Thursday, 23 June 2022

Residential Tenancies, Housing and Social Services Regulation Amendment (Administration and Other Matters) Bill 2022

Statement of compatibility

Mr WYNNE (Richmond—Minister for Planning, Minister for Housing) (10:10): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Residential Tenancies, Housing and Social Services Regulation Amendment (Administration and Other Matters) Bill 2022:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (Charter), I make this Statement of Compatibility with respect to the Residential Tenancies, Housing and Social Services Regulation Amendment (Administration and Other Matters) Bill 2022 (Bill).

In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with human rights protected by the Charter. I base my opinion on the reasons outlined in this statement.

Overview of the Bill

The Bill amends the Residential Tenancies Act 1997 to broaden the definition of common areas and provide for Homes Victoria (formerly the Director of Housing) to provide community impact statements with certain applications for a possession order in relation to rented premises which are public housing. It amends both the Housing Act 1983 and the Residential Tenancies Act 1997 in relation to provision of affordable housing to renters. It also amends the Housing Act 1983 in relation to the functions and constitution of Homes Victoria as well as establishing the Homes Victoria Advisory Board. It also amends the Social Service Regulation Act 2021 and Supported Residential Services (Private Proprietors) Act 2010 to delay commencement of the new social services regulatory scheme to 1 July 2024.

Human rights issues

The human rights protected by the Charter that are relevant to the Bill are:

• The right to recognition and equality before the law (section 8);

• The right to privacy (section 13);

• The right to take part in public life (section 18); and

• Property rights (section 20).

Homes Victoria Advisory Board

Clause 20 of the Bill inserts new Division 3 of Part II into the Housing Act 1983, which establishes the Homes Victoria Advisory Board to provide strategic advice in relation to the direction and performance of Homes Victoria. New section 11D provides that, in appointing members of the Advisory Board, the Minister must have regard to the diversity of members of the Advisory Board, including gender, disability and sexuality. The Minister must also ensure that Aboriginal persons are represented on the Advisory Board. This provision engages the right to equality in section 8 of the Charter and the right to take part in public life in section 18 of the Charter.

Section 8(3) of the Charter provides that every person is entitled to equal protection of the law without discrimination and has the right to equal and effective protection against discrimination. Section 18(2)(b) of the Charter provides that every eligible person should have the opportunity, without discrimination, to access the Victorian public service and public office. ‘Discrimination’ under the Charter means discrimination within the meaning of the Equal Opportunity Act 2010. Under section 8 of that Act, direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute.

New section 11D will engage the rights to equality and to access public office without discrimination where a person is not appointed to the Advisory Board, or not considered for such an appointment, on the basis of a protected attribute, such as gender, race or sexuality. However, the rights will not be limited by this provision, which is designed to ensure that the Advisory Board reflects the diversity of the Victorian community and that historically underrepresented groups are included in the membership of the Board. Section 8(4) of the Charter makes clear that measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination. Further, section 11D does not prevent persons with particular attributes from being appointed to the Advisory Board, but simply makes the diversity of the Board a consideration when appointing new members. Accordingly, any interference with the rights in section 8 and 18 of the Charter will be reasonable and demonstrably justified having regard to the purpose of the provision.

Affordable Housing

Clause 26 of the Bill inserts new Part VIIIB into the Housing Act 1983 which establishes the Victorian Affordable Housing Programs. This empowers the Minister, by order published in the Government Gazette, to declare an affordable housing program to be a Victorian Affordable Housing Program, with the declaration describing the scope and purposes of the program. Homes Victoria is then empowered to operationalise a declared Victorian Affordable Housing Program through a VAHP determination, which could set out details of the program including eligibility requirements, selection processes for participation in the program, rent settings, tenancy management, tenure length, record keeping requirements, requirements for information collection, dispute resolution processes and other necessary or relevant matters.

The Bill also makes amendments that affect housing allocated under the National Rental Affordability Scheme. While the Charter does not protect rights to housing, these amendments to the Residential Tenancies Act 1997 have scope to engage various rights under the Charter.

Notices to vacate

Clauses 12 and 13 of the Bill insert new sections 91ZZEA and 91ZZEB respectively into the Residential Tenancies Act 1997, which, in the context of rented premises which are subject to a current allocation under the National Rental Affordability Scheme or are provided under the Victorian Affordable Housing Programs, empower a residential rental provider to provide a notice to vacate in relation to a renter who no longer meets the eligibility criteria of the respective scheme. To facilitate this, the provisions require renters to submit documentation at the request of the residential rental provider for the purpose of assessing the renter’s ongoing eligibility for such housing. If the renter does not provide the documentation within 60 days, or no longer meets the eligibility criteria, the provisions enable the residential rental provider to give the renter a notice to vacate.

