2016-05-06
The Greens are supportive of the majority of the provisions in this bill. The majority of the bill is indeed housekeeping, but it would be a mistake to categorise the whole bill as housekeeping. I am going to cut to the chase. I am not going to speak to the entire bill — it is a very large bill and an omnibus bill — but there are two parts in particular that the Greens feel need further attention.
The first is around the proposed amendments to the Retirement Villages Act 1986 in division 3 of part 3 of the bill. Consumer Action, formerly known as the Consumer Action Law Centre, has expressed some concerns regarding these proposed amendments. Consumer Action is not opposed to moving the calculation of adjusted maintenance charges from the regulations to the body of the act, though it did point out to us that the minister has not really explained the reason for these changes. I would call on the minister to elaborate on this point — —
Mr Jennings — This is another point the minister is going to answer.
Ms SPRINGLE — Excellent. I am very glad to hear it.
Ms Shing — You're not, though, are you? Are you glad?
Ms SPRINGLE — Yes, I am. I am absolutely glad; otherwise I would not be asking the question.
Consumer Action has also told us that it gets regular complaints from retirement village residents about the calculation of adjusted maintenance charges. It may well be outside the scope of this bill, but we urge the government to further amend the Retirement Villages Act so as to restrict unfair increases to adjusted maintenance charges. Consumer Action also says it is unaware of any enforcement action that has been taken against an operator that has increased maintenance charges in excess of the calculation, so perhaps the minister could alert the chamber to the current enforcement mechanisms under the act and the extent to which they have been used in, say, the last two years. Certainly Consumer Action believes those mechanisms need to be more effective. Finally, perhaps the minister can elaborate further on what is meant by 'reference periods' in clause 31 of the bill. We understand the reference periods are part of the wording that will replace the references to four consecutive quarters in the act as it stands.
I will now move to the other part of the bill that needs further attention. Clause 24 amends the Residential Tenancies Act 1997 to allow for notices and documents to be served electronically. The Greens generally support provisions for electronic service, but when we allow for electronic service we must do so in a way that ensures, as much as we can, that vulnerable people are not left out or further disadvantaged. We are very concerned that the wording of this bill as it currently stands contains a very real risk that certain tenants, especially the most vulnerable tenants, may be unnecessarily disadvantaged.
This was a concern also raised with us by the Tenants Union of Victoria, an organisation that does some truly outstanding work on behalf of some of the state's most marginalised and vulnerable tenants. The tenants union helps people in a number of different ways, including by way of the provision of advice, advocacy and policy work towards its goal to improve the conditions for and the status of tenants. The tenants union handled nearly 20 000 inquiries last financial year, and it provided direct assistance to almost 16 000 people. In each of those matters the tenants union speaks to people who need help, and it collects data and information. This provides the tenants union with a tremendous and valuable source of information about the actual issues tenants face. When the tenants union identifies concerns about a bill, we in this place can be pretty sure those concerns are well founded.
The Greens agree that those concerns are well founded in this case. We are very concerned that the bill as it currently stands, in allowing for electronic service of documents and notices under the Residential Tenancies Act, may have some unintended consequences, especially for vulnerable tenants. As it is currently worded the bill only says that the electronic service of documents would be allowed in accordance with the Electronic Transactions (Victoria) Act 2000. That acts requires that a person must give consent in order to receive notices electronically, but that act's definition of consent allows a person's consent to be inferred from their conduct.
Our concern and that of the Tenants Union of Victoria is that the definition of 'consent' in the Electronic Transactions (Victoria) Act 2000 leaves too much that is uncertain, especially from the point of view of tenants but also from the point of view of landlords and agents. This bill is not clear about exactly what behaviour by a tenant means they have consented to electronic service. Is it when a tenant emailed their agent six months ago about a busted water heater? Is that enough for the agent to infer that the tenant has consented to electronic service of a notice that their rent will increase, or does the tenant need to have done more — perhaps established a pattern of electronic communication with their agent over a number of months? The bill as it is introduces too many uncertainties for tenants, landlords and agents and risks tying up valuable time in the Victorian Civil and Administrative Tribunal and perhaps the courts by people arguing that a particular person had or had not consented based on their conduct. If we can head off this kind of uncertainty before the bill is signed into law, then surely we should.
