Debate resumed from an earlier hour.

The Hon. S. B. MUTCH [9.0]: I support the Boarding Houses and Lodging Houses Bill. When introducing the legislation on residential tenancies the Minister made a commitment to inquire into the question of boarders and lodgers. The Tenancy Commissioner was commissioned to conduct extensive consultation with the people affected. Having done so, he reported in October 1990. His report, among other things, recommended that specific legislation be introduced for boarders and lodgers. At present, boarders and lodgers are excluded specifically from landlord and tenant agreements under the terms of the Residential Tenancies Act 1987, which commenced in October 1989. It is interesting to note that the definition of a lodger is one who is an inmate in another person's house paying a certain sum periodically for accommodation, or one who occupies a hired room in another person's house. The proposed legislation specifically

Page 5212
applies to situations where three or more lodgers or boarders are living in premises, that is, besides the family of the owner of the premises.

The bill will affect between 15,000 to 30,000 people. It is not intended to cover a person lodging with an aunt or one or two students who may be living together. It is a matter of balance. The Government does not want to intrude too much into arrangements that seem satisfactory. There is always a fine balance between intrusive regulation and the application of the unnecessarily bureaucratic intervention of the tribunal when disagreements occur. It is also a matter of balance to ensure that boarding-house accommodation is available in the community. If the accommodation is overregulated, it will be a disincentive to people who may be interested in letting a house to one or two people in a boarding or lodging situation. The bill will introduce standard rights and obligations for the owner and also for the lodger and boarder. Where there are no written agreements, standard terms will be deemed to be appropriate to the relationship between the parties.

The bill provides specifically that a bond of one week's rent only may be charged and that there is an assiduous obligation on the owner to issue receipts. The owner has another obligation under the proposed legislation to issue written notices of rent increases. I commend the Government for making sure that under clause 3(1)(c) managers are not included in the proposed legislation, for I have noted in other legislation that a problem may arise where a manager has been deemed to have the same rights as the tenants, particularly when the manager is in a position of power. If the contractual relationship between the owner and the manager ends, it can be bad for the owner to have a manager he cannot dismiss. I commend that important provision in the bill. I should like to commend also the work of the Tenancy Commissioner in the complicated area of relationships between people. The duties of the commissioner include an educational function, which is most important. The Government is now imposing legal obligations on people who for some time have been happy to go along without obligations. It must be remembered that it is not always a situation between a mighty landlord and a poor tenant; often the mighty landlord might be a relatively poor person -

The Hon. E. P. Pickering: Almost impecunious.

The Hon. S. B. MUTCH: - impecunious, who needs a little extra money and has gone to the trouble of taking in a couple of lodgers. Often people have not been involved in the legalities of entering into contractual, written agreements. The Government felt it was important to clarify relationships where three or more lodgers or boarders are tenants. Nothing is perfect. I am concerned that a landlord taking in a boarder under a fixed term agreement will have to wait until the expiry of that term before he may give the boarder notice. If the landlord is renting his premises on a continuous basis - which is probably fairly unlikely, I have been advised by the Tenancy Commissioner, so it does not seem it would be a great problem - there would be a hiatus in the letting of the room in the boarding-house because the landlord cannot give notice prior to the ending of the fixed term. I should have liked a landlord to be able to give to the boarder notice of the day he would like the premises to be vacated. The landlord could then plan to let the room on the same day it was vacated by the previous tenant. However, I have been advised that that is not a particular problem. As I said before, the regulation of boarding-houses and lodging-houses is a complicated area, and I feel the Government is handling it in a most sensitive way. The effects of the proposed legislation may be monitored by the Tenancy Commissioner. He does a very good job in an area that requires monitoring. I support the bill.

Page 5213

The Hon. ELISABETH KIRKBY [9.7]: The Australian Democrats support the basic thrust of the bill, which is to legislate for the rights of owners of boarding-houses and lodging-houses and the boarders and lodgers themselves. Boarders and lodgers are excluded from the residential and landlord relationship under the Residential Tenancies Act 1989. Under the new bill, standard rights and obligations will be established. Provisions for prescribed agreements are set out in division 1 of part 2. This standard form will clarify the relationship between boarders and lodgers. The cost of entering into agreements will be kept to reasonable levels with rental bonds limited to one week's rent. The taking of money other than rent will be limited, and the owner will not be able to demand more than one week's rent in advance. Disputes will be able to be handled by the Residential Tenancies Tribunal, and procedures will be established for the termination of agreements that specify periods of notice.

The bill represents an improvement, but it still has serious flaws. A few of those flaws were corrected by amendments passed in another place, but many others remain, and I should like to deal with those one by one. First, I want to deal with the problem of coverage. This bill narrowly defines boarders and lodgers as residents of boarding-houses and lodging-houses and some in shared housing, so the relationship is primarily a commercial one. Originally, only 15,000 of the estimated 120,000 boarders and lodgers in New South Wales were to have been covered by the legislation. Surprisingly, the 7,680 people in New South Wales who listed hotels and motels in the 1986 census as their usual place of dwelling - which meant they had lived there for more than six months - were not to have been covered. That situation has now been rectified, but many other people still will not be given sufficient protection.

It is most distressing to find that all boarding and lodging agreements, the purpose of which is to provide for residents' welfare, will not be covered by the legislation. Approximately 28,000 residents in 1,110 facilities licensed by the Department of Community Services will be excluded. According to the Tenants Union, residents in supported accommodation are the most vulnerable of all boarders and lodgers. I am therefore most concerned that this legislation denies legal rights to those in our society who are least able to protect themselves. My second concern is in relation to notice of rent increases. The bill will allow proprietors to only give 10 days' notice of rent increases. Given that boarders and lodgers are generally on low or fixed incomes and rely on fortnightly benefits or pension payments, it is surely obvious that they will need adequate time to find alternative accommodation if their rents are raised and become too expensive for them to manage. If they fall behind in their payments, their chances of finding alternative housing will be further reduced.

In comparison, the Residential Tenancies Act requires 60 days' notice of rent increases. Under the Victorian Rooming Houses Act, tenants must receive 30 days' notice. That Act limits rent increases to one every six months. I do not understand why the Victorian example could not have been followed in this legislation. My third concern relates to security of tenure. Where the landlord has no cause to evict - for example when a fixed term agreement has expired - the boarder or lodger need only be given seven days' notice. The corresponding requirements under the Residential Tenancies Act and the Rooming Houses Act are 60 days and six months respectively. Furthermore, the landlord need only give two days' notice when a tenant is seven days in arrears in the payment of rent. That is most unfair because as I pointed out earlier boarders and lodgers are often social security clients who live on the proceeds of their fortnightly cheques. As all honourable members know, computers often make mistakes and payments are frequently delayed. A boarder or lodger should receive a minimum of seven days' notice, the notice they would receive under the Residential Tenancies Act.

Page 5214

Matters are made worse by the fact that under the bill a landlord is not required to obtain an order from the Residential Tenancies Tribunal when a termination notice has expired. A landlord can simply take possession and lock out the boarder or lodger. Under the Residential Tenancies Act, tenants are able to present their cases to the tribunal and cannot be evicted without an order of the tribunal. This bill institutionalises the present arbitrary process of evicting boarding-house and lodging-house residents. It has been amply documented that that has been happening in New South Wales, particularly in the inner suburbs of Sydney, for some considerable time. In fact it was the subject of an Australian Broadcasting Corporation documentary program only last Sunday morning.

My fourth concern relates to abandoned goods. Regulations will devise the process for the disposal of goods, and concern has been expressed that the inequitable provisions of clause 27 of the Residential Tenancies Regulations 1989 will serve as a model. Under those regulations, a landlord can remove and dispose of goods the value of which is less than the estimated cost of removal and storage two days after the termination of the agreement. That will mean that personal items of little monetary value but possibly of great sentimental value to the tenant - and I refer to such items as old passports, photographs, bank-books, books, small trinkets and ornaments - can be disposed off should the landlord so decide only two days after a boarder or lodger has been locked out, the rent having fallen into arrears by only seven days. That is a grossly inequitable provision because these small personal possessions have little value except to their owner. Such possessions may perhaps be all the owner has left from a previous home or they may be the only mementos the owner has of his or her entire life. They are vitally important to many older people. To give a landlord the opportunity to dispose of them after only 48 hours is quite iniquitous.

I am concerned also about rental bonds. The bill does not require rental bonds to be lodged with the Rental Bond Board. The Minister justified this by claiming that boarders and lodgers need access to their bonds at the end of their agreements. However, bonds may be returned from the board very quickly, sometimes immediately if the tenant attends the Rental Bond Board personally. The return of a bond from the board may be far quicker than the return of a bond from a landlord. I refer particularly to tenants whose landlord may not live in the same town and may visit that town infrequently. There may be a long delay before the former tenant is able to contact the landlord.

[Interruption]

The DEPUTY-PRESIDENT (The Hon. D. J. Gay): Order! I ask honourable members to lower the level of audible conversation. I am sure Hansard is having difficulty hearing the contribution of the Hon. Elisabeth Kirkby.

The Hon. ELISABETH KIRKBY: It has been well documented that in many instances landlords retain bonds and it is simply not possible for tenants to easily obtain the money from them. That is made more difficult if the tenant is old and frail, and may be intimidated by the landlord and may not even know his or her rights. Such tenants may be unfairly cheated out of their bonds, which may be their only means of obtaining alternative accommodation. The Government should examine this problem with a little more care than it has done in the past. Recent studies reveal that New South Wales boarding-houses do not cater predominantly to a transient population. They cater predominantly to older people, particularly older men, who have no other way of living and who probably do not qualify for Department of Housing accommodation, which in
Page 5215
any event is woefully inadequate for the number of people requiring it. These sorts of people need the utmost protection.

