current legislation under Section 297 any lessor may make an urgent application to QCAT to end a tenancy due to objectionable behaviour. There is not even a requirement under this section that a Notice to Leave be issued. Further to this, any lessor may end a tenancy due to a single serious or non-serious breach under the existing legislation Section 281.

This proposed amendment does not give any additional powers and is irrelevant. It is also unjust for there to be a different form of tenure for social housing tenants to private tenant.12

The Department responded:

The Department’s view is that the existing provisions of the Act are inadequate to deal with situations where illegal activity is occurring.

The existing section 297 of the Act allows an application to be made to terminate a tenancy for objectionable behaviour. ‘Objectionable behaviour’ includes situations where harassment and serious nuisance is occurring, but the section makes no reference to illegal activity and there are many forms of illegal activity that may not be covered by that section.

There are currently no specific provisions in the RTRAA allowing the Department to apply directly to the tribunal for termination of a tenancy or to directly issue a notice to leave on the ground that the tenant has used the premises for an illegal activity. Instead, the Department has had to use other processes such as issuing a notice to leave without grounds in such cases. A notice to leave without grounds has a notice period of two months for a periodic tenancy agreement, and cannot be used for a fixed term agreement. Additionally, if the tenant fails to leave following the expiry of this notice, the Department must then apply to the tribunal for an order to terminate the agreement and the tribunal can make a termination order if it is satisfied that it is appropriate to make the order. This process is an unnecessarily lengthy one, particularly when serious criminal activity has occurred at the public housing premises.

8 Explanatory Notes:13 9 Explanatory Notes:2 10 Explanatory Notes:3 11 Public hearing transcript, 1 Oct 2013:18 12 Submission No.2:2


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Another step that can be taken under the RTRAA at present where premises have been used for an illegal purpose is to issue a notice to remedy breach for breach of clause 19 of the State tenancy agreement (section 184 of the Act), but under this process it can be difficult for the Department to monitor whether breaches are remedied within the required period of the notice. In addition any subsequent action requires a notice to leave and possibly an application to the Tribunal, which can be a lengthy process. Further, where a notice to remedy breach is given for using premises for an illegal purpose, a tenant may cease the activity during the period required by the notice, and claim that the breach has been remedied. Then there would be no basis on which to proceed to issue a Notice to Leave the premises and so terminate the tenancy. This is an unsatisfactory result where serious illegal activity such as operating a drug laboratory has occurred which would warrant the termination of the tenancy in any event.

Additionally, there is currently no section in the RTRAA that allows the Department to apply directly to the tribunal to terminate a tenancy on the grounds that the tenant has intentionally or recklessly endangered another person at the premises or significantly interfered with the reasonable peace, comfort or privacy of a person occupying or allowed on a premises nearby.13

TAASIN further submitted that:

It is also unjust to legislate that premises have been allegedly used for an illegal purpose where there has been no charges, prosecution or opportunity to prove either innocence or guilt. To state that people may lose their housing because someone ‘reasonably believes’ that something has happened seeks to undermine our judicial system of being innocent until proven guilty.14

The Tenants’ Union of Queensland Inc. (Tenants’ Union) submitted that the proposed section 290A should not proceed:

…. the TUQ (Tenants’ Union) believes this section should not proceed into the legislation as it would fundamentally undermine the rules of natural justice by reversing the burden of proof and allow lessors to judge tenants guilty until proven innocent.

The proposed amendment states that a reasonable belief may be formed by the lessor, ‘whether or not the tenant has been found guilty of an offence in relation to the activity. In practice, a notice to leave for serious breach may be given by a lessor who reasonably believes that a tenant has had their television volume up too high and thereby interfered with a neighbouring tenant’s peace or comfort.

If the tenant, the occupant or invited guest has engaged in interference, illegal activity, intentional or reckless behaviour, removing them from social housing will not address the underlying causes of this behaviour. Rather, we argue in this submission that this proposed section will only add to the number of people transferred to other social housing providers, the demand on homelessness services and result in an increase in homelessness.

The actions for which the household is evicted may be the very reasons for which they were originally housed. For example, the child of the tenant (the occupant) may have a disability, mental illness or medical issue causing what may seem to others to be anti-social behaviour. These households are likely to cycle through the housing and homelessness sector, causing

13 Written brief dated 30 Sep 2013:12-13 14 Submission No.2:2



cost to the family and the system. The cost of accommodating a person in the homelessness sector is more that housing them in social housing.15

The Department responded to the concerns raised by TAASIN and the Tenants’ Union with:

The Department considers that strong action is needed to deal with illegal behaviour in social housing properties. Reasons include:

• A lot of illegal activities in social housing relate to drug offences. The cost to the State of drug laboratories being operated is significant; typically $75,000 is required to rectify damage and bring the dwelling back to a habitable condition. There are currently 20 known examples of rectification under way in public housing as a result of drug laboratories operating in public housing and the department reported in August this year that 28 drug laboratories have been reported in social housing dwellings since early 2012. Further the department spent approximately $5 million in the last financial year repairing properties damaged by public housing tenants or others in their households.

• Drug laboratories also produce hazardous chemicals which are a risk to health and safety of those entering or using the property, including children, as well as posing a risk to neighbouring properties and people if a drug laboratory explodes or catches fire.

• Waiting for a criminal charge and conviction can take many months to occur, and in the meantime repeated illegal and possibly dangerous activities may be continuing in the rental properties. In some cases police have reported having to attend properties repeatedly where criminal behaviour is occurring on a regular basis. The Department has experienced some cases where police have been called out to public housing properties as many as 50 times for anti-social behaviour. The Department has also experienced cases where police have been called repeatedly to premises for alleged illegal behaviour and cases where, even after tribunal proceedings have been commenced to terminate a tenancy, premises have allegedly continued to be used for illegal activities. The Department needs to be able to act quickly in cases where illegal activity is occurring. The existing provisions under the RTRAA do not allow a rapid enough response in these serious cases.16

Further, the existing section 370 of the RTRAA allows a provider of rooming accommodation to give a notice to a resident where the provider reasonably believes the resident has used the resident’s room or common areas for an illegal purpose. This is an example of a current provision which allows a notice to leave to be given based on a reasonable belief that premises are being used for an illegal purpose.……

Before a notice is issued under the proposed section 290A the Department would investigate the matter and a brief would be prepared for consideration by the Director-General or delegate. The section would be used proportionately. If a notice to leave for serious breach is given to a public housing or community housing tenant, the tenant may challenge the notice by applying to QCAT under section 426 of the RTRAA. Under that section if a tenant disputes a notice to remedy breach or a notice to leave the tenant may apply to QCAT for orders about the notice, which may include setting aside the notice that was issued.

Further, if the tenant is served with a notice to leave under the proposed section 290A they can either choose to leave or not leave the premises. If they do not leave, the matter would

15 Submission No.9:3 16 Written brief dated 30 Sep 2013:12-13


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have to be determined by QCAT before the tenancy is terminated, and the tenant would have the right to be heard in QCAT which is bound by the rules of natural justice. The department generally has well-established processes and practice to ensure that a tenant is afforded natural justice and has a right of reply before notices are issued and, if the Bill is passed, the Department will where appropriate update its processes and practice to cover the new provisions in the Bill.17

The Anti-Discrimination Commission Queensland (ADCQ) also raised concerns with section 290A:

The Commission recognise the Government's concerns when public housing is being utilised for serious illegal activity such as the operation of drug laboratories. The Commission also understands the frustration of the police and other authorities in waiting for a criminal charge and conviction that can take many months to occur. However, … a fundamental human right is that everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. This basic human right ought not be overridden by this legislation, and a conviction for serious illegal behaviour being carried on within the premises ought be the requirement before a notice to leave is issued.18

The Department responded to the concerns raised by the ADCQ:

If the Act is amended to allow for action to be taken when there is a reasonable belief that an offence has occurred, the Department will be including safeguards into its policies to ensure that these actions are only taken where there is appropriate evidence of illegal activity. In the case of a drug laboratory, for example, this may include advice from the Queensland Police Service about hazardous chemicals and contaminated equipment believed to have been used for manufacture of drugs being found at the property.

Under the ASB policy, the Department will work with tenants being exited under the policy to reduce the risk of homelessness by notifying the tenant’s support agency (where applicable), referral to RentConnect or providing details of other alternatives. Further, in relation to children, the Department’s existing practice of reporting cases where there are concerns that a child will be at risk as a result of an eviction, to the Department of Communities, Child Safety and Disability Services for action, will continue.19

Committee comment

The Committee notes that the objective in introducing section 290A (Notice to leave because of serious breach) to the Act could alternatively be achieved by amending section 335 (Applications for termination orders) to include ‘serious breach’. However, the Committee understands that the inclusion of section 290A is made necessary by the difficulties experienced in securing termination orders from QCAT. The Committee is therefore in broad agreement with the proposed ‘Notice to leave because of serious breach’ provision.

However, the Committee has observed that there is a significant disparity between the most serious breach in the definition of serious breach (section 290A(1)(a) used the premises or any property adjoining or adjacent to the premises… for an illegal activity) and the least serious (section 290A(1)(b)(iii) interfered with the reasonable peace, comfort or privacy of another tenant…). The Committee is concerned that such a wide range of breaches have been classified in this way due to

17 Written brief dated 30 Sep 2013:13-14 18 Submission No.6:5-6 19 Written brief dated 30 Sep 2013:22



the fact that a ‘serious breach’ attracts a significantly reduced notice to leave of seven days as proposed in a new provision (section 329 - handover day for notice to leave).

The Committee recommends that the gravity of the ‘interference with the reasonable peace, comfort or privacy of another tenant’ breach be increased to align with the other offences within the definition. Specifically, the Committee recommends the addition of the word ‘persistently’ to section 290A(1)(b)(iii) so that it reads “interfered persistently with the reasonable peace, comfort or privacy of another tenant”.

The Committee notes the concerns raised in submissions regarding the potential impact of the new provisions on tenants and occupants who may have a disability, mental illness or medical issue causing what may seem to others to be anti-social behaviour. The Committee is concerned to ensure that households with more vulnerable occupants are provided with appropriate support so they can maintain their tenancy. The Committee further discusses this issue in section 2.19 of this Report where it recommends that the Department put strategies in place to resolve any issues at an early stage by developing and maintaining referral pathways to health, employment, education, financial counselling and tenancy sustainment services.

Recommendation 2

The Committee recommends the addition of the word ‘persistently’ to proposed section 290A(1)(b)(iii) so that it reads “interfered persistently with the reasonable peace, comfort or privacy of another tenant” to increase the gravity of this breach to align with other serious breaches described in this provision.

2.1.2 Application to QCAT for termination orders for damage or injury, and for objectionable behaviour

Existing section 296 of the RTRAA provides that a lessor may apply to QCAT for a termination order where the tenant has or is likely to intentionally or recklessly cause serious damage to the premises or injury to persons.

Proposed new section 296A (Application for termination for damage or injury in public or community housing) will add to the existing section by extending the application of the provision (for public and community housing tenants only) to include the tenant, an occupant, guest or a person the tenant allows on the premises.

The existing section 297 of the RTRAA allows the lessor (the State or a CHP) to apply to QCAT for a termination order where objectionable behaviour is engaged in by the tenant. Under this section, objectionable behaviour is defined as behaviour where the tenant:

has harassed, intimidated or verbally abused the lessor or lessor’s agent or a person occupying, or allowed on, premises nearby (and)

is causing, or has caused, a serious nuisance to persons occupying premises nearby.

Proposed new section 297A (Application for termination for objectionable behaviour in public or community housing) pertains only to public and community housing tenants and will extend the application of the provision to include the tenant, an occupant, guest or a person the tenant allows on the premises and the definition of ‘objectionable behaviour’ to include behaviour where the tenant, an occupant, a guest of the tenant or a person allowed on the premises by the tenant:

has intentionally or recklessly endangered another person at the premises or


10

interfered with the reasonable peace, comfort or privacy of a person occupying a premises nearby. 20

In regard to these provisions, the Department advised that:

Section 296A is intended to be wider than section 296 because the Department of Housing and Public Works has encountered many cases of damage caused to public housing properties... It is considered that the tenant must take responsibility for damage caused to the property leased to them where the damage is caused by persons referred to in section 296A.21

and

Section 297A is intended to be wider than section 297 because the Department of Housing and Public Works has encountered many cases of antisocial behaviour in public housing properties. It is considered that the tenant must take responsibility for the behaviour referred to in section 297A22.

TAASIN submitted that: This is another amendment which is not necessary. Already in the legislation there are provisions for ending a tenancy for these reasons under section 296. Further to this, the existing provision covers all tenant public, community or private.23


The Department’s view is that the existing provisions of the Act are inadequate to deal with situations where illegal activity is occurring.

The existing section 297 of the Act allows an application to be made to terminate a tenancy for objectionable behaviour. ‘Objectionable behaviour’ includes situations where harassment and serious nuisance is occurring, but the section makes no reference to illegal activity and there are many forms of illegal activity that may not be covered by that section.

There are currently no specific provisions in the RTRAA allowing the Department to apply directly to the tribunal for termination of a tenancy or to directly issue a notice to leave on the ground that the tenant has used the premises for an illegal activity. Instead, the Department has had to use other processes such as issuing a notice to leave without grounds in such cases. A notice to leave without grounds has a notice period of two months for a periodic tenancy agreement, and cannot be used for a fixed term agreement. Additionally, if the tenant fails to leave following the expiry of this notice, the Department must then apply to the tribunal for an order to terminate the agreement and the tribunal can make a termination order if it is satisfied that it is appropriate to make the order. This process is an unnecessarily lengthy one, particularly when serious criminal activity has occurred at the public housing premises.

Another step that can be taken under the RTRAA at present where premises have been used for an illegal purpose is to issue a notice to remedy breach for breach of clause 19 of the State tenancy agreement (section 184 of the Act), but under this process it can be difficult for the Department to monitor whether breaches are remedied within the required period of the notice. In addition any subsequent action requires a notice to leave and possibly an application to the Tribunal, which can be a lengthy process. Further, where a notice to

20 Explanatory Notes:13-14 21 Explanatory Notes:13 22 Explanatory Notes:13-14 23 Submission No.2:3



remedy breach is given for using premises for an illegal purpose, a tenant may cease the activity during the period required by the notice, and claim that the breach has been remedied. Then there would be no basis on which to proceed to issue a Notice to Leave the premises and so terminate the tenancy. This is an unsatisfactory result where serious illegal activity such as operating a drug laboratory has occurred which would warrant the termination of the tenancy in any event.

Additionally, there is currently no section in the RTRAA that allows the Department to apply directly to the tribunal to terminate a tenancy on the grounds that the tenant has intentionally or recklessly endangered another person at the premises or significantly interfered with the reasonable peace, comfort or privacy of a person occupying or allowed on a premises nearby. 24

TAASIN further submitted that:

To include ‘neighbouring residents’ also takes the legislation to a point where it is naming people who are not even party to a tenancy agreement. If a neighbour, be they a tenant or an owner, doesn’t like having a large Indigenous family living next door does this give them the right to seek their eviction? This reference must be removed for the sake of preventing discrimination.25

The Tenants’ Union added:

……many social housing tenants are already experiencing hardship in one form or another. Adding to social housing tenants’ responsibilities by making them accountable for the behaviour of their guests, occupants and visitors is unreasonable. In practice, the application of this provision would allow a social housing tenant to be evicted if a visitor of the tenant had interfered with the reasonable peace, comfort or privacy of a neighbour’s premises (see s 297A(1)(c)).

The TUQ (Tenants’ Union) opposes the change on the basis that it may have an adverse effect on those that the policy does not target.26

The ADCQ also raised the following concern with these new provisions:

Some tenants with certain mental health or intellectual disabilities are at higher risk of and more vulnerable to being manipulated or used by unscrupulous individuals who may be involved in illegal activity or engage in other objectionable behaviour. In addition, Aboriginal and Torres Strait Islander persons, and persons who come from cultures where residing within extended families is the norm, may also be unfairly adversely affected by the provisions where the anti-social behaviour or other problems are the behaviours of members of the tenant's extended family. While objectionable repeated and sustained behaviour is not acceptable, persons who have social responsibilities to members of their extended families may have greater difficulty in controlling the behaviour of every person that is invited or allowed onto the premise.

The best practice approach in these circumstances is for the Department to take a range of actions to assist the tenant to manage the behaviour of persons coming into their residence and to maintain their tenancy, including referral to a support worker or agency. Other options to resolve these issues at an early stage include developing and

24Written brief dated 30 Sep 2013:12-13 25 Submission No.2:6 26 Submission No.9:4


12

maintaining referral pathways to health, employment, education, financial counselling and tenancy sustainment services.27

The Department justified extending the application of the provision to include the tenant, an occupant, guest or a person the tenant allows on the premises on the following basis:

These amendments are considered justified because other persons on the premises are generally there with the consent of the tenant and/or the tenant is in the best position to control or allow the behaviour of persons on the premises. The tenant has occupation of the premises and normally has the right to sue for trespass to the rental property (see Halsbury’s Laws of Australia para [415-505]). Therefore, subject to the lessor’s rights of entry in certain cases under the RTRAA, the tenant has control over who can legally enter and remain on the property. The lessor has no control over who visits rental properties and usually only finds out about problem behaviour from sources such as neighbours and police, often after the behaviour or damage has occurred.

