Residential Tenancies Amendment Bill
2012
Introduction Print
EXPLANATORY MEMORANDUM
General
The Bill amends the Residential Tenancies Act 1997 to clarify the
circumstances in which a notice to vacate or notice of intention to vacate can
be served under that Act for a third breach of the same duty provision.
In particular, Part 2 of the Bill amends successive breach provisions in the
Residential Tenancies Act 1997 to clarify that where two breach of duty
notices are served, in accordance with the relevant provisions of the Act, for
the same breach, a notice to vacate may be served on the third occurrence of
the same breach. In this circumstance, a third breach of duty notice is not
necessary before a notice to vacate or notice of intention to vacate can be
served.
The Bill amends various provisions in Part 10 of the Residential Tenancies
Act 1997 to clarify that references to "a bond" or "the bond" include not only
full bond amounts but also parts of the full bond amount. The Bill also
provides—

a mechanism for the substitution of a bond amount paid by a tenant
with a bond amount paid by the Director of Housing on the tenant's
behalf;

the refund by the Residential Tenancies Bond Authority ("the
Authority") of a bond amount where a substitute bond has been
received by the Authority; and

a mechanism for the reimbursement of a bond paid to the Authority by
the Director of Housing on behalf of a tenant where a subsequent bond
is received by the Authority for the same premises from a different
tenant.
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BILL LA INTRODUCTION 22/5/2012
The Bill includes an amendment making it an offence for a landlord to
request or obtain the signature of a tenant on an application form for payment
out of a bond, where the amount of the bond to be refunded and any
necessary apportionment of that amount between the landlord and tenant has
not been specified on the form.
The Bill also simplifies the process by which the Director of Housing can be
reimbursed an amount of bond paid on behalf of a tenant.
Finally, the Bill makes a number of consequential and technical amendments,
including to the Consumer Affairs Legislation Amendment (Reform) Act
2010.
Clause Notes
PART 1—PRELIMINARY MATTERS
Clause 1
Clause 2
sets out the main purposes of the Bill. These are to amend the
Residential Tenancies Act 1997 to—

clarify the consequences of a third successive breach of
a duty provision;

