Tuesday, July 24, 2012

Comment on the draft Boarding Houses Bill (part 2)

The TU and the Tenants Advice and Advocacy Services have been poring over the draft Boarding Houses Bill 2012, circulated recently by the NSW State Government. We posted some initial comments here; now that we're getting into the detail of the draft Bill, here's a further comment.

We said previously that the relatively narrow coverage of the draft Bill was a major concern; but there's another problem with the draft Bill's coverage. The draft Bill would not apply to boarding premises that are subject to a residential tenancy agreement under the Residential Tenancies Act 2010 (or for that matter, the Landlord and Tenant (Amendment) Act 1948) (clauses 5(3)(b) and 35(2)(a)). This appears to us to be a potentially fatal defect in the draft Bill, for two reasons.

First, there are many premises let in lodgings that are subject to a residential tenancy agreement... between the owner and a head-tenant, who does the lettings (sometimes without the owner knowing about the lettings). A great many lodging arrangements for international students operate on these lines. The Government has indicated that it intends to address these arrangments; on its present terms, however, the draft Bill would not.

Secondly - and this is even more important - just about any boarding house proprietor could avail themselves of this exclusion and step out of coverage of the draft Bill, just by granting a residential tenancy agreement for the premises to an associated company or other person (or they could do it in reverse, transferring ownership of the premises to a company and then granting a residential tenancy agreement to themselves). They could then let the premises in lodgings and run it as they always have, but the tenancy agreement would shield them from the application of the provisions of the draft Bill.

We think the defect is an unwitting one - but it needs to be fixed. And it can be fixed easily: just specify that the draft Bill's provisions relating to occupancy principles do not apply to residential tenancy agreements or leases under the 1948 Act.

We'll keep poring over the details, and posting further comments, until submissions on the draft Bill close 10 August.


  1. The draft bill is a good start but the devil is in the details. As written this draft legislation will likely have three unintended consequences if passed by Parliament in its current form:

    1) Crush tier 1 boarding houses making it very difficult to near impossible for veterans or civilians who receive a disability pension to receive housing in tier 1 boarding houses.

    2) Discriminate against veterans and those civilians receiving a Disability Support Pension by automatically categorizing them as vulnerable and thereby precluding them from being treated normally for housing purposes in a state that already has housing shortages and overpriced rental and housing markets.

    3) Breach of a person’s privacy and human rights because it imposes unrealistic reporting requirements concerning a person’s whereabouts (coupled with severe penalties) on operators.

    There has only been a very narrow targeted consultation process by the O'Farrell Government on this draft legislation together with a short period of the targeted consultations. There has also been a complete lack of transparency on this matter as the Department of Family & Community Services will not make available publicly non-confidential submissions.

    I have written extensively about this draft bill and its likely affect on veterans and war widows living in tier 1 boarding houses in NSW on Equal Justice for Troops blog.

    Again, the devil is in the details. Read closely with caution.

  2. Hi Norbert

    We agree that there's a problem in the definition, but we think the basic problem is a bit different to the one you describe. We also think that it will not have the effect of 'crushing' the Tier 1 premises, but it may confuse, so should be changed.

    The basic problem, as we see it, is in the way Tier 2 premises are defined, rather than in the way vulnerable persons are defined.

    In particular, Tier 2 boarding houses are defined by reference to their use by two persons of a certain description (ie vulnerable persons). Strictly speaking this means that if a Tier 1 boarding house proprietor - who wants only to run a Tier 1 boarding house, and offer lodging and nothing more to members of the public generally - admits into residence a second disability support pensioner, then their whole operation suddenly changes into a Tier 2 boarding house, and the proprietor must apply for authority to operate as such, and is guilty of an offence for every day they are not authorised.

    This is not actually a new problem. The YACS Act also defines LRCs by refence to their use by two persons of a certain description (ie 'handicapped persons'), and strictly speaking many unlicensed boarding houses would fit the definition. ADHC doesn't treat them that way, and we doubt that ADHC would be any more inclined to apply a strict reading of the proposed new definition.

    But the draft Bill should get it right, so we propose a different definition.

    The TU has previously put forward a different scheme of regulation under boarding houses and other residential services would be registered and accredited in three classes - Accommodation Services, Food Services and Personal Care Services - with services in the latter two classes required to comply with additional standards. These classes of premises are defined by reference to the services provided by the proprietor, rather than their use by persons of a certain description. We think that this is a more sound way of defining premises for the purposes of compliance with additional standards, and that it can be applied to the two-tier scheme of the draft Bill.

    Accordingly, we recommend that a Tier 2 boarding house be defined as boarding premises that provide accommodation and a 'personal care service' to two or more residents. 'Personal care service' should be defined as a service that is addressed to the support needs of a vulnerable person, including the administration of medication to a resident, and the management of a resident's finances, and other prescribed services. It would be an offence to provide accommodation and personal care services without be registered and authorised, per cl 39(1).

    It may be objected that such a definition would allow proprietors of LRCs to avoid regulation as Tier 2 boarding houses simply by not performing services defined as 'personal care services', and that this would result in the Government or another agency having to provide the necessary services instead. In our view, this may indeed be the result - and it would be a positive development.


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