Obviously I have to concede that the bill is possibly better than nothing, but I question why the Government is dragging its feet about giving boarders and lodgers legal rights similar to those of other tenants. Why should the Government have qualms about empowering boarders and lodgers who it knows very well are not financially well off? Does the boarders' lack of money make them any less deserving of having their reasonable rights enshrined in legislation similar to that introduced in relation to residential tenancies? I intend to move a number of amendments which will give greater protection to boarders and lodgers. I have been assured by the Hon. R. D. Dyer that the Opposition will support my amendments. I wish to place on the record that great concern has been expressed about the Government's amendment. It has inherent problems which I will deal with in the Committee stages of the debate. In conclusion, all I can say is that this legislation may be better than nothing. However, it certainly does not go far enough. Many vulnerable people will not be properly protected. In times of high unemployment and shortages of affordable accommodation, we should be thinking about those less fortunate than ourselves and providing them with adequate protection.

Reverend the Hon. F. J. NILE [9.20]: Call to Australia supports the Boarding Houses and Lodging Houses Bill 1991 (No. 2). The main object of the bill is the filling of a gap that has existed in legislation dealing with the whole area of residential tenancy provisions in the Residential Tenancies Act 1987. The matter was examined in detail by the special Tenancy Commissioner appointed by the Government. This legislation is a result of the commissioner's report dated 30th October, 1990. It is interesting that the Government is criticised for seeking to fill a gap where previously there was no legislation. It is always difficult to find the middle ground. The commissioner's report displays the conflict of interest in the way in which owners and operators look at the issue and the way in which boarders and lodgers look at it. Page 6 of the report sets out concerns of the owners and operators, which include: the owner needs always to have control as master of the house - this is the principal issue in boarding-house management; unsocial or malicious behaviour by residents, for example, damaging property, wetting mattresses, smoking in bed, stealing from other residents; residents losing keys and forcing their way into premises; residents who fall behind in rent and then abscond; maintenance of hygiene in common areas; excessive noise late at night; the need to be able to quickly remove unruly residents; and the need for residents to abide by house rules. Examples are given.

Someone who operates a boarding-house with a number of boarders has a responsibility to the boarders collectively and individually. The other boarders and lodgers are the ones who suffer if the owner does not take an interest in the conduct and welfare of the building. The report refers to the need for simple house rules such as: no loud music or television after 10 p.m.; no visitors after 11 p.m.; tariff to be paid one week in advance; residents to give one week's notice when leaving; and residents to leave premises if wilfully disturbing the peace. From my contact with people who operate church accommodation such as the Matthew Talbot Hostel, which is not covered by this legislation, I know that there must be rules and regulations. If someone is intoxicated or under the influence of alcohol and disturbs the other men in the refuge, that person has to leave. This is not for the security of the owner - in this case the church - but for the sake of the other residents or people using the facilities.

I believe the Government has tried to be fair in drafting the bill to meet the needs of the owners of boarding-houses and of the boarders and lodgers. An imbalance
Page 5216
would result in a reduction in available accommodation and an increase in rents and perhaps in restrictions on boarders and lodgers. Those looking for accommodation would find it more and more difficult to secure accommodation. In 1986 the Federal Government took action in regard to negative gearing of rental properties. Because of the removal of tax advantages people were not investing in rental properties and the Labor Government had to reinstate the tax advantages. The well-intentioned amendments proposed by the Australian Democrats could be so harsh on the providers of accommodation for boarders and lodgers that they could result in the boarders and lodgers being adversely affected.

Another concern of the owners listed by the Tenancy Commissioner was that owners must have the right to select their residents. I have referred to the house rules, which would be in the form of a simple contract. It is difficult to apply the rules for normal rental accommodation to those in boarding-houses or lodging-houses. The boarders and lodgers want to be flexible and do not want the constraints of a tenancy-type contract. The report lists also the concerns of the boarders and lodgers. They include: the lack of any rights being unjust and the lack of security of tenure. Some of the boarders and lodgers wanted the same coverage as tenants under the Residential Tenancies Act 1987 and the Landlord and Tenant (Rental Bonds) Act 1977. Boarders and lodgers wanted a standard form of agreement for all boarders and lodgers, which has now been provided for.

The residents wanted the opportunity to be involved in the formulation of house rules. They proposed that there be a minimum of 30 days' notice to vacate in the case of the owner and seven days in the case of the boarder or lodger. They wanted the cost of the preparation of the agreement to be borne by the owner and the rental bond to be a maximum of one week's rent or tariff. They wanted non-refundable key money to be prohibited and rent in advance to be limited to one week. They asked that there be no discrimination against boarders or lodgers with children. Some accommodation is suitable for families with children and some is not, according to the objects of the owner. The concerns of the boarders and lodgers are dealt with up to page 10 of the report. I shall not take the time of the House by reading them in detail. The report provides a draft standard form of agreement for boarders and lodgers which will be the basis of the agreement under the legislation. The report provides also a definition of a lodger. Some people may have trouble in seeing a distinction between a lodger and someone who is renting accommodation. At page 1, terms of reference, the report states:

The primary and usual meaning of `lodger', as so defined, is `one who resides as an inmate in another person's house, paying a certain sum periodically for the accommodation', or `one who occupies an hired room in another's person's house . . . In ordinary circumstances with . . . [a] lodger . . . legal possession remains in the person who provides room or rooms . . . He retains possession and control over rooms and means of ingress and egress, but grants licence to guests who pay, or give consideration for the privilege.

Another definition is:

[An] occupant of premises is usually referred to as a boarder if meals are supplied to him by the owner . . . According to Megarry "in practice board is treated as lying somewhere between an early morning cup of tea and bed and breakfast".

The Residential Tenancies Act 1987, which commenced on 30th October, 1989, did not cover boarders and lodgers, and the Government, through the Tenancy Commissioner, sought to conduct an open inquiry at various forums, which to all intents and purposes was very extensive in its coverage and was held in different parts of the State. Many
Page 5217
organisations and individuals made submissions to the inquiry and the background investigation resulted in the preparation of this legislation. The report sets out in summary form at pages 40 and 41 the results of those forums attended by boarders and lodgers and boarding-house operators. The agreed matters are listed on page 40 and include agreement that unscrupulous, dishonest and unlicensed boarding-house operators should be dealt with in some way; the appropriate authority should force them to trade fairly or be put out of business; violent or dangerous residents to be removed by owners and operators immediately; where a resident wants to leave of his or her own accord or where the owner wants the boarder or lodger to leave, but there has been no serious problem, a minimum period of notice is reasonable; where rent is to be increased, a minimum period of notice is reasonable; provision of rent receipts to residents is reasonable; reasonable access for owners to enter residents' rooms to provide services is necessary but residents' privacy should be respected; not all boarders and lodgers are transitory; the whole boarders and lodgers issue relates only to those situations where the resident is using the premises as his or her principal place of residence - backpackers and holiday makers are another issue all together; and Government incentives are necessary to encourage retention of current boarding house stock and new construction.

The points of disagreement are listed on page 41 and they include the need for any further regulation of boarding-house accommodation; the issue extending beyond commercial boarding-houses and lodging-houses into private homes, refuges, hostels, group homes, supported accommodation et cetera. I have received submissions from people who are concerned that the legislation does not cover supported accommodation, but I submit that matter would be better dealt with in some other way than by this particular piece of legislation. That is not to say that area should not be covered by legislation or carefully monitored to ensure that people using that type of accommodation are properly cared for. Doubtless all honourable members were shocked by the Coroner's report into supported accommodation provided at Dungog where up to 40 people with various forms of mental illness were left virtually without care and attention at night. An inspection of a small section of the building that was left standing revealed a great lack of care. The sheets, which were originally white, were a dark grey to black, which showed a lack of hygiene and care of those residents. Supported accommodation should be looked at but it would not be helpful to try to tack such accommodation on to this legislation. I would be happy to discuss those concerns with organisations involved in supported accommodation or refuges to ensure that there is sufficient legal protection in place and that whatever legal protection considered necessary be provided.

The Government is seeking, through the Minister for Housing, to introduce standard rights and obligations for owners, and boarders and lodgers, in addition to providing for the settlement of disputes that might arise during the agreement. Part 1 of the bill deals with preliminary matters, including the definition of the terms and the application of the bill. It excludes certain premises from the operation of the Acts and allows for regulation to exclude charitable refuges such as the Matthew Talbot Hostel, Foster House, women's and youth refuges and half-way houses. In fact I understand that is what those charitable organisations wish. They are quite happy with that approach. The Government has excluded crisis accommodation, also. That does not come within the general definition of a boarding-house or lodging-house operation.

The bill does not seek to interfere unnecessarily with ordinary commercial requirements, and the Government is anxious not to provide a disincentive to this category of accommodation providers. Serious accommodation problems confront society and the Government seeks to encourage people who have the financial resources to invest in this area. I have had discussions with the Tenancy Commissioner who conducted the
Page 5218
inquiry into boarders and lodgers and who reported to the Minister for Housing. He said that representatives of charitable and church groups, such as the Salvation Army and St Vincent de Paul, met with him at the start of the inquiry. Those organisations were quite concerned to ensure that the legislation did not impose upon their ability to offer the crisis type of accommodation they presently provide in the community. Part 3 of the bill deals with the administration of the legislation. It gives the Tenancy Commissioner, who has responsibilities under the residential tenancies and retirement villages law, information, investigation and review roles.

The legislation is innovative and seeks to fill a gap. Some people complain that perhaps governments pass too many laws and make too many regulations, but there seems to be a need for this legislation. It will not be set in concrete. It will be reviewed and monitored through a consultative committee chaired by the commissioner. The committee will comprise consumer, industry and government representatives as was done with the residential and retirement villages law. That should provide sufficient safeguard to ensure that no unintentional negative aspects or effects are caused by the legislation. I encourage consumers, owners and operators to make full use of the committee to ensure that there is a happy, working arrangement in this State, in particular in Sydney and other large cities, for the benefit of the boarders and lodgers, and to encourage owners and operators to continue to provide this type of accommodation. I draw the attention of honourable members to a letter received by Call to Australia from Captain Trevor Haworth, President of the New South Wales Tourism Industry Association. The letter states, inter alia:

The Amendment to the Bill, which would have a significant affect on the Hotel and Motel Industry, is of grave concern to the New South Wales Tourism Industry as a whole.

