Recently, the Transportation and Utilities Committee provided its recommendations on the Plumbing and Drainage and Other Legislation Amendment Bill 2015. The Committee noted the objective was to amend the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (“the Act”) and to bring Queensland in line with all other States (excluding Northern Territory) and meet the national uniform law for residential tenancy databases adopted by the Ministerial Council on Consumer Affairs in December 2010.
WHY CHANGES WERE NECESSARY
Despite the varying views on the purpose of residential tenancy databases, a common theme amongst interested parties was the protection of property investment from tenants that are likely to do something contrary to the legitimate interests of a property owner based on their history in the rental market.
In practice, some tenancy database operators did not have regard to the Federal Privacy Commissioner's recommendations as to the listing limitations on residential tenancy databases (see paragraph 68 of Complaint Determination No. 3 of 2004). In some situations, community organisations reported listings of tenants’ personal information for up to and including several years. The impact often resulting in homelessness due to long delays for public housing, 'couch surfing', the inability to rent in the private sector due to the adverse listing and reliance on crisis accommodation.
When balancing the length of a listing against the detriment that is often suffered by a listed tenant, the listing was often excessive. After further investigation into those listings, it was not unusual to find that the stored information was often irrelevant, out of date or did not reflect the current personal or financial situation of a tenant.
With the implementation of the changes to the residential tenancy legislation in Queensland, there is now better protection for tenants, whilst also balancing protection of residential property investors.
NOTABLE CHANGES TO THE ACT
Having had the privilege of representing Enhance Care Inc. at the Parliamentary Briefing held by the Transportation and Utilities Committee on changes to the Act, the new laws have since commenced on 1 July 2016 and have already impacted on;-
how long a tenancy database operator can hold personal information on a listed tenant; and
what orders domestic violence victims may seek under the Act for termination of residential tenancy agreements; and
how real-estate agencies use tenancy databases to check the rental history of a prospective tenant.
Time Limitation on Database Listings
Relevantly, the insertion of the new s 459D of the Act sees that a database operator cannot keep personal information about a person in a tenancy database for longer than 3 years. In the event of contravention, there is up to and including a 40 Penalty Unit fine ($5,338.00).
Despite the change, there is 6-month grace period in which a database operator has to remove current listings that are or will be 3 years or older by 1 January 2017.
At this point, it is yet to be seen what action, if any, will be taken by database operators.
The amendment of the previous s 245 (Injury to domestic associate) ss 6 sees a new example added allowing an order to be made that a person must not list another person’s personal information in a tenancy database under s 459 (Restriction on listing). Relevantly, s 459(1)(d) sets outs that a person must not list personal information about another person in a tenancy database unless the tribunal has not made an order under s 245(6) prohibiting the listing of the information. Such provision thus allows a person seeking termination of the lease agreement due to domestic violence being perpetrated against them to also seek an order that their personal information cannot be listed in a tenancy database arising from the domestic associate damaging residential premises.
Further, under s 461 (Application to tribunal about incorrect or unjust listings) ss (3)(b), there is now an example that personal information about one party relating to damage caused by the domestic associate could be subject to the unjust listing test. This is especially so if the domestic violence victim cannot obtain appropriate and affordable accommodation. Previously, it seemed standard practice by QCAT Adjudicators that even where domestic violence had occurred, it may not be sufficient to remove an individual’s personal information. Further consideration would often be given to the circumstances of the case and whether there was an outstanding amount owed to the lessor, which would often lead to the inevitability of a failed application despite the victim’s personal situation. In one particular case, the consideration was brought down to whether the domestic violence victim had a propensity of allowing the domestic violence to occur. That application was subsequently knocked back simply by virtue of the obscurity of the language of the section.
Lessor or Agent Notification and Other Requirements
Previously, where a lessor or their agent was investigating a prospective tenant’s application there was no requirement in relation to notifying the prospective tenant of;-
the name of databases usually used;
the reason those databases are used; or
how to contact a database operator to obtain personal information;
their personal information appearing in a tenancy database.
With the insertion of the new s 458A and B, a prospective tenant must be given the above information, failing which, up to and including a 20 Penalty Unit fine ($2,669.00) for contravention could be imposed.
In the event that a person applies to the lessor or their agent to enter into a residential tenancy agreement and personal information of the prospective tenant is found to be in a database, the lessor or agent has 7 days after using the tenancy database to provide written notice to the prospective tenant of the following;-
the name of the database; and
that personal information about the applicant is in the database; and
details of the listing entity for the personal information; and
how and in what circumstances the applicant can have the personal information removed or amended and how they can obtain a copy of the personal information.
In the event that the prospective tenant asks the lessor or their agent in writing to give personal information listed about them, the lessor or agent will have a 14-day window after the request is made and any applicable fee paid to give the information (s 459C(1)). Again there is up to and including a 20 Penalty Unit fine for contravention. It should also be noted that any applicable fee charged must not be excessive and apply to lodging a request for accessing the information. At this stage, there is no definition as to what could be characterised as “excessive” and this is likely to depend on an individual’s personal circumstances, such as whether they are in receipt of a government benefit or pension or alternatively employed.
COMPENSATION FOR UNLAWFUL LISTINGS
If a person, agent or database operator does not comply with a QCAT order in relation to a database listing and is convicted, it allows avenue to seek compensation for the person listed. Such compensation is subject to the evidentiary burden of proving damage and suffering.
Adding a new time limitation to database listings together with further provisions about obtaining listed information and protecting victims of domestic violence has been a much anticipated and needed change. The changes now provide a better balance of tenants’ interests as against lessor’s or their agents.
If you are a lessor or agent and require further information on your rights or obligations under the residential tenancy legislation, you should make contact to an Australian Legal Practitioner who specialises in residential tenancy law. Alternatively, if you are a tenant, there are a number of free organisations which can provide you with advice or advocacy services.
Disclaimer: This publication is not intended to be comprehensive nor does it constitute legal advice. We are unable to ensure the information is current and there is no guarantee in relation to accuracy. You should seek legal or other professional advice before acting or relying on any of the content of this publication.
© Scott A. Green, Associate Solicitor