In the event that a tenant claimed they did not allow another person’s actions, it is considered that issue could be raised by the tenant and the tribunal could consider that issue in exercising its discretion whether to terminate a tenancy. Further, if the tenant established that a person on the premises had engaged in the behaviour who was not a guest or occupant and not allowed to be there by the tenant, the section would not apply and a termination order could not be made by QCAT based on the behaviour of the person.28

Committee comment

The Committee understands that the new provisions (section 296A and 297A) are intentionally wider than the existing provisions in the RTRAA (sections 296 and 297) in response to the numerous cases of antisocial behaviour, damage caused to public housing properties or injury caused to persons on the premises encountered by the Department of Housing and Public Works.

The Committee agrees with the Department’s view that tenants must take responsibility for their own antisocial behaviour and for the damage and injury caused by them on and around the premises. The Committee also considers that it is appropriate for tenants to take responsibility for these behaviours evidenced by other people on the property with the tenant’s consent.

However, the Committee notes the concerns raised by submitters about the potential impact of the new provisions on tenants and occupants who may have a disability, mental illness or medical issue causing what may seem to others to be anti-social behaviour. The Committee is concerned to ensure that households with more vulnerable occupants are provided with appropriate support so they can maintain their tenancy. The Committee further discusses this issue in section 2.19 of this Report where the Committee recommends that the Department put strategies in place to resolve any issues at an early stage by developing and maintaining referral pathways to health, employment, education, financial counselling and tenancy sustainment services

27 Submission No.6:5 28 Written brief dated 30 Sep 2013:15



2.1.3 Length of notice to leave and vacation of premises

Section 329(2)(i) of the RTRAA currently provides that the handover day for notice to leave premises because of the ending of housing assistance is 2 months after notice is given. The RTRAA Bill seeks to amend this notice period from 2 months to 1 month.29

TAASIN submitted that:

This is something to which we strongly object. Under the (former) One Social Housing system the majority of tenants in public or community housing are those who have proven that they have great challenges to deal with. These challenges include mental health issues, physical disabilities, single parents with disabled children, Indigenous families, migrant families and those who have been recently homeless. These are the most marginalised people in the state and are generally the least able to find alternative accommodation quickly and easily… Reducing this time period to only a month will lead to more QCAT applications and more pressure on the justice system... Two months at least allows for the opportunity for tenants to work with community support agencies and government agencies such as Rent Connect.30

The Tenants’ Union also strongly objected to this amendment:

The Tenants’ Union strongly opposes any reduction of notice periods for tenants being asked to leave… Two months is already an extremely short time period for a tenant to find an alternative property appropriate to their needs. Many households will have children at school or other reasons for needing to remain in the local area, and will also be on a limited income. They are likely to experience difficulties in finding available properties which meet their needs… Additionally, there is a shortfall of rental stock affordable to people on low incomes across Australia (around 500,000 properties)… For a tenant exiting social housing, re-entry into the private rental market is likely to be difficult. Along with their limited income and absence from the private rental market which will make it so for them, they may also have a range of health and social issues. Tenants generally, and social housing tenants more so given they will have been eligible for social housing due to compounding vulnerabilities, require time to relocate. They need time to find a suitable property as well as time to physically move their household. Many of these households will not have their own transport.31


The RTRAA allows for a Notice to Leave (Ending of Housing Assistance) to be utilised to end a tenancy when the tenant is no longer eligible for housing assistance. This type of notice currently has a two month notice period, which is considered lengthy when the tenants are

29 A notice to leave because of the ending of housing assistance can be given if the tenant occupies premises under an affordable housing scheme (which includes public housing and community housing) and the tenant ceases to be eligible under the scheme. The Department advised (correspondence from Director-General, DHPW dated 15 Oct 2013) that a tenant ceases to be eligible when:

• household income increases beyond eligible limits • any member of the household owns or part owns any property in Australia or overseas (excluding some limited

exceptions) and • the household does not provide the necessary property and income information with the required timeframes for

the department to assess their ongoing eligibility. It is proposed that a notice to leave for ending of housing assistance may be used in public and community housing where a tenant has engaged in antisocial behaviour and exceeded the permitted number of strikes under the ASB policy. (Explanatory Notes:8) 30 Submission No.2:4-5 31 Submission No.9:5


14

no longer eligible for assistance, for example, due to exceeding the permitted number of strikes under the ASB policy in a twelve month period. A one month notice period would allow for a more expedient recovery of the social housing property and subsequently faster re-letting of the dwelling to an eligible applicant in housing need from the Housing Register. Additionally, the use of the Notice to Leave (Ending of Housing Assistance) is generally at the end of a process where the Department has been working with tenants to facilitate their exit, for example, where the tenant has engaged in repeated substantiated instances of anti-social behaviour over a period of time or where the tenant is no longer eligible due to the high level of their household income.

The alternative approaches to end the tenancy under the existing provisions of the RTRAA have taken too long and do not always ensure a termination is possible.32

The RTRAA Bill also seeks, under proposed new section 329(2)(ia), to provide that if the notice to leave is given because of serious breach (see discussion of 290A above), the handover day must not be earlier than seven days after the notice is given.

The Tenants’ Union submitted that:

….. the TUQ (Tenants’ Union) does not consider it a fair process for a tenant to receive a NTL(notice to leave) with 7 days’ notice for an alleged breach. In particular, as the tenant is not entitled to any prior NTRB (notice to remedy breach) to raise their awareness of the concerns. We believe a tenant should be allowed to receive a NTRB prior to the NTL. However, if this is not the case, the notice period should be extended.33

The Department advised the Committee:

The Department needs to be able to act quickly in cases where illegal activity is occurring. The existing provisions under the RTRAA do not allow a rapid enough response in these serious cases.34

Committee comment

The Committee supports the prompt recovery of properties when housing assistance has ended and in particular, the need to end a public or community housing tenancy quickly where the rental premises is being used for illegal activity. Therefore, the Committee considers the new provisions, to provide seven days’ notice (where notice to leave is given due to serious breach) and to reduce notice from two months to one month (where housing assistance eligibility has come to an end), to be appropriate.

The Residential Tenants’ Representation Agency (RTRA) raised the issue of tenants vacating a premises before the termination/handover date specified by the landlord. The RTRA submits that the Act should be amended to reflect the position taken in New South Wales under the Residential Tenancies Act 2010 whereby:

(1) A tenant who is given a termination notice by the landlord, or who gives a termination notice, may give vacant possession of the residential premises at any time before the termination date.

32 Written brief dated 30 Sep 2013:16 33 Submission No.9:4 34 Written brief dated 30 Sep 2013:12-13



(2) If a termination notice is given by a landlord, the tenant is not liable to pay any rent for any period after the tenant gives vacant possession of the residential premises and before the termination date.

Currently, where a tenant has been given a notice to leave and, before the handover date, finds alternative accommodation, the tenant would be liable to pay rent on both premises until either a replacement tenant is found or the 'end date' arrives. Preventing tenants from leaving a property at their own discretion (prior to the handover day), risks creating a situation where the tenant is still resident in the property after the handover day. The RTRA states that, in these circumstances, the following situation would arise:

If a tenant does not vacate by the stated handover date the lessor must lodge an application in the Tribunal within 14 days after the hand-over date. If the application is not made in accordance with s.293, it will either be refused by the Registrar or summarily dismissed by the Tribunal. If the application is made in accordance with the section it will take around 4 to 6 weeks before a hearing of the application is set down by the Tribunal; by then the tenant may have vacated and the Hearing is redundant. Even if the tenants have not vacated prior to the Hearing, there is no guarantee that a Termination Order will be made. The Notice may be defective and invalid, or the termination may be unjust in the circumstances.35

The RTRA respectfully submitted that:

… it is a nonsense that can be avoided by simply allowing the tenant to vacate at any time after they receive a Notice to Leave. The lessor wants them to leave, why not make it practical, and lawful, for them to do so.36

Committee comment

The Committee is persuaded that unnecessary administrative wrangling and red-tape are evoked by the current legislative arrangements and that, notwithstanding that this submission is outside the stated purpose of the current Bill, there appear to be significant advantages to both the lessor and the tenant in enabling early vacation (that is prior to the stated handover date) of a premises once notice to leave has been given.

The Committee therefore recommends that the Minister consider including a provision in this Bill which provides for tenants to vacate a premises before handover date without penalty where notice to leave has been given.

Recommendation 3

The Committee recommends that the Minister for Housing and Public Works consider including a provision in this Bill which provides for tenants to vacate a premises before handover date without penalty where notice to leave has been given.

35 Submission No.4:2 36 Submission No.4:1


16

2.1.4 What QCAT may, must and must not consider when determining a termination order

Section 345A (Objectionable behaviour in public or community housing) instructs that, in determining if objectionable behaviour justifies termination of a tenancy agreement, QCAT may have regard to the seriousness of the two new additional ‘objectionable behaviours’ (introduced for public and community housing tenants under the new section 297A). The two additional objectionable behaviours introduced under that definition are:

• intentional or reckless endangerment of another person at the premises and • interference with the reasonable peace, comfort or privacy of a person occupying

premises nearby.37

Section 345A also introduces the following matters which QCAT must have regard to in deciding if the behaviour justifies terminating the agreement:

(3) Also, in deciding if the behaviour justifies terminating the agreement, the tribunal must have regard to—

(a) any serious or adverse effects on neighbouring residents or other persons, including whether neighbouring residents or other persons are likely to be subjected to objectionable behaviour if the agreement is not terminated; and

(b) any evidence regarding the tenancy history of the tenant; and

(c) if the tenant is a tenant under a State tenancy agreement—

(i) the department's responsibility to other tenants; and (ii) the needs of persons awaiting housing assistance from the State.38

This provision will compel QCAT to consider broader concerns when making a decision to terminate a tenancy.

New section 349A (How tribunal must deal with public or community housing tenant) provides that, where an application is made to a tribunal for a termination order by the chief executive of the Department or the CHP provider “… the tribunal must not refuse to terminate the tenancy merely because the tenant is a tenant of the chief executive or a community housing provider.”39


(Section 345A) reflects the wording of the new section 297A and adds additional matters that the tribunal must have regard to in deciding whether behaviour justifies terminating a tenancy agreement… (and regarding section 349) The State has experienced difficulty in obtaining orders from the tribunal to terminate public housing tenancies. The purpose of this amendment is to make it clear that the tribunal must not in any application refuse to terminate the tenancy merely because the tenant is a tenant of the chief executive or a community housing provider.40

As discussed earlier in the report:

…the Department has experienced difficulty in obtaining termination orders in some cases where social housing tenancies are involved even where serious anti-social behaviour has occurred. The department understands that some social housing tenants are in vulnerable positions but they also need to be accountable for their behaviour. The department considers that more specific considerations beyond what is already contained in the RTRAA

37 Clause 13, RTRAOLA Bill 2013: 12. 38 Clause 17, RTRAOLA Bill 2013:15 39 Clause 18, RTRAOLA Bill 2013:16 40 Explanatory Notes:15



are required when pursuing tenancy terminations for objectionable behaviour including the history of the public housing tenancy, the department’s responsibility to its other tenants and those waiting for housing assistance, and any serious adverse effects the tenancy has had on neighbouring residents. These provisions are considered appropriate and reasonable and are similar to s152 of the Residential Tenancies Act 2010 (NSW) which applies to termination of social housing tenancy agreements.41


There is already sufficient legislation in the current act to allow for the termination of tenancies due to objectionable behaviour for all tenants urgently. There is no need for there to be a separate and more stringent test for public or community housing tenants. To treat tenancies differently because of the tenure is to discriminate against those who are the least able to know their rights or to advocate for themselves. To include ‘neighbouring residents’ also takes the legislation to a point where it is naming people who are not even party to a tenancy agreement. If a neighbour, be they a tenant or an owner, doesn’t like having a large Indigenous family living next door does this give them the right to seek their eviction? This reference must be removed for the sake of preventing discrimination. To have a reason for eviction to be put down as ‘the needs of others on the waiting list’ is unjust and unethical. To evict households into homelessness in order to house other marginalised households is untenable and will lead to a greater strain on homelessness services and a greater housing crisis... This policy is not solving anything but exacerbating lack of affordable housing. 42

In regard to new provision 349A, TAASIN submitted that:

This is hard to reconcile with legislation which seeks to make public and community housing tenants even more vulnerable to eviction and therefore increase homelessness.43

The Department responded to TAASIN’s concerns:

…more specific considerations beyond what is already contained in the RTRAA will be of benefit when pursuing tenancy terminations for objectionable/anti-social behaviour... These provisions are considered appropriate and reasonable and are similar to section 152 of the Residential Tenancies Act 2010 (NSW) which applies to termination of social housing tenancy agreements… The department considers that these strengthened provisions should apply to social housing tenants because anti-social behaviour has become a very significant problem in social housing… Social housing tenants are in a privileged situation whereby they receive Sate subsidised housing. The department considers the measures are not discriminatory, rather they are a response to a problem that clearly exists in social housing... Under the department’s Anti-Social Behaviour policy (ASB policy) tenancies can be terminated if tenants receive more than the permitted number of strikes. Under the ASB policy an incident of anti-social behaviour must be substantiated before a sanction, such as a warning or strike, can be applied. Departmental practice and procedures specify that tenants must have an opportunity to respond to any complaint about anti-social behaviour as part of the complaint investigation process. Specific guidelines have been developed for Housing Service Centre staff to follow, to determine if an issue requires investigation or if a complaint is vexatious or has been made in bad faith.44

41 Fundamental Legislative Principles Review Response, DHPW dated 3 Oct 2013:7-8 42 Submission No.2:6 43 Submission No.2:7 44 Written brief dated 30 Sep 2013:15


18

In relation to proposed provision 345A, the Tenants’ Union submitted:

It is argued in this submission that a person’s tenancy history should not have significant bearing on whether or not a termination order be granted by the Tribunal. In a criminal law context, the general Rules of Evidence provide that an accused’s prior history not be used as a determining factor. This is primarily because the danger of unfair prejudice increases because knowing of the prior criminal conduct of the accused, the jury might be diverted from a proper consideration of the evidence and simply assume the accused's guilt. Therefore, while a person’s tenancy history may provide some insight, directing the Tribunal that it must have regard to the person’s tenancy history unfairly disadvantages tenants and may cause prejudice. The TUQ opposes this.45

In regard to proposed provision 349A, the Tenants’ Union submitted:

Past cases demonstrate that in deciding applications for termination, the Tribunal has made reference to the circumstances of the tenant and whether or not the tenant is a community housing tenant. This factor has been used by the Tribunal, primarily because it is relevant to whether or not, if evicted, the tenant will become homeless or is at risk of homelessness, and is balanced against other issues. Directing the Tribunal to specifically not consider this factor reflects a fundamental misunderstanding in relation to social housing and associated issues such as the high needs targeting of the social housing product and current rise in homelessness. The responsibility for the delivery of homelessness services by the State has recently been shifted to the same portfolio as social housing. Evictions form social housing considered under s349 are highly likely to result in homelessness at a cost to both government and individuals.46

In response to the concerns raised by the Tenants’ Union the Department advised:

The tenancy history is relevant although it is not the only factor to be considered. TUQ refers to use of criminal records in its submission but the Tribunal is not making a decision regarding a criminal matter. In New South Wales, Section 152 of the Residential Tenancies Act 2010 states that the Tribunal may have regard to the history of the tenancy concerned, including prior tenancy of the tenant arising under a social housing tenancy agreement... (regarding section 349A) The department has experienced difficulty in obtaining termination orders in some cases where the Tribunal was reluctant to terminate as the tenant was in public housing. The department considers that public and community housing tenants should be accountable for their actions if anti-social behaviour and/or illegal activity or other breaches occur. The section does not prevent the Tribunal taking into account other factors relevant to a decision whether or not to terminate a tenancy.47

The Anti-Discrimination Commission submitted:

Unfortunately, on some occasions persons who have mental health or intellectual disabilities may manifest behaviours that can or may be perceived to be harassing, intimidating or a cause of nuisance. As outlined in the Department's factsheet above, the best practice approach is for the Department to take a range of actions to assist the tenant to change their behaviour and maintain their tenancy, including referral to a support worker or agency. Termination of a tenancy ought to be the very last resort in circumstances involving highly vulnerable tenants such as those with mental health or intellectual disabilities.

45 Submission No.9:6 46 Submission No.9:6 47 Response to late submissions dated 30 Sep 2013:7



While section 345A(4) states that subsections (2) and (3) do not limit the issues to which the tribunal may have regard, there is no mention at all in the section or elsewhere in the Act requiring the tribunal to also consider the circumstances of the tenant to determine whether the tenancy agreement should be terminated. Nor is there any requirement for the tribunal to look at the impact of the termination of the tenancy on other vulnerable members of the tenant’s household.