Section 13(a) of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. An interference will be lawful if it is permitted by a law which is precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought. Section 20 provides that a person must not be deprived of his or her property other than in accordance with law. While the Charter does not define the term ‘property’, it is likely to include an interest in property pursuant to a residential tenancy agreement.

The right to privacy will be engaged by the requirement in new sections 91ZZEA and 91ZZEB for a renter to disclose personal information (such as their income) to a residential rental provider. However, in my view, any interference with the right will be lawful and not arbitrary. Any request for documentation must be made in accordance with the requirements under the National Rental Affordability Scheme or the relevant Victorian Affordable Housing Program (as the case may be) and for the sole purpose of assessing the renter’s ongoing eligibility for such housing. I note that an individual participating in an affordable housing scheme such as the National Rental Assistance Program or Victorian Affordable Housing Programs would have a limited expectation of privacy in the context of relevant information necessary to satisfy that person’s eligibility for the scheme. These provisions ensure that the important objective of providing needs-based affordable housing is able to be fulfilled, and that available housing stock under these schemes are utilised appropriately.

The right to privacy will also be engaged by new sections 91ZZEA and 91ZZEB to the extent that issuing a notice to vacate will have the effect of interfering with a person’s home. The circumstances in which a renter may be issued with a notice to vacate are clearly set out in the Bill and are appropriately circumscribed. Importantly, the provisions only apply where a renter is no longer eligible for the National Rental affordability Scheme or Victorian Affordable Housing Programs (or fails to provide documentation demonstrating their eligibility) both of which are subject to the limits described above and additional safeguards outlined below. The provisions are necessary to protect the integrity of those schemes and ensure the availability of affordable housing under these schemes for targeted cohorts. For these reasons, I am of the opinion that these provisions are compatible with the right in section 13(a) of the Charter. Further, to the extent that a notice to vacate may constitute a deprivation of property pursuant to section 20 of the Charter, any such deprivation will be in accordance with law and therefore compatible with the right to property.

Clause 14 amends section 91ZB(1)(a) to extend the reduced period for notice of intention to vacate to include sections 91ZZEA and 91ZZEB. Clause 15 expands section 91ZZI to expand circumstances in which notice will have no effect to include sections 91ZZEA and 91ZZEB. Clause 16 expands section 91ZZU(1) to expand circumstances in which a renter may challenge notice to vacate on grounds of family violence or personal violence to include sections 91ZZEA and 91ZZEB. These new clauses extend existing safeguards and beneficial provisions to renters under the National Rental Affordability Scheme and Victorian Affordable Housing Programs, and mitigate the extent of the interferences with privacy or property rights that may result from the giving of notices to vacate in certain circumstances under new sections 91ZZEA and 91ZZEB. Accordingly, I am satisfied that these new provisions are compatible with the Charter.

Withholding consent to an assignment or sublet

Clause 63 amends section 83 of the Residential Tenancies Act 1997 to permit a residential rental provider of affordable housing under the Victorian Affordable Housing Programs to withhold consent for assignment or subletting to prevent disadvantage to persons eligible for affordable housing under the Victorian Affordable Housing Programs.

This engages the right to property under section 20 of the Charter, as it may interfere with a tenant’s enjoyment of a proprietary right by restricting their ability to sublet or assign a residential rental agreement, albeit the ability to do so is already qualified under the Act.

However, to the extent that this does constitute a deprivation of property, the right will not be limited where the provision authorising the deprivation of property is clear and precise, accessible to the public, and does not operate arbitrarily. In this case, the power to withhold consent for assignment or subletting in these circumstances is consistent with the purpose of ensuring that affordable housing under the Victorian Affordable Housing Programs is provided to those who meet the eligibility criteria for such housing, and that the objects of the scheme are not frustrated. Further, a person entering into a residential rental agreement with a provider of affordable housing under the Victorian Affordable Housing Programs will be aware of these limits on assigning and subletting. Accordingly, I am satisfied the right is not limited by this provision.

Requesting information from renters or applicants

Clause 11 of the Bill amends section 30C of the Residential Tenancies Act 1997 to introduce a new exception to the prohibition on a residential rental provider requesting prescribed information from renters. The subsection provides that nothing in existing section 30C prevents a residential rental provider from requesting a renter or applicant for affordable housing or social housing to provide any statement from an authorised deposit-taking institution containing credit transactions. Given such statements contain personal information in relation to financial transactions, this engages the right to privacy under section 13(a). However, as above, there is likely to be a reduced expectation of privacy in the context of engaging in social or affordable housing programs, where certain personal information will be required to be disclosed in order to ascertain eligibility for the program. The ability to request financial information is confined to requesting a statement of credit transactions only, and does not extend to debit transactions (these can be redacted unless a renter or applicant chooses to provide such information).