make further provision for matters relating to bonds;
and

make other miscellaneous amendments.
provides for the commencement of the provisions of the Bill.
Part 1 and section 31 of the Bill will come into operation on the
day after the day on which the Bill receives the Royal Assent.
The remaining provisions of the Bill will come into operation
on a day or days to be proclaimed. If any of the remaining
provisions of the Bill do not come into operation before 1 June
2013, clause 2(3) provides for their commencement on that day.
PART 2—AMENDMENTS RELATING TO SUCCESSIVE
BREACHES
Clause 3
Subclause 3(1) amends section 240(1) of the Residential
Tenancies Act 1997 to clarify that only two breach of duty
notices must be served on a landlord by a tenant under a fixedterm tenancy agreement before the tenant can serve a notice of
intention to vacate for a third breach of duty. The two prior
notices of breach of duty and the notice of intention to vacate
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must be for a breach of the same duty provision of the
Residential Tenancies Act 1997.
Subclause 3(2) inserts proposed section 240(1A) into the
Residential Tenancies Act 1997. It provides that if a tenant
elects to give a landlord a third breach of duty notice for a third
breach of the same duty provision, the tenant must not give the
landlord a notice of intention to vacate under section 240 unless
the landlord has not complied with the breach of duty notice
within the time period set out in the Residential Tenancies Act
1997 for that notice.
Clause 4
Subclause 4(1) amends section 249(1) of the Residential
Tenancies Act 1997 to clarify that only two breach of duty
notices must be served on a tenant by a landlord before the
landlord can serve a notice to vacate for a third breach of duty.
The two prior notices of breach of duty and the notice to vacate
must be for a breach of the same duty provision of the
Residential Tenancies Act 1997.
Subclause 4(2) inserts proposed section 249(1A) into the
Residential Tenancies Act 1997. It provides that if a landlord
elects to give a tenant a third breach of duty notice for a third
breach of the same duty provision, the landlord must not give the
tenant a notice to vacate under section 249 unless the tenant has
not complied with the breach of duty notice within the time
period set out in the Residential Tenancies Act 1997 for that
notice.
Clause 5
Subclause 5(1) amends section 283(1) of the Residential
Tenancies Act 1997 to clarify that only two breach of duty
notices must be served on a resident by a rooming house owner
before the rooming house owner can serve a notice to vacate for
a third breach of duty. The two prior notices of breach of duty
and the notice to vacate must be for a breach of the same duty
provision of the Residential Tenancies Act 1997.
Subclause 5(2) inserts proposed section 283(1A) into the
Residential Tenancies Act 1997. It provides that if a rooming
house owner elects to give a resident a third breach of duty notice
for a third breach of the same duty provision, the rooming house
owner must not give the resident a notice to vacate under
section 283 unless the resident has not complied with the breach
of duty notice within the time period set out in the Residential
Tenancies Act 1997 for that notice.
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Clause 6
Subclause 6(1) amends section 308(1) of the Residential
Tenancies Act 1997 to clarify that only two breach of duty
notices must be served on a resident by a caravan park owner or
caravan owner before the owner can serve a notice to vacate for
a third breach of duty. The two prior notices of breach of duty
and the notice to vacate must be for a breach of the same duty
provision of the Residential Tenancies Act 1997.
Subclause 6(2) inserts proposed section 308(1A) into the
Residential Tenancies Act 1997. It provides that if a caravan
park owner or caravan owner elects to give a resident a third
breach of duty notice for a third breach of the same duty
provision, the owner must not give the resident a notice to vacate
under section 308 unless the resident has not complied with the
breach of duty notice within the time period set out in the
Residential Tenancies Act 1997 for that notice.
Clause 7
Subclause 7(1) amends section 317V(1) of the Residential
Tenancies Act 1997 to clarify that only two breach of duty
notices must be served on a site owner by a site tenant under a
fixed term site agreement before the site tenant can serve a notice
of intention to vacate for a third breach of duty. The two prior
notices of breach of duty and the notice of intention to vacate
must be for a breach of the same duty provision of the
Residential Tenancies Act 1997.
Subclause 7(2) inserts proposed section 317V(1A) into the
Residential Tenancies Act 1997. It provides that if a site tenant
elects to give a site owner a third breach of duty notice for a third
breach of the same duty provision, the site tenant must not give
the site owner a notice of intention to vacate under section 317V