… The Commission considers the circumstances of the tenant and any vulnerable members of the household are relevant matters for the tribunal to take into account when considering the termination of public or community housing tenancies. The Commission is concerned those relevant circumstances may not be taken into consideration by the tribunal unless explicitly required. The Commission suggests the Act should explicitly state that the tribunal ought to be able to look at all relevant circumstances to determine whether it is reasonable to make a termination order, including the circumstances of the tenant and any vulnerable members of the tenant's household, and that the proposed new section 349A be amended accordingly. 48

In response to the ADCQ’s concerns and suggestions, the Department noted:

Section 345A as drafted states that QCAT may make the order if the behaviour ‘justifies’ terminating the agreement. The word ‘justify’ is defined as ’to show to be just, right or warranted’ (Macquarie Concise dictionary 4th ed.). Further, section 345A(4) also says that the issues to which QCAT may have regard when determining if termination is justified are not limited. This is a broad definition which allows the circumstances of the tenant to be taken into account… In practice officers of the department have observed that QCAT does consider the circumstances of the tenant. There have been numerous cases where QCAT has not made termination orders where vulnerable or disadvantaged social housing tenants are involved. The issue is that QCAT has in numerous cases given undue weight to the tenant’s position and refused to terminate tenancies even when serious anti-social behaviour is occurring... The ASB policy and strikes process allows for warnings to be issued instead of strikes for some low level/minor anti-social behaviours. There is also capacity for Housing Service Centre staff to use their discretion when issuing strikes and warnings in cases where the anti-social behaviour can be attributed to a person’s mental health illness or disability. In such circumstances, the policy provides for an alternative response including consideration of a transfer to another public housing dwelling and/or more closely monitoring of the tenancy. Consequently, the department considers that the policy and practice provides adequate safeguards for those people who engage in frequent or severe types of anti-social behaviour in public housing who have mitigating circumstances, such as a mental illness or disability49.

Committee comment

The Committee is supportive of the requirement for QCAT to consider specific matters in determining whether or not objectionable behaviour warrants termination of the tenancy agreement given the difficulties the Department has experienced in obtaining termination orders from QCAT for objectionable behaviour.

The Committee recognises that subsections 345A(3)(a), (b) and (c)(i) are similar to those found in the NSW Residential Tenancies Act 2010 and supports the requirement that QCAT consider these three factors in determining whether objectionable behaviour warrants the termination of a tenancy agreement. 48 Submission No.6:4 49 Written brief dated 30 Sep 2013:20-21


20

The Committee is of the view that these three requirements will deliver the Government’s stated objectives and that, in this context, the last requirement (subsection 345A(3)(c)(ii) the tribunal must have regard to the needs of persons awaiting housing assistance from the State) becomes unnecessary.

In addition, the Committee notes that this final requirement is not included in the NSW legislation and that it could prove difficult for QCAT to weigh up the needs of an existing tenant against those of a person on the waiting list. Therefore, the Committee recommends the removal of subsection 345A(3)(c)(ii) from the Bill.

Recommendation 4

The Committee recommends the removal of subsection 345A(3)(c)(ii) from the Bill (the requirement that QCAT consider the needs of persons awaiting housing assistance from the State when determining if behaviour warrants the termination of a tenancy agreement).

Committee comment

The Committee considers that it is important to facilitate a balanced deliberation by QCAT in all termination cases brought before the Tribunal. While it is important to improve the outcomes of applications for tenancy terminations for objectionable and anti-social behaviour, it is also important to ensure vulnerable tenants and households are safeguarded from unintended consequences.

The Committee notes that, currently, there are no barriers in the Act or the Bill which would limit QCAT’s consideration of a tenant’s circumstances however, the Committee believes that it would be prudent to explicitly state considerations QCAT must have regard to when considering cases involving vulnerable tenants/occupants.

Therefore, the Committee recommends that the factors which QCAT must consider in determining a termination order be expanded to ensure QCAT also considers all relevant circumstances and the impact of a termination order on a tenant and any vulnerable members of the tenant’s household.

Recommendation 5

The Committee recommends the amendment of proposed new section 345A(3) to provide that QCAT must consider all relevant circumstances of the tenant and any vulnerable members of the tenant’s household in determining whether to make a termination order.



2.1.5 Definition of antisocial behaviour and acceptable behaviour agreements50

Section 527A provides the definitions for the new Chapter 13A, including the definition for antisocial behaviour. Antisocial behaviour is defined as follows “includes making excessive noise, littering, dumping cars, vandalism and defacing property.”51

Committee comment

The Committee notes that the definition of ‘antisocial behaviour’ in section 527A provides the basis for acceptable behaviour agreements entered into by tenants and that it is also used by the lessor in determining if a tenant should be required to enter into such an agreement. The Committee is concerned about the apparent disparity between the seriousness of the offences described in this definition (that is littering seems innocuous in comparison to other offences included in this definition).

The Committee notes that ‘littering’ is defined in the Queensland Waste Reduction and Recycling Act 2011 as follows:

- A person litters at a place if the person deposits at the place an amount of waste that is less than 200L in volume.

- However, a person who deposits at a place an amount of waste of less than 200L in volume does not litter at the place if the person is an occupier of the place…52

The Committee is not satisfied that this definition would adequately deal with the behaviours seeking to be addressed by this provision (that is excessive littering at the premises occupied by the social housing tenant/s and also littering of a neighbouring property). The definition under the WRRA 2011 would allow a tenant to accumulate up to 200L volume of rubbish on their own premises before it would be deemed ‘littering’ but would be deemed to have ‘littered’ for dumping even a small volume of rubbish on a neighbouring property.

Therefore, the Committee considers that a different and more precise reference to excessive dumping of rubbish should be included in the definition of ‘antisocial behaviour’ in section 527A to ensure the targeted behaviours are captured.

Recommendation 6

The Committee recommends the removal of the word ‘littering’ in the definition of ‘antisocial behaviour’ in section 527A and the addition of the phrase ‘or excessive rubbish on or around the premises or on neighbouring premises’ so that the definition reads:

“includes making excessive noise, dumping cars or excessive rubbish on or around the premises or on neighbouring premises, vandalism and defacing property.”

Proposed new section 527D provides that:

the lessor may, by written notice given to the tenant, require the tenant to give a written undertaking (an acceptable behaviour agreement), in the terms stated in the notice, not to engage in stated antisocial behaviour on the premises or any property adjacent or in common use

50 Sections (s.527A - 527F) constitute new Chapter 13A - Matters relating to particular leases by the State and community housing providers and therefore apply only to public and community housing tenants. 51 Clause 20, RTRAOLA Bill 2013:17 52 Section 103 – General littering provision, Waste Reduction and Recycling Act 2011: 46


22

the notice given to the tenant must inform the tenant of the lessor’s right to apply to the tribunal under section 527E – Application for termination relating to acceptable behaviour agreement

the provision extends to the behaviour of an occupant, a guest of the tenant or a person allowed on the premises by the tenant (each a person allowed on the premises) (which means) the tenant is taken to have breached the agreement where the tenant or a person allowed on the premises has engaged in antisocial behaviour

the lessor may require a tenant to enter into an acceptable behaviour agreement only if the lessor is of the opinion that the tenant or a person allowed on the premises has or is likely to engage in antisocial behaviour and

the lessor’s opinion must be based on the history of the tenancy concerned or the history of any prior tenancy entered into by the tenant and the lessor (which means existing and former tenants can be required to enter into an acceptable behaviour agreement).53

Proposed new section 527E provides that the lessor may apply to the tribunal for a termination order if the tenant:

(a) fails or refuses to enter into an acceptable behaviour agreement or

(b) seriously or persistently breaches the terms of the agreement.

Both of these breaches are also to be added to section 415 – Meaning of urgent application of this Bill as conditions which trigger the treatment of an application as an ‘urgent application’.54


The provision (527D) is similar to s138 of the Residential Tenancies Act 2010 (NSW) and is intended to deal with antisocial behaviour occurring in tenancies.55


This is a further uneven application of legislation which seeks to unfairly target the most marginalised. No private tenants are required to enter into such an agreement and it would be both unreasonable and unethical to require other tenants to do so. There is already an urgent application for seeking termination due to breach or objectionable behaviour. As earlier stated there are sufficient laws already referenced where there are consequences for tenants for their behaviour. Bringing in an arbitrary agreement which has the danger of being unevenly applied is unjust and should not stand. These agreements will be targeted at the most vulnerable of tenants such as those with mental health issues, disabilities, the elderly, migrant families and Indigenous people. It is the responsibility of government to ensure that its citizens are not being discriminated against. By bringing in these highly discriminatory policies any anti-discrimination work of the state will be counter productive.56

The ADCQ raised the following concerns:

Termination of a tenancy ought to be the very last resort, and again the legislation should explicitly state that the tribunal ought to be able to look at all the relevant circumstances, including the circumstances of the tenant and vulnerable members

53 Clause 527D, RTRAOLA Bill 2013:19-21 54 If a dispute is classed as urgent, a lessor can apply directly to QCAT to resolve the dispute without having to complete Step 1 (attempt to resolve the dispute directly with the other party) or Step 2 (participate in the RTA’s Dispute Resolution Service to achieve conciliation), source: http://www.qcat.qld.gov.au/matter-types/residential-tenancy-disputes 55 Explanatory Notes:16 56 Submission No.2:8

http://www.qcat.qld.gov.au/matter-types/residential-tenancy-disputes



of the tenant's household to determine whether it is reasonable to make a termination order.57


The Department’s new ASB policy provides for the use of ABAs (acceptable behaviour agreements)as an early intervention tool when a tenant has engaged in anti-social behaviour in their current or previous tenancy with the department… the Department considers that these measures for social housing tenants are justified having regard to the anti-social behaviour occurring in social housing properties. Law abiding tenants who do not engage in anti-social behaviour have nothing to fear from these measures. Further, the Department recognises that some tenants are vulnerable and may have disabilities or mental health issues. These factors are generally taken into account in decision making processes by the department.

An ABA is an agreement between the Department (as the lessor), the tenant and any applicable support agency which aims to assist the tenant to acknowledge poor behaviour and commit to changing/ceasing the behaviour. It also aims to assist the tenant to understand the consequences of continuing to behave poorly, such as termination of their social housing tenancy. ABAs are provided for social housing in New South Wales under section 138 of the Residential Tenancies Act 2010 (NSW), which is similar to clause 20 of the Bill.

The ABA document will also outline specifically the standards of behaviour required while residing in social housing and how the department and any applicable support agency will work to assist the tenant to comply with their tenancy agreement and the ABA.

Under the ASB policy, any ex-tenant who is rehoused in public housing (following the three month exclusion period and waiting for assistance like other approved applicants) must sign an ABA before being granted a new tenancy with the department.58

Committee comment

The Committee notes the concerns raised by TAASIN regarding the potential impact of the new provisions on tenants and occupants who may have a disability, mental illness or are otherwise vulnerable. The Committee is eager to ensure that households with more vulnerable occupants are provided with appropriate support before an acceptable behaviour agreement is triggered. The Committee further discusses this issue in section 2.19 of this Report where the Committee recommends that the Department put strategies in place to resolve any issues at an early stage by developing and maintaining referral pathways to health, employment, education, financial counselling and tenancy sustainment services.

Overall, however, the Committee is supportive of the introduction of acceptable behaviour agreements and of the proposed stipulations around their implementation as a mechanism to address antisocial behaviour in tenancies. In particular, the requirement for lessors to consider a tenant’s current or former history as a social housing tenant to determine if an acceptable behaviour agreement is necessary seems appropriate to the Committee.

In addition, the Committee supports the provision of the right for lessor’s to apply to QCAT for a termination order (and for that application to be treated as an ‘urgent application’) where a tenant either fails to enter into an acceptable behaviour agreement or seriously or persistently breaches such an agreement.

57 Submission No.6:5 58 Written brief dated 30 September 2013:16


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2.1.6 Changes to existing tenancy agreements and the charging of bonds and service charges

Under the Housing 2020 Strategy, the Government aims to transfer 90% of the management of all social housing dwellings to the non-government sector by 2020.59 New section 527C (Replacement of standard and special terms for certain tenancies) applies where a public housing tenant is transitioned over to a CHP (by virtue of the State entering into a concurrent lease with them).

Proposed new section 527F (State may charge bonds and service charges under existing State tenancy agreements) applies only to those tenancies where the State remains the lessor.

For transitioning tenants:

Under section527C, from the time the CHP becomes the lessor, a regulation will provide replacement standard and special terms (currently in the existing State tenancy agreements) and may also change any other part of the existing tenancy agreement. The regulation will also provide that the lessor may require tenants to:

pay a rental bond and state the way the bond is to be paid and pay service charges, state the apportionment of the cost for the service charges payable

(where the premises are not individually metered) and state the way in which the service charges are to be paid.

The State tenancy agreement, as changed by the regulation, will continue in force. When the CHP becomes the lessor, they must provide the tenant with a copy of the replacement terms and advise the tenant:

that they are the new lessor how rent should be paid to them and the new amount of rent payable (if the amount of rent has changed).

In regard to this clause, the Explanatory Notes state that: A number of issues have been identified in relation to the transfer of existing tenancies from the Department to a CHP. These issues include that a CHP will not be able to access Commonwealth Rent Assistance (CRA), a CHP will not be able to seek a rental bond, or levy service charges such as for excess water usage and a CHP will not be able to compel tenants to provide household information…

The Bill amends the RTRAA to facilitate a smooth transfer of tenancies to a CHP by replacing the standard and special terms of existing STAs with a new set of standard and special terms when a CHP becomes the lessor under the tenancy agreement. These legislative amendments will enable a CHP to access CRA in the rent charged to a tenant, levy a bond or other service charges and require household information to be provided by the tenant. 60

For remaining public housing tenants:

Section 527F applies only to those tenancies where the State remains the lessor and provides that the tenancy agreement may be changed by the chief executive so that the State may require the tenant to:

pay a rental bond and state the way the bond is to be paid and pay stated service charges, decide the apportionment of the cost for the service charges

payable (where the premises are not individually metered) and state the way in which the service charges are to be paid.

59 Housing 2020, DHPW, July 2013:13 60 Explanatory Notes:2-3



The chief executive must give written notice to the tenant of such changes and the change takes effect on the date stated in the written notice of the change given to the tenant.

In regard to this clause, the Explanatory Notes state that: The provisions of the Bill relating to bonds and service charges will also be used by the Department for existing public housing tenants. This is consistent with existing tenants in community housing who usually pay a bond and service charges. Legislative amendments are not necessary to require new tenants to pay a bond or service charges.61

Under the current Residential Tenancies and Rooming Accommodation Act 2008, lessors (including the State and CHPs) are able to charge all new tenants bonds and service charges, including water (where the premises is individually metered) by including the requirement for these payments in the tenancy agreement. Since July 2012, the Government has required all new and transferring public housing tenants to sign fixed term agreements.62 The Department provided the Committee with copies of the current State tenancy agreements which indicate that some public housing tenants (whether on a periodic or fixed term agreement) may already be paying service charges (including electricity, gas, phone and water, where the premises is individually metered) but not rental bonds.

However, the Department advised the Committee that, while “there is no formal policy document which states that public housing tenants are not charged service charges or bonds…it has …always been the practice of the Department to not do so until the current proposed changes.”63 The Department further advised that “there are a significant number of State Tenancy Agreements in place which do not allow the State to recover these charges”. 64

The objectives of the provisions in this Bill, therefore, are to enable the State and a CHP to change existing State tenancy agreements to enable them to charge existing public housing tenants (including when they transition to a CHP) bonds and service charges where they are currently not payable.

Ms Helen Underwood submitted that:

As the Bill proposes to have standard terms for leases for community housing providers and the state made by way of regulation, it can be expected that this term will no doubt be inserted by way of these regulations not being open and transparent.65

The Tenants’ Union submitted that:

The insertion of section 527C allows agreements held by tenants in public housing to be transferred to community housing providers. That is, a replacement lessor is inserted into the original State tenancy agreement. The TUQ is not opposed to the ability to transfer these tenancy agreements between the public and community provider without the need to rewrite or re-sign them. Indeed that proposal was supported in our submission earlier in the year to the Residential Tenancies Authority. Our proviso was that the terms remained the same. One of the main concerns of social housing tenants’ regarding stock transfers has been the potential for their new provider to change tenancy terns. For example, many who have a pet have been concerned the new provider may not allow one. This proposed provision allows this potential because the fundamental nature of the terms of the agreement may be varied and replaced… The insertion of this provision substantially

61 Explanatory Notes:2-3 62 http://statements.qld.gov.au/Statement/2012/7/18/fixed-term-leases-for-public-housing-tenants 63 Correspondence from Director-General, DHPW dated 4 Oct 2013:1 64 Response to late submissions dated 30 Sep 2013:9 65 Public hearing transcript, 1 Oct 2013:17

http://statements.qld.gov.au/Statement/2012/7/18/fixed-term-leases-for-public-housing-tenants


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increases lessors’ rights to change the tenancy agreement terms. This seems unfair when the purpose of the change is for the ease of the transfer. The TUQ believes it is unreasonable to change the terms of these contracts because they are being transferred and opposes it.66

… provision (527F) allows the State to alter the conditions of residential tenancy agreements in a number of ways. While s 527C would allow terms of the agreement to be changed if the lessor was transferred, s 527F essentially allows the State to change the terms of the agreement, at its own discretion. For example, service charges can be increased and a bond may be required when no such charges or bond was required previously. The application of this provision would essentially mean that a tenant may enter into an agreement at a particular date, and the State could in the future retrospectively alter the conditions of that agreement. This provision offends the basic principles of natural justice and equips the State with considerable power to effectively ‘move the goal posts’ on social housing tenants, who have no choice but to abide by the new terms or face homelessness. The TUQ opposes, in particular, the proposal’s retrospective nature. 67

The Department advised that:

The RTRAA Bill does not provide an overarching ability for the State to change the terms of an existing state tenancy agreement. The Bill provides that the state tenancy agreement can be changed with respect to the payment of bonds and the levying of service charges. Existing tenants will not have to pay a bond for at least two years. The amendments to the RTRAA Bill will ensure consistency across the social housing sector…

The Department’s position on the requirement for bonds is that as public housing tenants already receive a subsidised rent and bonds will be calculated on that amount, then it will be a smaller bond than would be required to be paid by tenants in the private rental market… Existing and transferring public housing tenants will not have to pay a bond for at least two years.68

TAASIN raised the following concerns:

Traditionally no bonds have been required for public housing tenants. This is in recognition of the fact that the state houses those most in need and the requirement of a bond would be an unnecessary barrier to preventing homelessness. To suddenly bring in bonds would not only bring in that extra and unnecessary barrier for new tenants it would impose financial hardship on existing tenants.69


… the Department’s position is that as social housing tenants already receive a subsidised rent and bonds will be calculated on that subsidised rent amount, that it will be a smaller bond amount than would be required to be paid by tenants in the private rental market. In addition, the department is considering methods to assist the tenant to save for a bond, pay a bond over a period of time or seek financial assistance for the bond. These options are still being developed. Having a bond in place at the end of a social housing tenancy may also assist the tenant/s to transition to the private rental market when they are no longer eligible for social housing assistance. Existing and transferring public housing tenants will not have to pay a bond for at least two years.70

66 Submission No. 9:7 67 Submission No.9:9 68 Response to late submissions dated 30 Sep 2013:8-9 69 Submission No.2:9-10 70 Written brief dated 30 Sep 2013:17



TAASIN also expressed concerns that:

… there are no currently (sic) exemptions from service changes for public or community housing tenants. This means that these tenants are treated exactly the same way as private tenants. The rules for service charges are quite specific and are based on fairness. For example, for water, if premises are not individually metered then a tenant cannot be charged water. If the premises are both individually metered and the lessor has installed water saving devices then the tenant must pay for all water used. There is no reason for there to be different rules for other tenures.71

The Department responded that:

Due to departmental policy, public housing tenants have not previously been charged service charges, including for water usage. As a result, there are a significant number of State Tenancy Agreements in place which do not allow the State to recover these charges. The Department will not be seeking to recover water costs from tenants where premises are not individually metered. It is not intended that the proposed Section 527F of the RTRAA Bill will override the existing Section 166 - Water service charges for premises other than moveable dwelling premises, in terms of when a tenant can be charged for water. The intent and purpose of Section 527F is to allow the charges to be introduced under an existing agreement.