The concerns are carefully outlined in the attached letter written by the Australian Hotel Association, one of our constituted Members, which you have no doubt already received.

I did receive that correspondence. The letter continues:

Legislation such as the one proposed in the amendment would for obvious reasons, have a serious impact on the image and operation of the tourism accommodation infrastructure in this State and would therefore impact on tourism generally.

We believe the amendment to the Bill must not be permitted to pass through the Legislative Council and become law for the reasons outlined in Mr Knapp's letter.

Your support in opposing the amendment would be greatly appreciated by the Tourism Industry in this State.

I do not know whether the honourable member for Bligh in another place had a full understanding of the impact her amendment would have on hotels and motels. It certainly will have a significant impact on the tourism industry. It should not be included in this legislation, though it may be included in other legislation relating to the tourism industry as a whole and the type of accommodation that is provided by such premises as the backpacker hostel in Kings Cross that was destroyed by fire, resulting in the deaths of many of its occupants. The operation and management of such premises must be kept under close supervision. The provisions of this legislation, which deal with boarding-houses and lodging-houses, should not be clouded by such provisions as those proposed in the amendment. Call to Australia supports the bill.

The Hon. J. P. HANNAFORD (Minister for Health and Community Services) [9.42], in reply: I thank honourable members for their support of the legislation. The

Page 5219
Hon. Elisabeth Kirkby said in her contribution that the bill does not afford protection to boarders and lodgers as there is no provision to enable them to go to the Residential Tenancies Tribunal. Clause 24 provides a penalty of up to $5,000 as well as the payment of compensation on prosecution in a Local Court. The investigatory powers of the Tenancy Commissioner provide considerable protection not only for boarders and lodgers but also for the community nature of accommodation provided in boarding-houses and lodging-houses. I trust this explanation has clarified the matter raised by the Hon. Elisabeth Kirkby.


Motion agreed to.


Bill read a second time.


Part 1

The Hon. J. P. HANNAFORD (Minister for Health and Community Services) [8.45]: I move:

Page 4, clause 6. After paragraph (g), insert:

(h) premises comprising a motel; or

The bill as introduced by the Government seeks to exclude from its coverage premises comprising hotels or motels. The Residential Tenancies Act contains similar provisions. The amendment passed in the Legislative Assembly deleted the exclusion for premises that are hotels and motels. It introduced a limited application to those agreements that were for the purpose of providing a room in a hotel or motel as the occupant's principal place of residence. The Government now seeks to amend the bill's application to hotels and motels by reintroducing the exclusion for motel premises. The Government has considered the application of the bill to these premises and is satisfied that the accommodation provided by motels is not for long-term purposes like boarding-houses and lodging-houses. I commend the amendment to the Committee.

The Hon. R. D. DYER [8.46]: The Opposition opposes this amendment. It is true as the Minister said that the bill in its original form contained an exclusion of premises comprising an hotel or a motel. In another place the honourable member for Bligh successfully moved an amendment that had the effect of deleting paragraph (b) of clause 6. The Opposition in another place supported that amendment. The Opposition takes the view that hotels and motels sometimes are resorted to and used by persons who are in the nature of boarders and lodgers and who are using the premises as their principal place of residence as distinct from other purposes such as business and holiday purposes, and so on. It is relevant to point out to the Committee with regard to the amendment the Minister is proposing that the bill in its amended form provides in the new paragraph (b) that the Act does not apply to premises ordinarily used for holiday purposes. Honourable members will no doubt acknowledge that motels quite commonly, and perhaps even overwhelmingly, are used for holiday purposes. That specific exclusion remains in the bill as it stands at present.

In addition, as a flow-on from the successful amendment moved in another place by the honourable member for Bligh a further amendment was inserted in the bill. That appears as paragraph (f) of clause 7, which provides that the Act does not apply to a
Page 5220
boarding agreement or lodging agreement if the relevant room is in premises comprising an hotel or motel and the purpose of the agreement is to provide accommodation other than as the occupant's principal place of residence. Forms of use that would be otherwise than the occupant's principal place of residence would clearly be - and I am not exhausting the field by any means - holiday use and business use, and so on. The Opposition in supporting the amendment of the honourable member for Bligh was seeking to protect the disadvantaged, low-income people who might not necessarily use premises to live in on a more or less permanent basis which could ordinarily be described as residentials, boarding-houses, lodging-houses and so on. On occasions, by no means rare, people of low socioeconomic status - that is low-income earners - use relatively inexpensive hotels for permanent or semi-permanent residential accommodation. The amendment proposed by the Minister relates not to hotels but to motels. It is less common, though not unknown, for low-income earners to use motels, but they should receive appropriate protection. The Opposition does not agree with the sweeping, across-the-board nature of the proposed amendment which would remove motels entirely from the ambit of the proposed legislation. For those reasons the Opposition opposes the amendment proposed by the Government.


The Hon. ELISABETH KIRKBY [9.51]: The Australian Democrats also oppose the proposed amendment. As I said during the second reading debate, the 1986 census counted 7,500 persons, other than proprietors and their families, as residents of hotels or motels. It is possible that the current census, when processed, will show that because of the downfall of the economy, high interest rates and high housing costs, more than 7,500 people, other than proprietors and their families, are living as permanent residents of hotels and motels. After the Newcastle earthquake more than 20 people who had lived permanently for many years in a hotel that had been damaged and rendered unsafe by the upheaval had to be found other accommodation. Those 7,500 to 8,000 people mentioned in the census are mostly elderly single men who are low-income earners or pensioners. They need protection. I do not believe that the proposed amendment will give them that protection. Therefore, I oppose the amendment proposed by the Government.


Reverend the Hon. F. J. NILE [9.53]: The Call to Australia group supports the proposed amendment for the reasons I gave earlier during the second reading debate but also because the proposed amendment foreshadowed by the Government in regard to hotels will include those people about whom concern has been expressed, that is, those who use such accommodation as their principal residence for a period of at least six months. The amendment now being considered deals only with motels.


The Hon. J. P. HANNAFORD (Minister for Health and Community Services) [9.54]: I shall address the issues raised by the Hon. R. D. Dyer. Motels are also used for business purposes. Consequently, exemption of holiday premises would not cover other accommodation. Many visitors come from overseas and interstate on business which may not be related to any holiday purpose and stay in motels. Therefore, the benefit of that protection to which the honourable member refers may not apply. There is no evidence that motels are being used as long-term accommodation and for that reason are dealt with separately from hotels for the purpose of the amendment. The Victorian Rooming Houses Act, which commenced last year, is the only other known legislation in the world that deals with boarding-houses and lodging-houses. That Act provides specific and complete exemption for both hotels and motels similar to that in the proposed legislation.

Page 5221

Anomalies may arise if the amendment of the honourable member for Bligh in the other place is proceeded with. It is not unusual for couples who have separated to book into a motel for a week. The amendment will require motel operators to obtain declarations or other statements that the motel is not a principal place of residence of those occupants. Obviously, the last thing a newly separated person wants to admit is that a motel is the principal place of residence, but after a week has passed that person may begin to realise the separation may be more than transitory and the motel may become the principal place of residence. Once that occurs, breaches of the proposed legislation may occur in the absence of forms of agreement, but because the motel is the principal place of residence, protections are afforded by the proposed legislation. The result may be that a harsh consequence is imposed on the thought that should not be regarded as the intent of the proposed legislation. On all the evidence motels are not the same as hotels. To impose this sort of harsh consequence on motel operators is, in the view of the Government, unreasonable and unnecessary.


The Hon. J. R. JOHNSON [9.56]: I am concerned about the definition of a motel in the proposed legislation. Coming to work of a morning I observe various motels that have signs that offer nightly, weekly or permanent accommodation. In country areas I was aware of people living permanently in motels. I recall going to the construction site of a dam that was being built outside Inverell. I recall finding that men were staying at motels in Inverell on a permanent basis. The protection envisaged in the amendment proposed by the Hon. R. D. Dyer is necessary. People live in motels on a permanent basis. Does the placement of a motel sign on the side of a motel make it a motel? Does the placement of a motel sign on the side of a boarding-house make it a motel? The provision in the bill will cause considerable difficulty, but the amendment proposed by the Hon. R. D. Dyer will protect those who need protection.


The Hon. J. P. HANNAFORD (Minister for Health and Community Services) [9.58]: The concept of a motel is well known and clearly defined in dictionaries. It is a concept that is well known in town planning law. Therefore, it does not need further definition. The type of accommodation referred to by the Hon. J. R. Johnson, especially such accommodation in country areas, is short-term or transient accommodation rather than permanent accommodation. The proposed legislation is aimed at those who are using motels as their permanent accommodation.


Question - That the amendment be agreed to - put.


The Committee divided.

Mr Bull
Mrs Chadwick
Mr Coleman
Mrs Forsythe
Miss Gardiner
Mr Gay
Dr Goldsmith

Mr Hannaford
Mr Moppett
Mrs Nile
Revd F. J. Nile
Dr Pezzutti
Mr Pickering
Mr Ryan


Mr Rowland Smith
Mr Webster


Tellers,
Mr Mutch
Mrs Sham-Ho


Page 5222

Noes, 17

Dr Burgmann
Ms Burnswoods
Mr Dyer
Mr Egan
Mr Enderbury
Mrs Isaksen

Mr Johnson
Mr Kaldis
Mrs Kite
Mr Manson
Mr Obeid
Mr O'Grady


Mrs Symonds
Mr Vaughan
Mrs Walker
Tellers,
Miss Kirkby
Mr Macdonald
Pairs

Mr Jobling
Mr Samios

Mrs Arena
Mr Shaw

Question so resolved in the affirmative.

Amendment agreed to.

