Consumer Legislation Amendment Act 2020 (Vic)
Consumer Legislation Amendment Act 2020
No. 32 of 2020
table of provisions
Section Page
Part 1—Preliminary
1Purposes
2Commencement
Part 2—Amendment of Residential Tenancies Amendment Act 2018
3Definitions
4Statute law revision
5New section 30A inserted
6Where and how is rent to be paid?
7Section 44 amended
8New Divisions 1B and 1C inserted in Part 3
9How much notice of rent increase is required?
10Section 236 amended
11New Division 10 of Part 3 inserted
Part 3—Amendment of Residential Tenancies Amendment Act 2018 consequential to Disability (National Disability Insurance Scheme Transition) Amendment Act 2019
12New section 79A inserted
13New Division 9 of Part 2 inserted
Part 4—Amendment of Retirement Villages Act 1986
14Definitions
15New section 27AA inserted
16Section 31 substituted
17New section 55 inserted
Part 5—Repeal of this Act
18Repeal of this Act
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Endnotes
1 General information
Consumer Legislation Amendment Act 2020
No. 32 of 2020
[Assented to 4 November 2020]
The Parliament of Victoria enacts:
Part 1—Preliminary
1Purposes
The purposes of this Act are—
(a)to amend the Residential Tenancies Amendment Act 2018 in relation to social and affordable housing provided by the Director of Housing, the Secretary to the Department of Health and Human Services, a registered agency or other entities; and
(b)to amend the Residential Tenancies Amendment Act 2018 as a consequence of the amendments made to the Residential Tenancies Act 1997 by the Disability (National Disability Insurance Scheme Transition) Amendment Act 2019; and
(c)to amend the Retirement Villages Act 1986 to make further provision in relation to charges to secure refundable in-going contributions and related amendments.
2Commencement
(1)This Act, except Part 4, comes into operation on the day after the day on which it receives the Royal Assent.
(2)Subject to subsection (3), Part 4 comes into operation on a day or days to be proclaimed.
(3)If a provision of Part 4 does not come into operation before 1 September 2021, it comes into operation on that day.
Part 2—Amendment of Residential Tenancies Amendment Act 2018
3Definitions
In section 5(1) of the Residential Tenancies Amendment Act 2018—
(a)before the proposed definition of registered housing agency in section 3(1) of the Residential Tenancies Act 1997 insert—
"registered agency has the same meaning as in section 4(1) of the Housing Act 1983;";
(b)in paragraph (b) of the proposed definition of registered housing agency in section 3(1) of the Residential Tenancies Act 1997 omit "within the meaning of the Housing Act 1983";
(c)after the proposed definition of Rental Non‑compliance Register in section 3(1) of the Residential Tenancies Act 1997 insert—
"rental rebate means a rebate of rent, or any other reduction in rent, granted to a renter or a resident of a rooming house by the Director of Housing or a registered agency;".
4Statute law revision
For section 11(8) of the Residential Tenancies Amendment Act 2018 substitute—
'(8)For the note at the foot of section 26 of the Principal Act substitute—
"Notes
1. Section 27C provides that terms about cleaning and safety-related repairs and related obligations may be included in a residential rental agreement in the standard form.
2. In the case of a residential rental provider who is an SDA provider providing an SDA enrolled dwelling to an SDA resident, see Division 2 of Part 12A.".'.
5New section 30A inserted
In section 20 of the Residential Tenancies Amendment Act 2018, after proposed section 30A(2) of the Residential Tenancies Act 1997 insert—
"(3)It is not a contravention of this section for an entity specified in subsection (4)—
(a)to refuse to let rented premises; or
(b)to carry out any other function referred to in that subsection.
(4)For the purposes of subsection (3), the following are specified entities—
(a)the Director of Housing or the Director of Housing's agent;
(b)a registered agency or the registered agency's agent;
(c)an authorised person (within the meaning of section 4(1) of the Housing Act 1983) who provides rented premises for a purpose referred to in section 142A(2)(a) of that Act;
(d)a person who provides rented premises in accordance with a determination made under section 142E of the Housing Act 1983;
(e)a person who provides rented premises as affordable housing within the meaning of section 3AA of the Planning and Environment Act 1987.
(5)If the Director of Housing makes a determination under section 142E(1) of the Housing Act 1983 that relates to an attribute of a person referred to in section 6 of the Equal Opportunity Act 2010, that determination is not a contravention of this section.".
