Second Reading
Resumed from an earlier stage of the sitting.
[Speeches and comments from various members]
HON ALISON XAMON (North Metropolitan) [5.46 pm]: I rise as the lead speaker on behalf of the Greens and indicate our wholehearted support for the Residential Tenancies Legislation Amendment (Family Violence) Bill 2018. Currently in Western Australia, if a domestic violence victim terminates her lease early, she remains liable to pay compensation to the lessor and may be listed on tenancy databases as an unsuitable tenant. This is something that happens in the real world. Unfortunately, it also means that she is not permitted to take the necessary measures to protect herself such as urgently changing the locks, unless approval is first given to do so. Members, this situation is clearly not okay. It does not help to ensure that women at times of deep crisis are able to be safe. It makes it harder for a woman to urgently leave a potentially dangerous situation and it risks doubly punishing her if she does. The bill before us amends the Residential Tenancies Act 1987 and the Residential Parks (Long-stay Tenants) Act 2006 to address these flaws—and flaws are exactly what they are—to ensure that victims of family violence have more choice about their housing arrangements.
The bill is a really important step forward in protecting the victims of family violence. I note that this change has been advocated for a very long time and the Greens wholeheartedly welcome it. I do not think the importance of why we are making this change in the first place can be overstated; I do not want it to be overlooked. We need to remember that in Australia, more than one-third of women who have had an intimate partner have experienced at least one act of violence. In 2016 alone, more than one million women experienced stalking, emotional abuse and violence—one million, members! We know that domestic and family violence is costing Australia $22 billion annually, if that is the thing that members are concerned about. My concern is that domestic and family violence is the highest cause of homelessness in Australia with 40 per cent of people who sought homelessness services in 2016–17 experiencing family violence. Nearly half of those people were single parents who had children and nearly all of them were female.
We need to acknowledge that family violence is gendered, with the vast majority perpetrated against women, usually by a man. In 2016, it was reported that Australian police deal with 5 000 family violence matters on average every week. That is an average of one matter every two minutes. It is estimated that in 2018, on average, eight women a day were hospitalised after being assaulted by a spouse or partner. One woman a week was killed by a current or former partner in the two years from 2012 to 2014. In 2016, family violence was the highest preventable health risk factor for women aged 25 to 44 years, and that leads to a range of negative health outcomes, including poor mental health, problems during pregnancy and birth—we know that pregnancy is a huge risk factor for women experiencing domestic violence—alcohol and illicit drug use, suicide, injuries, and yes, it also leads to murder. Aboriginal people are at greater risk of family violence than other Australians, as are women with a disability or a long-term mental health condition, and elderly women.
Western Australia has the second highest rate of reported physical and sexual violence perpetrated against women in Australia; second only to women who live in the Northern Territory. As I have noted on a number of occasions in very recent times in this place, 2018 has been a particularly devastating year for Western Australia on this front: 28 people have been killed in suspected family-related murders in WA so far, or more than two a month, compared with 12 for the whole of last year. I remind members that that 28 people includes 13 women and nine children. Many thousands of others are living in fear and suffering physical harm; financial, sexual and emotional abuse; stalking; or cyber abuse from an intimate partner or an extended family member, and many of these victims will not have reported. Individual experiences vary enormously, and as such they need to have the option of different, flexible and tailored responses to deal with this. That might mean, for example, that some people need to have accommodation support. It might be health care, parenting support, legal assistance, financial support, urgent police response, access to male perpetrator substances, substance abuse programs, mental health services or paid leave, or it may be the provisions that will be made available to them within this act, hopefully, if it gets passed.
