Boarding Houses Act 2012 (NSW)

Boarding Houses Act 2012 No 74 An Act to provide for the registration and regulation of certain boarding houses and the licensing and regulation of assisted boarding houses. Part 1 Preliminary 1 Name of Act This Act is the Boarding Houses Act 2012. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Object of this Act The object of this Act is to establish an appropriate regulatory framework for the delivery of quality services to residents of registrable boarding houses, and for the promotion and protection of the wellbeing of such residents, by— (a) providing for a registration system for registrable boarding houses, and (b) providing for certain occupancy principles to be observed with respect to the provision of accommodation to residents of registrable boarding houses and for appropriate mechanisms for the enforcement of those principles, and (c) providing for the licensing and regulation of assisted boarding houses and their staff (including providing for service and accommodation standards at such boarding houses), and (d) promoting the sustainability of, and continuous improvements in, the provision of services at registrable boarding houses. 4 Definitions (1) In this Act— Act administrator means any of the following— (a) a Minister administering the whole or any part of this Act (whether jointly or otherwise), (b) the Secretary, (c) the Commissioner. assisted boarding house—see section 37. boarding premises 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. Commissioner means— (a) the Commissioner for Fair Trading, Department of Customer Service, or (b) if there is no person employed as Commissioner for Fair Trading—the Secretary of the Department of Customer Service. council means a council within the meaning of the Local Government Act 1993. enforcement officer means a person appointed as an enforcement officer under section 66. function includes a power, authority or duty, and exercise a function includes perform a duty. general boarding house—see section 5 (2) and (3). Government Department means a Public Service agency within the meaning of the Government Sector Employment Act 2013. manager, in relation to premises, means an individual who is responsible for the day to day running of the premises. person with additional needs—see section 36. premises includes— (a) a building or structure, or (b) land or a place (whether built on or not), or (c) a vehicle, vessel or aircraft. proprietor, in relation to premises, means— (a) in the case of premises that are leased—a tenant or sub-tenant who is entitled to immediate possession of the premises, or (b) in any other case—an owner of the premises. registrable boarding house—see section 5. regulated assisted boarding house—see section 5 (1) (b). relative, in relation to a person, means any of the following— (a) another person who is the spouse or de facto partner of the person, (b) another person who is a parent, step-parent, son, daughter, step-son, step-daughter, grandparent, grandchild, brother, sister, step-brother, step-sister, uncle, aunt, niece or nephew (whether by blood, marriage, affinity or adoption) of the person, (c) another person who is a guardian of the person, (d) another person in whose care or custody the person has been placed in accordance with the provisions of the Adoption Act 2000, (e) in the case of an Aboriginal person or a Torres Strait Islander— another person who is, or has been, part of the extended family or kin of the person according to the Indigenous kinship system of the person's culture. Note— "De facto partner" is defined in section 21C of the Interpretation Act 1987. Secretary means the Secretary of the Department of Communities and Justice. (2) A reference in this Act to a regulation made for a Part is a reference to a regulation that is made for the purposes of a provision of that Part. (3) Notes included in this Act do not form part of this Act. Note— For the purposes of comparison, a number of provisions of this Act contain bracketed notes in headings drawing attention ("cf") to equivalent or comparable (though not necessarily identical) provisions of the Youth and Community Services Act 1973 as in force immediately before its repeal by this Act. The Act is referred to in the notes by the abbreviation "YCS Act". 5 Meaning of "registrable boarding house" (1) For the purposes of this Act, a registrable boarding house means any of the following— (a) a general boarding house, (b) an assisted boarding house that is required to be authorised under Part 4 for it to be lawfully used as such under that Part (a regulated assisted boarding house). (2) Boarding premises are a general boarding house if the premises provide 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 relatives of the proprietors or managers). (3) However, a general boarding house does not include any of the following— (a) a regulated assisted boarding house, (b) premises that are used as a hotel, motel or bed and breakfast accommodation, (c) premises that are used as a backpackers hostel, (d) a serviced apartment (being a building or part of a building that is used to provide self-contained tourist or visitor accommodation that is regularly cleaned by or on behalf of the proprietor or manager), (e) premises that are used to provide accommodation for workers or employees in connection with their work or employment, (f) a government school or registered non-government school within the meaning of the Education Act 1990 or any other premises that are used by an educational