The Hon. J. P. HANNAFORD (Minister for Health and Community Services) [10.6]: I move:

Page 5, clause 7. Omit paragraph (f), insert instead:
(f) if the relevant room is in a hotel and the purpose of the agreement is to provide accommodation otherwise than as the occupier's principal place of residence for a period of at least 6 months.

The application of the bill to hotels is clarified by providing a definition of principal place of residence as being where a person has continuously occupied a particular room in a hotel for at least six months. This will overcome one of the major difficulties with the inexact terminology of principal place of residence. For the operators of hotels this will make it clear that there will not be any imposition on their operations, which are generally offered for short-term accommodation. But the amendment will recognise that there are situations where people have been offered long-term residency in hotels. It is important that this type of accommodation remain available as suitable accommodation for those who are offered and want long-term arrangements in hotels. It will be clear that if the purpose of the agreement is for a room to be occupied as the occupant's principal place of residence for in excess of six months, the hotel operator and the resident will be subject to the provisions of the Boarding Houses and Lodging Houses Bill. I commend the amendment.

The Hon. R. D. DYER [10.7]: The Opposition also opposes this amendment. As I said in speaking to the Government's previous amendment, the honourable member for Bligh in another place successfully moved an amendment to clause 7 of the bill to insert the present clause 7(f) which provides:

7. This Act does not apply to a boarding agreement or a lodging agreement:
. . .
(f) if the relevant room is in premises comprising a hotel or motel and the purpose of the agreement is to provide accommodation otherwise than as the occupier's principal place of residence.

The amendment just moved by the Minister differs from the amendment moved successfully in another place in two main respects. For one thing, it deletes a reference
Page 5223
to a motel and, for another, it adds the provision relating to residence for a period of at least six months. In speaking to the previous amendment I indicated that the Opposition did not agree to motels as a total class of accommodation being excluded from the operation of the legislation. It follows as a matter of logic that the Opposition does not agree with the deletion of the word "motel" as proposed by this amendment. The Opposition's more substantial objection to this amendment is the grafting on to the provision inserted in another place of the reference to residence for a period of at least six months. The Opposition believes that is an unduly restrictive and rigid provision. Whether in a given case the place a person occupies is his or her principal place of residence is a question of fact to be determined by evidence. To provide that one must reside in a principal place of residence for at least six months is not only restrictive - and, I would argue, an excessive period of time - but invites the mischief of the landlord or the owner of the premises procuring vacant possession by eviction action at the expiration of, shall we say, five months. That is an undesirable scenario that should not be encouraged.

The Opposition in another place supported the provisions of clause 7(f) on the basis that clause 7(f) and clause 6(b), taken in tandem, protect persons on low incomes who occupy hotel or motel rooms on a more or less permanent basis. Premises ordinarily used for holiday purposes were excluded. The Opposition believes that it took a responsible attitude to protect the interests of both the hotel and motel industry and unfortunate people of relatively modest means who need that type of accommodation because they cannot afford anything better. The Opposition believes that the Government by moving this amendment has gone over the top in responding to concerns expressed by the hotel and motel industry, which is reading far too much into the amendment which was inserted into the bill in another place. For those reasons the Opposition is unable to support the amendment.

The Hon. ELISABETH KIRKBY [10.12]: The Australian Democrats cannot support the amendment, not only for the reasons given by the Hon. R. D. Dyer but because it is unnecessary. An analogy can be drawn with the treatment of caravan park residents under the Residential Tenancies Act. I remind honourable members that clause 16 of the residential tenancies regulations of 1989 provides a method of distinguishing between temporary and permanent caravan park residents. That method is known as the 30-30 rule. If both parties reach a lodging-house agreement in a hotel or a motel, the provisions of the bill will apply immediately. They will apply to the motels mentioned by the Hon. J. R. Johnson which advertise permanent accommodation. Some inner city hotels also advertise permanent accommodation. If one party to a lodging-house agreement in a hotel or motel objects, the provisions of the bill will apply after 30 days. The provisions of the bill may apply after a period of 60 days in any event.

So far as caravan park residents are concerned, the 30-30 rule delineates clearly the difference between temporary and permanent residents. If that rule were introduced, no amendment to the bill would be required. A regulation could be prescribed which excludes temporary residents. Temporary residents are those who are not permanent residents as defined under the 30-30 rule to which I have referred. Hoteliers would be highly unlikely to ask all residents to leave after 59 days. If the hotelier had advertised permanent accommodation, he or she would be hardly likely to want to lose the commercial advantage as a result of accommodating long-term residents. Hoteliers will not advertise permanent accommodation unless they want long-term residents. They will not forgo the stable income they receive from long-term residents because the provisions of the bill allow the proprietors to give merely seven days' notice, at the expiration of which period the tenant can be locked out.

Page 5224

The introduction of the 30-30 rule would answer everyone's concerns. It would answer some of the complaints put forward by the Australian Hotels Association. The correspondence I have received from the Boarders and Lodgers Action Group was in response to a letter from the Australian Hotels Association and refutes many of the association's arguments. I cannot understand why at this time of record unemployment and of more people needing and being unable to find low-cost accommodation, the Government seems to be falling over backwards to meet the needs of the Australian Hotels Association. That association does not need this sort of assistance. We should be looking after the least privileged in our society and not one particular privileged group.

The Hon. J. P. HANNAFORD (Minister for Health and Community Services) [10.17]: The Government amendment provides a definition by referring to a period of six months as a rider on the principal place of residence. It will introduce certainty as to the principal place of residence, which is otherwise dependent on the resident's own intention. Hotels have no control over whether a person becomes a boarder or a lodger. The Committee must remember that as a matter of law hoteliers cannot refuse to accommodate people. For that reason the law has always distinguished hotels from other types of accommodation. If this clause remains unamended, hotelkeepers will not be able to refuse accommodation and will not know what type of person they are taking in - a general hotel occupant, a boarder or lodger. That will cause difficulties for hoteliers taking rent in advance and bond payments, which are limited by the bill. Those circumstances will promote uncertainty and that is the reason for the amendment.

The Opposition has questioned the ability of hoteliers to move an occupant from room to room to overcome the six months' time limit suggested in the proposed amendment to clause 7(f). As I understand it, the gist of the Opposition's proposal is that after five months the hotelier could move a resident from one room to another before the bill takes effect. However, the proposal overlooks clause 38 of the bill which prohibits a person from entering into an agreement, contract or arrangement with the intention of directly or indirectly defeating, evading or preventing the operation of a provision of the bill. Any arrangement by hoteliers to move people from room to room will be considered to be a breach of the contracting out provisions of clause 38. An offence under that clause is subject to prosecution in a Local Court and carries a maximum penalty of $2,000. The Government believes that overcomes the concern raised by the Hon. R. D. Dyer.

The Hon. R. D. DYER [10.20]: In regard to the matter to which the Minister has just referred relating to clause 38, I note that that provision refers to a person who enters into an agreement, contract or arrangement with a specific intention. I would suggest to the Committee that the intention must be formed at the time a person enters into the agreement. If for the sake of argument a person farther down the track - five months down the track - were to decide that it was convenient to the particular hotelier or landlord to move that person, on a preliminary consideration of clause 38 I would doubt that that offence would be made out, given that on my reading of it the intention has to be formed at the point when a person enters into an agreement. Whether I am right regarding that or not, I agree with the Hon. Elisabeth Kirkby in what she said regarding the 30-30 rule referred to in the submission made by the Boarders and Lodgers Action Group. I referred to that matter during the second reading debate. Through inadvertence I did not refer to it in Committee but the matter having been raised by the Hon. Elisabeth Kirkby I agree that that certainly is an alternative and readily available manner of dealing with the matter.

Page 5225

The Hon. ELISABETH KIRKBY [10.21]: In view of what the Minister said in reply to me and in referring honourable members to clause 38 of the bill, does the Minister really believe that some of these people who are trapped into low-cost accommodation for long periods - it has been admitted in another place that many of them may be illiterate - will be able to take a proprietor to court so that the proprietor can be penalised? Where will they get the money to do it when they are already being evicted from accommodation in some cases for the non-payment of rent? Does he honestly expect that they will know that they have the right to do that? We are talking about an underprivileged section of the community. Many of these people may not have English as a first language. They may not be aware of the legal sanctions in a lot of our legislation. They are certainly not in a position to employ lawyers to help them. Nor would they have the money to employ a lawyer even if they believed they had the right to take action through a lawyer. It is not a reasonable assumption. We are attempting to legislate for middle-class values and that legislation is being imposed on underprivileged people. Quite frankly, I think it is a disgrace.

The Hon. J. P. HANNAFORD (Minister for Health and Community Services) [10.23]: The Hon. Elisabeth Kirkby has overlooked that the Tenancy Commissioner, under part 3 of the bill, has the role of providing assistance of the type to which she referred to the people about whom she raised concerns. The Tenancy Commissioner conducts the investigations and he also conducts the prosecution. Therefore, it is not a matter of a tenant, particularly an underprivileged tenant, needing to have independent legal advice. All that is provided by the Tenancy Commissioner, which is his role.

The Hon. R. D. Dyer: They have to know to approach the Tenancy Commissioner.

The Hon. J. P. HANNAFORD: That is a problem with any part of any legislation. That is why we have community advocates. One hopes that people have access to someone in the community who will be able to refer them to a legal aid service or a magistrate. But if people do not know they have any rights at all and they are evicted they will not even know to go to anyone for assistance. So it does not matter how we legislate, we cannot protect those people. We have to put in place as many mechanisms of protection as we can. That is why we have provided for the Tenancy Commissioner to intervene when he finds out about these issues from whatever source. The Government's tenancy service provides support by employing workers who speak community languages. These investigators have a clear track record of investigating issues and successfully prosecuting cases in which issues are brought to their attention.