Another potential concern with the bill the way it is currently written is the possibility that landlords and agents might be able to obtain a tenant's written consent by simply including a term to that effect in the tenancy agreement. The tenant would thus be placed in the difficult position of having to choose between consenting to electronic service and getting a property on the one hand and not consenting to electronic service and not getting a property on the other hand.
Greens amendments circulated by Ms SPRINGLE (South Eastern Metropolitan) pursuant to standing orders.
Ms SPRINGLE — A number of amendments to this bill have been circulated, and the first of those amendments simply inserts three conditions to which electronic service would be made subject. Those conditions would mean that tenants would still be able to consent to receive notices electronically; it is just that there would be particular safeguards in place to ensure that everyone is aware of when and where consent is given. Our amendment adds the following three conditions: firstly, that the tenant's consent is informed and in writing; secondly, that the tenant's written consent has not simply been written into the terms of a tenancy agreement or in any other way been made a condition of the tenant entering into the tenancy agreement; and thirdly, that the email address that is used is the one that is being agreed to in the written consent.
We believe that the inclusion of these three conditions is a sensible, practical amendment that would increase the level of certainty around the issue of consent regarding electronic transactions for tenants, landlords and agents. We would also add a clause that provides for tenants to withdraw their consent to receive notices electronically, because it is uncertain in the bill as it is currently drafted as to how or even whether tenants can withdraw their consent if they change their mind after they provide it.
Having said that, the Greens agree with electronic service in general, but I want to stress that it is with one very significant exception, and that relates to notices to vacate — in other words, eviction notices. Notices to vacate or eviction notices are the most significant notices that tenants can receive from their landlords. A tenant who receives a notice to vacate must immediately start packing up her life and looking for somewhere else to live.
The Residential Tenancies Act currently requires different notice periods for different circumstances and ultimately does not require a landlord to provide a tenant with any reason for evicting them. Notice periods might be as short as two weeks or even nothing where a notice to vacate is served for a reason relating to a tenant illegality or a tenant's breach of a tenancy agreement. If the reason a landlord wants the tenant out relates to some legitimate action of the landlord, such as selling or renovating the property, then the notice period required is generally in the order of two months. If the landlord does not want to provide any reason for the eviction, then the landlord must give three months notice.
For many tenants, the notice periods required by the act do not provide much time at all for tenants to pack up their lives, find a new place to live, gather together enough money for a new bond and likely double rent and clean the existing property. The bill creates a risk that very important emails containing very important notices, like notices of rent increases or notices that the landlord will be entering a property, may be lost or missed. If that happens, the notice period from the tenant's perspective automatically becomes even shorter. It is very, very easy to miss an email, especially if you are somebody who does not normally use email — for instance, you may be an age pensioner for whom email is not your communication mode of choice.
Mr Jennings interjected.
Ms SPRINGLE — Excellent. People do tend to have multiple email accounts. It may be that your email account that you used daily six months ago is not the same email account you use now. Maybe you have changed jobs or just changed circumstances. Emails are also notorious for finding their way into spam folders. Particular emails are also very easy to miss if you are a person who receives a lot of emails. Therefore we believe that notices to vacate should be exempt entirely from the provisions authorising electronic service. Amendment 3 of the five amendments I have circulated aims to do just that. We cannot allow people to be evicted by email in this state.
It has been said in some quarters that electronic service of various notices is happening already and all this bill does is codify a practice that already exists. That is not a good enough justification for a bill that might have severe consequences for renters, and vulnerable renters in particular. The government's extensive Fairer Safer Housing review of the Residential Tenancies Act, which is ongoing even as we debate this bill, is actively considering the question of whether the electronic service of documents is appropriate.
