Rooming House Operators Bill 2015
Introduction Print
EXPLANATORY MEMORANDUM
General
The object of this Bill is to improve the operation of rooming houses by
establishing a licensing scheme for rooming house operators, to be
administered by the Business Licensing Authority and monitored and
enforced by the Director of Consumer Affairs Victoria.
Currently, there is no law regulating who can and cannot operate a rooming
house. Once this Bill comes into operation, in order to operate a rooming
house legally in Victoria an individual or eligible corporate entity will need
to apply for and be granted a licence to operate rooming houses, as well as
meeting other existing legal requirements (registration of the rooming house
premises with the Council in whose municipality it is located, for example).
Only persons who are "fit and proper persons" within the meaning of this Bill
will be eligible to be granted a licence.
Clause Notes
Part 1—Preliminary
Clause 1
581082
sets out the purpose of the Bill, which is to foster professionalism
and reduce exploitative and undesirable practices within the
rooming house sector by—
•
establishing a licensing scheme for operators of
rooming houses; and
•
ensuring that licences are only granted to persons who
are fit and proper within the meaning of the Bill; and
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BILL LA INTRODUCTION 9/12/2015
•
holding licensed operators of rooming houses to account
for their conduct and the conduct of persons involved in
the management and operation of their rooming houses;
and
•
protecting the rights of rooming house residents.
Certain other Acts are consequentially amended as a result of the
scheme implemented by the Bill.
Clause 2
is the commencement provision. The provisions of the Bill will
come into operation on a day or days to be proclaimed. If a
provision of the Bill does not come into operation before 1 July
2017, it comes into operation on that day.
Applications for licences and for renewals of licences will be
made online, and a system to enable this must be developed
before the scheme can commence. An extended default
commencement date will enable sufficient time for the online
system to be built.
An extended default commencement date also ensures operators
of existing rooming houses are provided with sufficient time to
understand the new scheme and determine whether they wish to
exit the sector or re-organise their affairs, if necessary, to ensure
they are eligible to be granted a licence.
Clause 3
defines various words and expressions used in the Bill. Some of
the key terms defined in subclause (1) include—
associate of a relevant person means a business partner, an
employee, agent or contractor, a spouse, domestic partner, child,
grandchild, sibling, parent or grandparent of the relevant person,
or any person with whom the relevant person has entered into a
lease. There is also capacity for additional persons or classes of
person to be prescribed as an associate of a relevant person;
fit and proper person means, in relation to an applicant for a
licence, that none of the relevant persons meets any of the licence
disqualification criteria, and in relation to an existing licensee,
that none of the relevant persons meets any of the renewal
disqualification criteria or any of the licence disqualification
criteria in circumstances where there are changes to managers or
officers;
2
manager means a natural person who has attained the age of
18 years and who takes part, or who proposes to take part, in the
management of a rooming house, whether or not the person is
employed or engaged by a rooming house operator or by another
person acting on behalf of the rooming house operator;
officer means, in relation to a body corporate, any person
(by whatever name called) who is a director or secretary of a
company; or in the case of an incorporated association, is a
member of the committee of management or the secretary of the
incorporated association; or in the case of a co-operative, a
member of the board of directors. This definition also covers a
person who makes or participates in making decisions that affect
the whole or a substantial part of the business (but who is not the
manager), or a person who has the capacity to affect significantly
the financial standing of the body corporate or a person who is
someone in accordance with whose instructions other officers of
the body corporate are accustomed to act;
relevant person means, in relation to a licensee or an applicant
for a licence, the licensee or applicant, any manager of a rooming
house operated by the licensee or applicant or proposed to be
operated by the licensee or applicant, or any officer of the
licensee or applicant that is a body corporate;
rooming house operator means a natural person who, or a body
corporate that, conducts the business of operating a rooming
house, whether or not the rooming house operator owns the
property on which the rooming house is located.
Subclause (3) clarifies that for the purposes of the definition of
officer, in paragraph (f) of that definition, the term instructions
excludes advice given by a person in the proper performance of
functions of a professional or business nature. This is intended to
exclude professionals such as lawyers, accountants or consultants
who may be providing advice to a body corporate.
Subclause (4) states that a person takes part in the management
of a rooming house if the person, on behalf of the rooming house
operator negotiates or enters into residency agreements with
residents or gives notice to a resident or receives a payment of
rent from a resident. However, this subclause is subject to
subclause (5) which clarifies that a person does not take part in
the management of a rooming house merely because the person
carries out caretaking duties at the rooming house.
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Part 2—The Authority and the Director
Clause 4
Clause 5
Clause 6
sets out the functions of the Business Licensing Authority
(the Authority) which are—
•
to determine applications for licences and renewals of
licences; and
•
to determine whether a new manager of a rooming
house operated by a licensee or a new officer of a body
corporate that is a licensee meets any of the licence
disqualification criteria; and
•
to liaise with the Director, the Chief Executive Officers
of Councils and the Chief Commissioner of Police so as
to assist those persons to carry out their functions in
relation to this Bill; and
•
to refer relevant matters for investigation by the
Director or any other relevant body; and
•
any other function conferred on the Authority by or
under this Bill, any regulations made under this Bill or
any other Act.
sets out the functions of the Director of Consumer Affairs
Victoria (the Director) which are—
•
to monitor compliance with, and investigate and
prosecute alleged contraventions of, this Bill; and
•
to instigate disciplinary action against licensees; and
•
to liaise with the Authority so as to assist it to carry out
its functions in relation to this Bill; and
•
to refer to other bodies for investigation, if appropriate,
any allegation, complaint or information in relation to
rooming house operators; and
•
any other function conferred on the Director by or under
this Bill, any regulations made under this Bill or any
other Act.
empowers the Director to delegate any of the Director's functions
or powers under this Bill (other than the power of delegation) to
any person or class of person employed under Part 3 of the
Public Administration Act 2004.
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Part 3—Licences
Division 1—Requirement for licence
Clause 7
establishes the requirement for a rooming house operator to be
licensed.
Subclause (1) provides that it is an offence for a rooming house
operator not to hold a licence unless the rooming house operator
is a registered housing association or registered housing provider
within the meaning of section 4 of the Housing Act 1983.
A maximum penalty of 240 penalty units or 2 years
imprisonment for an individual and 1200 penalty units for a body
corporate applies for a contravention of this provision.
Subclause (2) clarifies that if a building is declared to be a
rooming house under section 19(2) or (3) of the Residential
Tenancies Act 1997, the operator of the rooming house has
60 days from the date of the declaration within which to obtain
a licence.
Clause 8
creates an offence for a person to make a representation stating or
implying that the person is a licensee or is otherwise authorised
to operate a rooming house.
A maximum penalty of 120 penalty units for an individual and
600 penalty units for a body corporate applies for a contravention
of this provision.
Division 2—Application for licence or renewal of licence
Clause 9
provides that a natural person of or over 18 years of age or a
body corporate may make an application for a licence, and
enables licensees to apply for a renewal of their licence.
The term body corporate is defined in clause 3 to mean a
company registered under the Corporations Act, or an
incorporated association within the meaning of the Associations
Incorporation Reform Act 2012, or a co-operative within the
meaning of the Co-operatives National Law (Victoria).
Clause 10 provides that an application for renewal of a licence must be
made before the expiry of the licence but not earlier than 60 days
before that expiry. Note that clause 20 sets out the duration of a
licence in various circumstances.
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Clause 11 sets out the process of applying for a licence.
Subclause (1) provides that an application for a licence or
renewal of a licence must be made in the manner and form
approved by the Authority.
Subclause (2) sets out the information that must be included in an
application for a licence or renewal of a licence by a natural
person.
Subclause (3) sets out the information that must be included in an
application for a licence or renewal of a licence by a body
corporate.
Subclause (4) provides that an application for a licence or
renewal of a licence must be accompanied by any documents or
information required to verify the identity of certain individuals
associated with the licence application or renewal or to ascertain
if an individual meets any licence disqualification criteria or
renewal disqualification criteria, as well as certain consents and
declarations.
