Posted on November 1, 2012 by Frances Tse

Commencement of Boarding Houses Act 2012

The Boarding Houses Act 2012 (Act) commenced on 29 October 2012. Our previous post on the exposure draft of the Boarding Houses Bill 2012 can be accessed here.

The Act largely retains the provisions of relevance to councils that were described in our previous post. Those provisions as enacted are summarised below.

Boarding houses registration system

The Act requires all boarding houses that fall within the meaning of ‘registrable boarding house’ to be registered.

Instead of Tier 1 and Tier 2 boarding house, a ‘registrable boarding house’ now means either:

• a general boarding house, meaning a boarding premises that provides beds for a fee or reward, for use by 5 or more residents (not counting any residents who are proprietors or managers of the premises or their relatives), or
• a regulated assisted boarding house, meaning a boarding premises that provides beds, for a fee or reward, for use by 2 or more residents who are persons with additional needs (not counting any persons with additional needs who reside there with their competent relatives), or any other boarding premises that is declared to be an assisted boarding house, and that is required to be authorised.

The definition of a ‘boarding premises’ has also been changed since the exposure draft of the bill and now means,

“premises (or a complex of premises) that:

(a)  are wholly or partly a boarding house, rooming or common lodgings house, hostel or let in lodgings, and

(b)  provide boarders or lodgers with a principal place of residence, and

(c)  may have shared facilities (such as a communal living room, bathroom, kitchen or laundry) or services that are provided to boarders or lodgers by or on behalf of the proprietor, or both, and

(d)  have rooms (some or all of which may have private kitchen and bathroom facilities) that accommodate one or more boarders or lodgers.”

As in the exposure draft, a ‘registrable boarding house’  excludes accommodation such as premises that are used as a hotel, motel, bed and breakfast accommodation, backpackers hostel, a serviced apartment, premises used to provide accommodation for workers and facilities such as private health facilities, mental health facilities and nursing homes. However, unlike the exposure draft, not all residential tenancy agreements under the Residential Tenancies Act 2010 are excluded. Only ‘social housing premises’ within the meaning of Part 7 of that Act are excluded.

As in the exposure draft, the proprietor of a registrable boarding house is obliged to notify the Commissioner for Fair Trading, Department of Finance and Services, or the Director-General of the Department of Finance and Services (Commissioner) of details about the boarding house within certain time-frames. Annual updates of any changes must also be provided. Failure to comply is an offence.

The information must  be included in the Register of Boarding Houses.  Some of the information must be available online.

Councils may enter into ‘information sharing arrangements’ with the Commissioner, the Director-General of the Department of Family and Community Services and the Minister Administering the Boarding Houses Act.  This would enable access to more information than is published online.

Initial compliance investigations

Councils  are required to conduct an initial compliance investigation for each registered boarding house in its area.

The investigations must be conducted within 12 months of registration or re-registration of a registrable boarding house, or the recording of a new proprietor’s name on the register if the proprietor of the house has changed unless there had been an inspection under the Local Government Act 1993 or the Act in the 12 months immediately before any of the above occurred.

The investigations are to determine whether the registered boarding house complies with requirements imposed by or under the LG Act and the EPA Act. To that end, council officers are authorised to enter premises for the purposes of conducting such investigations and  may charge and recover an approved fee for them.

As proposed in the exposure draft, the Act allows council officers to enter a registered boarding house, including any part used for residential purposes so long as entry is made at a reasonable hour in the daytime or at any hour during which business is in progress or is usually carried on at the premises, and:

• prior written notice has been given to the proprietor or manager of the boarding house, or
• entry to the premises is made with the consent of the proprietor or manager of the premises, or
• entry to the premises is required because of the existence or reasonable likelihood of a serious risk to health or safety, or
• entry to the premises is required urgently and the case is one in which the general manager of the council has authorised in writing (either generally or in the particular case) entry without notice.

Enforcement

If an initial compliance investigation  reveals  breaches of the LG Act or the EPA Act, the council  may take enforcement action under those Acts.

Councils will not be responsible for enforcing other breaches of the Act, but if a council has entered into an ‘information sharing arrangement’, it should provide information to the Commissioner, the Director-General or the Minister if requested to do so to enable them to enforce breaches of the Act.