The fact that the Fairer Safer Housing review has not yet been completed makes clause 24 of the bill perplexing, and it is not clear why this particular element of a very extensive Fairer Safer Housing review has been brought forward as part of this bill. Surely it would have been better if the review were allowed to take its course, consider the available evidence and positions of various stakeholders and come up with a considered independent evidence-based conclusion in its own time frame. It is hard to understand why the government has simultaneously included electronic service in the review of the Residential Tenancies Act, which is ongoing and included in clause 24 of this bill. It would seem to circumvent the review process. Surely for no other reason than that, we in this chamber should be opposing the more outrageous aspects of clause 24, and that is why this chamber should support the Greens' amendments.
In Committee: The DEPUTY PRESIDENT — Order! As I understand it, Ms Springle has a number of amendments, and they have been circulated. All of the amendments deal with clause 24. I ask Ms Springle to move her amendment 1, which seeks to ensure that notices under the Residential Tenancy Act 1997 may only be served by electronic communication under certain circumstances. I consider this amendment to be a test for all of Ms Springle's remaining amendments.
Ms SPRINGLE (South Eastern Metropolitan) — I move:
1. Clause 24, lines 24 to 26, omit all words and expressions on these lines and insert—
“(da) by electronic communication in accordance with the Electronic Transactions (Victoria) Act 2000, subject to the following conditions—
(i) the person has given informed consent in writing to the serving or giving of the notice or other document by electronic communication; and
(ii) the consent has not been given under a term, or part of a term, in the tenancy agreement to which the notice or other document relates and has not in any other way been made a condition of entering into that tenancy agreement; and
(iii) the notice or other document is sent to the email address or other electronic address nominated by the person in the written consent; or”.
The bill as it currently stands would insert a paragraph (da) into section 506(1) of the Residential Tenancies Act 1997 which would allow documents and notices to be served electronically in accordance with the Electronic Transactions (Victoria) Act 2000. The problem with that act is that its definition of 'consent' includes consent that can 'reasonably be inferred from the conduct of the person concerned'. Our concern is that this may allow landlords and agents to infer a tenant's consent to receiving notices electronically after a tenant has emailed their landlord or agent about some other matter. The Tenants Union of Victoria has also alerted us to the possibility that landlords and agents may simply write a clause into standing rental agreements allowing for electronic service of documents.
Our amendment would allow the electronic service of documents subject to the following additional conditions: the tenant has given their informed written consent; the consent has not been given as a term in the tenancy agreement or been made in any way a condition of entering into the tenancy agreement; and the email address that is used is the one that has been agreed to in the written consent.
Mr O'DONOHUE (Eastern Victoria) — As I said in my contribution to the second-reading debate, the opposition, through Mr Northe in the Legislative Assembly, had the same representations about this issue from the tenants union. As I flagged in my second-reading contribution, I seek from the minister some comfort about how these processes will be implemented. I also seek his advice about what opportunity there was for feedback, or what consultation there has been as to why these amendments are being timed now rather than being incorporated into the broader review that is being undertaken by Consumer Affairs Victoria (CAV). The minister's answer will help inform the opposition's position on this matter.
Mr DALIDAKIS (Minister for Small Business, Innovation and Trade) — I thank the member for his question. I also thank Ms Springle for the issues that she raises through the amendment she is putting forward to the house. Can I just say from the outset that this amendment was actually requested by Deputy President Barker and President Garde of the Victorian Civil and Administrative Tribunal (VCAT). They wanted to ensure that the current law was clarified for both members and the public. Currently if a person does not use the internet or have access to the internet or does not communicate by text message, a landlord or agent will not be able to infer consent to electronic service, and in many instances it would actually be impossible to serve them electronically.
However, in light of both the amendment moved by the Greens and the certainty that the Liberals are seeking, I can confirm to the house that this year, after the legislation obviously passes, Minister Garrett, through CAV, will revise the standard form tenancy agreement in order to ensure that tenants can expressly state if they desire electronic communication. Regardless of whether they state that on the form, they can withdraw consent at any time they choose. So it will always rest with the tenant as to the method and mode of communication with the landlord that is their preference.