Subclause (5) requires an application for a licence or renewal of a
licence to be accompanied by the relevant prescribed fees.
Clause 12 provides for the withdrawal of an application for a licence or a
renewal of a licence at any time before the application is
determined, and gives the Authority capacity to refund certain
fees.
Clause 13 creates an offence for a person in, or in relation to, an application
for a licence or a renewal of a licence, to give information that is
false or misleading in a material particular.
A maximum penalty of 60 penalty units for an individual and
300 penalty units for a body corporate applies for a contravention
of this provision.
Division 3—Investigation of applicants
Clause 14 provides that, in considering an application for a licence or
renewal of a licence, the Authority may—
•
conduct any inquiries in relation to the application that
it thinks fit;
•
require a relevant person to provide further information
in relation to the application within a specified time;
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•
require a relevant person to confirm the veracity of any
information provided by the relevant person under this
Bill by means of a statutory declaration within a
specified time;
•
require a relevant person to provide within a specified
time any consent to disclosure of information that the
Authority requires for the purpose of performing, or to
have performed, a check on the relevant person or on
any information included with the application.
Clause 15 provides the Authority with powers to request information from
the Director, Councils and Victoria Police.
Subclause (1) provides that, without limiting clause 14, the
Authority may request information from the Director, the Chief
Executive Officer of a Council and the Chief Commissioner of
Police in relation to a licence application or renewal.
Subclause (2) provides that if the Authority makes a request to
the Director or a Council, the Director or Council may make
inquiries to enable the proper consideration of the application and
must give the Authority a report on the results of those inquiries.
Subclause (3) provides that if the Authority makes a request to
the Chief Commissioner of Police, the Chief Commissioner must
make inquiries and must give the Authority a report on the results
of those inquiries.
Subclause (4) provides that the Authority must take into account
any report received under this clause in considering licence
applications or renewals.
Division 4—Determination of application
Clause 16 sets out the requirements for the granting or renewal of a licence
and for refusing to grant or renew a licence.
Subclause (1) provides that if the Authority is satisfied that the
applicant is a fit and proper person, the Authority must grant or
renew the licence, and notify the applicant in writing of the
Authority's determination.
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Subclause (2) provides that the Authority must refuse to grant a
licence or refuse to renew an applicant's licence if—
•
the Authority is satisfied that the applicant is not a fit
and proper person; or
•
the application for the licence or renewal of the licence
is incomplete; or
•
any information, consent or declaration required under
clause 14 has not been provided.
Subclause (3) provides that if the Authority refuses to grant or
renew a licence, the Authority must notify the applicant in
writing of the refusal and specify the grounds for the refusal,
refund the prescribed licence fee to the applicant and advise the
Director of the refusal.
Clause 17 sets out the licence disqualification criteria relevant to an
application for a licence.
Subclause (1) provides that the licence disqualification criteria
applying to a relevant person are—
•
within the preceding 10 years, the relevant person was
convicted or found guilty of an offence involving fraud,
dishonesty, drug trafficking or cultivation, sexual
slavery or servitude, child pornography or violence that
was punishable by a term of imprisonment of 3 months
or more at the time of the conviction or finding of guilt,
or of a sexual offence or an offence connected with sex
work that was punishable by a term of imprisonment of
3 months or more at the time of the conviction or
finding of guilt or a comparable offence committed
outside of Victoria;
•
the relevant person is an insolvent under administration;
•
the relevant person is an externally administered
corporation under the Corporations Act;
•
the relevant person is a represented person within the
meaning of the Guardianship and Administration
Act 1986;
•
the relevant person's licence was cancelled within the
preceding 5 years;
8
•
any conviction or finding of guilt within the preceding
5 years for offences under this Bill (with the exception
of the offence under clause 39) or for certain other
offences relating to rooming houses under other
legislation including the Public Health and Wellbeing
Act 2008, the Building Act 1993, and the Planning
and Environment Act 1987 or the rooming house
provisions of the Residential Tenancies Act 1997 or
specific offences relating to prohibited debt collection
practices and harassment and coercion;
•
within the proceeding 5 years, the relevant person was
the subject of an order referred to in section 216(2)(h)
of Australian Consumer Law and Fair Trading
Act 2012 in relation to a contravention of the rooming
house provisions of the Residential Tenancies
Act 1997 or a specific offence relating to prohibited
debt collection practices and harassment and coercion,
or offences under this Bill;
•
within the proceeding 5 years, the relevant person was
the subject of an order referred to in section 216(2)(h)
and made by a court or VCAT under section 216(3) of
the Australian Consumer Law and Fair Trading
Act 2012 in relation to a contravention of the rooming
house provisions of the Residential Tenancies
Act 1997 or specific offences relating to prohibited debt
collection practices and harassment and coercion, or
offences under this Bill;
•
if the applicant is a body corporate, within the
preceding 5 years, an officer of the body corporate was
an officer of another body corporate at the time that the
second-mentioned body corporate committed an offence
under this Bill, or certain other offences relating to
rooming houses under other legislation, or specific
offences relating to prohibited debt collection practices
and harassment and coercion for which the secondmentioned body corporate was later convicted or found
guilty or was made the subject of an order of the kind
referred to in section 216(2)(h), or was made the
subject of an order of the kind referred to in
section 216(2)(h) and made under section 216(3), of
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the Australian Consumer Law and Fair Trading
Act 2012;
•
if the applicant is a body corporate, an officer of the
body corporate was an officer of another body corporate
whose licence was cancelled within the preceding
5 years.
Subclause (2) provides that, despite anything to the contrary in
subclause (1), a relevant person is not taken to meet a
disqualification criterion if the relevant person—
•
was convicted or found guilty of any offence under
subsection (1)(f) for which the relevant person was
issued or served with an infringement notice under the
Infringements Act 2006 and the relevant person
elected to have that matter heard and determined in the
Magistrates' Court; or
•
the relevant person was the subject of an order referred
to in subsection (1)(g) or (h) and the order was agreed to
by all parties to the proceeding before commencement
of this clause.
Clause 18 sets out the disqualification criteria relevant to a licence renewal.
Subclause (1) provides that a relevant person is disqualified at
renewal of a licence if during the period to which the licence
relates a relevant person—
•
was convicted or found guilty of an offence involving
fraud, dishonesty, drug trafficking or cultivation, sexual
slavery or servitude, child pornography or violence that
are punishable by a term of imprisonment of 3 months
or more at the time of the conviction or finding of guilt,
or a sexual offence or an offence connected with sex
work that were punishable by a term of imprisonment of
3 months or more at the time of the conviction or
finding of guilt or a comparable offence committed
outside of Victoria;
•
became an insolvent under administration
•
became an externally administered corporation under
the Corporations Act;
10
•
became a represented person within the meaning of the
Guardianship and Administration Act 1986;
•
had his or her licence cancelled;
•
was convicted or found guilty of an offence under this
Bill (with the exception of the offence under clause 39);
or for certain offences relating to rooming houses under
other legislation including the Public Health and
Wellbeing Act 2008, the Building Act 1993, and the
Planning and Environment Act 1987 or the rooming
house provisions of the Residential Tenancies
Act 1997 or specific offences relating to prohibited debt
collection practices and harassment and coercion;
•
was subject to any order referred to in section 216(2)(h)
of the Australian Consumer Law and Fair Trading
Act 2012 for a contravention of the rooming house
provisions of the Residential Tenancies Act 1997 or
specific offences relating to prohibited debt collection
practices and harassment and coercion, or offences
under this Bill;
•
was subject to any order of a kind referred to in
section 216(2)(h) and made by a court or VCAT under
section 216(3) of the Australian Consumer Law and
Fair Trading Act 2012 for a contravention of the
rooming house provisions of the Residential Tenancies
Act 1997 or specific offences relating to prohibited debt
collection practices and harassment and coercion, or
offences under this Bill;
•
if the applicant is a body corporate, an officer of the
body corporate was an officer of another body
corporate at the time that the second-mentioned body
corporate committed an offence under this Bill, or
certain other offences relating to rooming houses
under other legislation, or specific offences relating to
prohibited debt collection practices and harassment and
coercion for which the second-mentioned body
corporate was later convicted or found guilty or was
made the subject of an order referred to in
section 216(2)(h) and made under section 216(3) of the
Australian Consumer Law and Fair Trading
Act 2012;
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•
if the applicant is a body corporate, an officer of the
body corporate was an officer of another body corporate
whose licence was cancelled.