6Where and how is rent to be paid?
In section 32(3) of the Residential Tenancies Amendment Act 2018, after proposed section 42(5) of the Residential Tenancies Act 1997 insert—
"(5A)Subsection (5) does not apply to the Director of Housing or the Director's agent.".
7Section 44 amended
After section 34(5) of the Residential Tenancies Amendment Act 2018 insert—
'(6)After section 44(4A) of the Principal Act insert—
"(4B)For the purposes of this section, rent is not increased merely because—
(a)a rental rebate is applied, adjusted or cancelled under a residential rental agreement where the residential rental provider is the Director of Housing or a registered agency; and
(b)the application, adjustment or cancellation of that rental rebate caused an increase in the amount payable by the renter under that residential rental agreement.".'.
8New Divisions 1B and 1C inserted in Part 3
In section 86 of the Residential Tenancies Amendment Act 2018, after proposed section 94F(2) of the Residential Tenancies Act 1997 insert—
"(3)It is not a contravention of this section for an entity specified in subsection (4)—
(a)to refuse a person occupancy of a room in a rooming house; or
(b)to carry out any other function referred to in that subsection.
(4)For the purposes of subsection (3), the following are specified entities—
(a)the Director of Housing or the Director of Housing's agent;
(b)a registered agency or the registered agency's agent;
(c)an authorised person (within the meaning of section 4(1) of the Housing Act 1983) who provides a room in a rooming house for a purpose referred to in section 142A(2)(a) of that Act;
(d)a person who provides a room in a rooming house in accordance with a determination made under section 142E of the Housing Act 1983;
(e)a person who provides a room in a rooming house as affordable housing within the meaning of section 3AA of the Planning and Environment Act 1987.
(5)If the Director of Housing makes a determination under section 142E(1) of the Housing Act 1983 that relates to an attribute of a person referred to in section 6 of the Equal Opportunity Act 2010, that determination is not a contravention of this section.".
9How much notice of rent increase is required?
After section 94(4) of the Residential Tenancies Amendment Act 2018 insert—
'(5)After section 101(5A) of the Principal Act insert—
"(5B)For the purposes of this section, rent is not increased merely because—
(a)a rental rebate is applied, adjusted or cancelled under a fixed term rooming house agreement or agreement under section 94(2) where the rooming house operator is the Director of Housing or a registered agency; and
(b)the application, adjustment or cancellation of that rental rebate caused an increase in the amount payable by the resident under that fixed term rooming house agreement or agreement under section 94(2) (as the case may be).".'.
10Section 236 amended
In section 236 of the Residential Tenancies Amendment Act 2018, after proposed section 91ZM(7) of the Residential Tenancies Act 1997 insert—
"(8)For the purposes of this section, rent in relation to a residential rental agreement under which the Director of Housing or a registered agency is the residential rental provider, is the amount payable to the residential rental provider by the renter to occupy rented premises and use facilities or services less any applicable rental rebate.".
11New Division 10 of Part 3 inserted
In section 237 of the Residential Tenancies Amendment Act 2018, after proposed section 142ZF(2) of the Residential Tenancies Act 1997 insert—
"(3)For the purposes of this section, rent in relation to a fixed term rooming house agreement or agreement under section 94(2) under which the Director of Housing or a registered agency is the rooming house operator, is the amount payable to the rooming house operator by the resident to occupy the room and use facilities and services less any applicable rental rebate.".
Part 3—Amendment of Residential Tenancies Amendment Act 2018 consequential to Disability (National Disability Insurance Scheme Transition) Amendment Act 2019
12New section 79A inserted
After section 79 of the Residential Tenancies Amendment Act 2018 insert—
'79A New Subdivision 3A inserted in Division 9 of Part 2
After Subdivision 3 of Division 9 of Part 2 of the Principal Act insert—
"Subdivision 3A—Termination of residential rental agreement because of coercion or deception of SDA resident
91YAApplication for termination of residential rental agreement because of coercion or deception of SDA resident
(1)An SDA resident who is a party to a residential rental agreement may apply to the Tribunal for any of the following orders on a ground specified in subsection (2)—
(a)an order terminating the existing residential rental agreement;
(b)an order—
(i)terminating the existing residential rental agreement; and
(ii)requiring the SDA provider who is a residential rental provider to enter a new residential rental agreement with the person who is an SDA resident and other persons (if any) specified in the application;
(c)if all the renters under the existing residential rental agreement are SDA residents, an order—
(i)terminating the residential rental agreement; and
(ii)requiring the SDA provider who is a residential rental provider to enter into, or establish, an SDA residency agreement with each person who is a renter under the existing residential rental agreement.