Domestic violence is not acceptable in any form nor for any reason. It is preventable and we must work to prevent it whenever possible. The figures make it abundantly clear that we still have so much work to do in this space. We know that housing uncertainty is a key factor in a person’s decision about whether they are going to leave an abusive relationship. This means that safe, accessible, affordable accommodation is a critical factor for women to enable them to leave those violent relationships, and a critical element in making sure that women and children are safe. I am pleased that the bill looks to improve the stability of housing for victims of domestic violence. It is long overdue. The bill will relieve victim tenants from legal consequences they would otherwise incur as a result of their perpetrator’s behaviour. I would like members to remember this: these are not people who have sought this out; these are people who have been placed in an absolutely invidious situation. This bill will allow them to take steps to increase their home security in the future and will give them badly needed accommodation choices that they do not currently have.
I turn to some of the specifics in the bill. The bill will make family and domestic violence a new ground for early termination of the victim’s interest in a particular lease. If there are multiple tenants, a co-tenant who is notified that the victim is terminating the victim’s interest in the lease may then terminate their own interest in the lease upon a minimum of 21 days’ notice. The co-tenant may or may not be the perpetrator. The aim is to prevent an arrears problem developing if the remaining co-tenant cannot afford the rent on their own. If the co-tenant does not terminate their own interest, the lease will continue. When first reading this provision I noticed that the co-tenant must give notice not less than seven days after being notified of the victim tenant’s early termination, and that would mean the co-tenant can give notice any time from seven days until the end of the lease. I note that the minister has moved an amendment to change the wording, which I understand was simply a drafting error. Of course if all tenants with an interest in the lease terminate early, there are consequences for the landlord, including the costs of readvertising, the property being vacant until a new tenant is found, checks on prospective tenants, the managing agent’s re-letting fee, and the loss of half the bond until replaced by the remaining co-tenant, as well as loss from potential changes to insurance arrangements. I note, however, that according to the Standing Committee on Legislation report, the Insurance Council of Australia will be developing a new code of practice for insurers and the complex issues associated with family violence are being considered as part of that view, because the world is catching up, members. People recognise that these are the sorts of things that we need to do to protect victims of domestic violence. The new rental rate may be lower or higher than the previous rental rate, depending on whether the rental market at the time is sluggish or high. I recognise that that is a risk for a landlord, and according to the cost analysis undertaken by the department and provided to the committee, the lessor may incur the following court costs: a seven-day termination notice loss of $2 100 in a sole tenancy and $1 400 in a joint tenancy when the co-tenants elect not to remain. The anticipated cost is greater if the premises are abandoned— $4 200 if the premises are abandoned—and $8 550 if the termination is by court order. The notice that the co-tenant will have to give provides a couple of weeks during which the landlord is still receiving rent but can start looking for a new tenant. Can the minister confirm for me, please, whether the information that was provided to me at the briefing, which indicates that the current average Perth vacancy period is seven weeks, is accurate and is the case? Any loss incurred by the landlord because of early termination cannot be recovered. Though the bill will enable a court to determine the party’s rights and liabilities following a termination on the ground of family violence, proposed section 17B(6) specifically states —
Nothing in subsection (2) is to be read as enabling the court to order compensation for early termination of a residential tenancy agreement.
It is fair that it is not against the victim, since the termination—I remind people—is not her fault, nor is it the fault of the perpetrator. The government’s reason for not giving the landlord a remedy against the perpetrator is to avoid endangering the victim if the perpetrator blames her, albeit unreasonably, because it would arise as a result of the consequences of their own behaviour. If this were to happen, it could be a disincentive to victims using the protection that the bill provides. We need to be encouraging people to use these provisions, if that is what will be required in order to keep them safe.
I note the issue of damage to property. Currently, the lessor can pursue any and all tenants named on the lease for compensation for any damage to the property. If the lease is terminated on the ground of family violence, the bill enables a court to determine the party’s rights and liabilities, which effectively will remove a victim tenant’s liability for damage caused by the perpetrator and not by her. This is fair and just. Any loss the landlord makes because of damage caused by the perpetrator may be recovered. If the perpetrator is named on the lease, the court can assign liability to the perpetrator alone. If the perpetrator is not named on the lease, the court cannot assign liability to the perpetrator, but the lessor may bring civil proceedings against that perpetrator. If the lessor is insured, then of course the policy is likely to cover damage.