The Government has recognised the sorts of issues raised by the honourable member and has sought to address them. In relation to the questioning by the Hon. R. D. Dyer about clause 38, it is the advice of those who drafted the legislation that it covers the exact problem to which he has adverted. I am in a position to indicate to the Committee that if, as a result of experience with this legislation, the type of problem adverted to by the Hon. R. D. Dyer is not covered by the proposed section 38, the Government will amend it to make certain that the way in which we intend it to operate is achieved. Those who seek to avoid the provisions of the legislation by moving people from room to room to try to get around an agreement will be brought within the provision of the legislation. The legal advice that has been given to us is that is covered by proposed section 38 as drafted.

The Hon. J. R. JOHNSON [10.26]: I ask the Minister again to elaborate on what a hotel is. Is it a licensed premises? Is it a private hotel? Does the legislation
Page 5226
envisage covering private hotels? In the Haymarket area of this city there are a considerable number of private hotels. In Flinders Street there are also many private hotels. I can recall that when I was a union official a man who worked at Mark Foy's had lived in the same room at the Vanity Fair Hotel, which was on the site the Commonwealth police building now occupies, for 52 years. In numerous establishments throughout the country there are people who have been in occupancy of a room in a hotel. There may have been 10 licensees of the hotel. A licensee sells the lease of the hotel and the tenant goes with it. I hope that these types of people are protected by the legislation.

The Hon. J. P. HANNAFORD (Minister for Health and Community Services) [10.28]: I am advised that the term hotel is not specifically defined in the legislation and therefore we will adopt the traditional dictionary definition. As the honourable member said, there are two types of hotel - those licensed under the Liquor Act and the general private hotels which we well know around the community. Both types of hotel would be covered by the legislation. The only reason for the distinction in regard to licensed hotels is to cover the problem which arises with the ability of the operator to exclude people. This has been recognised in the Liquor Act by requiring that a hotel not refuse people access to the premises. In regard to this legislation a hotel means the generic term hotel as found within the dictionary.

The Hon. J. R. JOHNSON [10.29]: I do not wish to further complicate the position but a private hotel could make an application and be granted a licence. Would this have any bearing on the occupants of the rooms?

The Hon. J. P. HANNAFORD (Minister for Health and Community Services) [10.29]: That would not have any bearing. Provided the premises are being operated in the way in which a hotel is defined so as to give its characteristics, it would fall within the provisions of this bill, whether or not it is licensed under the Liquor Act. It may, if it is required to do so, be licensed under any other piece of legislation. Provided it falls within that generic definition it would be covered by this legislation.

Reverend the Hon. F. J. NILE [10.30]: The Hon. J. R. Johnson has shown the Government's wisdom when it introduced the bill originally -

The Hon. J. R. Johnson: That was not my intention.

Reverend the Hon. F. J. NILE: I know that but the honourable member proved the point I was going to make. In its original form clause 6 of the bill dealt with premises that were not covered by the Act, which were premises comprising a hotel or motel. I am not arguing that there may be some need for legislation to control or supervise the accommodation of people living in hotels but I believe it was incorrect when the other place inserted the amendment dealing with hotels and motels into this legislation. The Government has compromised by deleting the word "motel" but retaining the word "hotel" and the words "provide accommodation otherwise than as the occupier's principal place of residence for a period of at least 6 months". Some confusion may still remain, but I understand that is the political reality of trying to find a compromise.

The Hon. J. R. Johnson: Some places are hotel-motels.

Reverend the Hon. F. J. NILE: That is what I am saying. Because of that hotels and motels should not be covered by this bill. The Australian Hotels Association
Page 5227
has raised a question regarding the effect of this change on managers who reside in hotels. According to the AHA the owner of a hotel could not require the manager to vacate the premises outside the notice provisions of the legislation. This could be a major concern in cases where a manager's employment has been terminated without notice because of dishonesty or fraud or if there is hostility between the manager and the owner. The AHA believes those practical questions have not been taken into account by those who support including hotels in the provisions of this legislation. The AHA also made the strong point that apparently for the first time in Australia residents of hotel rooms will be covered by such legislation as this and that there has always been a distinction between accommodation provided by boarding-houses and accommodation provided by hotels. However, the Government has made the point that the owner of a hotel is obliged to provide accommodation whereas the owner of a boarding-house is not so obliged. Under section 128 of the Liquor Act a hotel manager has certain responsibilities towards the residents of that hotel. It would seem on the surface that it may not be economically possible to meet those responsibilities. However, those with good intentions who support the approach proposed will cause hotels not to provide accommodation in the future but merely to serve alcohol.

The Hon. R. D. DYER [10.33]: We are talking here about disadvantaged people. We are talking substantially about low-income, single men or pensioner, single men who are unsophisticated so far as awareness of their legal rights is concerned. The Minister referred to the right to approach the Tenancy Commissioner, but in many cases those people would not be aware of the existence of that facility. The Minister referred also to the tenancy service of the Department of Housing. It is not for me to unduly criticise that service, but the present Government, in its previous term of office, saw fit to defund the community based tenancy advice and referral services. Those services advised people and also acted in an advocacy role for them. The facilities of advice and representation available under this Government's administration are somewhat diminished from what they were during the former Government's term of office. It is for those reasons, among others, that the Opposition was happy to support the amendment moved by the honourable member for Bligh in another place, which sought to take hotel and motel premises into the ambit of this legislation. The Opposition is unhappy with the Minister's amendment as it is likely to be abused by landlords - not all but some - and we believe it is far better that the amendment as successfully moved in another place by the honourable member for Bligh should remain as it stands.

The Hon. ELISABETH KIRKBY [10.35]: It appears to me that the Australian Hotels Association wants to have it both ways. It wants the ability to have long-term residents because of the security of income but it does not want to have to comply with any of the legislation laid down specifically to protect people who are lodging or boarding, whether in a hotel, motel or any other type of shared accommodation. The association cannot have it both ways. Under the Act it is perfectly at liberty merely to offer temporary accommodation. Hoteliers need not offer permanent accommodation at any time. One of their functions is to offer overnight or weekly accommodation. However, once they have advertised that they are prepared to offer permanent or long-term accommodation, they must meet their responsibilities and comply with the legislation that deals with boarders and lodgers in permanent accommodation.

As to the problem raised by Reverend the Hon. F. J. Nile about resident managers, I am informed that a valid analogy can be drawn with the caretakers of clubs. They were specifically covered under the Residential Tenancies Act 1987. Therefore, I believe in the same way managers or licensees who are resident on the premises of hotels or motels could be similarly covered by regulation. Those honourable members
Page 5228
who did not hear the "Practicalities" program on the Australian Broadcasting Corporation last Sunday morning should listen to its sequel which will be broadcast at 9 o'clock this coming Sunday. On that program horrendous stories were told about people who were evicted from boarding-houses at 2 o'clock in the morning. Their luggage was thrown out on the pavement after them. The people told their own stories. These practices are taking place in this State at present. I believe, unlike the Government, that those people need protection.

The Hon. J. P. HANNAFORD (Minister for Health and Community Services) [10.37]: That is why this legislation was introduced. Its purpose is to provide such protection. I draw the honourable member's attention again to the provisions of clauses 34 and 35 of the bill, which give to the Tenancy Commissioner the power to act on behalf of a tenant where that tenant lodges a complaint with the commissioner.

Question - That the amendment be agreed to - put.

The Committee divided.

Ayes, 17

Mr Bull
Mrs Chadwick
Mrs Forsythe
Miss Gardiner
Mr Gay
Mr Hannaford

Mr Mutch
Mrs Nile
Revd F. J. Nile
Dr Pezzutti
Mr Ryan
Mr Samios

Mrs Sham-Ho
Mr Rowland Smith
Mr Webster
Tellers,
Dr Goldsmith
Mr Moppett
Noes, 16

Dr Burgmann
Ms Burnswoods
Mr Dyer
Mr Enderbury
Mr Johnson
Mr Kaldis

Miss Kirkby
Mrs Kite
Mr Macdonald
Mr Manson
Mr Obeid
Mr O'Grady

Mrs Symonds
Mr Vaughan

Tellers,
Mrs Isaksen
Mrs Walker

Pairs

Mr Coleman
Mr Jobling
Mr Pickering


Mrs Arena
Mr Egan
Mr Shaw

Question so resolved in the affirmative.

Amendment agreed to.

Part as amended agreed to.

Part 2

The Hon. ELISABETH KIRKBY [10.45]: I move:

Page 9, clause 18. In subclause (1) (b), omit "10", insert instead "60".

Page 5229

This amendment relates to the length of notice of a rental increase required to be given to a boarder or lodger. A period of 10 days' notice of an unspecified rent increase is not sufficient. It has been said repeatedly in the past hour that boarders and lodgers belong almost exclusively to the low-income group, and a sudden rent increase often means that a boarder or lodger has to seek alternative accommodation. It is well known also that low-cost rental accommodation is scarce and it would take a boarder or lodger longer than 10 days to find such accommodation. A period of 60 days, which is provided in the Residential Tenancies Act, is appropriate. Boarders and lodgers should be afforded the same protections and privileges enjoyed by tenants who are subject to the provisions of the Residential Tenancies Act. I commend my amendment to the Committee.

The Hon. R. D. DYER [10.47]: The Opposition supports the amendment moved by the Hon. Elisabeth Kirkby for the reasons advanced by her to the Committee.

The Hon. J. P. HANNAFORD (Minister for Health and Community Services) [10.47]: This clause requires 10 days' written notice of a rent increase to be given to a boarder or lodger. The amendment proposes that the period be increased to 60 days. Such a change would make the notice period the same as that for a tenant under the Residential Tenancies Act. However, a boarder or lodger has no right to go to the Residential Tenancies Tribunal about what is claimed to be an excessive rent increase, so the longer period to consider options is not relevant. At present, a boarder or lodger may be given notice of a rent increase to take effect immediately. Therefore, the provision of 10 days is a significant improvement. Information gathered at public discussion forums held last year by the Tenancy Commissioner revealed that even boarders and lodgers would not expect such a long period of notice as 60 days. Though some may have been residents in a boarding-house for many years, 10 days is considered to be a reasonable time within which to make the necessary arrangements to move on if the rent increase is regarded as too steep. In any event, if the person has been a good boarder or lodger, it is unlikely that the owner would want to lose him or her and, therefore, other necessary arrangements would be made.