The Department has decided that where water charges are recoverable under the provisions of the RTRAA Bill, it will pass on the costs of water used by public housing tenants to those tenants. This occurs in the private rental market. The Department is currently considering several proposals regarding how and when water charges will be passed onto public housing tenants. Each option has its own implementation challenges (particularly in unit complexes) and depending on the chosen option, some new tenants may be required to commence paying for water charges in July 2014 and existing tenants may not be required to pay for water until mid-2016. It is anticipated the introduction of water charging will result in improved water saving measures by tenants. 72

And

The intent and purpose of section 527F is to allow the charges to be levied under an existing state tenancy agreement. The Department is proposing to pass on the costs of water used by public housing tenants to them where this is permitted by the RTRAA. This is consistent with the “user pays” system in the private rental market. 73


The Bill amends the RTRAA to facilitate a smooth transfer of tenancies to a CHP by replacing the standard and special terms of existing STAs with a new set of standard and special terms when a CHP becomes the lessor under the tenancy agreement.74

The Department further stated that “the amendments to the RTRAA Bill will ensure consistency across the social housing sector”75 and that “the levying of water charges and collection of bonds will bring consistency across the rental housing sector.”76 While a number of the amendments to existing

71 Submission No.2:10 72 Response to late submissions dated 30 Sep 2013:9 73 Written brief dated 30 September 2013:17 74 Explanatory Notes:3 75 Response to late submissions dated 30 Sep 2013:8 76 Response to late submissions dated 30 Sep 2013:10


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STAs proposed in this Bill are necessary to effect the transition of public housing tenants over to CHPs, the capacity to collect bonds and service charges is not related to this transfer.77 While it is necessary to change the name of the lessor (in order that CHPs may access CRA) and to make provision for CHPs to require household information to be provided to them, the levying of bonds and service charges is not necessary to transition 90% public housing over to non-government management.

Committee comment

Housing 2020 states as one of its outcomes the transfer of 90% of social housing management to non-government organisations by 2020.78 The Committee is supportive of the transfer of tenancy management services for public housing tenancies to CHPs however, has some concerns about the implementation of these provisions.

The Committee is concerned that proposed section 527C would enable a regulation to retrospectively change the standard and special terms of existing State tenancy agreements. The regulation would not be subject to the scrutiny of this Committee until after it is introduced, nor Parliament, nor the parties to the agreements changed by the regulation. The Committee also understands that, under this Bill, the regulation would be able to change any part of the existing agreement including the levying of bonds and service charges, the duration of the agreement, the rent payable etc.

Section 527F would enable the CEO of the Department of Housing and Public Works to retrospectively change existing State tenancy agreements so that the State may levy bonds and service charges.

The Committee believes it is reasonable and appropriate to charge new and transferring tenants bonds and service charges because tenants would be aware of these terms before signing the agreement. However, the Committee does not believe it is reasonable to change the terms of an existing agreement retrospectively.

Further, while the Committee understands the administrative logic and simplicity of consistency between community housing agreements and those for transitioning public housing tenants, the Committee does not believe that consistency concerning bonds and service charges is critical to the transition of public housing management to non-government organisations.

Given this context, the Committee is recommending that terms and conditions for existing public housing tenants with existing State tenancy agreements be preserved until either the natural end of the tenancy agreement (whether through expiration or transfer or renewal) or the agreement is breached (through any of the means provided for in the Act and this Bill), whichever occurs first. Further, the Committee considers that the risk of losing existing terms and conditions offered under existing State tenancy agreements would act as a powerful incentive to current public housing tenants to comply with the conditions of their tenancies.

However, the Committee understands that certain legislative amendments must be affected in order to enable a CHP to access Commonwealth Rent Assistance and to ensure that CHPs can require household information to be provided by the tenant. The Committee supports the proposed amendments which ensure that CHPs are able to operate administratively as the lessors of these agreements.

77 DHPW correspondence dated 4 Oct 2013: 1 78 Housing 2020, DHPW, July 2013:13



Therefore, the Committee is recommending section 527C be redrafted to provide that changes to existing State tenancy agreements (which transition to a CHP) may only be made under the Act (and not by regulation) and that the only changes that may be made to the existing State tenancy agreements are:

- where they are administratively necessary to affect the transition (for example the name of the lessor, the requirement for the provision of household information) and

- upon the natural end of the tenancy agreement (whether through expiration or transfer or renewal) or the agreement is breached, whichever occurs first.

Similarly, the Committee has recommended that section 527F be redrafted to provide that changes to existing State tenancy agreements (which remain with the State as lessor) may only be made upon the natural end of the tenancy agreement (whether through expiration or transfer or renewal) or when the agreement is breached, whichever occurs first.

Recommendation 7

The Committee recommends that section 527C be redrafted to provide that changes to existing State tenancy agreements (which transition to a Community Housing Provider) may only be made under the Act (and not by regulation) and that the only changes that may be made to the existing State tenancy agreements are:

• where they are administratively necessary to affect the transition (for example, the name of the lessor and the requirement for the provision of household information) and

• upon the natural end of the tenancy agreement (whether through expiration or transfer or renewal) or the agreement is breached, whichever occurs first.

Recommendation 8

The Committee recommends that section 527F be redrafted to provide that changes to existing State tenancy agreements (which remain with the State as lessor) may only be made upon the natural end of the tenancy agreement (whether through expiration or transfer or renewal) or when the agreement is breached, whichever occurs first.


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2.1.7 Consideration of vulnerable tenants, consistency of application of authority and support for tenants to understand rights and responsibilities

The Department’s Housing 2020 strategy provides a description of the demographic profile of Queensland’s current social housing sector:

Since 2006, the allocation of social housing has been prioritised to households with the highest housing needs, including those experiencing, or at risk of, homelessness… Generally speaking, these very high and high need households have lower incomes, require more intensive management and support to maintain their tenancies, remain in social housing for longer periods and are less likely to transition into the private market.79

The Department has advised that:

..department policies and procedures give guidance to housing officers to provide housing assistance that meets the needs of these (vulnerable) people. The consideration of the complexity of need in our client base is embedded in department operations, policy and practice.80

The Department‘s Public Housing Procedures Manual (not available online but accessible at the Department’s housing centres) makes numerous references to special considerations given to vulnerable tenants, including those with mental health issues, and to working collaboratively with other departments and agencies to support tenants. For example:

Investigating breaches - Anti-social Behaviour Management policy

Principles of anti-social behaviour policy -

There are a number of key principles which guide tenancy management functions while adhering to the requirements under the Residential Tenancies and Rooming Accommodation Act 2008 including (but not limited to):

- Protecting vulnerable people, particularly children – the department will consider the impact on tenants and household members, particularly children when managing tenancies. The Department acknowledges that some social housing tenants, like others in the community, can be dealing with life challenges including disability and/or health concerns, mental illness, unemployment, low income and parenting/family dysfunction. The presence of children who may be at risk in any public housing household will be considered in any tenancy management decision. Appropriate matters are referred to the Department of Communities, Child Safety and Disability Services. - Collaboration – the Department will work collaboratively with other Government and non-government agencies, support providers and families of tenants in undertaking tenancy management functions where possible. Tenancy management functions are also undertaken with an awareness and respect for cultural differences including considerations of family obligations and customs of social housing tenants who are Aboriginal and/or Torres Strait Islander.81

79 Housing 2020, DHPW, July 2013:3 80 Correspondence from A/Deputy Director-General, DHPW dated 10 Oct 2013:1 81 Public Housing Procedures Manual as attached to correspondence from Director-General, DHPW dated 15 Oct 2013



Follow-up Contact process

When determining if follow up contact should occur for a new tenant, all issues will be considered including whether the tenant has a range of factors that may contribute to incidents of anti-social behaviour occurring in the future, including but not limited to:

- previous poor public housing tenancy history - lack of a prior rental history - contact with the criminal justice system - family conflict or crisis - parenting/family dysfunction - previous poor private rental tenancy history (e.g. TICA listed), - concern that children may be at risk (not currently in contact with Child Safety) - tenants are in contact with the Department of Communities, Child Safety and Disability

Services - prior to being housed the tenant was homeless - household member has an intellectual disability/Acquired Brain Injury - household member has a mental illness.82

However, TAASIN expressed the following concerns about the proposed amendments to the RTRAA 2008:

Under the One Social Housing system the majority of tenants in public or community housing are those who have proven that they have great challenges to deal with. These challenges include mental health issues, physical disabilities, single parents with disabled children, Indigenous families, migrant families and those who have been recently homeless. These are the most marginalised people in the state … 83 and

The intent of the legislation appears to be about ‘punishing’ those tenants who are the most at risk of homelessness and the least able to self advocate. The majority of the changes are ostensibly about expediting evictions. This will impact the most heavily on those vulnerable target groups such as those with mental health issues, physical disabilities, Indigenous people, single parents with disabled children, the elderly, migrants and those who are culturally and linguistically diverse.84

The Queensland Mental Health Commission also submitted that:

While recognising the policy direction of Government, the QMHC brings to your attention the potential for an unintended impact for people with mental illness and substance misuse living in the community and would be keen to ensure monitoring of this issue. I am aware that at least one other jurisdiction has put administrative arrangements in place to mitigate adverse impacts on housing stability for people with mental illness. Monitoring the impact of this new legislation would inform whether or not such arrangements are necessary or desirable in Queensland.85

82 Public Housing Procedures Manual as attached to correspondence from Director-General, DHPW dated 15 Oct 2013 83 Submission No.2:4 84 Submission No.2:11 85 Submission No.5:1


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The Anti-Discrimination Commission also pointed out that:

The factsheet detailing the (antisocial behaviour) policy explains that sometimes some public housing tenants are not evicted for their antisocial behaviour. The factsheet states as follows:

All reported incidents are investigated, however the Department can only take action where incidents of anti-social behaviour have been substantiated and where the behaviour is a breach of their State Tenancy Agreement. In some cases, the department is not able to substantiate a complaint. The department must also take into account other issues such as mental health concerns for the tenant. In these cases, the department may take a range of other actions to assist the tenant to change their behaviour and maintain their tenancy including referral to a support worker or agency, closely monitoring the tenancy or listing the household for a transfer to an alternative, more suitable public housing property86.

The Commission agrees with this particular approach outlined in the factsheet, but has concerns that the new legislative provisions that deal with antisocial behaviour do not fully reflect this approach. The current provisions as drafted may in some instances have an adverse and unfair impact on persons who reside in public or community housing who:

• Have mental health or intellectual disabilities

• Are Aboriginal and Torres Strait Islander persons, or other person who comes from a culture where residing within extended families is the norm; or

• Are children, youth or other vulnerable residents of community housing;

And who may become homeless if they are evicted from their home as a consequence of the new provisions.87

Finally, the Anti-Discrimination Commission also submitted:

Unfortunately, on some occasions persons who have mental health or intellectual disabilities may manifest behaviours that can or may be perceived to be harassing, intimidating or a cause of nuisance. As outlined in the Department’s factsheet above, the best practice approach is for the Department to take a range of actions to assist the tenant to change their behaviour and maintain their tenancy, including referral to a support worker or agency. Termination of a tenancy ought to be the very last resort in circumstances involving highly vulnerable tenants such as those with mental health or intellectual disabilities. 88

In response to the Mental Health Commissioner’s and the ADCQ concerns, the Department advised that:

The ASB policy and strikes process allows for warnings to be issued instead of strikes for some low level/minor anti-social behaviours. There is also capacity for Housing Service Centre staff to use their discretion when issuing strikes and warnings in cases where the anti-social behaviour can be attributed to a person’s mental health illness or disability. In such circumstances, the policy provides for an alternative response including consideration of a transfer to another public housing dwelling and/or more closely monitoring of the tenancy. Consequently, the Department considers that the policy and practice provides adequate safeguards for those people who engage in frequent or severe types of anti-social

86 Source: http://www.hpw.qld.gov.au/SiteCollectionDocuments/AntisocialBehaviour.pdf 87 Submission No.6:3 88 Submission No.6:4

http://www.hpw.qld.gov.au/SiteCollectionDocuments/AntisocialBehaviour.pdf



behaviour in public housing who have mitigating circumstances, such as a mental illness or disability.

Further, the new ASB policy will utilise ABAs as an intervention tool to engage the tenant in acknowledging the poor behaviour and making a commitment to stopping the behaviour. Tenants will be encouraged to have a support person/agency involved in the drawing up and signing off of any applicable ABA.

Where the ASB policy and strikes process result in the issue of a notice to remedy breach or a notice to leave, the tenant will have a right to apply to the tribunal to challenge these notices, and will also have a right to be heard in any application to the tribunal for a termination order. The tribunal will have a role in determining whether termination of a tenancy is appropriate in these circumstances.89

The Department’s Anti-Social Behaviour Management Framework – Expectations, Support and Intervention further states that:

While the expectations are clear, the Department understands that some social housing tenants, like others in the community, face a number of challenges including mental health issues, disability, low income and poor rates of workforce participation. The department acts to support tenants to sustain their public housing tenancy and not fall into housing stress where appropriate including working collaboratively with other government and non-government agencies.90

The Responding to Anti-Social Behaviour in Public Housing Policy Statement provides that:

The department will consider the individual needs and circumstances of tenants and work collaboratively with other government and non-government agencies and other persons where possible to sustain public housing tenancies.91

In correspondence (dated 10 October 2013) the Department outlined future steps:

The Department is now developing additional policies and procedures to support the needs of vulnerable social housing tenants as part of the progressive implementation of the Anti-social Behaviour policy and the associated strengthening measures in the proposed legislative amendments (and that)

Once consideration of the Bill has finished, the Department will work closely with other agencies including Queensland Health, the Mental Health Commission and the Anti-Discrimination Commission with a view to making any necessary changes to existing social housing policies and procedures to provide the right balance and ensure the provisions of the legislation are met, while providing the right safeguards for our vulnerable tenants, including those with mental health issue or a disability.92

At the public hearing on 1 October 2013, the Mental Health Commissioner advised that:

In my submission I referred to some ideas. The one I had in mind was an MOU between the West Australian Mental Health Commission and the Department of Housing. It does not solve everything, but it has quite clear guidelines about contact within 48 hours after the first strike, essentially. So the mental health services go in if it has been identified by Housing that this person may have a mental illness or they suspect that they do. Then you

89 Written brief dated 30 Sep 2013:20-21 90 Anti-Social Behaviour Management Framework – Expectations, Support and Intervention, DPHW, March 2013:2 91 Responding to Anti-Social Behaviour in Public Housing Policy Statement, DPHW, March 2013:3 92 Correspondence from A/Deputy Director-General, DHPW dated 10 Oct 2013:1-2


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have someone to come in, work with that person—maybe their family, maybe their neighbours—so it is not just a housing problem, because it is not just a housing problem.

They have protocols for sharing information, which is really important. You do not want to give everybody’s personal details to everybody. It applies to all people who are flagged with a mental illness. It has been there for about 18 months. Anecdotally, it is saving some problems. It is settling people. They get back into treatment and they do not lose their homes, which is better for everybody.

… it is the early intervention at that first strike where often they can see reason or you can just discover that the person has not been taking their medication if it is a mental illness problem and you can rectify it early on. If you are in Housing, your core business is housing and the neighbours do not understand it. Neighbours can be very kind if they understand the circumstances. It is amazing.93

Committee comment

The Committee understands that social housing has been prioritised to households with the highest housing needs since 2006 and that this means that current social housing tenants generally have lower incomes, require more intensive management and support to maintain their tenancies, remain in social housing for longer periods and are less likely to transition into the private market.94

The Committee has been advised that the Department currently works collaboratively with and intends to continue to ‘work closely’95 with other government and non-government agencies but the Committee is not aware of the status and nature of the Department’s current relationships.