Subclause (2) provides that, despite anything to the contrary in
subclause (1), a relevant person is not taken to meet a renewal
disqualification criterion if during the period to which the licence
relates the relevant person was convicted or found guilty of any
offence referred to in subsection (1)(d) for which the relevant
person was issued or served with an infringement notice under
the Infringements Act 2006 and the relevant person elected to
have that matter heard and determined in the Magistrates' Court.
Clause 19 subclause (1) provides that licences under the Bill: must be in the
form approved by the Authority; are personal to the licensee; are
not transferable; and do not vest by operation of law in any other
person.
Subclause (2) clarifies that a licensee may operate one or more
rooming houses in accordance with one licence.
Clause 20 provides for the duration of the licence.
Subclause (1) provides that a licence remains in force for the
period specified in the licence or until the licensee's application
to renew the licence is refused or until the licence is cancelled,
whichever occurs first.
Subclause (2) provides that, despite subclause (1)(b), a licence,
in respect of which an application for renewal is made under
Division 2 of Part 3 of this Bill, is taken to continue in force after
the expiry of the licence period if the licensee does not apply to
VCAT for a review of the Authority's determination to refuse the
application for renewal until the day after the period specified in
clause 42(3) during which the licensee may apply to VCAT; or if
the licensee applies to VCAT for review within the time specified
in clause 42(3), until VCAT determines that application.
Subclause (3) provides that for the purposes of subclause (1), the
Authority may specify a licence period of not more than 3 years
in the case of an initial grant of a licence and not less than 3 years
and not more than 5 years in the case of a licence renewal.
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Division 5—During the course of the licence
Clause 21 deals with licensees who cease to be fit and proper during the
course of the licence.
Subclause (1) creates an offence that a licensee must notify the
Authority within 14 days after becoming aware that the licensee,
or (if the licensee is a body corporate), an officer of that body
corporate, or a manager of a rooming house operated by the
licensee meets one of more of the renewal disqualification
criteria.
A maximum penalty of 120 penalty units for an individual and
600 penalty units for a body corporate applies for a contravention
of this provision.
Subclause (2) requires the Authority to advise the Director of any
notification it receives under subclause (1).
Clause 22 requires licensees during the course of their licence, to notify the
Authority if there are changes to officers of the licensee or
managers employed by the licensee.
Subclause (1) creates an offence that a licensee must notify the
Authority within 14 days of a change of rooming house manager
and in the case of a licensee that is a body corporate, a change of
an officer of the body corporate.
A maximum penalty of 120 penalty units for an individual and
600 penalty units for a body corporate applies for a contravention
of this provision.
Subclause (2) sets out the information required to be included in
a notification to the Authority regarding a person who becomes a
rooming house manager or an officer of the body corporate.
Subclause (3) provides that a notification must be accompanied
by any documents, information, consents and declarations
required to verify the identity of certain individuals associated
with the notification or to ascertain if an individual meets any of
the licence disqualification criteria, and by the prescribed
determination fee.
13
Clause 23 provides that, in considering a notification made by a licensee in
relation to a change of officers or managers, the Authority may—
•
conduct any inquiries in relation to the notification that
it thinks fit; and
•
require a relevant person to provide further information
in relation to the notification within a specified time;
and
•
require a relevant person to confirm the veracity of any
information provided by the relevant person under this
Bill by means of a statutory declaration within a
specified time; and
•
require a relevant person to provide within a specified
time any consent to disclosure of information that the
Authority requires for the purpose of performing, or to
have performed, a check on the relevant person or on
any information included with the notification.
Clause 24 provides the Authority with powers to request information from
the Director, Councils and Victoria Police following notification.
Subclause (1) provides that, without limiting clause 23, the
Authority may request information from the Director, the Chief
Executive Officer of a Council and the Chief Commissioner of
Police in relation to a notification.
Subclause (2) provides that if the Authority makes a request to
the Director or a Council, the Director or Council may make
inquiries to enable the proper consideration of the notification
and must give the Authority a report on the results of those
inquiries.
Subclause (3) provides that if the Authority makes a request to
the Chief Commissioner of Police, the Chief Commissioner must
make inquiries and must give the Authority a report on the results
of those inquiries.
Subclause (4) provides that the Authority must take into account
any report received under this clause in considering a
notification.
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Clause 25 subclause (1) provides that the Authority must refuse to consider
a notification made under clause 22, if a person fails or refuses to
comply with a requirement under clause 22(2) or (3) or 23 to
provide information or necessary consents or declarations within
the time specified by the Authority.
Subclause (2) provides that if the Authority refuses to consider a
notification, the Authority must advise the Director and the
licensee that the Authority has not determined whether the
manager or the officer meets any of the licence disqualification
criteria because of a person's failure or refusal to comply with a
requirement to provide information or required consent or
declarations.
Clause 26 provides that a determination may be made following a
notification under clause 22.
Subclause (1) provides that after receiving a notification under
clause 22, the Authority may determine whether the manager or
the officer meets any of the licence disqualification criteria.
Subclause (2) provides that the Authority must advise the
licensee whether the manager or the officer meets any of the
licence disqualification criteria after it makes a determination
under subclause (1).
Subclause (3) provides that the Authority must advise the
Director of any determination that a manager or officer meets any
of the licence disqualification criteria.
Clause 27 creates four offences.
Subclause (1) requires a licensee that is a body corporate to
ensure that any officer who the Authority has determined under
clause 26 to meet the licence disqualification criteria ceases to be
an officer of the body corporate as soon as practicable within the
time permitted by law in relation to that body corporate after the
Authority has advised the licensee of its determination.
A maximum penalty of 1200 penalty units applies for a
contravention of this provision.
Subclause (2) requires a licensee to ensure that a manager who
the Authority has determined under clause 26 meets the licence
disqualification criteria ceases to take part in the management of
the rooming house within 7 days after the Authority has advised
the licensee of its determination.
15
A maximum penalty of 240 penalty units for an individual and
1200 penalty units for a body corporate applies for a
contravention of this provision.
Subclause (3) requires a licensee to ensure that any officer about
whom the Authority has been unable to make a determination
under clause 26 due to the person's refusal to comply with
information or other requirements under clause 22(2) or (3)
or 23 ceases to be an officer of the body corporate as soon as
practicable within the time permitted by law in relation to that
body corporate, after the Authority has advised the licensee of its
determination.
A maximum penalty of 1200 penalty units for a body corporate
applies for a contravention of this provision.
Subclause (4) requires a licensee to ensure that a manager about
whom the Authority has been unable to make a determination
under clause 26 due to the person's refusal to comply with
information or other requirements under clause 22(2) or (3)
or 23 ceases to take part in the management of the rooming house
within 7 days after the Authority has advised the licensee of its
determination.
A maximum penalty of 240 penalty units for an individual and
1200 penalty units for a body corporate applies for a
contravention of this provision.
Clause 28 creates offences which relate to operating a rooming house with a
manager or officer who the Authority has not determined is fit
and proper, either at the application stage or following a
notification under clause 22.
Subclause (1) provides that a licensee must not operate a rooming
house if the details of the manager were not included in the
licensee's application for a licence or a renewal of a licence under
Division 2 or a notification to the Authority under clause 22.
A maximum penalty of 240 penalty units for an individual and
1200 penalty units for a body corporate applies for a
contravention of this provision.
Subclause (2) requires that a licensee that is a body corporate
must not operate a rooming house if the details of an officer of
the body corporate were not included in the licensee's application
for a licence or a renewal of a licence or a notification to the
Authority under clause 22.