The Hon. ELISABETH KIRKBY [10.50]: The hour is late and I am amazed at some of the remarks that have been made in this debate. Words fail me. The Minister has attempted to assure the Committee that 10 days is a suitable period of time for a person living on a pension or social welfare benefit to find other affordable accommodation. The Minister would realise how ludicrous his suggestion is if he knew how difficult it is to obtain low-cost accommodation. Not much low-cost accommodation is available. Where is such a person, once given notice, supposed to go to start looking for accommodation? First they will have to look through the newspapers. Then they must find money to travel to other areas of Sydney, if they are living in this city, to look for somewhere cheaper to live. It is a total impossibility for those people to do that in 10 days and it is ludicrous to expect it. Why should a boarder or lodger not have the same rights as tenants under the Residential Tenancies Act? What is the rationale for the difference?

I am astounded that the Government should adopt such a view because it must be obvious that 10 days is insufficient time for such people to find accommodation. If 10 days were sufficient time to find accommodation, so many underprivileged people would not be seeking crisis or refuge accommodation and support. Major crisis assistance organisations such as the Sydney City Mission, the Smith Family, St Vincent de Paul Society and the Salvation Army are stretched to the limit and overcrowded with people who cannot find any other form of accommodation because it does not exist. It is ludicrous to suggest that 10 days is an adequate period of time to find affordable
Page 5230
accommodation or that a tenant need be given no notice at all. The Government may want to amend legislation to assist people in these circumstances but should make that assistance meaningful, select a relevant time span and not seek to introduce a 10-day mickey mouse period. If 60 days is considered to be too long, allow 30 days. But the suggestion of a 10-day period being of value is amazingly stupid and I cannot believe that any rational person could put it forward.

Reverend the Hon. F. J. NILE [10.53]: I wish to ask the Minister a question. Clause 18(2) of the bill provides that the rent payable under a boarding or lodging agreement that creates a tenancy for a fixed term is not to be increased during the term of the tenancy unless the amount of the increase or method of calculating the increase is set out in the agreement. Apparently those who may agree to a fixed term would not be taken by surprise by an increase in rent but would be covered by an arrangement built into the agreement that they sign. A proportion of boarders and lodgers would be in that category, others would be in a different category. The ratio between those groups is unknown.

The Hon. R. D. Dyer: Even seven days could be a fixed term.

Reverend the Hon. F. J. NILE: Yes, but if a fixed term is stated in an agreement, the amount of rent increase or method of calculating the increase would be set out in that agreement. Any increase would not be by a sudden surprise announcement but would be covered by clause 18(2) of the bill. The Hon. Elisabeth Kirkby has addressed the difficulty caused by the shortage of accommodation.

The Hon. Elisabeth Kirkby: The proposed legislation will increase the power of the landlords.

Reverend the Hon. F. J. NILE: No one, not even the Hon. Elisabeth Kirkby, would provide this form of accommodation if its disadvantages are increased. The honourable member may in fact disadvantage the people she is seeking to help. The honourable member thinks that she can hold a big stick over the owners of boarding- houses and tell them they must do what is required. The owners do not have to do anything. They can sell the boarding-houses or demolish them if they want to.

The Hon. Elisabeth Kirkby: They are making too much profit out of it to do that.

The Hon. P. F. O'GRADY [10.56]: University students and people on fixed incomes from a pension or social security benefit live in this form of accommodation. The Newcastle earthquake devastation damaged many boarding-houses and caused increased accommodation costs. People affected by that disaster could not find similar accommodation after the earthquake at the same cost that they enjoyed prior to the devastation. Those people could not possibly find accommodation within 10 days of the earthquake. I believe that in this straightforward and simple area the Government should accept the proposed amendment which recognises problems experienced by students and low-income earners, let alone anyone else. I urge the Government to reconsider its position.

The Hon. J. P. HANNAFORD (Minister for Health and Community Services) [10.58]: The Hon. Elisabeth Kirkby raised important issues but supplied the answer to her own dilemma. She prefers that tenants in boarding-houses and lodging-houses be treated as tenants under the Residential Tenancies Act. The reality is that they are tenants
Page 5231
not under the Residential Tenancies Act but under the proposed boarding houses and lodging houses legislation. They are in different forms of tenancies that have different roles and achieve different purposes. The honourable member is seeking in effect to have both forms of accommodation treated exactly the same. That approach seeks to subvert the difference between the available forms of accommodation. In answer to the question asked by the Reverend the Hon. F. J. Nile, I confirm that if there is a fixed term his supposition is correct: there cannot be any increases in rent during the period of a fixed term unless the method for increasing that rent is clearly set out in the agreement. Clause 18(2) of the bill covers the situation to which the honourable member has adverted.

Question - That the amendment be agreed to - put.

The Committee divided.


Ayes, 16

Dr Burgmann
Mr Dyer
Mr Enderbury
Mrs Isaksen
Mr Johnson
Mr Kaldis


Miss Kirkby
Mrs Kite
Mr Macdonald
Mr Manson
Mr Obeid
Mrs Symonds


Mr Vaughan
Mrs Walker

Tellers,
Ms Burnswoods
Mr O'Grady
Noes, 17

Mr Bull
Mrs Chadwick
Mrs Forsythe
Miss Gardiner
Mr Gay
Dr Goldsmith

Mr Hannaford
Mr Moppett
Mr Mutch
Revd F. J. Nile
Mr Ryan
Mr Samios

Mrs Sham-Ho
Mr Rowland Smith
Mr Webster
Tellers,
Mrs Nile
Dr Pezzutti


Pairs

Mr Coleman
Mr Jobling
Mr Pickering

Mrs Arena
Mr Egan
Mr Shaw

Question so resolved in the negative.

Amendment negatived.

The Hon. ELISABETH KIRKBY [11.2]: I move:

Page 11, clause 20. From paragraph (a), omit "2", insert instead "14".

This paragraph will allow the owner to give two days' notice of termination of the agreement when the rent is seven days in arrears. I understand the problem that owners will have when rent falls in arrears, but I believe this provision is unduly harsh. As was pointed out earlier in the debate, most pensioners work on a system of receiving their cheque and paying rent on the same day. It is not unusual for payment of benefits through the bank computer system to be delayed. Pension day is Thursday. If there is
Page 5232
any delay in the government payment appearing in the bank statement, the pensioner may not be able to pay rent until the following week. That could also apply to some students trying to exist on an Austudy allowance. If that payment is delayed, they would not be in a position to pay rent. This is a common situation. I believe the landlord would be covered if the period of notice were extended from two days to two weeks. Though I realise from the Minister's previous reply that he cannot see the need for it, this provision would bring boarders and lodgers into line with tenants under the Residential Tenancies Act. I am not suggesting that the whole of the Residential Tenancies Act should apply to boarders and lodgers, but when a tenant is given notice to quit when his rent is in arrears or he has received notice of an increase in the rent, it is suitable that the Residential Tenancies Act should apply. Again I commend my amendment to honourable members.

The Hon. R. D. DYER [11.4]: The Opposition agrees that the two-day notice provision appearing in clause 20 is unduly harsh. For that reason, and the reasons mentioned by the Hon. Elisabeth Kirkby, the Opposition supports the amendment.

The Hon. J. P. HANNAFORD (Minister for Health and Community Services) [11.5]: A boarder or lodger can be given two days' notice to vacate if he is in arrears of rent for more than seven days. The amendment suggests that a resident be given 14 days' notice in those circumstances. A person would be at least 21 days in arrears before anything could be done by the owner if the amendment were to be adopted. In the Government's view that would not be reasonable. Under the legislation, an owner will be permitted to charge a bond of seven days' rent only. An owner must be able to deal with rent arrears quickly. If an owner was able to have a bond for seven days but could not act for 21 days, the Government would not regard that as reasonable. Some boarding-house owners already give residents more time to pay rent. If a delay has occurred in a pension cheque arriving or there is an illness, that is a matter for the individual parties to negotiate. In the legislative framework the Government believes there has to be a reasonable relationship between the amount of bond that can be held and the time that should be available in order to achieve a termination of an accommodation agreement.

The Hon. ELISABETH KIRKBY [11.6]: I am well aware that there are bad tenants, bad boarders and bad lodgers, but equally there are bad landlords. The Minister has just painted a picture of a reasonable landlord who in the case I mentioned or in the case of an illness would behave in a reasonable and compassionate manner. However, people who do not have the luxury of a reasonable and compassionate landlord must be looked after. Under the bill as it stands, they would be compelled to leave their accommodation two days after their rent was only seven days in arrears. Once again I ask the Minister where he thinks these people will be able to go? They will not get their bond back; they will start off with nothing, already in debt and with nowhere to go. Honourable members ought to consider their plight because unless they do, because of the recession and the rising rate of unemployment, the pressure on agencies as well as on government to provide crisis accommodation will become overwhelming. That is why I introduced the amendment and why I am still fighting for it.

The Hon. J. P. HANNAFORD (Minister for Health and Community Services) [11.8]: The effect of the proposal of the honourable member is that a person in arrears for seven days should have a further 14 days before any action can be taken. She is advocating a 21-day rent subsidy or rent-free period. The Government does not believe that if a landlord is able to take a bond only for a seven-day period such a subsidy should be provided.

Page 5233

Reverend the Hon. F. J. NILE [11.9]: I support what the Minister has just said. If a person is in arrears, he can expect to be in trouble with the landlord. He knows he is in trouble. The tenant has to pay rent to keep the system going. Under the system advocated by the Hon. Elisabeth Kirkby, after 21 days a tenant could move to other accommodation. People are already doing that, owing large sums of money to people all over Sydney who provide accommodation. That is happening right now. The tenants just keep moving.