The Committee is of the view that the Western Australian approach to social housing for those with mental health issues (that is, formal, inter-departmental/agency protocols and MOUs which integrate responses to and information about those with mental health issues) has significant merit, not only for those with mental health issues but for all vulnerable tenants.

The Committee would like to see a similar, formalised system in place in Queensland and further, considers that this approach could be used as a model for the development of protocols and MOUs for other vulnerable tenants (for example, Aboriginal and Torres Strait Islander peoples, people with disabilities, and single parents).

The Committee is therefore recommending that the Minister review the Western Australian model of managing vulnerable tenants in the social housing system with a view to identifying elements which may be adopted into the current Queensland system.

Recommendation 9

The Committee recommends that the Minister review the Western Australian model of managing vulnerable tenants in the social housing system with a view to identifying elements which may be adopted into the current Queensland system.

93 Public hearing transcript, 1 Oct 2013:13 94 Housing 2020, DHPW, July 2013: 3. 95 Correspondence from A/Deputy Director-General, DHPW dated 10 Oct 2013:1-2



Committee comment The Committee supports the objectives of the RTRAA Bill 2013 and shares the concerns about the inadequacy of the current housing system to deal with the growing housing crisis. The Committee is of the view that this legislation will affect significant change, enabling the Government to take possession of its limited housing stock more readily and therefore, to leverage that stock more efficiently to address housing needs.

However, the Committee is concerned to ensure that the most vulnerable tenants and households currently residing in public and community housing and on waiting lists for social housing are not subjected to unintended consequences as a result of this legislation. The Committee is, therefore, of the view that this legislation should include appropriate safeguards for those most vulnerable tenants and households.

Specifically, the Committee is recommending that in addition to ensuring that QCAT consider the circumstances of tenants when determining a termination order, the legislation provide for lessors (whether they be CHPs or the State) to consider the circumstances of tenants when administering the Residential Tenancies and Rooming Accommodation Act 2008.

Recommendation 10

The Committee recommends that a new provision be drafted for inclusion in the Bill which:

• requires social housing lessors to consider the circumstances of tenants when administering the Residential Tenancies and Rooming Accommodation Act 2008, and

• provides a specific definition of ‘circumstances of tenants’ in the Bill. 2.1.8 Consistent application of authority


The Bill extends the new anti-social behaviour provisions to all community housing providers, so that existing community housing providers can respond to anti-social behaviour consistently.96

At the public hearing the Department advised:

I would say that there is the ability for discretion to be exercised. It can be exercised at intermediate levels within the department, even within the housing service centres so it does not necessarily need to be referred to executive management to make a decision. The housing officers and the people in the housing service centres have the ability to work that. They are far more knowledgeable in terms of those tenants than head office will ever be. So there is a high degree of discretion amongst those.97

96 Written brief dated 30 Sep 2013:4 97Public hearing transcript, 1 Oct 2013:5


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Committee comment

The Department has advised that there is significant discretion available to departmental employees in exercising their authority in respect to public housing tenancies. 98 This same discretion will be available to CHPs employees once public housing tenants transition over to CHPs in the coming years. The Department has also advised that CHPs are required to develop their own internal processes for reviewing decisions and resolving disputes.99 The Committee is concerned that, notwithstanding the presence of policies, guidelines, frameworks, and manuals, there is significant scope for that authority to be inconsistently applied:

- between the Department’s housing service centres and individual housing staff across the State and

- between the Department’s approach to implementing the legislation and policies, and that of the numerous CHPs soon to be managing public housing tenancies.

Therefore, the Committee is recommending that the Minister ensure that the processes and standards that should be followed by State and CHP employees in exercising any authority under this Act be fully documented and consistently implemented across the sector, regardless of the lessor.

Recommendation 11

The Committee recommends that the Minister ensure that the processes and standards that should be followed by State and Community Housing Provider employees in exercising any authority under this Act be fully documented and consistently implemented across the sector, regardless of the lessor.

2.1.9 Information about rights and responsibilities

At the public hearing held on 1 October 2013, the Chair of the Committee asked if and how tenants would be made fully aware of the new provisions contained in this Bill. The Department subsequently advised that:

There will be a comprehensive communication program put in place to advise them again, should theme amendments pass the House, of the consequences of serious criminal activity or sever antisocial behaviours.100

The Department has also advised, in answering a Question on Notice at the public hearing:

The full suite of documents provided to all incoming tenants includes just about every policy setting that the department has and plain English explanations of expectation and, in many cases, legal liability under a lease.101

The State Tenancy Agreement totals 12 pages. A Housing Service Centre staff member takes new tenants through each part of the document in a formal interview to outline their responsibilities under this tenancy agreement. In addition, 19 pages of documents (two documents – “Renting a housing or unit in Queensland” and “Entry Condition Report”) that are required to be provided by legislation are given to new tenants. The department also has 123 pages of information consisting of booklets and administrative forms, such as

98Public hearing transcript, 1 Oct 2013:5 99 Correspondence from Director-General, DHPW dated 15 Oct 2013:1 100 Public hearing transcript, 1 Oct 2013:5 101 Public hearing transcript, 1 Oct 2013:5



automatic rent reduction authorities, that are provided to and discussed with tenants on a case by case basis.102

Several members of the Committee also asked questions about the capacity of incoming tenants to read and understand the meaning of the information contained in the documents, especially where they are not English speakers or have literacy problems, and questioned how the department ascertains if tenants have fully understood their rights and responsibilities. A question was also asked about the consultation undertaken for this Bill.


… our housing centre staff are trained in dealing with people who may have a difficulty comprehending. I am not sure, but no doubt we have a number of tenants who potentially cannot read and write and we need to take account of that. We have people with non-English speaking backgrounds and we take account of that. We also have occupational therapists available to our staff to allow people to be assessed in circumstances where our front-line people believe that they need to be considered in a special way. So that is available as well.

In terms of the consultation, we have not gone out in any detailed way to our tenants as part of this process. There has been a lot of communication with tenants, as I said, over the three-strikes policy over the last several months. We have certainly spoken to a range of government agencies responsible for service delivery for people with mental illness et cetera et cetera to make sure that we can put arrangements in place to ensure that to the extent possible they are protected.103

Committee comment

The Committee considers that it is extremely important that social housing tenants fully understand their rights and responsibilities under the Act and under their tenancy agreement, whether that be with the State or a CHP. This understanding is made even more important by the new and potentially serious consequences enabled by this legislation and by the fact that a significant number of public housing tenants are likely to require considerable support to fully understand the terms of their agreements.

Given the seriousness of the consequences being introduced by this Bill, the Committee is recommending that a review of the support mechanisms available to social housing tenants be undertaken with a view to ensuring all tenants fully understand their rights and responsibilities under the Act and under their agreement.

Recommendation 12

The Committee recommends that a review be undertaken of the support mechanisms available to social housing tenants to ensure they fully understand their rights and responsibilities under the Act and under their tenancy agreement.

102 Question taken on notice No. 1 at public hearing, 1 Oct 2013 103 Public hearing transcript, 1 Oct 2013:4-5


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2.1.10 Appeal rights and rights to review

The RTRAA Act 2008 provides that:

426 Disputes about lessors’ notices (1) If a tenant disputes the ground stated in a notice to remedy breach or a notice to leave premises given to the tenant by the lessor under an agreement, the tenant may apply to a tribunal for an order about the notice. (2) If the tribunal is satisfied the lessor was not entitled to give the notice on the ground stated, it may make an order under this section. (3) If the tribunal decides the application before the agreement is terminated, it may make any order it considers appropriate. (4) If the tribunal decides the application after the agreement is terminated because of the lessor’s action, it may make an order requiring the lessor to pay to the tenant an amount it considers appropriate as compensation for any loss or expense incurred by the tenant for having to leave the premises. (5) This section does not apply to a notice to leave without ground. 427 Dispute about providers’ notices (1) This section applies if a provider gives to a resident— (a) a notice under section 368 requiring the resident to remedy a breach; or (b) a notice requiring the resident to leave the rental premises, other than a notice under section 372. (2) If the resident disputes the ground stated in the notice, the resident may apply to a tribunal for an order about the notice. (3) If the tribunal is satisfied the provider was not entitled to give the notice on the ground stated, it may make an order under this section. (4) If the tribunal decides the application before the agreement ends, it may make any order it considers appropriate. (5) If the tribunal decides the application after the agreement is ended because of the provider’s action, it may make an order requiring the provider to pay to the resident an amount it considers appropriate as compensation for any loss or expense incurred by the resident for having to leave the rental premises.104

The Explanatory Notes provide that:

It may be thought that the giving of a notice to leave for ending of housing assistance may end a tenancy without giving a tenant the opportunity to be heard about the antisocial behavioural issues, which could be considered contrary to natural justice principles. However it is also proposed that section 340 of the Act be amended to specifically list the notice to leave for ending of housing assistance, with the other listed notices in order to make that section applicable so that a tenant could have the matter heard by QCAT if they wish. The tenant may also seek a review under part 6 of the Housing Act 2003 where a decision is made about a person’s eligibility for public housing. In addition, the Department has well-established processes and practices to ensure that a tenant is afforded natural justice and has a right of reply before notices are issued.105

The Department further clarified that:

Public housing tenants have review rights under Part 6 of the Housing Act 2003. Under section 63(a) of the Housing Act 2003, the decisions of the chief executive (author’s

104 Sections 426 and 427, RTRAA Act 2008 105 Explanatory Notes:8



emphasis) about a person’s eligibility to be provided with public housing, the type of public housing and location of the public housing to be provided to the person are reviewable decisions.

Public housing tenants can appeal to the department’s Housing Appeal and Review Unit in relation to some decisions regarding housing services. The Housing Appeal and Review Unit is responsible for the administration and central coordination of all appeals within the department. Community housing providers that are funded by the department are required to have a process for reviewing decisions and resolving disputes regarding their tenancies.

Decisions to issue notices under the Residential Tenancies and Rooming Accommodation Act 2008 are appealable by tenants through QCAT.106

The Tenants’ Union expressed the following concerns:

The explanatory notes state that tenants facing an application for termination due to serious breach will be provided natural justice because the agreement cannot be terminated without a tribunal application under section 340. The notes also state that in terms of the policies of the provider, a tenant may ‘seek a review under part 6 of the Housing Act 2003’ where a decision is made (by the chief executive – author’s addition) about a person’s eligibility for public housing. This is only true for public housing tenants. Community housing tenants cannot make appeals under the Housing Act and will be without access to an independent review of the application of the Anti-Social Housing policy by their community housing provider. Of relevance, the Minister for Housing has announced his intent to transfer 90% of public housing stock to the community housing sector by 2020 meaning many community housing tenants could be disaffected by this.107

In its response to the Tenants’ Union’s concerns, the Department advised that:

If the tenant is served with a Notice to Leave under the proposed Section 290A (serious breach) they have the choice to leave or not leave the premises. If they choose not to leave, the matter would have to be determined by QCAT before the tenancy is terminated, and the tenant would have the right to be heard in QCAT which is bound by the rules of natural justice. The department generally has well-established processes and practice to ensure that a tenant is afforded natural justice and has a right of reply before notices are issued and if the Bill is passed, the department will, where appropriate, update its processes and practice to cover the new provisions in the Bill.108

… if the notice (to leave for serious breach) is issued and the tenant does not leave the premises, the tenancy will not be ended until the Tribunal makes an official order. Both public housing and community housing tenants would have the right to be heard at the Tribunal application and the Tribunal is bound by the rules of natural justice. At the hearing, the Tribunal has to be satisfied that the lessor has established the ground of the application and the Notice Leave (section 340 of the RTRAA Bill). Thus, the tenant would have an opportunity to be heard and make submissions and there would be an opportunity to test the evidence.109

At the public hearing on 1 October 2013, the Tenants’ Union further submitted that:

… under the serious breach provisions it is noted that the housing appeals process can be used if there is a disagreement about the policy that has allegedly been misused or not

106 Correspondence from A/Deputy Director-General, Housing Services, DPHW, 10 October 2013.1 107 Submission No. 9:3 108 Response to late submissions dated 30 Sep 2013:4 109 Response to late submissions dated 30 Sep 2013:5


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followed. That is true for public housing tenants, but a community housing tenant to the best of my knowledge… does not have an ability to go to the housing and appeals review unit for an enforceable outcome for an issue. So they can still go to QCAT, but QCAT will only determine the matters that are under tenancy laws. Let us say, for example, it might be an allegation of rent arrears but the rent arrears arises from whether the tenant performed a certain action and by not performing that action lost their subsidy and then were meant to pay market rent. So it is actually the application of the policies and whether the tenant met the policies that is in question, not whether sections of tenancy law were followed, which is the only thing that QCAT can assess. The actual issue about whether the policy of the provider was followed and whether the tenant was in breach or was not in breach is an issue that they can only go to the provider for. So if you are a public housing tenant, your first level of your review is to your provider, which is public housing, and the second level of review is to HARU, the housing and review unit. If you are a community housing tenant, your first level of review is to your provider and there is no second level of review. You can go to the Ombudsman, but it is not particularly successful. It is not particularly targeted to those things. So I think that is something with this whole 90 per cent of stock being transferred that really needs to be dealt with.110

At the public hearing the Department advised:

… the changes we are proposing will be supported by policies and procedures aimed at ensuring the rights of tenants to natural justice, procedural fairness and opportunities to correct their behaviour to ensure they can maintain their tenancy. Tenants in social housing have the right of appeal for any of the notices issued under the new policy either through the department’s appeals process or through the appeals process of the tribunal. There will also be appropriate communication with tenants about changes that affect them. 111

and …The fundamental difference I guess between the existing legislation and the proposed amendments is the ability to serve notice fairly quickly and gain possession of the property in a much shorter period than was the case before. There would still be rights of appeal through QCAT. We would still have to go through a process of obtaining possession. Obviously if something goes before QCAT there is a right of appeal and we would have to present our case based on the evidence that has been collected during the investigation. 112

Committee comment

The Committee notes that both public and community housing tenants will continue to have rights of appeal/review through QCAT and that those rights will be extended under this Bill to include a notice to leave for serious offence and a notice to leave for ending of housing assistance. The Committee further notes that public housing tenants (who remain with the State as lessor) will continue to have the right to have departmental decisions reviewed through the Housing Appeal and Review Unit. The Committee is also satisfied that those public housing tenants who transition to CHPs will have similar rights through internal CHP decision review and dispute resolution processes.

Give the scale of public housing tenants transitioning over to CHPs, the Committee considers that it is critical that CHPs processes for decision review and dispute resolution are transparent, fair and just.

110 Public hearing transcript, 1 Oct 2013:20 111 Public hearing transcript, 1 Oct 2013:3 112 Public hearing transcript, 1 Oct 2013:4



Point of Clarification 1

The Committee seeks the Minister’s advice on the Department’s process for approving CHPs decision review and dispute resolution policies and processes, and whether these are consistent and comparable to the Department’s policies and processes.


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2.2 Amendment of the Queensland Building and Construction Commission Act 1991

On 29 May 2013, the Minister for Housing and Public Works tabled the final Government Response to the report by this Committee on its Inquiry into the Operation and Performance of the Queensland Building Services Authority113. While the majority of the issues identified in the Queensland Government response will be considered by the Queensland Building and Construction Commission114 or an Implementation Committee, some issues have been identified as needing to be progressed for implementation as soon as possible.

The policy objective of amending the Queensland Building and Construction Commission Act 1991115 (QBCC Act) is to facilitate commercial development, by amending the licensing requirements and removing restrictions regarding retention moneys for Public Private Partnerships (PPP) and an amendment to facilitate earlier resolution of building disputes.

2.2.1 Replacement of section 42 of the QBCC Act – (Unlawful carrying out of building work)

Section 42 of the QBCC Act provides that a person must not carry out, or undertake to carry out building work unless that person holds a contractor’s licence of the appropriate class under the Act.

The Committee made the following recommendation (no.33) in its Report No. 14 Inquiry into the Operation and Performance of the Queensland Building Services Authority :

The Committee recommends that Section 42 of the QBSA Act, which provides that “a person must not carry out, or undertake to carry out, building work…unless that person holds a contractor’s licence of the appropriate class under this Act”, be revised to make it clear that there is no breach of the Act if the “building work” is carried out by an appropriately licensed builder”. 116

The Bill proposes to replace section 42 of the QBCC Act to facilitate commercial development and remove restrictions regarding retention of moneys for PPP to remove impediments to the use of special purpose vehicles (SPVs) for PPPs.

The Department of State Development, Infrastructure and Planning (DSDIP) has advised that section 42 of the QBCC Act has a potential adverse impact on delivery of the Commonwealth Games Village, which is facilitated within DSDIP by Economic Development Queensland (EDQ). EDQ has advised that the most prospective development partner entities for the project will not hold a builder’s licence, being development entities (not contractors) and/or SPVs. Projects Queensland, Queensland Treasury and Trade has raised similar concerns with respect to PPP projects.117

It is proposed that section 42 be amended to provide that a contractor’s licence is not required for a person who agrees with a principal under a building contract (any contract which includes building work) to cause commercial building work to be carried out by an appropriately license building contractor and the licensed building contractor carries out the commercial building work.