Therefore, to the extent that s 13(a) is limited, I consider limits are proportionate and consistent with the purpose of ensuring the appropriate allocation of social and affordable housing stock.

Exception to anti-discrimination provisions

Clause 10 amends section 30A(4) to add an entity that provides rented premises as affordable housing in accordance with the Victorian Affordable Housing Programs, as an entity exempted from the requirement not to unlawfully discriminate against another person by refusing to let premises. Clause 10 also adds new section 30A(6) which provides that if Homes Victoria makes a VAHP determination that relates to a protected attribute, then that VAHP determination is not a contravention of section 30A.

These amendments engage the right to equality and non-discrimination under section 8 of the Charter, because this clause has the effect of removing a mechanism for certain renters to access redress for unlawful discrimination for breaches of section 30A. This clause also engages this right as it proposes to treat renters under the Victorian Affordable Housing Programs differently to other Victorian renters, as they are excluded from redress under the Residential Tenancies Act 1997.

In many cases, persons with the greatest need for affordable housing are likely to be persons with a protected attribute under the Equal Opportunity Act 2010, for example, persons experiencing family violence, who are most likely to be women and children, people with a disability, or a person aged 55 or over. Accordingly, this amendment is capable of constituting a special measure under section 8(4) of the Charter taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination, and is thus not discriminatory.

However, to the extent that this amendment is not considered to be a special measure, I consider any limit on the rights in section 8 of the Charter is demonstrably justifiable on the basis that clause 10 of the Bill is designed to address the risk of section 30A obstructing the purpose of the Victorian Affordable Housing Programs. The risk is that, absent amendment, these sections may prevent the allocation of housing to eligible applicants intended to be prioritised under the program. This amendment enables the Victorian Affordable Housing Programs to serve targeted groups—who may, for example, comprise low and moderate income earners and essential government funded service delivery workers—without contravening anti-discrimination provisions.

I am therefore of the opinion that any limit on the right to equality under section 8 of the Charter is reasonable and justified.

Common areas

Clauses 6 and 7 amends sections 3(1) and introduces new section 3C of the Residential Tenancies Act 1997 respectively, which broaden the definition of ‘common areas’ to allow Homes Victoria to prescribe certain areas as common areas in relation to rented premises which are public housing, by notice published in the Government Gazette. This in turn broadens the scope of various provisions under the Residential Tenancies Act 1997 that concern common areas, including the obligation not to cause property damage (s 61), circumstances in which a notice to vacate can be issued for drug related conduct (s 91ZR) and circumstances in which a notice to vacate can be issued for committing prescribed indictable offences (s 91ZS). To the extent that these provisions apply to natural persons, they may engage the right to privacy under section 13(a) and property rights under section 20, in that they may broaden the scope of existing conduct obligations on a renter in relation to common areas (a failure of which may enliven the giving of a notice to vacate).

The purpose of this amendment is to provide greater certainty about the areas to which these various obligations apply (which are largely aimed at ensuring a safe environment and preventing anti-social behaviour), and to ensure that certain common areas which previously were not captured by the existing definition are covered by these protective provisions. To ensure these amendments are accessible, Homes Victoria will, under new section 3C(4) be required to take all reasonable steps to ensure that renters are aware which areas are specified to be a common area. This may include providing information directly to the renter, for example, in the form of a notice provided when the person enters into a residential rental agreement, using signage or providing notices or letters to residents if an area relevant to their rental premises has been gazetted to be a common area. Given these safeguards and the overarching protective purpose this amendment serves, I believe that any limitation of rights to privacy or property are reasonable and justified in the circumstances.

Community impact statements

Clause 4 introduces new section 322A of the Residential Tenancies Act 1997 which allows Homes Victoria to provide the Victorian Civil and Administrative Tribunal with a community impact statement when applying for a possession order. The statement must contain information relating to the impact of the renter’s conduct on affected persons which led to the notice to vacate, and a copy must be given to the renter or their legal representative if made. To the extent this may involve the use and disclosure of personal information from other persons, this may engage the right to privacy under section 13(a) of the Charter. However, this use and disclosure of information would not be arbitrary, as the information is being provided for a protective purpose that promotes the rights of others (being to satisfy the Tribunal of the grounds of a possession order involving prohibited conduct or behaviour of a renter that threatens the safety and welfare of other persons) and would concern information that would largely have been voluntarily reported to Homes Victoria. The provision does not require a person affected by the renter’s conduct to give this information. Accordingly, I am satisfied that any interference with privacy effected by this provision is compatible with the Charter.