I refer to the issue of refusal of tenancy. The bill has new provisions that forbid refusal of a tenancy to a person who has been or who might be subjected or exposed to family violence or has been convicted of a charge relating to family violence. I have some concerns that this purports to deny the lessor the opportunity to reduce their risk of future loss by property damage or early termination of the lease. However, I note that, in practice, the information is unlikely to be on a tenancy database and a lessor who has the information is unlikely to say that that is why the tenancy was refused. If a lease is entered into, the lessor can still terminate for breach of agreement, if applicable, or for no ground, provided that the necessary notice is given.
I also understand from the briefing—I ask the minister to confirm this—that to date, interstate and national landlord insurance providers have not made policy exclusions or increased premiums as a result of this kind of law.
Hon Alannah MacTiernan: As we understand it, there has been no evidence of any insurance company in Canada or in Australia making this an exclusion.
Hon ALISON XAMON: I thank the minister. The bill before us amends the Residential Tenancies Act and the Residential Parks (Long-stay Tenants) Act so that victims of family violence who are tenants are allowed to terminate their interest in the lease if they want to leave the property, and if they want to stay at the property, a court or the State Administrative Tribunal, as applicable, is able to terminate any interest a perpetrator has in a lease. In those proceedings, if the victim lives at the property but is not named as a tenant on the lease—which is often the case, by the way—they can also apply, under existing section 59C of the Residential Tenancies Act, to be recognised as a tenant.
During my consultation on this bill, a question was raised with me about whether it is legally possible for the interests of one joint lessee to be terminated without having to terminate the whole lease and create a new one with the remaining joint lessee, which is a point of law. I was assured during the briefing that it is indeed possible, according to Parliamentary Counsel, via a legal fiction, whereby for the purposes of the lease agreement and the act, termination of the whole lease and creation of a new one with the remaining joint lessee is taken to have happened. Section 59C, which recognises certain people as tenants even though they are not on the lease, seems to use a very similar mechanism. To make clear the intended interpretation for the courts and the State Administrative Tribunal, I ask the minister to please confirm for the record how early termination via severing the lease interests of a joint tenant is legally possible. I am happy to take that in the second reading reply. I am aware that it is a particular point of law, but I am concerned about future interpretation by the courts. I am satisfied that it has been addressed, but I would like to get that on the parliamentary record, please.
The Standing Committee on Legislation found that tenants face an inequity in application fees to the Magistrates Court and the State Administrative Tribunal. SAT is the appeal mechanism within the Residential Parks (Long-stay Tenants) Act and unresolved disputes under the Residential Tenancies Act go to the Magistrates Court. The committee therefore recommended that the Minister for Commerce and Industrial Relations and the Attorney General consult and develop a plan to address the inequity in fees because they are quite different. The committee also recommended that the implementation of this plan be included in the proposed review of division 2A in the Residential Tenancies Act and divisions 4A and 3A in the Residential Parks (Long-stay Tenants) Act. I am interested to know whether the government supports this recommendation.
The bill will also make some changes to the way we can deal with the issue of needing to change locks. Effectively, it allows a family violence victim who wants to stay to change their locks and their security fixtures at the property. I think this is a really important provision. I note that the Standing Committee on Legislation was divided on whether security upgrades should be prescribed in the bill or in the regulations, noting that regulations more easily allow for changes in technology and new products to be incorporated, although I note the majority were happy to leave the bill as drafted.
I note that the Women’s Council for Family and Domestic Violence Services’ opinion that victim tenants are unlikely to change locks without good reason due to the sheer expense of the exercise, and I agree with that. That view is likely to be correct. I note also that clause 10 will forbid the lessor to give a copy of the key to a changed lock to anyone whom the tenant has instructed may not be given a copy. That is an essential provision. Even if somebody is still on the lease, if a victim of family violence is in the process of getting them removed, it will not suddenly give them the right to get back onto the property when the victim has had to go to the effort to try to keep themselves safe. Breach of this without reasonable excuse—I imagine reasonable excuse would be things such as ignorance—will be an offence, and I am pleased about that. I think the advantages of requiring written instructions include a decreased chance of mistake through miscommunication and it is easier then to prove if there has been a breach and to defend if the lessor is charged with interference with a co-tenant perpetrator’s quiet enjoyment. It is important that we change the legislation to ensure that the tenant’s instruction to the lessor to not provide a copy of the key should be in writing.