The Explanatory Notes state that the main benefit of the amendment is that it will remove a regulatory impediment for businesses seeking to tender for public infrastructure projects to be

113 See http://www.parliament.qld.gov.au/documents/tableOffice/TabledPapers/2013/5413T2705.pdf 114 On commencement of the Queensland Building Services Authority Amendment Act 2013 the QBSA will be known as the Queensland Building and Construction Commission. 115 On commencement of the QBSA Amendment Act the Act will be known as the Queensland Building and Construction Commission Act 1991. This report will refer to the QBCC Act, as the bill has been drafted on the basis that the QBCC Act has commenced. 116 See http://www.parliament.qld.gov.au/documents/committees/THLGC/2012/INQ-BSA/121130_BSA_ Report%20No.14.pdf:64 117 Explanatory Notes:4

http://www.parliament.qld.gov.au/documents/tableOffice/TabledPapers/2013/5413T2705.pdf

http://www.parliament.qld.gov.au/documents/committees/THLGC/2012/INQ-BSA/121130_BSA_%20Report%20No.14.pdf




carried out under a PPP or similar arrangement and that it will therefore reduce administrative burden, contractual costs and contractual complexity in PPP projects.118

The Housing Industry Association (HIA) “supports the amendments to Section 42 of the Act to clarify where contracting licences are not required with respect to non-residential building work.”119

Master Builders Queensland (Master Builders) does not have concerns with the proposal to amend the licensing requirements contained in section 42 of the QBCC Act to allow a special purpose vehicle to undertake to carry out building work as long as that work is carried out by an appropriately licensed building contractor.

Master Builders does not however support the proposal to amend section 42 to allow an unlicensed person to enter a contract, or submit a tender or offer, to carry out commercial building work (new items 8, item 9 and item 11 in Schedule 1A of the QBCC Act). This amendment would potentially allow an individual to direct/manage a licensed contractor on a major commercial project even though they have may have little or no experience in commercial construction. Master Builders considers that situation has the potential to generate avoidable disputes and thereby lead to unnecessary delays and cost overruns on commercial building project.120

The Department provided further advice:

By way of response, it is noted that the proposed amendment inserting items 8, 9 and 11 in proposed Schedule A, QBCC Act does not allow an unlicensed person to direct or manage a licensed builder in carrying out building work. The amendment allows an unlicensed person to enter a contract to carry out building work, provided the building work (including the direction or management of building work) is carried out by a licensed builder. Accordingly the amendments do not authorise and unlicensed person to provide management, supervisory or advisory services in regard to building work.121

The amendment (other than for PPPs and prescribed government projects) will not apply to contracts for domestic building work. The Department has advised that:

If the amendments were applied more broadly to include work in this sector [domestic building], consumers who engage a person who does not hold an appropriate contractor’s licence for the work would not be able to access home warranty insurance under the Queensland Home Warranty Scheme. This would place consumers who experience defective or incomplete building work at significant financial harm….

The reference to an unlicensed person in the amendments is a reference to a person who under section 42 does not have a licence of the appropriate class which authorises them to carry out the work.122

Committee comment

The Committee supports the proposed amendment to section 42 of the Queensland Building and Construction Commission Act 1991 to provide that a contractor’s licence is not required for a person who agrees with a principal under a building contract (any contract which includes building work) to cause commercial building work to be carried out by an appropriately license building contractor and the licensed building contractor carries out the commercial building work.

118 Explanatory Notes:4 119 Submission No.3:1 120 Submission No.7:1 121 Written brief dated 30 Sep 2013:18 122 Correspondence from Director-General, DHPW dated 4 Oct 2013:3


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2.2.2 Amendment of section 83 of the QBCC Act – (Proceeding in tribunal stops action by commission)

Section 83 of the QBCC Act has the effect that the QBSA/QBCC is unable to act in relation to a complaint about defective building work if one of the parties prior to or after receipt of the complaint commences a proceeding in the QCAT. Once a proceeding for a dispute has been lodged with the QCAT, the QBSA/QBCC cannot for example issue a direction for work to be rectified or pay an insurance claim under the Queensland Home Warranty Scheme.

The Committee heard evidence during its Inquiry into the Operation and Performance of the QBSA that some contractors were believed to be using the provision to prevent or delay the QBSA from assisting consumers in relation to a dispute. The Committee made the following recommendation (no.11) in its Report No. 14 Inquiry into the Operation and Performance of the Queensland Building Services Authority :

The Committee recommends that the Minister for Housing and Public Works examine options to enable early intervention and mediation in disputes over defects and incomplete work with a view to resolving as many as possible before they escalate further.123

The Bill proposes to amend section 83 of the QBCC Act, to enable the QBSA/QBCC to apply to QCAT for an order that it can continue to act in a building dispute while QCAT proceedings are on foot. This is expected to facilitate earlier resolution of building disputes.

The amendment will allow the QBSA/QBCC to make application to QCAT to seek leave to act in relation to a building dispute where QCAT has management of the Building dispute. The Explanatory Notes explain that the need to seek leave is important to ensure that the management of the dispute by the QCAT and the involvement of the regulator is not inconsistent and is co-ordinated in a way that resolves the dispute as expeditiously as possible, including in appropriate circumstances by the payment of a claim under the Queensland Home Warranty Scheme.124

Master Builders submitted it:

…has no major concerns with the proposal to amend section 83 of the QBCC Act to enable the building regulator to apply to the Queensland Civil and Administrative Tribunal (QCAT) for an order to allow it to continue to act in a building dispute while QCAT proceedings are on foot.125

However, the HIA submitted:

HIA is concerned that the proposed amendments to Section 83 and 84 of the Act will not meet the Government’s objective of a speedier resolution of building disputes.

…..Where a dispute is being managed by QCAT, Section 84 (2) of the Act already provides for the Authority/Commission to be able to apply to QCAT to make an expedited decision about whether defective work should be rectified or building work completed in circumstances where the Authority/Commission believes that the rectification or completion of the work is urgent. HIA believes that this is an appropriate power for the Authority/Commission to have as it enables QCAT to balance the consumer’s need for urgent rectification or completion of building work with the contractual rights of the contractor, who may continue to be unpaid by the consumer.

123 See http://www.parliament.qld.gov.au/documents/committees/THLGC/2012/INQ-BSA/121130_BSA_ Report%20No.14.pdf:33 124 Explanatory Notes:5 125 Submission No.7:2





But the Bill’s proposed amendment to Section 84 of the Act removes the fundamental right of contracting parties, both the home owner and the building contractor, to have access to a mode of judicial dispute resolution. It does this by potentially removing some aspects of the disputes from the judicial setting of QCAT back to the administrative realm of the Authority/Commission.

…..HIA submits that the orders allowed for by way of the proposed amendment are akin to an interim injunction, as they seek to preserve existing powers of the Authority/Commission. Further concern is the absence of criteria upon which the Tribunal should or should not grant such an application. In the absence of such criteria orders will be granted in the unfettered discretion of the Tribunal member.

Furthermore the amendments also serve as a de facto way for the Authority/Commission to interfere in contractual disputes. In HIA’s view this is highly inappropriate and offends many notions of a separation of powers.

….HIA believes that it only through resolving all aspects of a dispute promptly through QCAT that justice and fairness can be observed. It is simply not fair to have those aspects of a dispute that are before QCAT that fall within the Commission’s remit being decided by the Commission while other aspects of the dispute remain unresolved in QCAT. HIA does not believe that this is what the Government was intending with this Bill.126

At the Public Hearing the HIA proposed that:

If there is a need to broaden the opportunities for the commission to seek intervention into a dispute that is being managed by QCAT to get matters dealt with more quickly or more completely, our view is that it will save a whole lot more time and energy if the commission approached QCAT to have that matter dealt with by the rapid dispute processes that already exist within QCAT—in other words, increase or elevate the urgency of that particular matter so that the whole of the matter can be dealt with by QCAT, cutting off any opportunities for further vexatious appeals by the combatants in the dispute. So instead of having one matter dealt with by QCAT, you will potentially have an original matter dealt with by QCAT, QCAT then receiving a submission from the commission to have the matter given back to the commission, the commission making a decision, that decision being reviewed by QCAT and then the original decision being talked about again. So potentially you are going to have four actions in QCAT and all of the cost, trouble, time and lawyer fees that go with those sorts of disputes. 127

HIA made the following recommendation:

To achieve a faster resolution of all aspects of a dispute where the Authority/Commission believes that a matter needs to be resolved urgently, HIA recommends that the proposed Clauses 84 (6) and 84 (7) be removed from the Bill and Clause 84 (2) be amended to read:

The Commission may apply, as provided under the QCAT Act, to the Tribunal for a dispute that is tribunal work to be decided at an expedited hearing if the Commission considers the tribunal work needs to be urgently rectified or completed.

Accepting this recommendation would also make Clause 84 (3) redundant.128

126 Submission No.3:1-3 127 Public hearing transcript, 1 Oct 2013:10 128 Submission No.3:3


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At the Public Hearing the Department responded:

This amendment is the first step in consideration of how better to facilitate early resolution of disputes and it is in response to the specific prohibition that arises as soon as somebody commences an action in relation to tribunal work in QCAT and, as we have seen, it immediately stops the commission from taking any further action in relation to the dispute. So the purpose of the amendment is to allow greater flexibility for QCAT in managing the dispute. So typically what might happen is that a dispute arises between the consumer and the contractor. The consumer may approach the commission for a decision about whether there is defective or non-completion of work. There may be a genuine dispute, and it is not suggested that the consumer is in the right or the contractor is in the wrong; it could be either way. The contractor then files the contractual dispute with QCAT but then that stops the commission from acting in relation to the decision about defective work, bearing in mind that the commission is not making decisions about the contract; it is only making decisions about whether there is defective work.

That has been stopped. So the purpose of this amendment is to allow QCAT, if it decides that it is appropriate on the application of the commission, to order that that process can continue, that a decision can be made. As Mr Temby points out, you could have a dispute about that, but I cannot see any reason QCAT could not manage both of those disputes and consolidate both of those in the ultimate decision that is made.129

The Department responded to the recommendation made by the HIA as follows:

…this submission is not supported as it would take away an existing power of QCAT to order that tribunal work be urgently rectified or completed and would not provide QCAT with the flexibility that is proposed by the amendment to order that the QBCC may act in relation to a dispute.130

Committee comment

The Committee supports the proposed amendment to section 83 of the Queensland Building and Construction Commission Act 1991 to facilitate earlier resolution of building disputes by allowing the QBSA/QBCC to seek leave from QCAT to continue to act in relation to a building dispute while QCAT proceedings are on foot.

129 Public hearing transcript, 1 Oct 2013:10 130 Written brief dated 30 Sep 2013:18



2.3 Amendment of the Guide, Hearing and Assistance Dogs Act 2009

The policy objective of amending the Guide, Hearing and Assistance Dogs Act 2009 (GHADA or the Act) is to ensure that people who rely on guide, hearing and assistance dogs have the same rights as others to access places of accommodation. The right is also proposed for approved trainers, employee trainers and puppy carers with trainee support dogs.

The amendments also make it an offence for a person to refuse accommodation to a person with a disability who relies on a certified guide, hearing or assistance dog.131

This right was previously provided for under the Guide Dogs Act 1972. The Guide Dogs Act 1972 was repealed by the Guide, Hearing and Assistance Dogs Act 2009 which unintentionally omitted the right to access places of accommodation. Accordingly, the Bill seeks to remedy this omission.

2.3.1 Access rights to places of accommodation

Currently, the GHADA protects the right of people with a disability who rely on a guide, hearing or assistance dog to be accompanied by the person’s guide, hearing or assistance dog in particular public places and public passenger vehicles.

The Bill seeks to extend the rights of people with a disability or trainers and puppy carers accompanied by guide, hearing and assistance dog (or trainee support dog) to places of accommodation.

It is also unlawful under the Anti-Discrimination Act 1991 (ADA), to discriminate on the basis of impairment in the areas of pre-accommodation and accommodation. The specific prohibitions apply to all guide, hearing or assistance dogs, regardless of whether they are or are not certified under the GHADA.132

Accommodation is defined under the Bill as including a house or flat, hotel or motel, boarding house or hostel, caravan or caravan site, a manufactured home, or a camping site.133

The Committee was advised that the proposed definition of ‘accommodation’ in the Bill is consistent with the definition provided by the ADA.134 On this basis, there is an apparent discrepancy between the definition of ‘accommodation’ under the ADA and the Bill.

The definition of accommodation provided by the ADA lists the same types of accommodation outlined in the Bill as well as ‘business premises’ and a ‘building or construction site’.135

The intent of the definition within the Bill is to capture accommodation that is ‘… ordinarily used for personal purposes, such as residential and holiday accommodation.’136

Whilst ‘business premises’ and ‘building or construction sites’ appear to fall outside of this intent, the Committee has no information to clearly indicate the reason for the discrepancy and seeks clarification from the Minister.

131 Explanatory Notes:3-5 132 Submission No.6:6 133 Clause 36, RTRAOLA Bill 2013 134 Written Brief dated 30 Sep 2013:6; Public hearing transcript, 1 Oct 2013:7 135 Schedule, section 4, Anti-Discrimination Act 1991 136 Explanatory Notes:20


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Point of clarification 2

The Committee seeks clarification from the Minister in relation to the discrepancy between the definitions of ‘accommodation’ provided by the Anti-Discrimination Act 1991 and the Residential Tenancies and Rooming Accommodation and Other Legislation Amendment Bill.

2.3.2 New offence provisions

The Bill makes it an offence where an accommodation provider refuses to rent accommodation because a person with a disability is accompanied by their certified guide, hearing or assistance dog or an approved trainer, employee trainer or puppy carer is accompanied by a trainee support dog. These people are known as ‘accompanied handlers’.

The Bill also makes it an offence if in renting the accommodation, the person in control of the accommodation imposes a ‘term’ that would result in:

an accompanied handler paying an extra charge a person with a disability is separated from their guide, hearing or assistance dog while in the

place of accommodation, or a person being refused entry to part of the place because the person is accompanied by their

guide, hearing or assistance dog (except a part of accommodation where food is ordinarily prepared for consumption by residents of the place or members of the public137).

The maximum penalty for the new offences is $11,000 for an individual or $55,000 for a corporation. The same penalty is also imposed under the current GHADA where a person denies access to a public place or public passenger vehicle to a person with a guide, hearing or assistance dog.138

The new offences do not impose new obligations on accommodation providers as the circumstances outlined above are also unlawful under the Anti-Discrimination Act 1991 (Qld).139

The Canine Helpers for the Disabled Inc. advised the Committee that they are supportive of the offence provisions and more generally, ‘any government initiative that protects the rights of people with disabilities… by allowing them to be aided by Guide, Hearing or Assistance Dogs.’140

2.3.3 Identification procedures

Section 12 of the GHADA sets out the identification procedure that a person must comply with to identify themselves as a person who is accompanied by a properly trained guide, hearing or assistance dog or a trainee support dog. The identification procedure requires a person to display their identify card or ensure that it is available for inspection and ensure that the dog is wearing a harness or identifying coat.141

The Bill incorporates amendments to ensure that an accompanied handler complies with the identification procedure when seeking accommodation when:

in person at a place of accommodation or another place, makes a reservation or application for accommodation at the place of accommodation, or

arriving at a place of accommodation to begin residing in the accommodation at the place.

137 This ensures that accommodation providers can comply with the food safety standards that apply to their food service environments without committing an offence under the Guide, Hearing and Assistance Dogs Act 2009. 138 Explanatory Notes:10 139 Explanatory Notes:9; Section 85, Anti-Discrimination Act 1991 140 Submission No.10:1 141 Written Brief dated 30 Sept 2013:7



The Bill stipulates that a person in control of a place of accommodation will not commit an offence if it is proved that the accompanied handler did not comply with the identification requirements in the circumstances outlined above.

Importantly, as not all accommodation reservations are made in person, the amendments do not preclude an offence being committed if accommodation is refused over the phone rather than in person at the place of accommodation.142

2.3.4 Complaint process

Currently, an individual is required to pursue a complaint in relation to accommodation discrimination through the Anti-Discrimination Commission Act 1991 (Qld) (ADA).

The ADCQ endeavours to resolve complaints through conciliation. Where a complaint is not resolved, it can be referred to the QCAT.143

The Bill provides an additional avenue for pursuing complaints relating to accommodation discrimination that is likely to be less time consuming and costly for a complainant, given the government, and not the complainant, will investigate and potentially prosecute the offence.144

During the public hearing, Mr Geoff Skinner outlined to the Committee his experience and difficulty pursuing a complaint relating to holiday rental accommodation under the current Act.145 Mr Skinner stated:146

… I lodged a complaint with the Department of Communities under the Guide, Hearing and Assistance Dog Act after I was refused a holiday apartment booking on the Gold Coast.

… I received a letter from the department to say that my complaint was substantiated and further action was pending.

… After a further three months I had a phone call from the department to say that the legal opinion now was that the accommodation was not covered under the act and they could not proceed any further with the complaint and that I would need to lodge my complaint again with the Anti-Discrimination Commission… it was clear at that point that there was a problem with the act.

Certainly, in my opinion, … had the Guide, Hearing and Assistance Dogs Act—covered accommodation, this would act as a powerful deterrent and it would prevent this kind of action right at the beginning…

In response to the issues raised by Mr Skinner, the Department provided assurance that the amendments proposed to the Act will cover the type of complaint Mr Skinner pursued and simplify the complaint process.147

The ADCQ also raised a minor issue with the note to the offence provisions contained in the Bill and the current Act. The note provided for both offence provisions (new section 12A and current section 13) states that, ‘a person with a disability may also have a right of action under the Disability Discrimination Act 1992 (Cwlth).’