The Hon. Dr MARLENE GOLDSMITH [11.9]: I am concerned about this amendment. Honourable members are not talking about public housing but about people who own private accommodation. If the owners of boarding-houses and lodging-houses are compelled to become charities - which is what honourable members are talking about - and carry people rent free, they will either increase the rent and make everyone pay more or they will be driven out of the market and there will be far less housing for needy people, let alone cheap housing for needy people.

The Hon. ELISABETH KIRKBY [11.10]: Many people in the scenario I outlined are not of the type described by Reverend the Hon. F. J. Nile who move from one area of accommodation to another leaving a trail of debts behind them. I was referring to people such as pensioners or people on welfare benefits who through no fault of their own may not receive their pension cheques by the date on which they have to pay rent. Reverend the Hon. F. J. Nile has said they will have to pay the rent. If one looks at the cost of accommodation and realises the small amount that is left from any welfare benefit such people might receive, where does the Government believe they will be accommodated? People are already living on the streets of Sydney. Does the Government want to increase that number?

It has been suggested that the amendment involves a welfare subsidy and the Government cannot agree to that. The more people are evicted, the more rents will increase and the more necessity there will be for the Government to pay welfare subsidies to provide crisis accommodation. I hope the day has long passed when people are forced to live on the streets. I know that people are living on the streets of London, New York, Los Angeles and many other major American cities. Honourable members know perfectly well that children live on the streets of Kings Cross and other areas of Sydney. We should not be legislating to increase the number of people living on the streets merely to protect landlords to the extent they are protected by this legislation.

The Hon. R. D. DYER [11.12]: The statement made by Reverend the Hon. F. J. Nile regarding the obligation to pay rent was excessively simplistic. Tenants certainly have an obligation to pay rent as and when it falls due. However, the reality is that people on welfare payments such as pensioners or people in receipt of workers' compensation may find that the payment of a particular benefit is late for reasons over which they had no control. Sometimes it is the fault of the mail. Sometimes it is the fault of a computer in the particular agency making the payment. Sometimes it is the fault of the workers' compensation insurer. People in receipt of such benefits live from hand to mouth, so to speak, and if their periodic payments do not arrive promptly they are immediately put into the embarrassing position of being unable to pay rent.

Given that we are dealing with people who resort to this type of accommodation because of their lack of means, it is not unreasonable to give them the additional time proposed in the amendment moved by the Hon. Elisabeth Kirkby to pay their rent without facing eviction. It seems to the Opposition that some cases are certainly genuine and it is not sufficient for Reverend the Hon. F. J. Nile to refer to people who are virtually fly
Page 5234
by nighters. He did not use that expression but referred to people who move from address to address without paying their rent. Honest, decent people are also without substantial means and need additional time beyond the limited period of two days referred to in the bill to pay their rent.

The Hon. J. P. HANNAFORD (Minister for Health and Community Services) [11.14]: It is interesting that the Hon. Elisabeth Kirkby should refer to accommodation problems in New York and London. Rather than merely refer to them, she should have spoken about what is actually happening in those cities. Housing problems in those cities result from overstringent legislative provisions which impose unusual controls on private landlords. In cities which have rent control, as do the cities referred to by the Hon. Elisabeth Kirkby, private landlords are given no incentive because of inappropriate regulation of the private sector. As soon as inappropriate controls are imposed, the private sector moves out of the market. The argument advanced by the Hon. Elisabeth Kirkby is self-defeating. To illustrate their argument the Hon. R. D. Dyer and the Hon. Elisabeth Kirkby referred to both a cheque being delayed in the mail or an electronic payment having been incorrectly made. They overlooked the fact that the legislation provides that the rent must be seven days in arrears after which two days' notice is given. If the rent is paid at any time in those nine days, the notice does not apply. The tenant therefore has nine days in which to correct the problems to which the honourable members have adverted. The protection provided in the legislation is then revived.

The Hon. ELISABETH KIRKBY [11.16]: A few moments ago the Minister claimed that the problems in Great Britain were caused by overstringent regulation. I quoted previously from a book which I, together with other honourable members, purchased for the Parliamentary Library. Much of the legislation passed in Great Britain was enacted during the term of office of the Conservative Government under Mrs Thatcher. It was passed after appalling circumstances had been revealed in Great Britain. Between 1974 and 1986 many guest houses and boarding-houses in England were grossly overcrowded. In one such establishment in Stepney, the overcrowding was desperate. It was designed to house 90 people but held anything from 200 to 500. In 1980 a fire occurred and 40 firemen were needed to fight the blaze. In 1981 it was found that this place was again overcrowded. It was totally unsuitable for habitation. The toilets were filthy and some were not working. The first-floor bathroom was covered with raw sewage. In 1982 the East London Advertiser was told that a man, his wife and three children lived in a room 11 feet by 16 feet for £69 per week. That is the reason why that sort of legislation was introduced in Great Britain. If such legislation forced those sorts of landlords out of the accommodation market, it was proper legislation because such landlords should be forced out of the market.

Many similar cases dating up to 1986 are documented in this book. There have been many fires, and in 1982, 279 people died in fires that occurred in private hotels, cheap lodging-houses and boarding-houses. That is why stringent regulations were introduced in Great Britain. The same stringent fire regulations have not yet been introduced in New South Wales. I remind honourable members of the fire in the backpackers hostel at Kings Cross. I have repeatedly brought to the attention of the Minister the problems being experienced in Kings Cross because of grossly overcrowded backpackers hostels. We know that the inquest into the backpackers hostel fire found that many of the so-called fire escapes were simply not operative. Not all accommodation is substandard but some is. Therefore it is proper to have stringent regulations. We certainly do not want the type of situation that developed in Great Britain during the 1980s. It has been well documented. I do not believe that stringent regulations are what drive out of business respectable, honest businessmen wanting to run a boarding-house, a lodging-house, a motel or a hotel.

Page 5235

The Hon. J. F. RYAN [11.21]: The Hon. Elisabeth Kirkby talked about landlords who are irresponsible. It needs to be understood that the bulk of landlords want to keep their premises tenanted and they will not take actions unnecessarily to remove a tenant who has a problem with an electronic payment or a pension payment arriving a little late. The likelihood is that action will be taken only if the tenant has demonstrated a habit of failing to keep rent up to date and needing continuous supervision. I suspect that landlords want to have available to them at an appropriate time a regime of action, when they have decided they have had enough of dealing with a tenant who has to be supervised so closely to keep up to date with his or her rent, and they are facing the prospect of the tenant leaving them in the lurch without payments being brought up to date. They want to be able to take action in time. The bond allows them to do so without being out of pocket at the end. As has been reasonably said, if landlords do not have an opportunity to do this when it is required, they will get out of the market altogether and there will not be accommodation. The bulk of landlords are responsible not so much because they are idealistic but because it is good business. They want to keep their properties tenanted for as long as possible. If a tenant says that his payment will be a couple of days late, the landlord will not take action. It is spurious to argue that he would. Very few landlords would act in such circumstances. I suspect that any landlord who did act in that way would be revealed very quickly in the tabloid press.

The Hon. R. D. DYER [11.23]: I regret to delay the Committee even one second at this late stage but the Hon. J. F. Ryan is adopting an idealistic view of this area. We are not talking about tenants; we are referring to boarders and lodgers. It is a very rough and ready area. As was said in Committee earlier, people are thrown out with their bags on to the street at 2 o'clock in the morning. Admittedly, some regulation is at last being brought into the area. But none of us should run away with the idea that this is an area in which everything is fair and above board and in which people deal reasonably with each other. That is very far from being the case. The Opposition is delighted that the area is being regulated. It is always possible to do somewhat better and that is what the Hon. Elisabeth Kirkby is trying to do with the Opposition's support.

Question - That the amendment be agreed to - put.

The Committee divided.



Ayes, 15

Dr Burgmann
Ms Burnswoods
Mr Enderbury
Mrs Isaksen
Mr Johnson
Mr Kaldis

Miss Kirkby
Mr Macdonald
Mr Manson
Mr O'Grady
Mrs Symonds
Mr Vaughan

Mrs Walker


Tellers,
Mrs Kite
Mr Obeid
Noes, 17

Mr Bull
Mrs Chadwick
Mrs Evans
Mrs Forsythe
Miss Gardiner
Mr Gay

Dr Goldsmith
Mr Hannaford
Mr Moppett
Mr Mutch
Mrs Nile
Dr Pezzutti

Mrs Sham-Ho
Mr Rowland Smith
Mr Webster
Tellers,
Revd F. J. Nile
Mr Ryan

Page 5236

Pairs

Mr Coleman
Mr Jobling
Mr Pickering
Mr Samios

Mrs Arena
Mr Dyer
Mr Egan
Mr Shaw

Question so resolved in the negative.

Amendment negatived.

The Hon. ELISABETH KIRKBY [11.30]: I move:

Page 11, clause 20. From paragraph (b), omit "7", insert instead "30".

The bill provides for only seven days' notice to quit after a fixed-term agreement has ended. As I have said before, the Residential Tenancies Act allows 60 days' notice to quit. I consider it reasonable to allow a fixed-term boarder or lodger, who is obviously not a transient visitor, at least 30 days' notice that the agreement will not be renewed. This legislation as it stands will mean that the person concerned will be given only seven days' notice to quit, which will not give that person sufficient time to find alternative low-cost accommodation. If tenants cannot find suitable low-cost accommodation they will be forced against their will to go to one of the major crisis agencies such as the Society of St Vincent de Paul, the Salvation Army, the Smith Family, or other agencies in the community that assist people in times of need. Crisis accommodation services are already grossly overloaded. I am not speaking about people who have not paid their rent, or the people Reverend the Hon. F. J. Nile spoke about, those people who move from one type of accommodation to another and leave a trail of debt behind them. I am talking about perfectly reasonable people who may wish to have another fixed-term agreement, but the landlord, for whatever reason, does not wish it. I agree that landlords are entitled not to renew agreements if they do not suit them but it is necessary for people who may have paid their rent regularly and have been model tenants to be allowed a longer period of time than seven days in which to find alternative low-cost accommodation. It is for that reason that I move the amendment.