16
A maximum penalty of 1200 penalty units applies for a
contravention of this provision.
Division 6—Exceptions to offences against sections 7 and 8
Clause 29 sets out the circumstances in which the offences created by
clauses 7 and 8 do not apply to a person whose application for
renewal of a licence is refused by the Authority. The purpose of
this provision is to ensure that residents of a rooming house are
given an appropriate period of notice in which to vacate the
premises if the licence of the operator of that rooming house is
not renewed.
Subclause (1) provides that a person, whose application for
renewal of a licence is refused by the Authority and who has
applied to VCAT under clause 42 for a review of the Authority's
determination under clause 16, does not commit an offence
against clauses 7 or 8 provided that the person gives each resident
a notice to vacate of 120 days before, or within 7 days after
VCAT upholds the Authority's determination and the person does
not withdraw the notice. This provision ensures the person does
not commit an offence during the period starting on the date that
VCAT upholds the Authority's determination to refuse the
licence and ending 120 days after the date on which the notice to
vacate is given to the resident.
Subclause (2) provides that a person, whose application for
renewal of a licence is refused by the Authority under clause 16
and who does not apply to VCAT under clause 42 for a review of
that determination, does not commit an offence against clause 7
or 8 provided that the person gives each resident a notice to
vacate of 120 days before, or within 7 days after, the period
specified in clause 42(3) and the person does not withdraw the
notice. This provision ensures the person does not commit an
offence for the period starting on the day after the end of the
review application period specified in clause 42(3) (which sets
the 28 day period during which an application for a review by
VCAT must be made) and ending 120 days after the date on
which the notice to vacate is given to the resident.
Subclause (3) provides that a person is not taken to have
withdrawn a notice to vacate given to a resident under subclause
(1) or (2) if, after giving that notice, the person gives a resident
another notice to vacate under the specified provisions of the
Residential Tenancies Act 1997. This ensures that a rooming
17
house operator can give a shorter period of notice to a resident in
circumstances such as resident misconduct.
Clause 30 sets out the circumstances in which the offences created by
clauses 7 and 8 do not apply to building owners or lessees of
buildings who are not rooming house operators following the
termination of a lease held by a rooming house operator or
abandonment of the building by a rooming house operator.
Section 289A of the Residential Tenancies Act 1997 deals with
the termination of a lease of a building from which a rooming
house is being operated or the abandonment of the building by
the rooming house operator.
Subclause (1) provides that a person who is a lessee or an owner
of a building referred to in section 289A(2A) of the Residential
Tenancies Act 1997 does not commit an offence against clause 7
or 8 provided the person (or their agent) complies with the
requirement to give a notice to vacate to each resident in
accordance with section 289A(3) of that Act within 28 days of
becoming aware of an event referred to in section 289A(1) of
that Act (i.e. the termination of a lease of the building, or its
abandonment, by a rooming house operator). The person does
not commit an offence during the period starting on the date that
the lease is terminated or the building abandoned (as the case
requires) and ending on the date specified in the notice to vacate.
Subclause (2) provides that a person who is a lessee or an owner
of a building referred to in section 289A(2A) of the Residential
Tenancies Act 1997 does not commit an offence against clause 7
or 8 if the person applies for a licence within 28 days after
becoming aware of an event referred to in section 289A(1) of that
Act. The person does not commit an offence during the period—
•
if the Authority grants the licence, starting on the date
that the lease is terminated or the building is abandoned
and ending on the day the Authority grants the licence;
or
•
if the Authority refuses to grant the licence and the
person does not apply to VCAT for a review under
clause 42 of the Authority's determination, starting on
the date that the lease is terminated or the building is
abandoned and ending on the day after the day of the
18
period specified in clause 42(3) during which the
licensee may apply to VCAT for a review; or
•
if the Authority refuses to grant the licence and the
person applies to VCAT under clause 42 for a review of
the Authority's determination, starting on the date the
lease is terminated or the building is abandoned and
ending on the day after the day on which VCAT
upholds the Authority's determination.
Subclause (3) provides that, without limiting subclause (2), a
person who is a lessee or an owner of a building referred to in
section 289A(2A) of the Residential Tenancies Act 1997 and
who is refused a licence does not commit an offence against
clauses 7 or 8 provided the person (or their agent) complies with
the requirement to give a notice to vacate to each resident in
accordance with section 289A(3) of that Act. The person does
not commit an offence during the period—
•
if the person does not apply to VCAT for a review
under clause 42 of the Authority's determination to
refuse the licence, starting on or before the day after the
end of the period specified in clause 42(3) and ending
on the date specified in the notice to vacate; or
•
if the person does apply to VCAT for a review under
clause 42 of the Authority's determination to refuse the
licence, starting on the day after the day on which
VCAT upholds the Authority's determination and
ending on the date specified in the notice to vacate.
Part 4—Disciplinary hearings, licence cancellations and
protective orders
Clause 31 provides for hearings to determine whether to take disciplinary
action.
Subclause (1) provides that the Director may apply at any time to
VCAT to conduct a hearing to determine whether there are
grounds for taking disciplinary action against a licensee.
Subclause (2) provides that, within 28 days after an application
is made under subclause (1), VCAT must, if a relevant person
meets the licence disqualification criteria or renewal
disqualification criteria, or a licensee has failed to comply with
a VCAT order under clause 33, complete and determine a
19
hearing. In all other circumstances, VCAT must only commence
a hearing within 28 days.
Clause 32 provides the grounds on which VCAT may take disciplinary
action under clause 33 against a licensee.
Paragraph (a) provides that VCAT may take disciplinary action if
it is satisfied that a relevant person—
•
meets any of the licence disqualification criteria or
renewal disqualification criteria; or
•
has permitted a person who meets one or more of the
licence disqualification criteria (other than being an
insolvent under administration) to be involved in the
operation of any rooming house operated by a licensee;
or
•
has contravened this Bill or the regulations (whether or
not the relevant person has been convicted or found
guilty of an offence against this Bill or the regulations);
or
•
has contravened the rooming house provisions
(whether or not the relevant person has been convicted
or found guilty of an offence against the rooming house
provisions); or
•
in relation to a rooming house operated by a licensee,
has engaged in conduct, or has allowed another to
engage in conduct, to the detriment of the safety of the
residents or the quiet enjoyment of the rooming house
by the residents or to the detriment of the safety,
operation or amenity of the rooming house; or
•
in relation to a rooming house operated by the licensee,
has engaged in conduct, or has allowed another to
engage in conduct that discourages a resident from
exercising rights under the Residential Tenancies
Act 1997.
Paragraph (b) provides that VCAT may take disciplinary action
against a licensee if it is satisfied that the licensee has failed to
comply with a VCAT order made under clause 33; or for any
other reason not referred to in this clause, is not a suitable person
to hold a licence.
20
Paragraph (c) provides that VCAT may take disciplinary action
against a licensee if it is satisfied that an associate of a relevant
person in relation to a rooming house operated by the licensee
has engaged in conduct or has allowed another to engage in
conduct to the detriment of the safety of the residents or the quiet
enjoyment of the rooming house by the residents or to the
detriment of the safety, operation or amenity of the rooming
house; or that discourages a resident from exercising rights under
the Residential Tenancies Act 1997; or has engaged in other
conduct that demonstrates that the licensee is not a suitable
person to hold a licence.
Clause 33 provides VCAT with powers to make orders if it is satisfied that
there are grounds under clause 32 for taking disciplinary action
against a licensee.
Subclause (1) provides VCAT with the power to make any order
it considers appropriate, including orders to require compliance
with a requirement within a specified time; to require the licensee
to enter into an undertaking or pay a penalty. VCAT may also
impose conditions on the licence, cancel the licence or put in
place a protective order of the type referred to in clause 34(3).
Subclause (2) provides that, subject to subclause (3), in
determining whether to make an order, VCAT must regard the
paramount consideration as being the need to reduce exploitative
and undesirable practices within the rooming house sector and
the need to hold licensed rooming house operators to account for
their conduct and the conduct of persons involved in the
management or operation of their rooming houses.
