Rooming House Operators Act 2016

Rooming House Operators Act 2016

No. 26 of 2016

table of provisions

SectionPage

Part 1—Preliminary

1Purpose

2Commencement

3Definitions

Part 2—The Authority and the Director

4Functions of the Authority

5Functions of the Director

6Delegation by Director

Part 3—Licences

Division 1—Requirement for licence

7Rooming house operators to be licensed

8Person representing to be a licensee

Division 2—Application for licence or renewal of licence

9Who may apply for a licence or renewal of a licence?

10When to apply for renewal of licence

11How to make application

12Withdrawal of application

13False or misleading information

Division 3—Investigation of applicants

14Authority may conduct inquiries and require further information or a consent to disclosure of information

15Request to Director or others for information

Division 4—Determination of applications

16Granting or refusing to grant licence—renewing or refusing to renew licence

17Application for licence—licence disqualification criteria

18Application for renewal of licence—renewal disqualification criteria

19Rooming house operator's licence

20Duration of licence

Division 5—During the course of the licence

21Ceasing to be fit and proper—notification by licensee

22Changes to officers or managers—notification by licensee

23Authority's powers in relation to notification

24Request to Director or others for information following notification

25Failure to provide information or consents

26Determination following notification

27Offence to allow certain persons to continue to be officers or manager

28Offence to operate rooming house after failure to notify

Division 6—Exceptions to offences against sections 7 and 8

29Exception to sections 7 and 8—applicant for licence renewal

30Exception to sections 7 and 8—building owner or lessee

Part 4—Disciplinary hearings, licence cancellations and protective orders

31Hearing to determine whether to take disciplinary action under section 33

32Grounds for taking disciplinary action under section 33

33Disciplinary powers of VCAT—orders

34Protective orders

35Evidence that VCAT may take into account

36Endorsement of licence

37Return of licence

38Tenancy agreements and residency rights—cancellation of licence or failure to renew licence

Part 5—Other licensing matters

39Displaying licence at rooming house

40Change in details of application for licence or renewal of licence

41Death, disability, etc. of licensee

42Application for review

43Register of Licensed Rooming House Operators

44Publication of information

Part 6—Enforcement

Division 1—Preliminary

45Production of identity card

Division 2—Inspection of documents and records

46Documents to be available for inspection

47Licensee or specified persons to produce documents and answer questions

48Third parties to produce documents and answer questions relating to business of operating a rooming house

49Specified public bodies to produce information

50Certain other specified persons or bodies to produce information

51ADIs to produce documents and information

52Powers on production of documents

53Where must documents be produced?

54Order requiring supply of information and answers to questions

55Service of documents

Division 3—Entry, search and seizure

56Entry or search with consent

57Entry of premises open to the public

58Entry without consent or warrant

59Search warrants

60Form and content of search warrants

61Announcement before entry

62Seizure of things not described in the warrant

63Embargo notice

64Inspector may monitor compliance with embargo notice

65Search warrants in relation to embargo notice

66Retention and return of seized documents or things

67Magistrates' Court may extend 3 month period

68Requirement to assist inspector during entry

Division 4—General enforcement matters

69Offence to give false or misleading information

70Confidentiality

71Infringements

72Protection against self-incrimination

73Complaints

Part 7—General

74Application of Australian Consumer Law and Fair Trading Act 2012

75Evidence

76Who may commence proceedings?

