Posted on August 7, 2012 by Frances Tse

Exposure Draft of Boarding Houses Bill 2012

The Government has published its exposure draft of the Boarding Houses Bill 2012 (draft Bill) and invites submissions to be made on it until 10 August 2012.

Councils will be interested in the draft Bill as, if enacted, it would introduce a registration system which  will provide information on boarding houses operating in their area. It would also imposes a new obligation on councils to conduct initial compliance investigations (see below) which will be an additional opportunity for councils to ensure that the Local Government Act 1993 (LG Act) and the Environmental Planning and Assessment Act 1979 (EPA Act) are complied with.

A summary of the provisions of relevance to councils is provided below.

Boarding houses registration system

The draft Bill proposes a requirement for all boarding houses that fall within the meaning of ‘registrable boarding house’ to be registered.

A ‘registrable boarding house’ is defined to mean either:

• a Tier 1 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 Tier 2 boarding house, meaning a residential centre for vulnerable persons that is required to be authorised.

A ‘boarding premises’ is defined to mean,

“a boarding house, rooming or common lodgings house, house let in lodgings, hostel or any other premises at which residents are entitled to occupy one or more rooms (but not the whole of the house, hostel or other premises) as their principal place of residence.”

However, the definition excludes accommodation such as premises the subject of a residential tenancy agreement, 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.

 If the draft Bill is enacted, the proprietor of a registrable boarding house will be 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. Failure to comply is an offence.

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

The draft Bill also proposes that councils can 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

If the draft Bill is enacted, councils  will be required to conduct an initial compliance investigation for each registered boarding house in its area within 12 months of registration or re-registration, or if the proprietor of the house has changed, within 2 months after the new proprietor’s name is recorded in the register.

The investigations are to determine whether the registered boarding house complies with requirements imposed by or under the LG Act and the EPA Act. Council officers will be authorised to enter premises for the purposes of conducting such investigations.

Of particular interest is that unlike the LG Act and the EPA Act which require authorised officers of councils to obtain the permission of an occupier of a residential premises before entering those premises (except in very limited circumstances or with a search warrant), the draft Bill, if enacted, will allow council officers to enter a registered boarding house, including any part used for residential purposes so long as prior written notice is given to the proprietor or manager of the boarding house.

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

It is not proposed that councils will be responsible for enforcing other breaches of the Boarding Houses Act, but if it has entered into an ‘information sharing arrangement’, will have to provide information to the Commissioner, the Director-General or the Minister if requested to do so.

Submissions

A copy of the draft Bill can be found here and a copy of the Government’s position paper can be found here. Submissions on the draft Bill may be submitted in the following ways by 10 August 2012:

Email: BoardingHouseReform@facs.nsw.gov.au

DX: 10485 Sydney Stock Exchange

Post: Boarding House Reform Team, Ageing, Disability and Homeccare, Level4, 83 Clarence Street, SYDNEY NSW 2000.