The ADCQ suggests that a reference to the Commonwealth Act instead of the Queensland Anti-Discrimination Act 1991 may lead to confusion about which legislative avenue to pursue in relation to

142 Written Brief dated 30 Sep 2013:7 143 Submission No.6:7 144 Minister for Housing and Public Works, Introduction, Record of Proceedings, 10 September 2013:2879. 145 Public hearing transcript 1 Oct 2013:8 146 Public hearing transcript 1 Oct 2013:9 147 Public hearing transcript 1 Oct 2013:21


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a complaint. The Commission recommends that the notes be amended to refer to the Queensland legislation.148

In response to the issue raised by ADCQ, the Department advised that the Department of Communities, Child Safety and Disability Services will consider the recommendation in discussion with the Commission.149

The Committee supports the Anti-Discrimination Commission’s proposal and considers that it is logical for the GHADA to reference the Anti-Discrimination Act 1991 (Qld) to avoid confusion with the complaint process.

Recommendation 13

The Committee recommends that the notes to the offence provisions, specifically new section 12A, ‘Obligations of persons exercising control of places of accommodation’, and current section 13, ‘Obligations of persons exercising control of public places and public passenger vehicles’ outline a person’s right of action under the Anti-Discrimination Act 1991 (Qld).

2.3.5 Consultation

Consultation on the amendments to the GHADA was undertaken with the Department of Housing and Public Works, and the Department of Tourism, Major Events, Small Business and Commonwealth Games.150

The Department advised that similar amendments were introduced to Parliament by the former government in the form of the Law Reform Amendment Bill 2011151 where support for those amendments were expressed by guide, hearing and assistance dog users, Vision Australia and Guide Dogs Queensland who have requested the reintroduction of such amendments.152

The Anti-Discrimination Commission informed the Committee that contraventions of the ADA by accommodation providers mostly occurs due to a lack of awareness of the law and/or an understanding of the issues faced by people with impairment who rely on a guide, hearing or assistance dog.153

During the public hearing the Department of Communities, Child Safety and Disability Services stated that ‘we would prefer to have these loopholes [in the legislation] addressed and the deterrents imposed but work with the industries to make sure that they understand their obligations and the requirements upon them.’154

It is acknowledged that the Department of Communities, Child Safety and Disability Services will work with the Department of Housing and Public Works and the Department of Tourism, Major Events, Small Business and the Commonwealth Games to ensure that if the Bill is passed, the proposed amendments will be communicated to accommodation providers, guide, hearing and assistance dog users and other stakeholders.155

148 Submission No.6:7 149 Response to late submissions dated 30 Sep 2013:23 150 Explanatory Notes:10 151 Law Reform Amendment Bill 2011 introduced by Hon Paul Lucas MP on 1 December 2011, lapsed on 19 February 2012

upon dissolution of the 53rd Parliament. 152 Written Brief dated 30 Sep 2013:8 153 Submission No.6:6 154 Public hearing transcript, 1 Oct 2013:21 155 Written Brief dated 30 Sep 2013:8



Committee comment

The Committee supports the policy objective of the Bill to ensure that people who rely on guide, hearing and assistance dogs have the same rights as others to access places of accommodation and that this will remedy an omission in the legislation.

The Committee considers the new penalties imposed to be proportionate and to provide a suitable deterrent to accommodation providers that refuse accommodation to people on the basis that they are accompanied by a guide, hearing or assistance dog.

The amendments provide an additional avenue for pursing complaints relating to accommodation discrimination which the committee considers will be less time consuming and costly for complainants.

The Committee considers the communication with accommodation providers will be vital for enhancing the deterrent effect of the amendments and notes that the Department will facilitate that process, should the Bill be passed.

Review of the Guide, Hearing and Assistance Dogs Act 2009

The Committee acknowledges the broader issues raised in the submissions it received in relation to the proposed amendments about the general operation of GHADA. In particular, concerns were raised regarding:

- the aggressive nature of some assistance dogs and exploring mandatory registration of all dogs accessing public areas under the GHADA156

- the inadequate training of assistance dogs157

- the legal effect of Commonwealth anti-discrimination laws, and158

- support for any other proposed amendments of legislation that include penalties in relation to the rights of access to people with disabilities who rely on an accredited guide, hearing or assistance dog.159

Whilst these considerations are not directly relevant to the Committee’s consideration of the Bill, it is pleasing to note that the Department is currently undertaking a review of the entire GHADA that will explore these issues in greater detail. The Department advised that the Review Panel’s report will be completed by the end of the year.160

The Committee expects that the views of stakeholders will be incorporated into the review of the GHADA, and any further amendments to the Act will be put forward for further consultation.

156 Submission No.8:1 157 Submission No.1:1 158 Submission No.1:1 159 Submission No.10:2 160 Response to late submissions dated 30 Sep 2013:1

Residential Tenancies and Rooming Accommodation and Other Legislation Amendment Bill 2013 Fundamental Legislative Principles

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3 Fundamental legislative principles

Section 4 of the Legislative Standards Act 1992 states that “fundamental legislative principles” are the “principles relating to legislation that underlie a parliamentary democracy based on the rule of law”. The principles include that legislation has sufficient regard to:

the rights and liberties of individuals the institution of parliament.

The Committee has examined the application of the fundamental legislative principles to the Bill. The Committee did not note any issue of substance concerning fundamental legislative principles in relation to the proposed amendments in the Bill with respect to the Queensland Building and Construction Commission Act 1991 or the Guide, Hearing and Assistance Dogs Act 2009.

However, the Committee considered that a number of the clauses in the Bill relating to the Residential Tenancies and Rooming Accommodation Act 2008 raise potentially significant issues of fundamental legislative principle and, accordingly, brings the following issues to the attention of the Legislative Assembly. Some of these issues have been discussed previously in the report.

3.1 Rights and liberties of individuals

3.1.1 Clause 11 – inserting new section 296A

Proposed new section 296A ‘Application for termination for damage or injury in public or community housing’ provides a new ground for a non-private lessor to apply to QCAT for a termination order on the ground of damage or injury. Section 296A is similar to existing section 296 but targets a broader range of behaviour, that is, behaviour by people other than the tenant: an occupant, a guest of the tenant or a person allowed on the premises by the tenant.

Therefore, in effect, section 296A imposes a higher level of behaviour for non-private tenants than for private tenants. The Committee notes that as a general principle, “legislation should not ordinarily make a person responsible for acts or omissions over which the person may have no control”.161

Section 296A operates in a manner similar to a provision imposing strict civil liability on a tenant, in that negligence or fault on the part of the tenant is not required. The Committee sought advice from the Department on the justification for making tenants responsible for the conduct of others as the Explanatory Notes do not provide this justification.

In the RTRAA, as currently drafted, a tenant is responsible for the conduct of others only to the extent that section 188 provides that a tenant must not allow someone else to maliciously damage the premises or inclusions.

The Committee sought further advice from the Department regarding why sections 188 and 296 as currently drafted are insufficient to deal with the issue of antisocial behaviour in public housing properties.

The Department’s response is provided in section 2.12 of this report along with the relevant Committee comment.

161 Office of the Queensland Parliamentary Counsel, Fundamental Legislative Principles: The OQPC Notebook, January 2008:117



3.1.2 Clauses 13 and 17 – inserting new sections 297A and 345A

Proposed new section 297A (Application for termination for objectionable behaviour in public or community housing) provides a new ground for a non-private lessor to apply to QCAT for a termination order on the ground of objectionable behaviour.

This proposed new section also makes a tenant responsible for the conduct of others. In the RTRAA as currently drafted, a tenant162 is responsible for the conduct of others only to the extent that section 188 provides that a tenant must not allow someone else to maliciously damage the premises or inclusions.

The Committee notes that as a general principle, “legislation should not ordinarily make a person responsible for acts or omissions over which the person may have no control”.163 Section 297A operates in a similar manner to a provision imposing strict civil liability on a tenant, in that negligence or fault on the part of the tenant is not required.

The Committee sought further advice from the Department regarding the justification for making tenants responsible for the conduct of others as the Explanatory Notes do not provide this justification. The Committee also sought advice from the Department as to why section 188 and 297 as currently drafted are insufficient to deal with the issue of antisocial behaviour in public housing properties.


The Department considers section 297 as currently drafted does not go far enough to address all types of behavioural issues. The Department considers that the additional ground of intentionally or recklessly endangering another person at the premises in the new section 297A is justified as an additional measure to help protect people from danger. It allows the Department to apply directly to QCAT for termination orders where such behaviour has occurred. There is currently no provision in the Act which allows this for tenancies although section 370 is an example of a similar provision which allows a notice to be given to a resident in rooming accommodation to leave the premises immediately where the resident or guest of the resident has intentionally or recklessly endangered another person in the premises.

Further, there is currently no right to apply directly to QCAT under section 297 or any other section where the tenant has interfered with the reasonable peace, comfort or privacy of persons occupying premises nearby. It is considered the amendment addressing this issue in s297A is justified to more effectively deal with such behavioural issues. 164

The Department’s response is provided in section 2.12 of this report along with the relevant Committee comment.

162 As distinguished from a resident in rooming accommodation (see sections 253(c) and (f)) 163 Office of the Queensland Parliamentary Counsel, Fundamental Legislative Principles: The OQPC Notebook:117 164 Fundamental Legislative Principles Review Response, DHPW dated 3 Oct 2013


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3.1.3 Clause 20 – inserting new sections 527A and 527D

Proposed new section 527A inserts the following definition of “antisocial behaviour”:

antisocial behaviour includes making excessive noise, littering, dumping cars, vandalism and defacing property.

This definition encompasses a broad range of behaviours and does not include any element of repetition. Therefore a one-off incident of littering could potentially come within this definition. Further, one person’s view on what level of noise is excessive may differ from another’s view. It may depend on relative frequency and volume and whether the sound is pleasing to the ear, for example, the sound of a family arguing might be regarded as excessive noise while the sound of a musician practising may not be regarded as excessive.

Section 527D potentially requires a tenant to be responsible for the conduct of others. As mentioned above, this is problematic in terms of fundamental legislative principle.

Failure to enter into an acceptable behaviour agreement or serious or persistent breach of an acceptable behaviour agreement are grounds upon which a lessor may apply to QCAT for a termination order (under new section 527E). Further, clause 19 amends section 415 so that an application to QCAT on either of these grounds is an urgent application. This means that a dispute resolution request is not required before applying for a QCAT hearing.165 Therefore, sections 527E and 527D have potentially significant impact on the rights and liberties of non-private tenants.

The Committee sought advice from the Department regarding whether sections 527A and 527D are a reasonable, appropriate and proportional means of dealing with antisocial behaviour in public housing properties.


In response, the Department submits that the whole of sections 527D and 527E need to be read in context. The lessor under section 527D(4) may require a tenant to enter into an acceptable behaviour agreement for premises only if the lessor is of the opinion that the tenant or a person allowed on the premises has engaged, or is likely to engage, in anti-social behaviour. The lessor’s opinion under subsection (4) must be based on the history of the tenancy concerned or the history of any prior tenancy entered into by the tenant and the lessor. Therefore, it is a decision based on a history of past issues. In practice the tenant will only be asked to enter into an ABA where they have received two strikes under the Department’s anti-social behaviour policy or engages in some sort of serious anti-social behaviour. Further, it should be noted that lessors may only apply to QCAT for a termination order if the tenant fails or refuses to sign an ABA or seriously or persistently breaches the terms of an ABA. Therefore, if the tenant has signed an ABA their tenancy would not be terminated for a one-off minor issue. 166

Additionally, the Committee sought advice on why other existing legislative schemes for addressing making excessive noise, littering, dumping cars, vandalism and defacing property are not considered sufficient.

In response, the Department commented:

The fact that these problems exist and have continued for years shows that additional measures are needed. The Department submits that asking someone to sign an ABA to

165 Section 416(2), RTRAA Act 2008 166 Fundamental Legislative Principles Review Response, DHPW dated 3 Oct 2013



reinforce that they not engage in anti-social behaviour is not an onerous request. Further, termination of a tenancy for their refusal to sign an agreement or for serious or persistent breach is not unreasonable. The Department aims to work with tenants to modify behaviours and sees ABAs as a means of doing so. 167

See section 2.15 of this report for further discussion of these issues along with the relevant Committee comments and recommendation.

3.1.4 Clause 20 – inserting new section 527C – replacement of standard and special terms for certain tenancies

Under new section 527C, where the State enters into a concurrent lease with an entity, it will be possible for the standard and special terms applying to an existing State tenancy agreement to be replaced by the terms prescribed under a regulation. This amendment could result in tenants having to pay a bond and stated service charges even when premises are not individually metered for such a service.

The Explanatory Notes indicate that the aim of this provision is consistency between public and community housing tenants. This issue of fundamental legislative principle is raised by the Explanatory Notes. The Explanatory Notes outline proposals to “mitigate against these possible impacts to a tenant”.168 Under these proposals, an existing public housing tenant will not be required to actually pay a bond or service charges for three years after the commencement of the provision.

The Committee sought advice from the Department about the proposed commencement date for proposed section 527C and whether it is related to the commencement of the Logan Renewal Initiative, mentioned in the Explanatory Notes.169 The Committee also raised the potential impact of the proposed section 527C on the rights and liberties of individuals.

The Department responded on these issues as follows:

It is anticipated that the proposed commencement date for section 527C will be related to when the first significant transfer takes place.

Existing public housing tenants transferred to a CHP will have until mid-2016 before they will be required to start paying a bond and paying for service charges, such as for water they use (where this is recoverable under the provisions of the RTRAA). After a two year period, a CHP will have twelve months to ensure all tenants have a bond in place.

This transition period will give existing tenants transferred to a CHP sufficient time to plan for having to pay a bond or service charges in the third year.

Bonds are a maximum of four weeks’ rent. The Department is considering options including whether to allow existing tenants transferred to a CHP to pay the bond in instalments or through some other mechanism.

The requirement to pay a bond and service charges may also assist tenants when they are no longer eligible for social housing assistance to transition to the private rental market.170

See section 2.16 of this report for further discussion of these issues along with the relevant Committee comments and recommendations.

167 Fundamental Legislative Principles Review Response, DHPW dated 3 Oct 2013 168 Explanatory Notes:7 169 Explanatory Notes:1 170 Fundamental Legislative Principles Review Response, DHPW dated 3 Oct 2013


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3.2 Possible discriminatory provisions

In the words of the Office of the Parliamentary Counsel:

Equality under the law is a basic concept of justice. This requires that, for a particular matter, in the absence of justification to treat persons differently, all persons should be treated in the same way… Equality under the law is commonly understood to be a basic requirement under the rule of law in a democratic society.171

The combined effect of clauses 12 (amending section 297), 13 (inserting section 297A), 16 (amending section 345) and 17 (inserting section 345A) is that there are additional grounds upon which a non-private lessor may apply to QCAT for a termination order. In this way, these provisions treat private residential tenants differently from non-private tenants.

It was the Committee’s opinion that justification for this differential treatment was required. As the consequences to a residential tenant of the provisions of the Bill are potentially severe, that is, eviction, a correspondingly high degree of justification is required. The Explanatory Notes do not provide any justification apart from mentioning the following:

…the Department continues to have difficulty in obtaining termination orders from the Queensland Civil and Administrative Tribunal (QCAT) and subsequently regaining timely possession of public housing dwellings in cases where serious antisocial behaviour has occurred.172

The Committee sought advice from the Department about this issue. The Department’s response included the following points:

• Social housing, either managed directly by the state or community housing providers is different to private renting.

• As social housing tenants usually pay a subsidised rent, as part of government policy, they are managed in a different way.

• Many policies are in place to reflect the different nature of rights and responsibilities.

• This also applies to anti-social behaviour – government will not tolerate anti-social behaviour taking place in subsidised housing, particularly illegal activity and malicious damage to state assets. Last year, unfair wear and tear in social housing properties cost the department $5 million. The department received 24,529 complaints about anti-social behaviour in public housing during 2012. Social housing tenants are in a privileged position whereby they receive State subsidised housing while others on the waiting list for social housing receive nothing. There were 21,582 applications on the Housing Register as at 31 August 2013.

• 28 drug laboratories have been reported in social housing dwellings since early 2012 and the clean up cost of these properties is typically about $75,000 each, which is unlikely to be recovered from tenants. In some cases, police have reported having to attend properties repeatedly where criminal behaviour is occurring on a regular basis. The department has experienced some cases where police have been called out to individual public housing properties as many as 50 times for anti-social behaviour. The department has also experienced cases where police have been called repeatedly to premises for alleged illegal behaviour and cases where, even

171 Office of the Queensland Parliamentary Counsel, Fundamental Legislative Principles: The OQPC Notebook:130 172 Explanatory Notes:2



after tribunal proceedings have been commenced to terminate a tenancy, premises have allegedly continued to be used for illegal activities. The department needs to be able to act quickly in cases where illegal activity is occurring. The existing provisions under the RTRAA do not allow a rapid enough response in these serious cases.

• The department considers the measures are a necessary response to a problem that clearly exists in social housing. Law abiding tenants who do not engage in anti-social behaviour will be unaffected by the amendments and the department has policies in place to deal with vulnerable tenants and those with mental illnesses.

• The intention of the policy is not to end tenancies but to assist tenants to take responsibility and improve behaviour and be good community members – it is a mutual obligation.

• There is great demand for assistance that needs to be balanced with commitment to current tenants.