Subclause (3) provides that VCAT must make an order
cancelling a licence if it is satisfied that a relevant person in
relation to a licence meets one or more licence disqualification
criteria or renewal disqualification criteria.
Subclause (4) provides that VCAT may cancel a licence, without
giving the licensee an opportunity to be heard, if the licensee fails
to pay a penalty imposed by a VCAT order within the specified
time.
Subclause (5) provides that if VCAT cancels a licence under this
clause the cancellation takes effect on the date specified by
VCAT in the order and VCAT must give a written notice to the
Secretary to the Department of Health and Human Services
stating the date the order to cancel the licence takes effect and
21
providing details of any protective order VCAT has made under
clause 33(1)(b) in relation the licensee.
Subclause (6) clarifies that a reference to a licensee in this clause
includes a reference to a former licensee.
Clause 34 provides VCAT with the power to make certain types of orders,
called protective orders, aimed at protecting residents of rooming
houses.
Subclause (1) provides that the Director may make an application
for VCAT to make a protective order if the Authority refuses to
renew a licence under clause 16.
Subclause (2) provides that VCAT must hear an application as
soon as practicable after the period specified in clause 42(3)
during which the licensee may apply to VCAT.
Subclause (3) provides that VCAT may make protective orders—
•
requiring the licensee to comply with a requirement
specified by VCAT within, or for, a specified time;
•
requiring the licensee to enter into an undertaking to
perform, or not to perform, certain tasks specified in the
undertaking;
•
for the purpose of protecting the residents of a rooming
house operated by the licensee, including orders that
require each resident to be notified about the closure or
a change in operator of the rooming house; orders that
require each resident to be issued with a notice to vacate
by a specific date being not more than 120 days after the
end of the period within which notice is to be given; or
orders to refund payments of rent made in advance by
residents.
Subclause (4) clarifies that a reference to a licensee in subclause
(3) includes a reference to a former licensee.
Clause 35 provides that VCAT may consider certain types of evidence
during the conduct of a hearing under clause 31 or in respect of
an application under clause 34 for a protective order—
22
•
complaints received by the Director in relation to a
relevant person, or an associate of a relevant person;
•
information provided by the Chief Commissioner of
Police to the Director in relation to a relevant person, an
associate of a relevant person or the operation of a
rooming house;
•
findings of fact made by any court or VCAT relating to
a relevant person or an associate of a relevant person;
•
orders of VCAT relating to tenancy or residency
disputes between residents of rooming houses and
rooming house operators;
•
findings, comments or recommendations made by a
coroner under the Coroners Act 2008;
•
evidence provided by a housing, tenancy or legal
advocacy organisation;
•
information concerning the factual circumstances which
resulted in an infringement notice being issued or served
in relation to provisions referred to in clause 18(1).
Clause 36 provides that if VCAT imposes a condition on a licence under
clause 33(1)(a)(iv) the licensee must produce the license to the
Authority for endorsement of the condition within 14 days after
the condition is imposed. The Authority may endorse a condition
on a licence produced to it under this clause.
Clause 37 provides that if VCAT cancels a licence under this Bill, the
person to whom the licence was issued must return the licence to
the Authority within the period specified by VCAT in the order,
or within the period of 14 days after the cancellation, whichever
is shorter.
A maximum penalty of 60 penalty units for an individual
and 300 penalty units for a body corporate applies for a
contravention of this provision.
Clause 38 provides that a tenancy agreement or a residency right within the
meaning of section 3(1) of the Residential Tenancies Act 1997
does not terminate or end merely because the Authority refused
to grant or renew a licence under clause 16, a licence expires or
VCAT cancels a licence under this Part.
23
Part 5—Other licensing matters
Clause 39 creates offences relating to the display of licences at rooming
houses.
Subclause (1) provides that a licensee must ensure that a copy of
the licence is displayed in a conspicuous place inside the front
entrance to each rooming house that is operated by the licensee.
Subclause (2) provides that if a licence is endorsed with a
condition imposed by VCAT the licensee must ensure that a copy
of the licence as endorsed is displayed in accordance with
subclause (1).
A maximum penalty of 60 penalty units applies for a
contravention of these provisions.
Clause 40 provides that a licensee must give the Authority notice of a
material change in any of the details provided in an application
for a licence or renewal of licence within 14 days of becoming
aware of the change.
A maximum penalty of 60 penalty units for an individual and
300 penalty units for a body corporate applies for a contravention
of this provision.
Clause 41 sets out what happens when a licensee dies or becomes insolvent
or incapacitated.
Subclause (1) provides that certain persons listed below may
operate a rooming house for a period of 150 days after a person
ceases to be a licensee in the following circumstances—
•
if the licensee dies, the executor named in the deceased
person's will or the administrator of the person's estate
or any person who intends to apply for letters of
administration in relation to the deceased person's
estate;
•
if the licensee becomes an insolvent under
administration, the assignee, trustee or receiver of the
person;
•
if the licensee becomes a represented person within the
meaning of the Guardianship and Administration
Act 1986 the guardian or administrator of the person or
any person nominated by the guardian or administrator;
24
•
if the licensee becomes an externally administered body
corporate, the liquidator, official manager, receiver,
receiver and manager or other external administrator.
Subclause (2) provides that a person authorised to operate a
rooming house under subclause (1) may apply during the 150 day
period for permission to operate a rooming house for a longer
period. During this longer period, the person may apply for
permission to operate a rooming house for an additional period.
Subclause (3) provides that the person may continue to operate
the rooming house until the Authority decides the application.
Subclause (4) provides that the Authority may grant an
application to operate the rooming house for a longer period if it
is satisfied that it is not contrary to the public interest to do so.
Subclause (5) provides that the Authority may withdraw or limit
any permission granted or impose, revoke or vary any condition
on the permission granted it thinks appropriate to ensure the
ongoing protection of the public interest.
Subclause (6) creates an offence that requires a person who has
been granted a permission under subclause (4) to comply with
any limitation or condition that applies to the permission.
A maximum penalty of 60 penalty units applies for a
contravention of this provision.
Subclause (7) provides that, subject to any variations made by the
Authority under subclause (5), a person who operates a rooming
house under this clause is taken for the purposes of the Bill to be
a licensed rooming house operator on the same terms and
conditions as applied to the former licensee.
Clause 42 provides for the grounds for review to VCAT.
Subclause (1) provides that a person may apply to VCAT for
review of a determination to refuse a licence or a licence renewal
under clause 16 on the ground that the determination is based on
an error of fact in relation to whether a relevant person meets any
of the licence or renewal disqualification criteria, as the case may
be.
25
Subclause (2) provides that a licensee may apply to VCAT for
review of a determination under clause 26 that a manager of a
rooming house or officer of a body corporate that is the licensee
meets one or more of the licence or renewal disqualification
criteria on the ground that the determination is based on an error
of fact.
Subclause (3) provides that an application for review must be
made within 28 days after the later of the day on which the
determination is made under clauses 16 or 26 or if, under the
Victorian Civil and Administrative Tribunal Act, the person
requests a statement of reasons, the day on which that statement
of reasons is given to the person or the person is informed that a
statement of reasons will not be given.
Clause 43 provides for the Register of Licensed Rooming House Operators.
Subclause (1) provides that the Licensing Registrar must
establish and keep a register to be called the Register of Licensed
Rooming House Operators. Note that the Licensing Registrar is
defined in clause 3 of the Bill to mean the Registrar of the
Business Licensing Authority appointed under the Business
Licensing Authority Act 1998.
Subclause (2) provides for the purposes of the Register.
Subclause (3) sets out the information that the Licensing
Registrar must record in the Register in respect of each licensee.
Subclause (4) provides that a person may search and take a copy
of the Register or copies of extracts from the Register on
payment of a prescribed fee, if a fee is prescribed.
Subclause (5) provides that a person may obtain a certified
extracts or certified copies of the Register on payment of a
prescribed fee, if a fee is prescribed.