Clause 10 will also provide that if the lessor is the alleged perpetrator, a copy of the key will not need to be handed over. I recognise that this will pose challenges with inspections and the parties would need to negotiate a way for this to happen, such as via an agent or a subcontractor engaged by the lessor. If the lessor is the perpetrator, such negotiations could pose challenges, especially if a restraining order that prohibits communication is in place. If the situation could not be resolved and the lease needed to be terminated, the legislation will provide means for early termination by the lessor and by the victim tenant.
If a victim of family violence is listed on a tenancy database because of their subjection or exposure to family violence, the amendments in this bill will allow them to apply to the court for their information to be wholly or partly removed or amended or not listed. If a person’s interest in a lease is terminated, this bill will allow a court or SAT to decide the rights and liabilities of all tenants, including outstanding rent or debts, damages to premises and the bond, but there is to be no compensation to the lessor for early termination of that lease.
I note that there are no transitional provisions. Therefore, the reforms will apply to current leases. Lessors do not have the opportunity to consider whether to let their property in light of the changes made in this bill. If a lessor is so unhappy with the reforms that they no longer want to let their property, I ask the minister to confirm that the legislation will not change the lessor’s right to terminate the lease under section 62 for the breach of a lease agreement, if applicable, or section 64, without grounds with a minimum of 60 days’ notice. If people are really that unhappy and they think this will be that much of a catastrophe, I ask the minister to confirm that under the current act, they are still able to terminate the lease and get out of the industry. Maybe they could look at investment elsewhere.
Disclosure of the contents of a document proving family violence has been an issue. Should the victim’s interests be terminated early on a ground of family violence, clause 18 will prohibit the lessor from disclosing the contents of the document proving the violence to anyone, except as required by written law. I ask the minister to explain for the record how, if the lessor considers that due diligence was not exercised by the professional who signed the document, they make a formal complaint to the professional’s relevant ethical standards body without disclosing the contents of the document proving violence?
I also ask the minister to confirm for the record whether the lessor has a defence if their managing agent discloses the contents of the document without the lessor’s instruction or consent.
When the rental property is a strata property, some or all external doors, windows and security grilles may belong to the strata company, not the landlord. When this is the case, the strata company’s permission needs to be sought for any changes, and, even when permission is granted, it may be conditional. The Real Estate Institute of Western Australia, which has already had quite a lot to say about this bill, pointed out that some changes to egress may affect the property’s fire rating and risk voiding the strata company’s fire insurance policy for the entire building, including but not limited to the leased premises. I understand that the bill only applies to private rental areas and, therefore, has no effect on common property areas owned by the strata company. I ask the minister to please confirm this for the record.
The strata company might also have by-laws specifying the changes that can and cannot be made to individual lots, particularly those strata companies that require individual lots to conform to the appearance of other strata lots. Clause 12 of the bill, which will amend section 47 of the act, addresses this and will require any alterations or fixtures to have regard to any applicable strata by-laws. It will still happen, but, importantly, people can still make urgent moves to keep themselves safe.