unless the site owner has not complied with the breach of duty
notice within the time period set out in the Residential
Tenancies Act 1997 for that notice.
Clause 8
Subclause 8(1) amends section 317ZB(1) of the Residential
Tenancies Act 1997 to clarify that only two breach of duty
notices must be served on a site tenant by a site owner before the
site owner can serve a notice to vacate for a third breach of duty.
The two prior notices of breach of duty and the notice to vacate
must be for a breach of the same duty provision of the
Residential Tenancies Act 1997.
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Subclause 8(2) inserts proposed section 317ZB(1A) into the
Residential Tenancies Act 1997. It provides that if a site owner
elects to give a site tenant a third breach of duty notice for a third
breach of the same duty provision, the site owner must not give
the site tenant a notice to vacate under section 317ZB unless the
site tenant has not complied with the breach of duty notice within
the time period set out in the Residential Tenancies Act 1997
for that notice.
PART 3—AMENDMENTS RELATING TO BONDS
Clause 9
inserts new definitions of amount of bond, bond lodgment form
and bond substitution form into section 404 of the Residential
Tenancies Act 1997 and amends the existing definition of
landlord in that section. In particular, amount of bond is defined
to include a partial or full amount of a bond.
Clause 10 Subclause 10(1) inserts a new heading to section 405 of the
Residential Tenancies Act 1997 to correct the spelling of the
word "lodgment".
Subclause 10(2) substitutes the words "an amount of bond" for
the words "a bond", and the words "the amount of bond" for "the
bond" in section 405(1), while subclause 10(3) substitutes the
words "the amount of bond" for "the bond" in section 405(3).
These amendments ensure that references to bonds in this section
include references to partial or full amounts of bonds.
Clause 11 substitutes the words "an amount of bond" for "a bond", the
words "the amount of bond" for the first reference to "the bond"
and the word "bond" for the second reference to "the bond" in
section 406 of the Residential Tenancies Act 1997.
This ensures that references to bonds in this section include
references to partial or full amounts of bonds.
Clause 12 substitutes "bond" for the words "the bond" and the words
"the amount of bond" for "the bond" in section 407(1) of the
Residential Tenancies Act 1997. This ensures that references to
bonds in this section include references to partial or full amounts
of bonds.
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Clause 13 substitutes the words "an amount of bond" for "a bond", and
the words "the amount of bond" for each reference to "the bond"
in section 408 of the Residential Tenancies Act 1997.
This ensures that references to bonds in this section include
references to partial or full amounts of bonds.
Clause 14 substitutes "that amount of bond" for "that bond" in section
409(2) of the Residential Tenancies Act 1997. This ensures that
the reference to a bond in this section includes a reference to a
partial or full amount of a bond.
Clause 15 substitutes "an amount of bond" for each reference to "a bond"
in section 410A of the Residential Tenancies Act 1997 and
"bond" for the words "the bond". This ensures that references to
bonds in this section include references to partial or full amounts
of bonds.
Clause 16 inserts new section 410B into the Residential Tenancies Act
1997. Proposed section 410B provides that a tenant may
substitute an amount provided by the Director of Housing (or an
agent of the Director of Housing) for the purposes of payment of
the tenant's bond for an equivalent amount that the tenant has
already paid. The amount provided by the Director of Housing
can be in the form of a Director of Housing voucher.
Proposed section 410B sets out the procedure to be followed for
the substitution, and provides that the Authority must give a
receipt to the landlord, tenant and the Director of Housing within
7 days after receiving the amount provided by the Director of
Housing, confirming the substitution of the bond and specifying
the amount of bond substituted.
Clause 17 consequentially amends section 411 of the Residential
Tenancies Act 1997 to recognise proposed new sections 411B
and 411C (inserted by clauses 19 and 20) and the repeal of
section 413(1A) by clause 22 of this Bill.
Clause 18 inserts section 411A(4) into the Residential Tenancies Act
1997, to provide that section 411A will not apply after the
commencement of new section 411B. Section 411A provides a
mechanism for the Authority to reimburse to the Director of
Housing bond amounts that are no longer required, and that were
held by the Authority as at 30 June 2003. Proposed section 411B
provides a mechanism for reimbursement of the bonds held at
any time.
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Clause 19 inserts new section 411B into the Residential Tenancies Act
1997. New section 411B provides that where—