(2)The following grounds are specified for the purposes of subsection (1)—
(a)the SDA resident was coerced or deceived into entering into the residential rental agreement;
(b)the SDA resident did not receive an information statement as required under section 498D before entering into the residential rental agreement;
(c)the SDA resident was given an information statement under section 498D but did not receive an explanation of that statement under section 498E.
(3)For the purposes of a proceeding for an order under subsection (1), each of the following persons is a party to the proceeding—
(a)the SDA resident or one of the following persons who may make an application on behalf of the SDA resident—
(i)the Director;
(ii)the SDA resident's guardian (if any);
(iii)the SDA resident's administrator (if any);
(iv)the Public Advocate;
(b)the SDA provider;
(c)any other party to the existing residential rental agreement;
(d)any other person specified in the application as a party.
(4)An application under subsection (1) may be made without the consent of the SDA provider or any other party to the existing residential rental agreement.
(5)The Tribunal must hear an application under subsection (1)—
(a)within 3 business days of the application being made; or
(b)if the application cannot be heard within the period referred to in paragraph (a), no later than the next available sitting day of the Tribunal after the end of that 3 business day period.
(6)If an application is made under subsection (1), any other action that could otherwise be taken in respect of the existing residential rental agreement is stayed until the Tribunal determines the application.
91YBTribunal orders
(1)On an application under section 91YA(1), the Tribunal may—
(a)order the dismissal of the application; or
(b)if satisfied that the SDA resident was coerced or deceived into entering a residential rental agreement or that the SDA resident did not receive an information statement under section 498D or an explanation of the information statement under section 498E—
(i)order the termination of the existing residential rental agreement; or
(ii)order the termination of the existing residential rental agreement and that the SDA provider enter into a new residential rental agreement with the SDA resident and other persons (if any) specified in the application; or
(iii)if all renters to the agreement are SDA residents, order the termination of the existing residential rental agreement and require the SDA provider to enter into or establish an SDA residency agreement with each SDA resident.
(2)If the Tribunal makes an order under subsection (1)(b), the Tribunal must specify the date on which the existing residential rental agreement terminates.
(3)For the purposes of subsection (1)(b), the Tribunal may—
(a)adjourn the application to determine a termination date in consultation with the renters party to the existing residential rental agreement; or
(b)adjourn the application to allow the parties to the agreement to enter into a new residential rental agreement or to enter into, or establish, one or more SDA residency agreements (as appropriate); or
(c)if, during an adjournment the parties to the residential rental agreement are—
(i)unable to enter into a new residential rental agreement, direct the parties to enter into a new residential rental agreement on terms declared by the Tribunal; or
(ii)unable to enter into, or establish, one or multiple SDA residency agreements (as appropriate), direct the parties to enter into one or multiple new SDA residency agreements (as appropriate) on terms declared by the Tribunal.
(4)If the Tribunal makes an order under subsection (1)(b), having regard to any financial disadvantage suffered by the renter and regardless of any loss or damage suffered by the SDA provider, the Tribunal may—
(a)order that any bond paid by the renter under the existing residential rental agreement be paid out by the Authority to the renter and, if there is more than one renter under the existing residential rental agreement, apportion the bond to be paid out by the Authority between the renters; and
(b)revoke any compensation orders that have been issued against the renter.
(5)In determining an application under section 91YA(1), the Tribunal may take into account the Director's guidelines.".'.
13New Division 9 of Part 2 inserted
(1)In section 236 of the Residential Tenancies Amendment Act 2018, in proposed section 91ZB(1) of the Residential Tenancies Act 1997—
(a)in paragraph (f), for "2010." substitute "2010; or";
(b)after paragraph (f) insert—
"(g)the renter, who is an SDA resident, has been given a notice under section 498DA.".
(2)In section 236 of the Residential Tenancies Amendment Act 2018, after proposed section 91ZB(3) of the Residential Tenancies Act 1997 insert—
"(3A)A renter to whom subsection (1)(g) applies may give a residential rental provider who is, or was, an SDA provider, a notice of intention to vacate a premises that is, or was, an SDA enrolled dwelling, specifying a termination date that is not less than 14 days after the date on which the notice is given.".