• This is balanced with the need to provide ongoing support to vulnerable tenants. 173

Committee comment

The Committee notes the response from the Department which satisfies the Committee’s concerns in regard to the potential discriminatory impact of a number of the proposed changes set out in clauses 12, 13, 16 and 17 of the Bill.

3.3 Proportion and relevance

As a matter of fundamental legislative principle, “consequences imposed by legislation should be proportionate and relevant to the actions to which the consequences are applied… the desirable attitude should be to maximise the reasonableness, appropriateness and proportionality of the legislative provisions”.174

The question considered by the Committee was whether clauses 12, 13, 16 and 17 are a reasonable, appropriate and proportional means of dealing with antisocial behaviour in public housing properties. In deliberating on these matters, the Committee sought advice from the Department about:

other non-legislative (for example, administrative or behavioural) methods already attempted to address this issue

why existing sections 297 and 345 are not sufficient to address the issue.


Before making any decisions to take legislative action, the Department will take into account other issues that need to be considered, for example, issues related to a person’s mental health or intellectual and/or physical disability. Where it is considered appropriate, the Department can take a range of other actions to assist the tenant to modify their behaviour and maintain their tenancy including providing information on support agencies within the community, closer monitoring of the tenancy or listing the household for a transfer to an alternative, more suitable, public housing property. In such cases a strike may

173 Fundamental Legislative Principles Review Response, DHPW dated 3 Oct 2013 174 Office of the Queensland Parliamentary Counsel, Fundamental Legislative Principles: The OQPC Notebook:120


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not be issued and other strategies, closer monitoring of tenancy, engagement of support, a transfer or property modifications may be a more appropriate response.

Established practice is also for Department staff to undertake case conferencing in an attempt to address issues early with a tenancy. Case conferencing can occur, for example, with the tenant/s, their formal or informal decision maker (such as the Adult Guardian), advocate and/or support services, with the aim of coordinating solutions and services for the person to address behaviour or other concerns with the housing or neighbourhood or support services.

Other options to assist the tenant to modify their behaviour and maintain their tenancy may include providing information on support agencies within the community, closer monitoring of the tenancy or listing the household for a transfer to an alternative, more suitable, public housing property. In such cases, a strike may not be issued and other strategies, closer monitoring of tenancy, engagement of support, a transfer or property modifications may be a more appropriate response. 175


3.4 Administrative power

Proposed new section 527F applies to existing residential tenancy agreements for which the lessor is the State. The agreement may be changed in the way decided by the chief executive so that the State has the right to do any of the following:

(a) require the tenant to pay a rental bond; (b) require the bond to be paid by the tenant in a particular way; (c) require the tenant to pay stated service charges; (d) decide the apportionment of the cost for the service charges payable by the tenant (where the

premises are not individually metered for a service); (e) require the service charges to be paid by the tenant in a particular way.

A change made under section 527F takes effect on the date stated in the written notice of the change given to the tenant.

A change to a residential tenancy agreement under section 527F does not appear to be subject to review under the Residential Tenancies and Rooming Accommodation Act 2008. Therefore the only form of review would be under the Judicial Review Act 1992. Therefore it is questionable whether a change to a residential tenancy agreement under section 527F is subject to appropriate review. On that basis, it is not clear that section 527F has sufficient regard for fundamental legislative principles.

As mentioned above in relation to section 527C, the Explanatory Notes indicate that the aim of this provision is consistency between public and community housing tenants.

This issue of fundamental legislative principle is raised by the Explanatory Notes.176 The Explanatory Notes outline proposals to ‘mitigate against these possible impacts to a tenant’. Under these proposals, an existing public housing tenant will not be required to actually pay a bond or service charges for three years after commencement of the provision.

175 Fundamental Legislative Principles Review Response, DHPW dated 3 Oct 2013 176 Explanatory Notes:7



The Committee sought advice on whether the new section 527F, combined with the mitigation measures, being that existing public housing tenants will not have to pay a bond or water consumption for at least two years, has sufficient regard for the rights and liberties of individuals.


The Department considers the mitigating measures it proposes do have sufficient regard for the rights and liberties of individuals. To minimise any adverse financial impacts on existing tenants the department will not require a bond or service charges to be paid immediately.

Existing public housing tenants will have until mid-2016 before being required to pay a bond and service charges, such as for water they use (where this is recoverable under the provisions of the RTRAA), and will therefore have two years to prepare to pay in the third year.

This transition period will give existing public housing tenants sufficient time to plan for having to pay a bond or service charges.

Bonds will be based on tenants’ subsidised rent so will be lower than bonds usually charged in the private market. The department is considering options including whether to allow existing tenants to be offered a Bond Loan, or whether they can pay the bond in instalments or through some other mechanism.

The requirement to pay a bond and service charges may also assist tenants when they are no longer eligible for social housing assistance to transition to the private rental market. 177


3.5 Natural justice concerns

Clause 9 inserts proposed section 290A (Notice to leave because of serious breach) which provides for a lessor to give a tenant notice to leave the premises for serious breach. Under proposed section 290A, a notice to leave for serious breach may be given when the lessor reasonably believes that the tenant, an occupant, a guest of the tenant, or a person allowed on the premises by the tenant has used the premises or any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others) for:

(a) an illegal activity; or (b) intentionally or recklessly—

(i) destroyed or seriously damaged a part of the premises; or (ii) endangered another person in the premises or a person occupying, or allowed on,

premises nearby; or

(iii) interfered with the reasonable peace, comfort or privacy of another tenant or another tenant’s appropriate use of the other tenant’s premises.

After a notice to leave because of serious breach is given to a tenant, the tenancy will end within 7 days (section 329, amended by clause 14). This change has the potential to result in a high-level impact on the tenant.

177 Fundamental Legislative Principles Review Response, DHPW dated 3 Oct 2013


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The Explanatory Notes offer the following explanation for the rationale for new section 290A:

Section 290A is intended to allow action to be taken to end tenancies quickly where public housing or community housing properties are being used for illegal activity or where there are other serious breaches. The use of such properties for illegal activities is a serious problem that will no longer be tolerated. For example properties are being used more frequently as clandestine drug laboratories or for other drug related activities. The section is intended to allow eviction where such activities occur but it is not limited to drug related activities. It has been drafted widely to apply to illegal activities generally.

A notice under s. 290A may be given even if there has been no charge or conviction for an offence because s. 290A(3) provides that a lessor may form a reasonable belief that premises or property has been used for an illegal activity whether or not the tenant has been convicted or found guilty of an offence in relation to the activity. This intentionally lowers the standard of proof and will allow the lessor to take prompt action to issue a notice to leave for serious breach rather than having to await the outcome of criminal proceedings.178

It appears that the decision of a lessor within the meaning of new section 290A(4)(a), being the chief executive of the department in which the Housing Act 2003 is administered, acting on behalf of the State, to give a notice to leave for a serious breach would be an administrative decision. Therefore natural justice is required when exercising this decision.

However, new section 290A does not give a tenant any opportunity to respond to the lessor’s reasonable belief that the acts in question occurred. This is a breach of natural justice. This issue of fundamental legislative principle is raised in the Explanatory Notes.179

The Explanatory Notes state that “if the tenant is served with a notice to leave under the section they can either choose to leave or not leave the premises”. It is arguable that a tenant on whom a notice to leave for a serious breach has been served does not have a genuine option of staying at the premises. By the terms of section 329, the tenancy will end 7 days after the notice is given. If a lessor made an application to QCAT for a termination order because of a failure to leave under section 340, a tenant would have to lead evidence to rebut the lessor’s contention that the grounds of the notice to leave for serious breach were made out. The amendment by clause 15 to section 340 does not appear to confer on a tenant any additional ground for making an application to QCAT.

The Explanatory Notes refer to a right of review by a tenant under part 6 of the Housing Act 2003, however, the decision by a lessor to give a notice to leave for serious breach is not a decision to which part 6 of the Housing Act 2003 applies. However, eviction for serious breach may result in a decision to which part 6 of the Housing Act 2003 applies, for example, loss of eligibility for public housing.

The Explanatory Notes further state:

In addition, the Department has well-established processes and practices to ensure that a tenant is afforded natural justice and has a right of reply before notices are issued.180

As this is a new provision, new processes and practices will be needed to afford natural justice and a right of reply before notices are issued.

One aspect of natural justice is the right to have a decision based on logically probative material. Administrative decisions must be based on “logically probative evidence”.181 Under section 290A, a 178 Explanatory Notes:13 179 Explanatory Notes:13 180 Explanatory Notes 8



lessor’s decision is based on reasonable belief. This reasonable belief may be formed whether or not the tenant has been convicted or found guilty of an offence in relation to the activity. Reasonable belief does not meet the criteria of logically probative evidence. Section 290A could result in a person being evicted from his or her home even when he or she had not used the premises for an illegal activity. This is a significant potential impact on a tenant.

A number of aspects of new section 290A are already dealt with in the Residential Tenancies and Rooming Accommodation Act 2008:

Section 184(a) provides that a tenant must not use the premises for an illegal purpose; Section 188(3) provides that a tenant must not maliciously damage, or allow someone else

to maliciously damage, the premises or inclusions; and Section 184(c) provides that a tenant must not interfere with the reasonable peace, comfort

or privacy of a neighbour of the tenant. Section 290A appears to give non-private tenants a lower standard of procedural fairness. Analogous measures are included in the Family Responsibilities Commission Act 2008, section 44, whereby circumstances such as use of premises for an illegal purpose, causing a nuisance, or malicious damage to premises can trigger a process that may include management of Centrelink payments.

However, the main impact of section 290A, being primarily the end of the tenancy agreement in 7 days, is even more significant than the measures in the Family Responsibilities Commission Act 2008, which were regarded as special measures and were also controversial.

In conclusion, proposed section 290A does not appear to be consistent with the principles of natural justice which is a significant issue of fundamental legislative principle.

In relation to the above, the Committee requested the Department to provide details about its processes and practices for affording natural justice and a right of reply. In this regard, the Department’s response included the following:

The Department generally has well-established processes and practice to ensure that a tenant is afforded natural justice and has a right of reply before notices are issued and, if the Bill is passed, the Department will where appropriate update its processes and practice to cover the new provisions in the Bill. 182

Committee comment

In the Committee’s opinion, the Department’s response does not satisfactorily address the key concern that a tenant is not given the ability to respond to the lessor’s belief and is therefore denied natural justice.

Nevertheless, the Committee is of the view that any concerns of the Committee will largely be alleviated by the Committee’s recommendations which propose amendments to the Bill.

181 Administrative Review Council, Best-practice guide 3, Commonwealth of Australia, August 2007:6 182 Fundamental Legislative Principles Review Response, DHPW dated 3 Oct 2013


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3.6 Independence of the judiciary

The former Scrutiny of Legislation Committee183 recognised the independence of the judiciary as “a cornerstone of our democratic system of government.”

Proposed new section 345A(3)(c) sets out matters to which QCAT must have regard in deciding whether behaviour justifies terminating a State tenancy agreement. These are:

(a) any serious or adverse effects on neighbouring residents or other persons, including whether neighbouring residents or other persons are likely to be subjected to objectionable behaviour if the agreement is not terminated; and

(b) any evidence regarding the tenancy history of the tenant; and (c) if the tenant is a tenant under a State tenancy agreement—

(i) the department's responsibility to other tenants; and (ii) the needs of persons awaiting housing assistance from the State.

Further, Clause 349A (How tribunal must deal with public or community housing tenant) stipulates that the tribunal must not refuse to terminate the tenancy merely because the tenant is a non-private tenant. The Explanatory Notes state the following about the rationale for this provision:

The State has experienced difficulty in obtaining orders from the tribunal to terminate public housing tenancies. The purpose of this amendment is to make it clear that the tribunal must not in any application refuse to terminate the tenancy merely because the tenant is a tenant of the chief executive or a community housing provider.184

The Committee sought advice from the Department and the Department responded:

The Department notes the comments about the lists of factors that QCAT must have regard to under section 345A and the requirement in section 349A. The Department notes the comments about the independence of the judiciary and the reference to the former Scrutiny of Legislation Committee Alert Digest No.6 2005.

However, that Alert Digest was referring to a situation where suggestions were made about educating or instructing the judiciary on sentencing in criminal matters, which is very different to the current situation.

The Department submits that the requirement for QCAT to consider various matters in section 345A is not an impermissible incursion into the independence of QCAT. There are many provisions in the legislation which require that a tribunal must consider certain things when making its decision. See for example sections 344, 347, 389, and 433 of the RTRAA.

Section 349A stipulates that the tribunal must not refuse to terminate the tenancy merely because the tenant is a non-private tenant. The review states that there may be valid reasons why in the circumstances of a particular case that QCAT declines to order termination of a non-private tenancy on the basis that the tenant is a non-private tenant. The department submits that section 349A does not prevent QCAT taking into account other relevant circumstances if there are particular circumstances for declining to terminate the tenancy. 185

183 Alert Digest 6 of 2005: 12 184 Explanatory Notes:15 185 Fundamental Legislative Principles Review Response, DHPW dated 3 Oct 2013



Committee comment

In light of the explanation provided by the Department, the Committee is satisfied with the Department’s response in terms of the issue of the independence of the judiciary.

3.7 Explanatory Notes

Part 4 of the Legislative Standards Act 1992 relates to Explanatory Notes. It requires that an explanatory note be circulated when a Bill is introduced into the Legislative Assembly, and sets out the information an explanatory note should contain.

Committee comment

The Committee considers that the provisions in the Legislative Standards Act 1992 have not been met in a clear and precise way in the Explanatory Notes.

In particular, the Committee considers that the Fundamental Legislative Principles section of the Explanatory Notes does not adequately identify or address all of the major issues concerning fundamental legislative principles in relation to the Bill.

Recommendation 14

The Committee recommends that for future Bills, the Explanatory Notes endeavour to clearly identify and address all applicable fundamental legislative principles and provide a more comprehensive discussion of the proposed policy changes.

3.8 Consultation on the Bill

Residential Tenancies and Rooming Accommodation Act 2008 Prior to the introduction of the Bill, consultation occurred with the following government department and agencies in relation to the Residential Tenancies and Rooming Accommodation Act 2008:

Department of the Premier and Cabinet Queensland Treasury and Trade Department of State Development Department of Justice and Attorney-General Department of Local Government, Community Recovery and Resilience Department of Communities, Child Safety and Disability Services Department of Aboriginal and Torres Strait Islander and Multicultural Affairs.

However, the Committee notes that no other relevant parties were consulted on the proposed changes. The Committee further notes that the Explanatory Notes state explicitly that “no external consultation was undertaken” in relation to the Bill.186 186 Explanatory Notes:10


64

Committee comment

The Committee believes that consultation with external stakeholders is good practice when considering policy options. Specifically, the Committee is of the view that public consultation with key stakeholders and representative bodies, for example, the Queensland Mental Health Commissioner, the Anti-Discrimination Commission, the Housing Industry Association Ltd and the TAASIN, prior to the introduction of the Bill would have been desirable.

The Committee is of the view that consultation with these key bodies would have assisted the Government in its consideration of all of the relevant issues when drafting its proposed amendments to the Residential Tenancies and Rooming Accommodation Act 2008. Consultation of this nature would also have assisted the Committee in its examination of the Bill. Accordingly, the Committee makes the following recommendation:

Recommendation 15

The Committee recommends that the Department of Housing and Public Works consult extensively on all future Bills to ensure the views of stakeholders and representative bodies are taken into consideration.

Residential Tenancies and Rooming Accommodation and Other Legislation Amendment Bill 2013 Appendices


Appendices

Appendix A – List of Submissions

Sub # Submitter

1 Geoff Skinner

2 Tenant Advice and Advocacy Service – Inner North

3 Housing Industry Association Ltd

4 Residential Tenants’ Representation Agency

5 Queensland Mental Health Commission

6 Anti-Discrimination Commission Queensland

7 Master Builders Association

8 Neil Campbell

9 Tenants’ Union of Queensland Inc.

10 Canine Helpers

11 Helen Underwood

12 Brisbane Housing Company Limited

Residential Tenancies and Rooming Accommodation and Other Legislation Amendment Bill 2013 Appendices

66 Transport, Housing and Local Government Committee

Appendix B – Witnesses at public hearing – 1 October 2013

Witnesses

Mr Boyd Backhouse, Acting Assistant Director-General, Building Industry and Policy, Department of Housing and Public Works

Ms Annett Cummings, Acting Director, Disability Services Programs, Department of Communities, Child Safety and Disability Services

Mr David Eades, Deputy Director-General, Housing Services, Department of Housing and Public Works

Mr Jason Kidd, Director, Disability Strategic Policy, Department of Communities, Child Safety and Disability Services

Ms Clare O’Connor, Executive Director, Disability Services, Department of Communities, Child Safety and Disability Services

Mr Geoff Skinner

Mr Warwick Temby, Executive Director Queensland, Housing Industry Association

Mr Kevin Cocks, Commissioner, Anti-Discrimination Commission Queensland

Ms Neroli Holmes, Deputy Commissioner, Anti-Discrimination Commission Queensland

Dr Lesley van Schoubroeck, Mental Health Commissioner

Ms Penny Carr, State-wide Coordinator, Tenants’ Union of Queensland Inc.

Mr Jeff Martinsen, Residential Tenants’ Representation Agency

Ms Helen Underwood, Residential Tenants’ Representation Agency

Residential Tenancies and Rooming Accommodation and Other Legislation Amendment Bill 2013 Dissenting Report


Dissenting report