body to provide accommodation for its students, (g) a private health facility licensed under the Private Health Facilities Act 2007, (h) a nursing home within the meaning of the Public Health Act 2010, (i) a mental health facility within the meaning of the Mental Health Act 2007, (j) a public hospital within the meaning of the Health Services Act 1997, (k) a residential care facility under the Aged Care Act 1997 of the Commonwealth operated by an approved provider under that Act, (l) a retirement village under the Retirement Villages Act 1999, (m) premises that are the subject of a site agreement to which the Residential (Land Lease) Communities Act 2013 applies, (n) premises that are the subject of an occupation agreement to which the Holiday Parks (Long-term Casual Occupation) Act 2002 applies, (o) social housing premises within the meaning of Part 7 of the Residential Tenancies Act 2010, (p) premises used for refuge or crisis accommodation, or accommodation for persons with additional needs, that is provided by a public authority, council or any other body or organisation and that is wholly or partly funded by the Commonwealth or the State (or an agency of the Commonwealth or the State), (p1) without limiting paragraph (p), premises used for accommodation that is provided by a registered provider of specialist disability accommodation for the purposes of the National Disability Insurance Scheme Act 2013 of the Commonwealth, (q) premises (or premises of a kind) prescribed by the regulations. 6 Relationship of Act with other laws Nothing in this Act limits any requirement imposed by or under the Environmental Planning and Assessment Act 1979, the Food Act 2003, the Local Government Act 1993, the Public Health Act 2010 or any other Act or law with respect to the use, or the provision of services to residents, of boarding premises. Note— The Acts that are specifically referred to in this section also make provision with respect to building and accommodation standards or service standards (or both) in relation to boarding premises. Part 2 Registration of boarding houses Division 1 Introductory 7 Interpretation (1) In this Part— initial compliance investigation—see section 16 (3). Register means the Register of Boarding Houses kept by the Commissioner under this Part. (2) Any notification given to the Commissioner under this Part is to be in the form approved by the Commissioner from time to time. (3) Any matter approved (or any revocation or amendment of an approved matter) by the Commissioner for the purposes of a provision of this Part that authorises the Commissioner to approve the matter does not have effect until it is published on the website of the Department of Customer Service. 8 Meaning of "registered" A registrable boarding house is registered for the purposes of this Part if the particulars of the boarding house are currently included in the Register. Division 2 Provision of information about registrable boarding houses 9 Notification of particulars about registrable boarding house (1) A proprietor of boarding premises that are used as a registrable boarding house must notify the Commissioner, in accordance with this section, of the following particulars so as to enable the Commissioner to include information about the boarding house in the Register— (a) the name, and the residential or business address, of each proprietor of the boarding house, (b) the name (if any) and the address of the registrable boarding house, (c) whether the boarding house is a general or regulated assisted boarding house, (d) whether development consent or approval is required under the Environmental Planning and Assessment Act 1979 to use the boarding house as boarding premises and, if so, whether such consent or approval has been granted, (e) the number of residents of the registrable boarding house, (f) the number of residents who are under 18 years of age, (g) the name of the manager (if any) of the registrable boarding house, (h) the total number of bedrooms provided as sleeping accommodation for the residents, (i) such other particulars as may be approved by the Commissioner or prescribed by the regulations. (2) A proprietor of boarding premises to which subsection (1) applies must notify the Commissioner of the particulars referred to in that subsection— (a) if the boarding premises are a registrable boarding house on the commencement of this section (but subject to paragraph (c))—within 6 months after that commencement, or (b) if the boarding premises become a registrable boarding house after the commencement of this section—within 28 days after the premises become a registrable boarding house, or (c) if the proprietor has become a new proprietor of the premises after the commencement of this section—within 28 days after the person becomes a proprietor of the premises. (3) A notification under this section must be accompanied by a registration fee of $100 or such other registration fee as may be prescribed by the regulations. (4) The Commissioner may waive, reduce or postpone payment of a registration fee, or refund such a fee, in accordance with the regulations. (5) A proprietor of a registrable boarding house who contravenes this section is guilty of an offence. Maximum penalty— (a) in the case of a corporation—100 penalty units, and (b) in any other case—50 penalty units. (6) A proprietor of a registrable boarding house is not excused from a requirement under this section to notify particulars concerning the boarding house on the ground that the notification of those particulars may incriminate the proprietor or make the proprietor liable to a penalty. 