Subclause (6) provides that subject to section 17A of the
Business Licensing Authority Act 1998, the Licensing Registrar
may keep and publish the Register in any form that the Registrar
thinks fit. Section 17A of the Business Licensing Authority
Act 1998 provides for the restriction of public access to personal
information on registers kept by the Registrar in certain
circumstances.
26
Clause 44 provides for the publication of information on the Internet.
Subclause (1) provides for the information that the Licensing
Registrar must publish on the Internet in respect of each licensee.
Subclause (2) provides for the information that the Licensing
Registrar must publish on the Internet in respect of each licence
that is cancelled or that the Authority refuses to renew.
Part 6—Enforcement
Division 1—Preliminary
Clause 45 creates an offence that an inspector must produce their identity
card for inspection before exercising a power under Part 6, other
than a power exercised by post, and at any time during the
exercise of a power under this Part if asked to do so.
A maximum penalty of 10 penalty units applies for a
contravention of this provision.
Division 2—Inspection of documents and records
Clause 46 creates two offences requiring documents to be made available
for inspection.
Subclause (1) requires a licensee to keep all documents relating
to the rooming house business available for inspection by an
inspector, in a form in which they can be readily inspected, at all
reasonable times at each place at which the licensee conducts the
business of operating a rooming house.
A maximum penalty of 60 penalty units applies for a
contravention of this provision.
Subclause (2) requires a former licensee whose license has
expired, has not been renewed or has been cancelled in the last
3 years to make all documents relating to the former business
available for inspection by an inspector in a form and at a place
where they can be readily inspected.
A maximum penalty of 60 penalty units applies for a
contravention of this provision.
27
Clause 47 provides inspectors with powers to require specified persons to
produce information and answer questions.
Subclause (1) provides that an inspector may, at a time and place
specified by the inspector, require a licensee, a specified person
or other person with control over relevant documents and
information to answer questions, supply information or produce
documents relating to a rooming house business for the purpose
of monitoring compliance with the Bill or the regulations.
The answering of questions or supply of information may be
done orally or in writing.
Subclause (2) provides that in this clause specified person means
a former licensee or in the case of a body corporate that was a
licensee, an officer of that body corporate.
Clause 48 provides inspectors with powers to require any person who has
possession, custody or control of documents relating to a
rooming house business to answer question, supply information
or produce documents relating to that business. The answering of
questions or supply of information may be orally or in writing.
Clause 49 provides inspectors with powers to require specified public
bodies to produce information and answer questions.
Subclause (1) provides that an inspector may, within a time
specified by the inspector, request that a specified public body
answer questions and supply information (orally or in writing)
relating to a licensee's business of operating a rooming house.
Subclause (2) provides that an inspector may only make such a
request with the written consent of the Director.
Subclause (3) provides that a specified public body must comply
with a request made under subclause (1), with the exception of
the Chief Commissioner of Police.
Subclause (4) provides that the Chief Commissioner of Police
may comply with a request made under subclause (1) but is not
obliged to do so, while subclause (5) provides that the Chief
Commissioner must provide a response in relation to a decision
to comply or not comply with such a request.
Subclause (6) provides two definitions for the purposes of this
clause. Public statutory authority is defined to mean a body
established by or under an Act for a public purpose and specified
public body is defined to mean a Department Head within the
28
meaning of the Public Administration Act 2004, a public
statutory authority, a Council, or the Chief Commissioner of
Police. Note that Council is defined in clause 3 as having the
same meaning as in section 3(1) of the Local Government
Act 1989.
Clause 50 provides the Director and inspectors with powers to require
specified persons or bodies to produce information and answer
questions.
Subclause (1) provides that the Director or an inspector may, at a
time and place specified by the Director or inspector, require a
specified person or body to answer questions or supply
information (orally or in writing) relating to a licensee's business
of operating a rooming house for the purpose of monitoring
compliance with the Bill or the regulations.
Subclause (2) provides that an inspector may only make such a
request with the written consent of the Director.
Subclause (3) provides that a specified person or body must
comply with a request made under subclause (1).
Subclause (4) defines the term specified person or body to
mean publishers, owners and operators of broadcasting services,
telecommunications services or postal services.
Clause 51 provides inspectors with powers to require an ADI to provide
documents and information. Note that an ADI is defined in
section 38 of the Interpretation of Legislation Act 1984 to
mean an authorised deposit-taking institution within the meaning
of the Banking Act 1959 of the Commonwealth.
Subclause (1) provides that an inspector may by serving a
written notice, require an ADI to produce documents or other
information that the inspector reasonably believes to be relevant
to the monitoring of compliance, for inspection or copying by the
inspector and to provide the inspector with full details of any
transactions relating to trust accounts or trust money.
Subclause (2) provides that an ADI must, without charge,
comply with a notice under subclause (1) despite any duty of
confidentiality or any law relating to confidentiality to the
contrary.
Clause 52 specifies the powers an inspector has in respect of any documents
produced to an inspector under this Division.
29
Clause 53 provides that an inspector may require a person to produce a
document at the person's place of business, at the office of the
Director, or at any other place with the consent of the person.
Clause 54 provides inspectors with powers to apply for orders from the
Magistrates' Court requiring a person to answer questions and
supply information.
Subclause (1) provides that an inspector, with the written
approval of the Director, may apply to the Magistrates' Court for
an order requiring a person to answer questions or supply
information relating to a licensee's business of operating a
rooming house.
Subclause (2) provides that the Magistrates' Court may grant the
order sought if satisfied on the basis of the evidence presented by
the inspector that the order is necessary for the purpose of
monitoring compliance with the Bill or the regulations.
Subclause (3) provides that an order made under this clause must
state a day, not later than 28 days after the making of the order,
on which the order ceases to have effect.
Subclause (4) provides that an inspector must notify the
Magistrates' Court of the time and place of execution of an order
under this clause in writing as soon as practicable after that
execution.
Clause 55 provides for methods for the service of documents by inspectors
under this Division.
Division 3—Entry, search and seizure
Clause 56 provides inspectors with powers to enter and search premises
with consent.
Subclause (1) provides that an inspector may, with the consent of
the occupier of the premises, enter and search the premises,
examine and seize any thing found on the premises which the
inspector believes on reasonable grounds to be connected with a
contravention of the Bill or the regulations, inspect and make
copies of documents, and make still or moving images, audio
recordings or audio-visual recordings.
Subclause (2) provides for the actions an inspector must
undertake before obtaining an occupier's consent to enter and
search their premises including producing the inspector's identity
30
card for inspection and informing the occupier of the purpose of
the search and that the occupier may refuse to give consent.
Subclause (3) provides that an inspector must ask the occupier to
sign an acknowledgment that the inspector has complied with the
requirements of subclause (2) before entering the premises with
consent.
Subclause (4) provides that an inspector must before seizing or
taking any thing ask the occupier to sign an acknowledgement
that the occupier has consented to the seizure or taking of the
thing and the date and time of that consent.
Subclause (5) provides for a copy of any signed
acknowledgement to be given to the occupier.
Subclause (6) defines occupier to clarify that in relation to an
occupied room in a rooming house, the occupier, for the purposes
of this clause, is the resident of that particular room; and if there
is more than one resident in the room, each resident.
Clause 57 provides that an inspector may enter and inspect any part of a
premises that at the time of entry and inspection is open to the
public.
Clause 58 provides inspectors with powers to enter and search premises
without consent or warrant.
Subclause (1) provides that subject to subclause (2) an inspector
may enter and search any premises at which a licensee is
conducting a rooming house business at any time between the
hours of 9 am and 5 pm, seize or secure any thing found on the
premises which the inspector believes on reasonable grounds to
be connected with a contravention of the Bill or the regulations
and inspect and make copies of documents.
Subclause (2) defines premises for the purposes of this clause to
exclude any room in a rooming house in which a person resides,
other than a room in which the rooming house operator resides
and from which the operator operates the rooming house.
Note that a room in a rooming house does not include any
common area of a rooming house which is defined under
section 3(1) of the Residential Tenancies Act 1997 to mean
any area in which facilities are provided for the use of residents
otherwise than as part of the room.