77Extension of time for prosecutions

78Service of documents

79Money required to be paid into the Victorian Property Fund

80Regulations

Part 8—Transitional provisions and consequential amendments

Division 1—Transitional provisions

81Definitions

82Application of sections 7 and 8 to existing rooming house operators

83VCAT orders—existing rooming house operator refused licence

Division 2—Consequential amendments

84Australian Consumer Law and Fair Trading Act 2012

85Business Licensing Authority Act 1998

86Estate Agents Act 1980

87Residential Tenancies Act 1997—Termination after notice to vacate

88Residential Tenancies Act 1997—new section 228A

89Residential Tenancies Act 1997—Notice of intention to vacate

90Residential Tenancies Act 1997—Notice to have no effect in certain circumstances

91Residential Tenancies Act 1997—new sections 268A and 268B

92Residential Tenancies Act 1997—new section 272A

93Residential Tenancies Act 1997—new sections 290A and 290B

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Endnotes

1General information

SectionPage

Victoria

SectionPage

Rooming House Operators Act 2016[†]

No. 26 of 2016

[Assented to 10 May 2016]

Rooming House Operators Act 2016
No. 26 of 2016

The Parliament of Victoriaenacts:

Part 8—Transitional provisions and consequential amendments

Rooming House Operators Act 2016
No. 26 of 2016

Part 1—Preliminary

1Purpose

The purpose of this Act is—

(a)to foster professionalism and reduce exploitative and undesirable practices within the rooming house sector by—

(i) establishing a licensing scheme for rooming house operators; and

(ii)ensuring that licences are only granted to persons who are fit and proper within the meaning of the Act; and

(iii) holdinglicensed rooming house operators to account for their conduct and the conduct of persons involved in the management or operation of their rooming houses; and

(iv) protecting the rights of rooming house residents; and

(b) to make consequential amendments to theAustralian Consumer Law and FairTrading Act 2012, the Business Licensing Authority Act 1998, the Estate Agents Act 1980and the Residential Tenancies Act 1997.

2Commencement

(1)Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

(2)If a provision of this Act does not come into operation before 1 July 2017, it comes into operation on that day.

3Definitions

(1)In this Act—

associate of a relevant person means the following—

(a)a business partner of the relevant person;

(b)an employee, agent or contractor of the relevant person;

(c)a spouse, domestic partner, child, grandchild, sibling, parent or grandparent of the relevant person;

(d) a person with whom the relevant person has entered into a lease;

(e)a prescribed person or a person belonging to a prescribed class of person;

Authority means the Business Licensing Authority established under the Business Licensing Authority Act 1998;

body corporatemeans—

(a) a company registered under the Corporations Act; or

(b) an incorporated association within themeaning of section 3 of the Associations Incorporation Reform Act 2012; or

Building Code of Australia has the same meaning as in section 3(1) of the Building Act 1993;

Chief Commissioner of Policemeans the Chief Commissioner of Police appointed under the Victoria Police Act 2013;

Chief Executive Officer has the same meaning as in section 3(1) of the Local Government Act 1989;

Consumer Act has the same meaning as in the Australian Consumer Law and Fair Trading Act 2012;

Council has the same meaning as in section 3(1) of the Local Government Act 1989;

Directormeans the Director within the meaning of the Australian Consumer Law and Fair Trading Act 2012;

domestic partner of a person means—

(a)a person who is in a registered relationship with the person; or

(b)a person to whom the person is not married but with whom the person is living as a couple on a genuine domestic basis (irrespective of gender);

embargo notice means a notice issued by an inspector under section 63;

externally-administered body corporate means a body corporate—

(a)that is being wound up; or

(b)in respect of property of which a receiver, or a receiver and manager, has been appointed (whether or not by a court) and is acting; or

(c)that is under administration; or

(d)that has executed a deed of company arrangement that has not yet terminated; or

(e)that has entered into a compromise or arrangement with another person the administration of which has not been concluded;

fit and proper person means, in relation to—

(a)an applicant for a licence, that none of the relevant persons meets any of the licence disqualification criteria;

(b) a licensee who, when applying for a renewal of the licensee's licence, does not include details of a new manager or officer in the application, that none of the relevant persons meetsany of the renewal disqualification criteria; or

(c) a licensee who, when applying for a renewal of the licensee's licence, includes details of a new manager or officer, that the new manager or officer does not meet any of the licence disqualification criteria and that neither the licensee nor any other relevant person meets any of the renewal disqualification criteria;

inspectormeans an inspector appointed under the Australian Consumer Law and Fair Trading Act 2012;

licence means a licence to operate a rooming house granted or renewed under section 16;

licence disqualification criteria means the criteria set out in section 17;