the Authority holds a bond amount that has been paid by
the Director of Housing (or an agent of the Director of
Housing) on behalf of a tenant (the first bond); and

a new amount of bond is subsequently received for the
same premises for a different tenant (the second bond);
and

no application for a refund of the first bond has been
received by the Authority in accordance with
section 413 of the Residential Tenancies Act 1997
within 12 months of the receipt of the second bond—
the Authority may reimburse the first bond directly to the
Director of Housing.
If there is any bond amount remaining (after the Director of
Housing has been reimbursed) that was paid directly to the
Authority by the tenant for whom the Director of Housing had
provided a bond amount, the Authority may pay that remaining
bond amount directly to that tenant.
New section 411B replicates section 411A of the Residential
Tenancies Act 1997. Section 411A only applies to bonds that
were held by the Authority as at 30 June 2003. Proposed
section 411B applies to any such bonds held by the Authority
after the commencement date of proposed section 411B.
Clause 20 inserts new section 411C into the Residential Tenancies Act
1997. New section 411C provides for the reimbursement of a
bond amount to a tenant where a substitute bond has been
received for that tenant under new section 410B.
Clause 21 amends section 412(5) of the Residential Tenancies Act 1997 to
substitute the words "an amount of bond" for the words "the bond
or part of the bond", consistent with the new definition of
amount of bond inserted by clause 9 of the Bill.
Clause 21 also inserts new section 412(5A) into the Residential
Tenancies Act 1997. Section 412 of that Act sets out the
procedure for the Authority to refund a bond amount to a
landlord and tenant. Applications are made to the Authority in an
approved form. New section 412(5A) provides that it is an
offence for a landlord to request or obtain a tenant's signature on
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the application unless the amount of the bond to be refunded, and
any apportionment of the amount between the landlord and
tenant, is set out on the form. A maximum penalty of 20 penalty
units applies to this offence.
Clause 22 amends section 413 of the Residential Tenancies Act 1997.
Section 413 provides for payment by the Authority of a bond to
the Director of Housing.
Clause 22 amends section 413 to simplify the process for
payment to the Director of Housing by specifying that the
Authority must pay an amount of bond to the Director of Housing
on application by the landlord: an application by the landlord and
tenant is no longer required for the payment to be made.
Section 413(1) is amended to remove all references to a tenant
jointly applying with a landlord to the Authority to pay an
amount of bond to the Director of Housing.
Section 413(1A), which enables a landlord and the Director of
Housing to jointly apply to the Authority where the landlord has
been unable to obtain the tenant's agreement to apply, is repealed.
Section 413(3), which was introduced at the same time as
413(1A) and sets out procedural requirements for that section, is
consequentially repealed.
These amendments acknowledge that the landlord is best placed
to make an application to the Authority to pay an amount of bond
to the Director of Housing, as a tenant's whereabouts are often
unknown at the conclusion of a tenancy agreement and the
Director of Housing, not being a party to the tenancy agreement,
is not in a position to assess the condition of the property.
Clause 22 also consequentially amends section 413 by inserting a
new heading to omit the words "by agreement" from the heading
to the section. The Director of Housing can also be directly
reimbursed bond amounts paid on behalf of tenants under
proposed section 411B.
Clause 23 amends section 413A of the Residential Tenancies Act 1997
and its heading to change references to "bond" to "amount of
bond".
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Clause 24 inserts the words "or bond substitution form" after the words
"bond lodgment form" in section 421(3)(a) of the Residential
Tenancies Act 1997. This amendment is consequential on the
insertion of new section 410B, which provides for the payment of
a substitute bond.
Clause 25 substitutes "bond" for the first reference to "the bond" and
"the amount of bond" for the second reference to "the bond" in
section 423(2) of the Residential Tenancies Act 1997 to ensure
that the subsection applies to partial or full amounts of a bond.
Clause 26 substitutes "an amount of bond" for "a bond" in section 424(1) of
the Residential Tenancies Act 1997 to ensure that the section
applies to partial or full amounts of a bond.
Clause 27 substitutes "an amount of bond" for "a bond" in section 425(1) of
the Residential Tenancies Act 1997 to ensure that the section
applies to partial or full amounts of a bond.
Clause 28 amends section 427(1) of the Residential Tenancies Act 1997
to substitute references to "an amount of bond" for references to
"a bond" and "an amount of the bond" and to recognise the new
bond substitution form.
Clause 29 amends section 431(ca) of the Residential Tenancies Act 1997
to include references to bond substitution forms and substitute
bonds.
PART 4—OTHER AMENDMENTS AND REPEAL
Clause 30 makes a statute law revision amendment to section 333(1)(iia) of
the Residential Tenancies Act 1997 to substitute "building;" for
"building:".
Clause 31 amends section 82 of the Consumer Affairs Legislation
Amendment (Reform) Act 2010 (the "2010 Act") to change the
date that Act is repealed from 1 September 2012 to 1 December
2013.
The amendment is required due to the amendment of section 2(4)
of the 2010 Act to be made by item 9.1 of Schedule 6 to the
Australian Consumer Law and Fair Trading Act 2012 to
change the default commencement date from 30 June 2012 to
1 December 2012. The new repeal date of 1 December 2013 for
the 2010 Act follows the practice in Victoria of repealing an
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amending Act 12 months after the last of the provisions
commences.
Clause 32 provides for the repeal of the Bill on 1 June 2014. Section 15(1)
of the Interpretation of Legislation Act 1984 preserves the
operation of the amendments made by the Bill, notwithstanding
its repeal.
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