31
Clause 59 Subclause (1) provides that an inspector may apply to a
magistrate for a search warrant if the inspector believes on
reasonable grounds that there is on the premises evidence that a
person may have contravened the Bill or the regulations.
Subclause (2) provides that an application for a search warrant
must not be made without the written approval of the Director.
Subclause (3) provides that the magistrate may issue the search
warrant in accordance with the Magistrates' Court Act 1989 if
satisfied by evidence, on oath or by affidavit, that reasonable
grounds exist that a thing connected with a contravention of the
Bill or the regulations is on the premises.
Clause 60 Subclause (1) provides that a search warrant issued under
clause 59(3) may authorise the inspector named in the warrant,
together with a police officer or any other person named or
identified in the warrant and with any necessary equipment to
enter the premises, by force if necessary and exercise particular
powers in relation to any thing named or described in the warrant
including powers of search and seizure and powers to examine
and inspect and make copies or take extracts.
Subclause (2) provides that a search warrant issued under
clause 59(3) must state the purpose of the search, any conditions,
authorised entry times and the date on which the warrant ceases
to have effect.
Subclause (3) provides that except as provided by the Bill, the
search warrant rules under the Magistrates' Court Act 1989
extend and apply to warrants issued under clause 59(3).
Clause 61 Subclause (1) provides that on executing a search warrant, an
inspector must announce that he or she is authorised by warrant
to search the premises and give any person present an
opportunity to allow entry.
Subclause (2) provides an exception to the requirement to make
an announcement before entry if the inspector believes on
reasonable grounds that immediate entry is required for safety
reasons or to ensure the warrant is not frustrated.
Subclauses (3) and (4) requires the inspector to produce the
inspector's identity card and give a copy of the warrant to people
present when the search warrant is being executed. Subclause (3)
provides that if the occupier is present, the identity card and copy
32
of the warrant must be produced and given to the occupier.
Subclause (4) clarifies that if the occupier is not present, these
documents may be provided to any person present at the
premises.
Clause 62 provides the circumstances in which a search warrant under
clause 59 authorises an inspector to seize any other thing which is
not described in the warrant.
Clause 63 Subclause (1) provides that an inspector executing a search
warrant may issue an embargo notice if the thing that the search
warrant authorises the inspector to seize cannot or cannot readily
be physically seized and removed. The embargo notice must be
served on the occupier or attached in a prominent position to the
thing if the occupier cannot be located.
Subclause (2) creates an offence for a person, who knows that an
embargo notice relates to a thing, to sell, lease, transfer, move,
dispose of or otherwise deal with the thing or any part of the
thing without the written consent of the inspector.
A maximum penalty of 60 penalty units applies for a
contravention of this provision.
Subclause (3) provides that the offence established in
subclause (2) does not apply to a person who moved the thing or
part of the thing for the purpose of protecting and preserving it.
Subclause (4) provides that any sale, lease, transfer or other
dealing with a thing in contravention of this clause is void.
Clause 64 Subclause (1) provides that, for the purpose of monitoring
compliance with an embargo notice, an inspector, with the
written approval of the Director, may apply to the Magistrates'
Court for orders requiring the owner of a thing to which an
embargo notice relates, or the occupier of premises where the
thing is kept or required to be kept, to answer questions or
produce documents; and for orders for monitoring compliance
with the embargo notice or with clause 63(2).
Subclause (2) provides that the Magistrates' Court may make the
orders sought under this clause.
33
Clause 65 Subclause (1) provides that an inspector may, with the written
approval of the Director, apply to a magistrate for a search
warrant to enter premises where a thing to which an embargo
notice relates is kept or required to be kept.
Subclause (2) provides that the magistrate may issue the search
warrant in accordance with the Magistrates' Court Act 1989 if
satisfied by evidence on oath or affidavit that the warrant is
necessary for the effective monitoring of compliance with the
embargo notice.
Subclause (3) provides that a search warrant may authorise the
inspector named in the warrant, together with any other person
named or identified in the warrant and with any necessary
equipment to enter the premises, by force if necessary, and search
for, seize and secure against interference the thing named in the
warrant.
Subclause (4) provides that except as provided by the Bill, the
search warrant rules under the Magistrates' Court Act 1989
extend and apply to warrants issued under this clause.
Clause 66 Subclause (1) provides that if an inspector retains possession of a
document seized from a person under this Division, the inspector
must give a certified copy of that document to the person within
21 days after the seizure.
Subclause (2) provides that a copy of a document certified under
subclause (1) must be received in all courts and VCAT to be
evidence of equal validity to the original.
Subclause (3) provides that an inspector must take reasonable
steps to return the document or thing to the person from whom it
was seized if the reason for seizure no longer exists.
Subclause (4) provides that if a document or thing has not been
returned within 3 months after seizure, the inspector must take
reasonable steps to return it unless proceedings have commenced
and have not been completed (including any appeal) or there is a
Magistrates' Court order under clause 67 extending the period.
Clause 67 Subclause (1) provides that an inspector may apply to the
Magistrates' Court for an extension (not exceeding 3 months) of
the period during which a seized document or thing may be
retained within 3 months of the seizure or if an extension has
been granted, before the end of the period of the extension.
34
Subclause (2) provides that the Magistrates' Court may make an
order if satisfied that the total period of retention does not exceed
12 months and retention of the thing or document is necessary for
the purposes of an investigation into whether a contravention of
the Bill or the regulations has occurred or to enable evidence of a
contravention to be obtained.
Subclause (3) provides that the Magistrates' Court may adjourn
an application to enable notice of the application to be given to
any person.
Clause 68 provides that an inspector may require an occupier of premises,
or an agent or employee of the occupier, to give information,
produce documents, and give reasonable assistance to the
inspector.
Subclause (2) creates an offence if a person fails to comply with
a requirement of an inspector under this section without
reasonable excuse.
A maximum penalty of 60 penalty units applies for a
contravention of this provision.
Division 4—General enforcement matters
Clause 69 creates 2 offences relating to the provision of false or misleading
information under this Part.
Subclause (1) creates an offence for a person to give information
to an inspector that the person believes to be false or misleading
in a material particular.
A maximum penalty of 60 penalty units applies for a
contravention of this provision.
Subclause (2) creates an offence for a person to produce a
document to an inspector that the person knows to be false or
misleading in a material particular without indicating the respect
in which it is false or misleading and, if practicable, providing
correct information.
A maximum penalty of 60 penalty units applies for a
contravention of this provision.
35
Clause 70 Subclause (1) creates an offence for an inspector to give to any
other person any information acquired by the inspector in
carrying out the inspector's functions under this Part, unless the
giving of information is authorised under this clause.
A maximum penalty of 60 penalty units applies for a
contravention of this provision.
Subclause (2) provides for the circumstances in which an
inspector may give out information acquired by the inspector in
carrying out a function under this Part.
Clause 71 provides for the prescribing of offences in regulations made
under this Bill as suitable for infringement and for the prescribing
of penalties for those infringements and for the serving of
infringement notices in respect of prescribed offences.
Clause 72 provides for protection against self-incrimination.
Subclause (1) provides that is a reasonable excuse for a person to
refuse to give information or do any other required thing required
to be done under this Part on the grounds of self-incrimination.
Subclause (2) provides that the reasonable excuse of
self-incrimination does not extend to the production of
documents required under this Part.
Clause 73 provides for a process whereby a person may complain to the
Director about the exercise of a power by an inspector under this
Part.
Part 7—General
Clause 74 provides for the application of specific sections of the Australian
Consumer Law and Fair Trading Act 2012 to this Bill.
Subclause (1) applies specific sections of the Australian
Consumer Law and Fair Trading Act 2012 which provide
the Director with certain powers to compel the production of
information or documents or give evidence; enable inspectors
to enter and inspect public places; create offences relating to
inspectors and place record keeping requirements on inspectors
and the Director in relation to the exercise of powers of entry to
this Bill.