Licensing Registrar means the Registrar of the Business Licensing Authority appointed under the Business Licensing Authority Act 1998;

manager means a natural person whohas attained the age of 18 years andwho takes part, or 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;

notice to vacate means a notice to vacate under Part 6 of the Residential Tenancies Act1997;

officerin relation to a body corporate means any person (by whatever name called) who—

(a) in the case of a company, is a director or secretary of the company; or

(b)in the case of an incorporated association,is a member of the committee of management of the incorporated association or the secretary of the incorporated association; or

(d)makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the company, incorporated association or co-operative (as the case may be), but does not include a manager; or

(e) has the capacity to affect significantly the financial standing of the company, incorporated association or
co-operative (as the case may be); or

(f) in accordance with whose instructions the directors of the company, the members of the committee of management of the incorporated association or the members of the board of directors of the co-operative (as the case may be) are accustomed to act;

receiver has the same meaning as in section 9 of the Corporations Act;

receiver and manager has the same meaning as in section 9 of the Corporations Act;

registered office has the same meaning as in the Corporations Act;

relevant person means—

(a)in relation to a licensee or an applicant for a licence who is a natural person—

(i)that natural person; or

(ii)a person who is a manager of a rooming house that is currently (oris proposed to be) operated bythe person referred to in subparagraph (i); and

(b)in relation to a licensee or an applicant for a licence that is a body corporate—

(i)that body corporate; or

(ii)a person who is a manager of a rooming house that is currently (oris proposed to be) operated by the body corporate referred to in subparagraph (i); or

(iii)an officer of the body corporate;

renewal disqualification criteria means the criteria set out in section 18;

resident means a person who, with the agreement of a rooming house operator, occupies as the resident's only or main residence a room in a rooming house operated by the rooming house operator;

rooming house has the same meaning as in section 3(1) of the Residential Tenancies Act 1997;

rooming house operatormeansanatural personwho,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;

rooming house provisionshas the same meaning as in section 3(1) of the Residential Tenancies Act 1997.

(2)For thepurposes of the definition of domestic partner—

(a)registered relationship has the same meaning as in the Relationships Act 2008; and

(b)in determining whether persons who are not in a registered relationship are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case.

(3) For the purposes of the definition of officer, in paragraph (f) of that definition, instructions excludes advice given by a person in the proper performance of functions attaching to the person's professional capacity or the person's business relationship with—

(a)in the case of a company, the directors of the company; or

(b)in the case of an incorporated association, the members of the committee of management of the incorporated association; or

(c)in the case of a co-operative, the members of the board of directors of the co-operative.

(4) Subject to subsection (5), for the purposes of this Act, a person takes part in the management of a rooming house if the person, on behalf of the rooming house operator—

(a)negotiates residency agreements with residents of the rooming house; or

(b)enters into residency agreements with residents of the rooming house; or

(d) receives a payment of rent from a resident of the rooming house.

(5) 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.

Part 2—The Authority and the Director

4Functions of the Authority

The functions of the Authority under this Act are—

(a)to determine applications for licences and renewals of licences; and

(b) to determine whether a newmanager of a rooming house operated by a licensee or a new officer of a body corporate that is a licenseemeets any of the licence disqualification criteria; and

(c)to liaise with the Director, the Chief Executive Officers of Councils and the ChiefCommissioner of Police so as to assist those personsto carry out their functions in relation to this Act; and

(d) to refer relevant matters for investigation by the Director or any other relevant body; and

(e) any other function conferred on the Authority by or under this Act, any regulations made under this Act or any otherAct.