I do not wish to be pre-emptive in any way, but it is important to also make it very clear that nobody will be left on the streets as a result of this legislation. However, if what is being served is a notice requiring a tenant to vacate, for example, that will still require that eventual occurrence should a landlord choose to take it to the end of that process. It will still require them to go to VCAT, for example, if a tenant has not vacated the premises after the expiry of that notice period as they would need to go to VCAT to get a warrant for possession of the premises.
So there are multiple stages whereby communication with a tenant will be required regardless, and I say that not to ensure that tenants understand their ability to potentially circumvent their landlord in agreements and contractual relationships but just to point out that communication is always ongoing and it will always be left to the tenant as to the means that they prefer the communication to be sent by. In the new agreement, that I indicated Consumer Affairs Victoria will revise in 2016, they can withdraw consent for electronic communication at any time they choose.
Ms SPRINGLE (South Eastern Metropolitan) — I ask the minister: what prevents it from being on the form if it is in the act? I am not quite clear about how something like that being on the form ensures all of the things he says it is going to do.
Mr DALIDAKIS (Minister for Small Business, Innovation and Trade) — I thank Ms Springle for her question. Very clearly on a tenancy agreement it indicates whether the tenant's preference for communication is in written form or electronic form, so the tenant will make it very clear in the agreement at its inception how they would like to communicate with the landlord. However, because the tenant has the power to choose the mode of communication, they can withdraw that consent, for example, for electronic communication, at any time they choose from a moment after they sign the agreement to whatever period of time they desire thereafter.
Ms SPRINGLE (South Eastern Metropolitan) — I am still not clear why that is the preference over having it in the act.
Mr DALIDAKIS (Minister for Small Business, Innovation and Trade) — I thank Ms Springle for her question. The fact of the matter is that it is part of the tenancy agreement at its inception. So whether or not you deem it to be part of an act or whether it is part of the agreement, the fact remains that we still leave the power with the tenant to choose the mode of communication they wish to have with the landlord.
Ms SPRINGLE (South Eastern Metropolitan) — And if the landlord does not adhere to that, what would be the penalty?
Mr DALIDAKIS (Minister for Small Business, Innovation and Trade) — I thank the member for the question. The fact of the matter is that they are required to adhere to the communication form. The member talks of penalties, but if the landlord does not communicate in a way that the tenant has indicated, either through the rental agreement or subsequent communication, then clearly it can be deemed that communication at that point has not appropriately taken place. So I think it is self-evident.
Ms SPRINGLE (South Eastern Metropolitan) — Could the minister tell us under what clause they are required to make sure that happens?
Mr DALIDAKIS (Minister for Small Business, Innovation and Trade) — As I have indicated, this will form part of a new tenancy agreement that will be designed by Consumer Affairs Victoria in 2016, in this current year. That tenancy agreement will make explicitly clear the rights and responsibilities of entering into a tenancy agreement.
Mr O'DONOHUE (Eastern Victoria) — On the basis of the responses from the minister and the change to arrangements that will be put in place if this bill is passed, the opposition will not be supporting the Greens' amendment.
In Committee: Clause 31
Ms SPRINGLE (South Eastern Metropolitan) — I have a question on clause 31. My question is: why has the calculation of maintenance charges been moved from the regulations to the text of the act?
Mr DALIDAKIS (Minister for Small Business, Innovation and Trade) — Can I ask the member to ask that again?
Ms SPRINGLE (South Eastern Metropolitan) — I want to know why the maintenance charges calculations have been moved from the regulations to the act.
Mr DALIDAKIS (Minister for Small Business, Innovation and Trade) — I thank the member for their question. The reason for the inclusion of the formula in the act makes the act a single point of reference, especially for residents who are generally concerned about the setting and the cost of the annual fee.