10 Annual returns for registrable boarding house (1) A proprietor of a registrable boarding house must, within 28 days after the end of the annual return period for the boarding house, notify the Commissioner of the changes (if any) as at the end date for the period in the particulars referred to in section 9 (1). Maximum penalty— (a) in the case of a corporation—20 penalty units, and (b) in any other case—10 penalty units. (2) The annual return period for a registrable boarding house is the period of 12 months commencing on the date that particulars were last provided to the Commissioner for the purposes of a notification under section 9 or the last anniversary of that date (whichever is the later). (3) Nothing in this section prevents any condition from being imposed on a boarding house authorisation (within the meaning of Part 4) that requires the furnishing of particulars to the Commissioner for the purposes of this Part on a more frequent basis than annually. 11 Notice of cessation of use If any premises cease to be a registrable boarding house, the person who was the proprietor of the boarding house immediately before that cessation must notify the Commissioner of that cessation and the date on which it occurred within 28 days of the cessation. Maximum penalty— (a) in the case of a corporation—20 penalty units, and (b) in any other case—10 penalty units. Division 3 Register 12 Commissioner to keep Register of Boarding Houses (1) The Commissioner is to keep a Register of Boarding Houses. (2) The Register may be kept in such form as the Commissioner considers appropriate. (3) The Commissioner is to ensure that information on the Register is kept up to date. (4) The Commissioner may correct any error in or omission from the Register. 13 Information to be recorded on Register (1) The Commissioner is to record in the Register in relation to each registrable boarding house the particulars notified to the Commissioner under this Part and Part 4 about the boarding house. (2) The Commissioner may also record in the Register in relation to a registrable boarding house— (a) particulars of any enforcement action taken in respect of the boarding house, its proprietor or any of its staff (including any action taken under Part 4 in the case of a regulated assisted boarding house), and (b) any other particulars or information that the Commissioner considers appropriate or that may be prescribed by the regulations. 14 Publication of certain information on Register for public access (1) The Commissioner is to arrange for the following information contained in the Register about registrable boarding houses to be published on the Internet for public access— (a) the name (if any) and the address of each registrable boarding house that is registered, (b) the name, and the residential or business address, of each proprietor of the boarding house, (c) whether the boarding house is a general or regulated assisted boarding house, (d) such other information as may prescribed by the regulations. (2) No other information contained in the Register may be made available to the public. (3) The information referred to in subsection (1) may also be provided to members of the public in any other manner approved by the Commissioner. Note— See also section 94 relating to the exchange of information with other government agencies. 15 Evidential provisions concerning Register (1) The Register is evidence of any particulars or information recorded in it. (2) A certificate signed or purporting to be signed by the Commissioner, or an employee of the Department of Customer Service authorised in writing by the Commissioner, and stating— (a) that the premises named in the certificate were or were not registered at a specified time, or (b) that the premises named in the certificate were or were not registered as a general or regulated assisted boarding house at a specified time, or (c) any other particulars or information recorded in the Register at a specified time, is admissible in any legal proceedings and is evidence of the matters stated in the certificate. Division 4 Initial compliance investigations for registered boarding houses 16 Requirement to inspect certain registered boarding houses within 12 months of registration (1) For the purposes of this Division, a registered boarding house is a registrable boarding house that is registered. (2) A council is to arrange for an initial compliance investigation to be conducted under this Division for each registered boarding house located in its area— (a) if the house has not previously been registered—within the period of 12 months after the house is first registered, or (b) if the house has been re-registered following a period of not having been registered—within the period of 12 months after the house is re-registered, or (c) if a proprietor of the house has changed since it was registered or re-registered—within the period of 12 months after the new proprietor's name is recorded in the Register. (3) An initial compliance investigation is an investigation into whether a registered boarding house complies with requirements imposed by or under the Local Government Act 1993 and the Environmental Planning and Assessment Act 1979 with respect to the use of the boarding house, including (but not limited to)— (a) requirements in relation to building and fire safety, and (b) relevant standards or requirements for places of shared accommodation for the purposes of Order No 5 (d) in the Table to section 124 of the Local Government Act 1993. (4) A council is not required to arrange for an initial compliance investigation of a registered boarding house if the premises of the boarding house were inspected under the Local Government Act 1993 or this Division at any time in the period of 12 months immediately before the date on which the boarding house was registered or re-registered or a new proprietor's name was recorded in the Register (as the case requires). 