5Functions of the Director

The functions of the Director under this Act are—

(a)to monitor compliance with, and investigate and prosecute alleged contraventions of, this Act; and

(b) to instigate disciplinary action against licensees; and

(d) to refer to other bodies for investigation, if appropriate, any allegation, complaint or information in relation to rooming house operators; and

(e) any other function conferred on the Director by or under this Act, any regulations made under this Act or any other Act.

6Delegation by Director

The Director, by instrument, may delegate any function or power of the Director under this Act (other than this power of delegation) to any person or class of person employed under Part 3 of the Public Administration Act 2004.

Part 3—Licences

Division 1—Requirement for licence

7Rooming house operators to be licensed

(1)A rooming house operatormust hold a licence unless the rooming house operator is—

(a)a registered housing association within themeaning of section 4 of the Housing Act1983; or

(b)a registered housing provider within themeaning of section 4 of the Housing Act1983.

Penalty:In the case of a natural person,
240 penalty units or imprisonment for
2 years.

In the case of abody corporate,
1200 penalty units.

(2)If a declaration is made under section 19(2) or (3) of the Residential Tenancies Act 1997 in respect of a building, subsection (1) does not apply to a rooming house operator who operates a rooming house at that building for a period of 60 days from the date that the declaration is made.

Note

Section 19(2) and (3) of the Residential Tenancies Act1997 provides that the Minister may declare certain buildings to be rooming houses following a request by the owner of the building or the Director of Housing.

8Person representing to be a licensee

A person who does not hold a licence must not make a representation stating or implying that the person is a licensee or is otherwise authorised to operate a rooming house under this Act.

Penalty:In the case of a natural person,
120 penalty units.

In the case of a body corporate,
600 penalty units.

Division 2—Application for licence or renewal of licence

9Who may apply for a licence or renewal of a licence?

(1)A person may make an application for a licenceif the person—

(a)has attained the age of 18 years, in the case of a natural person; or

(b)is a body corporate.

(2)A person who is a licenseemay apply for a renewal of the person's licence.

10When to apply for renewal of licence

An application for a renewal of a licence must be made before the expiry of the licence but not earlier than 60 days before that expiry.

11How to make application

(1) An application for a licenceor fora renewal of a licence must be made in the mannerand form approved by the Authority.

(2)An application for a licence or a renewal of a licence by a natural person who is, or intends to be, a rooming house operator must include the following information—

(a) the applicant's full name;

(b)the applicant'sdate of birth;

(c)the applicant's residential address;

(d) if a rooming house that the applicant currently operates, or intends to operate, has a manager or aproposed manager, the following details about the manager—

(i) the manager's full name;

(ii)the manager's date of birth;

(iii)the manager's residential address;

(e) any other information in relation to the application required by the Authority.

(3) An application for a licence or a renewal of a licence by a body corporate that is, or intends to be, a rooming house operatormust include the following information—

(a) the name of the body corporate, its business name (if any) and its ACN or ABN;

(b)the address of its registered office;

(c) the full name of each officer of the body corporate and each officer's date of birth, position and residential address;

(d) if a rooming house that the applicant currently operates, or intends to operate, has a manager or aproposed manager, the following details about the manager—

(i) the manager's full name;

(ii)the manager's date of birth;

(ii)the manager's residential address;

(e)any other information in relation to the application required by the Authority.

(4) An application made under subsection (1) must be accompanied by—

(a) any document or other information required by the Authority—

(i)to verify the identity of a relevant person; or

(ii)to enable the Authority to ascertain whether a relevant person meets any of the licence disqualification criteria or renewal disqualification criteria, as the case may be; and

(b) the applicant's consent to the Authority checking or verifyingany information provided by the applicant under this section; and

(d) in the case of a body corporate, each officer's consent to the Authority verifying the officer's identity; and

(e) in the case of a body corporate, a declaration by the natural person making the application that—

(i) thenatural person is authorised by all the officers of the body corporate to make the application on behalf of the body corporate; and

(ii)the information provided in the application is true and correct; and

(f) in the case of a natural person, a declaration made by the natural person that the information provided in the application is true and correct.