Hon Richard Wynne MP

Minister for Housing

Second reading

Mr WYNNE (Richmond—Minister for Planning, Minister for Housing) (10:11): I move:

That this bill be now read a second time.

I ask that my second-reading speech, sadly, be incorporated into Hansard.

Incorporated speech as follows:

This Bill makes amendments to the Residential Tenancies Act 1997 and the Housing Act 1983.

Amendments to the Housing Act 1983

In November 2020 the government announced the creation of Homes Victoria as part of its $5.3 billion Big Housing Build. The Big Housing Build is the largest investment in housing in Victoria’s history and will deliver over 12,000 homes including 2,400 affordable housing properties.

This Bill will establish Homes Victoria as a strong, sustainable and contemporary housing agency underpinned by a robust and enduring governance structure.

Enshrining key governance reforms to position Homes Victoria as a strong, sustainable and contemporary Victorian Government housing agency

Key to Homes Victoria’s role as a strong, sustainable and contemporary Victorian Government housing agency are governance changes contained in the Bill. These include strengthening the accountability and oversight over delivery of Homes Victoria’s strategic objectives and reforms through a skills-based Homes Victoria Advisory Board.

The Bill will establish a Homes Victoria Advisory Board to provide strategic advice to the Minister and the CEO, Homes Victoria in accordance with written terms of reference. This embeds the Board as an enduring structure to provide the governance and oversight of Homes Victoria.

Alongside the professional experience and expertise of the Board, the membership will also embed representation of Victoria’s Aboriginal citizens.

The Bill will formalise the transition of the Director of Housing to Homes Victoria. The Director of Housing is a unique body corporate structure in Victoria functioning as both a body corporate sole and as an appointed individual. The Bill will make a distinction between these roles by changing the name of the statutory office to Chief Executive Officer, Homes Victoria, and changing the name of the body corporate sole to Homes Victoria.

Enabling streamlined delivery of the Big Housing Build by embedding and clarifying the transaction structures available to Homes Victoria

Homes Victoria was established to bring a more commercial way of operating to Victoria’s housing system. Renewing and substantially expanding Victoria’s social and affordable housing stock is critical to make sure we have a sustainable housing system that can deliver for generations to come. Key to this will be Homes Victoria’s capacity to implement innovative financing models.

The Bill will enshrine an enabling legislative framework for Homes Victoria to identify the most appropriate models and transaction structures to support a range of options used typically in the property investment and financing market. These will include the establishment of companies, joint ventures, trusts, partnerships to invest, lend and contribute funds that support the Big Housing Build.

The Bill will equip Homes Victoria with the rights, functions, powers and flexibility required to participate in the property development market in the ways in which the market most often transacts.

These powers are based on the model of Development Victoria, including learnings from the implementation of the Development Victoria Act 2003 and the State Owned Enterprises Act 1992.

Legislative framework for affordable housing

The Victorian Government is committed to supporting low to moderate income Victorians to access quality housing options that are within their means. To deliver on our commitment we have created Homes Victoria to deliver affordable housing and funding the first 2,400 properties in the Affordable Housing Rental Scheme.

The Bill will establish a legislative framework for Victorian Affordable Housing Programs, which includes the Affordable Housing Rental Scheme as the first Program.

More Victorians than ever are renters, including many of the people who helped Victoria survive the pandemic. They are the essential workers who run our supermarkets, hospitals, schools and aged and disability care facilities, deliver us water and power, take away our rubbish and recycling, and make our cities, suburbs and towns work.

There is a growing gap between the existing private market and social housing. Many working households are being priced out of private rental and are unable to access home ownership. More than 162,000 households, or one-in-four of the 650,000 households in the private rental market, are experiencing rental stress. That means more than 30 per cent of their income is spent on rent, which reduces the money available to pay for other essential items and expenses.

The Victorian Government is responding to the growing gap in housing affordability and supply for many low to moderate income households. This includes essential government funded service delivery workers such as nurses, police, teachers and care workers—who are experiencing rental stress and may be struggling to access home ownership.

The first Victorian Affordable Housing Program will be the Affordable Housing Rental Scheme which will deliver an initial 2,400 affordable rental homes to address affordability pressures in metropolitan Melbourne and regional city centres, and supply and affordability issues in regional Victoria as part of the $5.3 billion Big Housing Build.