36
Subclause (2) extends and applies sections 195 and 196 which
specify certain matters relating to contraventions by a body
corporate and conduct by officers, employees and agents and
provisions relating to remedies and legal proceedings under
Part 8.2 (with the exception of the defences under section 213) of
the Australian Consumer Law and Fair Trading Act 2012 to
the Bill.
Subclause (3) clarifies the operation of particular references in
certain sections of the Australian Consumer Law and Fair
Trading Act 2012 applied under subclause (2).
Clause 75 provides that evidence that a person or body corporate is a
registration holder of a rooming house under the Public Health
and Wellbeing Act 2008 is evidence that the person or the body
corporate is a rooming house operator in any proceeding for an
offence against this Bill.
Clause 76 provides that only the Director, or a person authorised by the
Director for that purpose, may commence proceedings for an
offence against this Bill or the regulations, and that the person
commencing the proceeding is assumed to be authorised to do so.
Clause 77 provides that a proceeding for an offence against the Bill may be
commenced within 3 years after the date on which the offence
was committed despite anything to the contrary in any Act.
Clause 78 provides for the methods of service of documents for the
purposes of this Act and the regulations. This clause applies
subject to clause 55 which sets out separate requirements for the
service of documents by inspectors under Division 2 of Part 6 of
the Bill.
Clause 79 provides that fees, penalties and infringement penalties under the
Bill must be paid into the Victorian Property Fund established
under the Estate Agents Act 1980 as well as any other money
required to be paid into the Fund under the Bill.
Clause 80 provides for regulation making powers under the Bill.
37
Part 8—Transitional and consequential amendments
Division 1—Transitional provisions
Clause 81 defines two key terms for the purposes of this clause. The first
is application period, which is defined to mean a period of
120 days from the day that clauses 7 and 8 of the Bill come into
operation. The second is existing rooming house operator,
which is defined to mean a rooming house operator who operated
a rooming house immediately before the application period and
who operates a rooming house during the application period.
Clause 82 Subclause (1) provides that the offences created by clauses 7
and 8 do not apply to an existing rooming house operator if the
existing rooming house operator gives each resident of the
rooming house a notice to vacate the room occupied by the
resident before the application period starts and the existing
rooming house owner does not withdraw the notice to vacate.
Subclause (2) sets out three other situations in which the offences
created by clauses 7 and 8 do not apply to an existing rooming
house operator who applies for a licence during the application
period.
The first situation is where an existing rooming house operator is
refused a licence by the Authority, and does not seek review of
that decision at VCAT. The effect of subclause (2) paragraph (a)
is that if, before, or within 7 days after, the period specified in
clause 42(3) (i.e. the 28 day period during which a review of the
Authority's determination may be sought at VCAT), the existing
rooming house operator gives each resident a notice to vacate the
room occupied by the resident by a date that is 120 days after the
date on which the notice is given, clauses 7 and 8 of the Bill will
not apply until the date that is 120 days after the date on which
the notice is given, provided that the existing rooming house
operator does not withdraw that notice to vacate.
The second situation is where an existing rooming house operator
is refused a licence by the Authority and seeks review of that
decision at VCAT, and VCAT upholds the Authority's
determination. The effect of subclause (2) paragraph (b) is that
if, before, or within 7 days after, VCAT's decision, the existing
rooming house operator gives each resident a notice to vacate the
room occupied by the resident by a date that is 120 days after the
date on which the notice is given, clauses 7 and 8 of the Bill will
38
not apply until the date that is 120 days after the date on which
the notice is given, provided that the existing rooming house
operator does not withdraw that notice to vacate.
The third situation is where an existing rooming house operator is
granted a licence. In that situation, clauses 7 and 8 do not apply
until the day that the licence is granted.
Subclause (3) provides that subject to subclause (4) the offences
created by clauses 7 and 8 do not apply to certain people for a
period of 150 days after the existing rooming house owner ceases
to operate the rooming house in the following circumstances—
•
if the existing rooming house operator dies, the executor
named in the deceased person's will or the administrator
of the person's estate or any person who intends to apply
for letters of administration in relation to the deceased
person's estate;
•
if the existing rooming house operator becomes an
insolvent under administration, the assignee, trustee or
receiver of the person;
•
if the existing rooming house operator becomes a
represented person the guardian or administrator of the
person or any person nominated by the guardian or
administrator;
•
if the existing rooming house operator becomes an
externally administered body corporate, the liquidator,
official manager, receiver, receiver and manager or
other external administrator.
Subclause (4) provides that a person referred to in subclause (3)
must give each resident of the rooming house a 120-day notice to
vacate within 30 days after the existing rooming house operator
ceases to operate the rooming house and must not withdraw the
notice.
Subclause (5) provides that a person referred to in subclauses (1)
or (2) or (3) is not taken to have withdrawn a notice to vacate
under subclause (1) or (2) or (4) if, after giving that notice, the
person gives a resident another notice to vacate under specified
sections of the Residential Tenancies Act 1997. This ensures
that an existing rooming house operator, or a person referred to in
subclause (3), can give a shorter period of notice to a resident in
circumstances such as resident misconduct.
39
Clause 83 enables the Director to apply to VCAT for VCAT to make an
order under clause 83 if the Authority refuses to grant a licence to
an existing rooming house operator under clause 16.
Subclause (2) provides that VCAT must hear an application made
by the Director as soon as practicable after the period specified in
clause 42(3) during which an existing rooming house operator
may apply to VCAT (i.e. for review of the Authority's decision to
refuse to grant the operator a licence).
Subclause (3) provides that if VCAT considers it appropriate,
VCAT may make one or more of the following orders—
•
an order requiring the existing rooming house operator
to comply with a requirement specified by VCAT
within, or for, a specified time;
•
an order requiring the existing rooming house operator
to enter into an undertaking to perform, or not to
perform, certain tasks specified in the undertaking;
•
any other order for the purpose of protecting the
residents of a rooming house operated by the existing
rooming house operator, including orders that require
each resident to be notified about the closure, or a
change in operator, of the rooming house; orders that
require each resident to be issued with a notice to vacate
by a specific date being not more than 120 days after the
end of the period within which notice is to be given; or
orders to refund payments of rent made in advance by
residents.
Division 2—Consequential amendments
Clause 84 inserts a reference to the "Rooming House Operators Act 2015"
in Schedule 1 to the Australian Consumer Law and Fair
Trading Act 2012 so that this Bill comes within the definition of
a Consumer Act for the purposes of that Act.
Clause 85 inserts a reference to the "Rooming House Operators Act 2015"
in section 3 of the Business Licensing Authority Act 1998 so
that this Bill comes within the definition of business licensing
Act for the purposes of that Act.
40
Clause 86 inserts references to the "Rooming House Operators Act 2015"
into section 75 of the Estate Agents Act 1980 to enable
payments to be made out of the Victorian Property Fund in
relation to this Bill.
Clause 87 inserts a new section 228A into the Residential Tenancies
Act 1997 which clarifies that a tenancy agreement does not
terminate merely because an application for a licence or a
renewal of a licence to operate a rooming house under this Bill is
refused, or a licence to operate a rooming house expires under
this Bill or VCAT cancels a licence to operate a rooming house
under this Bill.
Clause 88 inserts a new section 268A into the Residential Tenancies
Act 1997 which provides that a landlord who is a rooming house
owner must give a resident under a tenancy agreement a notice to
vacate the room occupied by the resident if VCAT has made a
protective order under clause 34(3)(c)(ii) of the Bill.
Clause 89 inserts a new section 272A into the Residential Tenancies
Act 1997 which clarifies that a residency right does not end
merely because an application for a licence or a renewal of a
licence to operate a rooming house under this Bill is refused, or a
licence to operate a rooming house expires under this Bill or
VCAT cancels a licence to operate a rooming house under this
Bill.
Clause 90 inserts a new section 290A into the Residential Tenancies
Act 1997 which provides that a landlord who is a rooming house
owner must give a resident under a tenancy agreement a notice to
vacate the room occupied by the resident if VCAT has made a
protective order under clause 34(3)(c)(ii) of the Bill.
41