17 Power of entry (1) For the purpose of conducting an initial compliance investigation, a council employee (or other person) authorised by a council may enter the premises of a registered boarding house, including any part of the premises used for residential purposes. (2) Entry may only be made at any reasonable hour in the daytime or at any hour during which business is in progress or is usually carried on at the premises. 18 Inspections and investigations For the purpose of conducting an initial compliance investigation, a person authorised to enter premises under this Division may— (a) inspect the premises and any food, vehicle, article, matter or thing on the premises, and (b) for the purpose of an inspection— (i) open any ground and remove any flooring and take such measures as may be necessary to ascertain the character and condition of the premises and of any pipe, sewer, drain, wire or fitting, and (ii) require the opening, cutting into or pulling down of any work if the person authorised has reason to believe or suspect that anything on the premises has been done in contravention of the Local Government Act 1993 or the Environmental Planning and Assessment Act 1979 (or the regulations or other instruments under those Acts), and (c) take measurements, make surveys and take levels and, for those purposes, dig trenches, break up the soil and set up any posts, stakes or marks, and (d) require any person at those premises to answer questions or otherwise furnish information in relation to the matter the subject of the inspection or investigation, and (e) take samples or photographs in connection with any inspection. 19 Notice of entry (1) Before a person authorised to enter premises under this Division does so, the council must give the proprietor or manager of the premises written notice of the intention to enter the premises. (2) The notice must specify the day on which the person intends to enter the premises and must be given before that day. (3) This section does not require notice to be given— (a) if entry to the premises is made with the consent of the proprietor or manager of the premises, or (b) if entry to the premises is required because of the existence or reasonable likelihood of a serious risk to health or safety, or (c) if 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. 20 Use of force (1) Reasonable force may be used for the purpose of gaining entry to any premises under a power conferred by this Division, but only if authorised by the council in accordance with this section. (2) The authority of the council— (a) must be in writing, and (b) must be given in respect of the particular entry concerned, and (c) must specify the circumstances which are required to exist before force may be used. 21 Notification of use of force or urgent entry (1) A person authorised to enter premises under this Division who— (a) uses force for the purpose of gaining entry to the premises, or (b) enters the premises in an emergency without giving written notice to the proprietor or manager, must promptly advise the council. (2) The council must give notice of the entry to such persons or authorities as appear to the council to be appropriate in the circumstances. 22 Care to be taken (1) In the exercise of a function under this Division, a person authorised to enter premises must do as little damage as possible. The council must provide, if necessary, other means of access in place of any taken away or interrupted by a person authorised by it. (2) As far as practicable, entry on to fenced land is to be made through an existing opening in the enclosing fence. If entry by that means is not practicable, a new opening may be made in the enclosing fence, but the fence is to be fully restored when the need for entry ceases. (3) If, in the exercise of a function under this Division, any pit, trench, hole or bore is made, the council must, if the proprietor or manager of the premises so requires— (a) fence it and keep it securely fenced so long as it remains open or not sufficiently sloped down, and (b) without unnecessary delay, fill it up or level it or sufficiently slope it down. 23 Recovery of fee for initial compliance investigation A council may charge and recover an approved fee under section 608 (Council fees for services) of the Local Government Act 1993 for the conduct of an initial compliance investigation. 