Part 4—Amendment of Retirement Villages Act 1986
14Definitions
In section 3(1) of the Retirement Villages Act 1986 insert the following definition—
"ASIC has the same meaning as Commission has in the Corporations (Victoria) Act 1990;".
15New section 27AA inserted
After the heading to Part 5 of the Retirement Villages Act 1986 insert—
"27AA Definition
In this Part—
appointed person means a person appointed by an order under section 31A to execute the order.".
16Section 31 substituted
For section 31 of the Retirement Villages Act 1986 substitute—
"31 Application for enforcement of charge
Any of the following persons may apply to the Supreme Court for an order enforcing a charge securing a refundable in-going contribution for a residence right in a retirement village—
(a)a resident, in respect of the resident's refundable in-going contribution for a residence right in the retirement village;
(b)the Director.
31AOrder enforcing charge
(1)On an application under section 31, the Supreme Court may make an order enforcing the charge, if it is in the interests of the majority of the residents of the retirement village to make the order, and if—
(a)the owner or owners of the retirement village land are insolvent; or
(b)the Court is satisfied that it is just and equitable to do so where there is more than one owner of the retirement village land, and one or more of the owners of the land are insolvent and one or more of the owners of the land are not insolvent; or
(c)ownership of all or part of the retirement village land is vested in ASIC or the Commonwealth because that ownership was previously vested in a company that has been deregistered under the Corporations Act.
(2)An order under subsection (1) may provide for the following matters—
(a)the sale of the land charged, including the sale of the land by the person appointed under paragraph (f);
(b)a declaration that the charge is extinguished on the completion of the sale of the land charged;
(c)a determination of the amount of the charge;
(d)a determination of the entitlements of one or more residents to payments out of the proceeds of the sale of the land charged, having regard to the amount of each resident's refundable in-going contribution and the proportion which it bears to the total amount of refundable in-going contributions secured by the charge;
(e)the order of application of the proceeds of the sale determined in accordance with section 31C;
(f)the appointment of a person to execute the order, and may provide for the following—
(i)the vesting of the estate in fee simple in the land in that person as trustee;
(ii)the ability of that person to do any other thing necessary to give effect to the order and to the sale of the land, including signing any contract for the sale of the land and any instrument of transfer of the land or other instrument under the Transfer of Land Act 1958;
(g)any incidental and consequential matters.
(3)If the Court makes an order concerning land not under the Transfer of Land Act 1958, the land must be brought under that Act before it is sold.
31BPowers of appointed person
An appointed person—
(a)has all the powers necessary to ensure the execution of the order; and
(b)may act as agent of the residents on whose behalf the order is made.
31CApplication of the proceeds of the sale
Proceeds of the sale of the land charged are to be applied in the following order—
(a)first, in payment of the costs incurred in—
(i)applying for and obtaining the order for enforcing the charge; and
(ii)selling the land charged; and
(iii)executing the order;
(b)secondly, in payment of encumbrances which rank before the charge in priority unless the sale is subject to those encumbrances;
(c)thirdly, in making the payments to the residents that the residents are entitled to be paid out of the proceeds of the sale of the land charged, having regard to the amount of each resident's refundable in-going contribution and the proportion which it bears to the total amount of refundable in-going contributions secured by the charge;
(d)fourthly, in payment of encumbrances which rank after the charge in priority;
(e)fifthly, in payments to the person who owned the land charged immediately before an order was applied for.
31DDirector may intervene
The Director may intervene in a proceeding on an application under section 31(a) and may appear personally or by representative.".
17New section 55 inserted
After section 54 of the Retirement Villages Act 1986 insert—
"55 Transitional provision—Consumer Legislation Amendment Act 2020
On and from the commencement of Part 4 of the Consumer Legislation Amendment Act 2020, the amendments made to this Act by that Part apply to a charge created before that commencement.".
Part 5—Repeal of this Act
18Repeal of this Act
This Act is repealed on 1 September 2022.
Note
The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).
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Endnotes
1 General information
See for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.
Minister's second reading speech—
Legislative Assembly: 18 September 2020
Legislative Council: 29 October 2020
The long title for the Bill for this Act was "A Bill for an Act to make amendments to the Residential Tenancies Amendment Act 2018 and the Retirement Villages Act 1986 and for other purposes."
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