This Bill establishes the framework for creation and implementation of these types of programs to support low to moderate income Victorian renters to access quality housing options that are within their means.

Amendments to the Residential Tenancies Act 1997

Through amendments to the Residential Tenancies Act 1997 the Bill also clarifies certain requirements for providers and renters of affordable housing.

The government recognises there are features which differentiate the social and affordable housing model from the private rental market, including the application of eligibility criteria for prospective and ongoing renters that are based on income thresholds.

Preserving the integrity and sustainability of the National Rental Affordability Scheme (NRAS) and Victorian Affordable Housing Programs

One such affordable housing program is the National Rental Affordability Scheme or NRAS. NRAS is a Commonwealth Government affordable housing program. It seeks to address the national shortage of affordable rental housing by offering financial incentives to organisations that provide renters on low to moderate incomes with homes at a rate at least 20 percent below market value rent. To remain eligible, NRAS providers must ensure the income of the renters in their properties remains below the NRAS cap.

Recent reforms to the Residential Tenancies Act have resulted in NRAS investors having no means to ensure their properties are only rented to eligible renters.

The Bill ensures continuity of the NRAS scheme in Victoria, by ensuring that NRAS providers can continue to house renters who satisfy the NRAS income criteria, request key income documentation and remove renters who have become ineligible for NRAS housing.

To protect the rights of NRAS renters who do provide evidence of their eligibility, the Bill will deem a notice to vacate to have no effect where a renter provides evidence of their eligibility prior to the date on the notice.

The Bill also contains similar provisions for Victorian Affordable Housing Programs to enable providers of affordable housing under a declared Victorian Affordable Housing Program to continue to house renters to satisfy that Program’s criteria, request key income documentation and remove renters who have become ineligible.

Ensuring the voices of public housing renters are considered by VCAT

Our Government is committed to making public housing a safe and productive community for all residents. There is no place in our public housing communities for renters who engage in anti-social behaviour, including those who engage in illegal drug dealing and who threaten and intimidate their neighbours.

A key theme of feedback received by the Director of Housing by neighbours impacted by anti-social behaviour is a reluctance to provide evidence at VCAT due to fears for their safety and concerns of reprisal.

This means that the human rights, dignity and respect of neighbours impacted by ant-social behaviour is not being adequately protected and considered. All renters, regardless of whether they are private renters or public housing renters, must be able to feel safe and free from intimidating and threatening behaviours in their own homes. Being a public housing renter should not mean having to live in fear and put up with behaviours that we all find intolerable.

The Bill will ensure there is an appropriate balancing of the rights of the renter, and those of the renter’s neighbours and community by requiring that VCAT must take into account a community impact statement, if provided, when considering granting a possession order in cases of serious anti-social behaviour. The Bill does not limit VCAT’s discretion as to the weighting it places on the community impact statement.

The Bill will provide an important avenue for those impacted to have their voices heard within VCAT proceedings, with an opportunity for those impacted to provide de-identified evidence in certain cases. The submission of community impact statement will safeguard the rights of the renter, as well as the community.

The community impact statement’s core purpose is to assist VCAT to understand the impact of anti-social behaviour the individual and the wider community, maximising both parties’ safety and well-being through well-integrated support. This can inform decision making alongside increasing public confidence in balancing the human rights of both parties.

Changes to the definition of common area in relation to public housing estates

The Bill builds on the existing definition outlined in section 3(1) of the Act as the current definition of common area is quite broad.

The Bill will clarify gaps within the legislation by providing a pathway to pursue a legal response in cases of anti-social behaviour which occurs in areas associated with rented premises, including areas of public access.

It intends to uphold the rights of residents to enjoy and feel safe in their communities. The gap in current settings interferes with the ability to adequately protect these rights, with the potential to limit an effective response to incidents which occur on Director-owned land.

This amendment is targeted at high-rise public housing estates, with legal action only available if a connection exists between the rented premises and the specified common area.

Amendments to the Social Services Regulation Act

The Bill also amends the Social Services Regulation Act to delay commencement of the social services regulatory scheme for 12 months, to 1 July 2024.

That Act introduces a comprehensive regulatory framework for Victorian social services, with significantly enhanced protections for service users to keep them safe from harms such as abuse and neglect. Many services that will be within the scope of the new regulatory framework have not previously been regulated and require additional time to operationalise the new requirements. In addition, all service providers will be required to implement new requirements such as the six social services standards set out in the new regulatory scheme and require additional lead time to ensure a smooth transition to the new arrangements.

I commend the Bill to the house.

Mr RIORDAN (Polwarth) (10:11): I move:

That the debate be adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Thursday, 7 July.