The Hon. R. D. DYER [11.33]: The Opposition supports the amendment. It is fair to say that there is undue disparity between the period of seven days' notice to quit proposed in the bill and the period permitted under the Residential Tenancies Act of 60 days' notice to quit. Having regard to the differences between the two forms of tenure, I appreciate that the period of notice under this legislation should not necessarily be in a state of parity with that required under the Residential Tenancies Act, but to say that it should be only a period of seven days' notice is in my view unduly short, and it is not unreasonable - indeed it is proper and appropriate - for a period of 30 days' notice, being exactly one-half of the period of notice required under the Residential Tenancies Act, to be provided for in this legislation.

The Hon. J. P. HANNAFORD (Minister for Health and Community Services) [11.35]: The legislation proposes to allow for seven days' notice to vacate to be given by both the owner and the resident if any fixed period has expired. The amendment proposes that the period be extended to 30 days. At present there is no requirement for any notice period at all to be given. The proposed seven days' notice is a minimum period of notice. More notice can be given if either party wishes. Short-term boarders and lodgers will be accustomed to a fairly mobile lifestyle and will have at least one week
Page 5237
to look for alternative accommodation. An owner is not likely to want to lose a long-term resident, but if it becomes necessary to end the relationship, seven days' notice to quit is only the bottom line. The owner can give such notice as he wishes under the legislation.

The Hon. ELISABETH KIRKBY [11.35]: I fail to understand the thrust of the Minister's argument. Extending the period of notice to quit from seven days to 30 days will not disadvantage the landlord. We are dealing with people who have been reasonable tenants and who have been paying their rent regularly. If they paid their rent for perhaps months or years there is no reason for the landlord to believe that they will not continue to pay their rent for a further 30 days. Therefore, the landlord would not be out of pocket. I must emphasise that it is not possible to find reasonable low-cost accommodation within a seven-day period. If the Minister is not convinced by my arguments I suggest, particularly as he is also the Minister for Family and Community Services, that he consult with some of the leading agencies such as St Vincent de Paul, the Smith Family, the Sydney City Mission, the Salvation Army and the other providers of crisis accommodation. Those organisations are turning away people who need low-cost accommodation. They know the needs of the market and if it were possible to obtain low-cost accommodation easily, those organisations would not be so overloaded. If there was an oversupply of low-cost accommodation or even a reasonable supply of low-cost accommodation, then seven days' notice to quit would be adequate. However, that is not the case and that is why I suggest that 30 days' notice to quit would be fairer, and it certainly could not be said to disadvantage the landlord in any way.

Amendment negatived.

The Hon. ELISABETH KIRKBY [11.38]: I move:

Page 12, clause 21. From subclause (2), omit ", with or without notice, terminate the boarding agreement or lodging agreement and take possession of the room to which it relates", insert instead "apply to the Tribunal for an order terminating the agreement".

This amendment is designed to prevent eviction without application to the Residential Tenancies Tribunal for an order. It is the most important amendment of all my amendments to this bill. As it stands, clause 21 gives the owner the power summarily to evict a boarder or a lodger without notice, which conflicts with the intention of notice provisions in the bill and reinforces the current unregulated situation to which I have referred previously. This clause institutionalises the practice of arbitrary eviction - the most serious flaw in the bill. A few moments ago the Minister said that the objective of the legislation was to give some protection to boarders and lodgers. This clause negates any protections given by the legislation to boarders and lodgers. It provides that an owner may, with or without notice, terminate a boarding or lodging agreement and take possession of the room occupied by a boarder or lodger. If this clause is not amended, the legislation will be completely irrelevant. If an owner has an unsatisfactory tenant who is behaving in a disruptive and anti-social way, upsetting other tenants and making the premises an unpleasant place in which to live, that owner should have access to the Residential Tenancies Tribunal to seek an order of eviction.

I am perfectly willing to concede that some boarders and lodgers may be regarded as unsatisfactory; that they would be a nuisance to other occupants and make the lives of others extremely uncomfortable. Surely if the landlord were in any way reasonable, he or she would have warned tenants that if their behaviour continued to be unsatisfactory, they would be asked to leave. I refer to tenants who could be regarded

Page 5238
as repeat offenders. The additional few days taken up by the landlord applying for an eviction order to the tribunal would not substantially alter the circumstances of other occupants of the premises. It is completely wrong that there should be provision for eviction without notice, without any opportunity to appeal. I cannot support such a concept.

The Hon. R. D. DYER [11.42]: The Opposition supports the amendment moved by the Hon. Elisabeth Kirkby. A degree of safety and regularity would be inserted into the legislation if the Residential Tenancies Tribunal were the arbiter of whether an order to terminate an agreement should be made. The Opposition is not enthused by the arbitrary eviction of a boarder or lodger by a landlord. It is appropriate that an impartial body should make such decisions. The amendment has been properly put to the Committee by the honourable member.

The Hon. J. P. HANNAFORD (Minister for Health and Community Services) [11.43]: Clause 21(2) is the only provision within the legislation that allows for the termination of an agreement without notice. That will take place only when serious damage is occasioned to premises. The legislation allows an owner to take immediate possession from a boarder or lodger who has caused damage to property, has been violent, or has caused injury to the owner, other residents or neighbours. The amendment proposes that in such circumstances the owner may apply to the Residential Tenancies Tribunal for an order to terminate the agreement. The amendment fails to recognise the close community nature of boarding-house life. To suggest that the only resort an owner has to terminate an agreement is by application to the tribunal ignores the communal nature of such occupancies. In extreme circumstances an owner must be able to take control of the situation for the benefit of all of his or her residents, and possibly his or her family. The Hon. R. D. Dyer expressed concern about the lack of protection for boarders and lodgers. There is sufficient protection in the legislation to deter owners from abusing the provision. When breaches of the Act occur, proceedings may be taken against an owner. The legislation provides for a penalty of $5,000 should an owner evict a boarder or lodger for reasons other than in accordance with allowable circumstances. In addition, the court may order the payment of compensation. There is no limit to the amount of compensation that may be ordered. It is the deliberate intent of the legislation to keep the majority of boarder and lodger disputes out of the Residential Tenancies Tribunal.

The differences between ordinary tenancies and the communal nature of boarding-house life must be recognised. With some qualification an owner of a boarding-house or a lodging-house must be able to operate the business free from unnecessary intrusion and to have reasonable control. The point was made many times at discussion forums that no owner wants to cut off his or her source of income by removing residents without reason. If a person is evicted for reasons other than what are determined to be allowable circumstances, the legislation provides for penalties and adequate compensation and protection for the evicted person.

The Hon. ELISABETH KIRKBY [11.46]: The protections and compensation provided by the legislation will be available only to those who know their rights and have legal representation in a court of law. Even if the evicted tenant knows that he or she has access to the Tenancy Commissioner and that the Tenancy Commissioner will undertake the advocacy of the case, problems will still arise with regard to the rights of boarders and lodgers. Earlier the Minister said that evictions without notice were intended to apply to the type of tenant who was causing physical damage to premises or was violent towards or caused injury to the owner, other residents or neighbours. If a
Page 5239
person is violent and aggressive towards another individual, other remedies are available. For example, the proprietor or individual to whom violence is occasioned may call for assistance from police. The person behaving in the aggressive manner would then be dealt with by the police. Similarly, if a person physically damages premises owned by another, the police can deal with the matter.

The Hon. R. D. Dyer: That is the offence of malicious damage to property.

The Hon. ELISABETH KIRKBY: Yes, and police can deal with such offences. Obviously no person would tolerate continued disruptive and anti-social behaviour. This clause is not intended to cover such a situation; it is covered by other legislation. The proposed clause may permit an unscrupulous landlord to evict without notice or reason. The clause will perpetuate what is happening now. Surely that is the last thing the Government wants when its stated intention is to give further protection to boarders and lodgers. Once again, I must insist on the proposed amendment.

The Hon. J. P. HANNAFORD (Minister for Health and Community Services) [11.52]: The two issues raised by the Hon. Elisabeth Kirkby in relation to the proposed amendment, as with the previous amendment, and her statement that other remedies are available again reveal her failure to recognise that boarding and lodging is a communal type of living and that owners of such accommodation have an obligation to preserve the communal nature of boarding-houses. First, an owner may find that all tenants, except the person causing the problem, must leave for their own protection. That suggestion ignores the reality of these types of facilities. Second, the tenancy service will be able to tell people about their rights. The tenancy commissioner will be able to prosecute at no cost to the person involved, and the right to institute action will survive for three years. At any time within that three-year period a person who wishes to pursue his or her rights will be able to do so. The fact that the penalties are so potentially severe is enough to inhibit improper action by a property owner.

Question - That the amendment be agreed to - put.

The Committee divided.



Ayes, 16

Ms Burnswoods
Mr Dyer
Mr Enderbury
Mrs Isaksen
Mr Johnson
Mr Kaldis

Miss Kirkby
Mrs Kite
Mr Macdonald
Mr Obeid
Mr O'Grady
Mrs Symonds


Mr Vaughan
Mrs Walker

Tellers,
Mr Burgmann
Mr Manson
Noes, 17

Mr Bull
Mrs Chadwick
Mrs Forsythe
Mr Gay
Dr Goldsmith
Mr Hannaford

Mr Moppett
Mr Mutch
Mrs Nile
Revd F. J. Nile
Dr Pezzutti
Mr Ryan


Mrs Sham-Ho
Mr Rowland Smith
Mr Webster
Tellers,
Mr Coleman
Miss Gardiner

Page 5240
Pairs

Mr Jobling
Mr Pickering
Mr Samios


Mrs Arena
Mr Egan
Mr Shaw

Question so resolved in the negative.

Amendment negatived.

Progress reported and leave granted to sit again.