I understand why this is an urgent issue and that this legislation needs to get through Parliament. I know that a significant communication strategy has been proposed to make sure that all those who work with landlords, tenants and victims of family violence are aware of the reforms. People will need time to start developing those information campaigns to make sure that people know exactly where they stand. I note that recommendations 117 and 118 of the Victorian Royal Commission into Family Violence confirmed the need for victims to be notified of their tenancy rights by family violence support workers, police, other relevant support staff, and magistrates hearing family violence intervention order applications. I understand from what I have been told that the communication strategy will also include Consumer Protection working with the Building Commission to develop fact sheets for tenants in strata properties. The mandatory professional development done by real estate agents this year already included a session about the reforms, and will include a further session next year explaining the nuts and bolts, if the legislation is passed. A session will also be included in the continuing professional development done by principals of real estate firms. I know that the department has spoken at a Shelter WA homelessness forum, there is an online video and e-bulletin, Legal Aid WA has put out information about the changes, and radio in the north of our state has put out information. Importantly, funding has been provided to Tenancy WA to deliver training to tenant advocates, refuge workers and general practitioners. I understand that this training has already started.
As this bill will implement some very big changes, that means of course there will need to be a review clause. The bill currently does not have one. We need to make sure that the bill has the desired effect of assisting victims. I suspect it will, but it will be good to quantify that. We need to monitor the legislation’s impact on landlords and strata companies, and we need to know whether there are any unexpected outcomes. I note that there are duelling amendments in relation to a statutory review and that the Standing Committee on Legislation also indicated that it supported a review of the legislation. The legislation committee also noted concerns about the potential for the family violence report form accompanying a notice of termination to be misused. I see a review as an opportunity to monitor this and to consider whether it is, indeed, a genuine concern or whether people are just getting het-up about nothing.
I note that the Standing Committee on Legislation also supported the proposed review clause and recommended that the review be broadened to include the impact upon the ordinary right of lessors to recover debts owed by tenants. As I noted earlier, the interaction between the insurance industry and family violence is a complex area. The committee also recommended that the review include consideration of family violence provisions in lessor protection insurance policies and compliance with the Insurance Council of Australia’s code of practice. The committee considered the impact of the contractual right to certainty and the imposition of proposed contractual obligations upon non-perpetrator lessors and co-tenants. As I said, the Greens welcome a proposed review clause. We would also welcome a more comprehensive review of the impact of all the new provisions and we support the committee’s recommendations to broaden the review.
In conclusion, I want to remind members that we all have a role to play; indeed, I believe we have a responsibility in this place to respond to the issue of family violence. I think it is really fitting that we are considering this bill so soon after White Ribbon Day and the Silent Memorial March, and during the 16 Days in WA to Stop Violence Against Women campaign. I think the bill before us seeks to rebalance a structural bias against victims of family violence that is inherent in the Residential Tenancies Act 1987 and the Residential Parks (Long-stay Tenants) Act 2006. We are addressing a great imbalance against people who find themselves in absolutely invidious situations. I am really pleased that this bill is broadly supported. I welcome it as a sign that as a community we are increasingly supportive of efforts to address domestic violence and to support victims of domestic violence, including children who are also victims of domestic violence. I note that the amendments are strongly supported by Tenancy WA, Shelter WA, the Southern Communities Advocacy Legal Education Service, the Women’s Council for Domestic and Family Violence Services (WA) and the Commissioner for Children and Young People, among others. I am also pleased that REIWA supports the bill. I acknowledge that these amendments will have a potential impact on property owners. I understand that REIWA predicted that few landlords would begrudge early termination of a lease in order to escape domestic violence and noted that landlords have landlord protection insurance to shield themselves from the issues of unpaid rent and damage to their property. We believe any impact on insurance should be, and I suspect will be, closely monitored.
Currently in WA, a domestic violence victim who terminates her lease early remains liable to pay compensation to the lessors and may be listed on tenancy databases as an unsuitable tenant, and this is blatantly unfair! It has the potential to increase the risks faced by women who are already living in harmful situations and it means that they, and any children, can be forced to suffer ongoing negative financial impacts from a violent relationship. I am very pleased to support the legislation before us that aims to finally remove tenancy-related barriers to people leaving a violent relationship. In doing so, I hope that this legislation is one small part of the very big picture that we have to address to reduce the horrific toll of women and children in our state who are dying as a direct result of family violence.
[Speeches and comments from various members]
Debate interrupted, pursuant to standing orders.