24 Compensation (1) A council must pay compensation for any damage caused by any person authorised by the council under this Division to enter premises, other than damage arising from work done for the purpose of an inspection which reveals that there has been a contravention of this or any other Act. (2) Section 730 of the Local Government Act 1993 applies to the resolution of claims for compensation under this section in the same way as it applies to the resolution of claims for compensation under section 198 of that Act. 25 Authority to enter premises (1) A power conferred by this Division to enter premises, or to make an inspection or take other action on premises, may not be exercised unless the person proposing to exercise the power is in possession of an authority and produces the authority if required to do so by the proprietor or manager of the premises. (2) The authority must be a written authority which is issued by the council and which— (a) states that it is issued under this Act, and (b) gives the name of the person to whom it is issued, and (c) describes the nature of the powers conferred and the source of the powers, and (d) states the date (if any) on which it expires, and (e) describes the kind of premises to which the power extends, and (f) bears the signature of the general manager of the council. (3) This section does not apply to a power conferred by a search warrant. 26 Relationship with other Acts Nothing in this Division limits the exercise of powers or other functions by councils under the Local Government Act 1993 or any other Act. Part 3 Occupancy agreements and principles for registrable boarding houses Division 1 Introductory 27 Interpretation (1) In this Part and Schedule 1— authorised representative, in relation to a resident or former resident of a registrable boarding house, means a person who is an authorised representative (within the meaning of the Health Records and Information Privacy Act 2002) of the resident or former resident. occupancy agreement, in relation to a registrable boarding house, means a written or unwritten agreement— (a) that is between a proprietor of the boarding house (or a person acting on behalf of the proprietor) and a resident of the house (or a person acting as an authorised representative of the resident), and (b) under which the resident is granted the right to occupy, for a fee or reward, one or more rooms in the boarding house as a resident of the house, but does not include a rental agreement between a proprietor and resident of a registrable boarding house (or any persons acting on their behalf). occupancy fee means an amount payable by or for a resident of a registrable boarding house for the right to occupy one or more rooms in the boarding house as a resident of the house during the term of an occupancy agreement. occupancy principles—see section 30. rental agreement means— (a) a residential tenancy agreement within the meaning of the Residential Tenancies Act 2010, or (b) a lease to which the Landlord and Tenant (Amendment) Act 1948 applies. (2) Any matter approved (or any revocation or amendment of an approved matter) by the Commissioner for the purposes of a provision of this Part that authorises the Commissioner to approve the matter does not have effect until it is published on the website of the Department of Customer Service. (3) The provisions of this Part are in addition to, and do not derogate from, the provisions of Part 4 in their application to authorised boarding houses within the meaning of that Part. Note— Part 4 provides for the authorisation (including licensing) of assisted boarding houses. There are additional requirements (including by way of licence conditions) concerning service and accommodation standards for residents of such boarding houses that must be complied with. (4) Nothing in this Part prevents a contravention of an occupancy principle, to the extent that is included (or taken to be included) in an occupancy agreement, from being enforced as a breach of that agreement. Division 2 Occupancy agreements 28 Proprietor's obligation to ensure written occupancy agreement (1) The proprietor under an occupancy agreement must ensure that the agreement is in writing— (a) in relation to agreements entered into after the commencement of this section—at the commencement of the agreement, and (b) in relation to agreements entered into before the commencement of this section—within the period of 3 months after the commencement of this section. (2) Nothing in this section— (a) imposes any obligation on a resident of a registrable boarding house to prepare a written occupancy agreement, or (b) affects the enforceability of an occupancy agreement that is not in writing or is only partly in writing. Note— The Civil and Administrative Tribunal may, however, order a proprietor to enter into a written occupancy agreement on the application of a resident. See section 33. 29 Standard forms of occupancy agreement (1) The Commissioner may, by order published in the Gazette, approve a standard form of occupancy agreement. (2) Without limiting subsection (1), an order under that subsection may provide for the following— (a) the terms of the agreement, (b) more than one standard form of occupancy agreement for use for different classes of registrable boarding houses, agreements or parties, (c) the addition of clauses to, or the omission or variation of terms contained in, a standard form of occupancy agreement in specified circumstances, (d) the application of terms of standard forms of occupancy agreement to agreements entered into before the order approving those standard forms took effect. (3) In approving a standard form of occupancy agreement, the Commissioner is to be satisfied that the form of agreement gives effect to the occupancy principles. (4) Unless the regulations provide otherwise, the use of a standard form of occupancy agreement is not mandatory and, accordingly, a failure to use the standard form of agreement does not of itself affect the validity or enforceability of an occupancy agreement. (5) An occupancy agreement that is in or to the effect of the applicable standard form of occupancy agreement for the class of registrable boarding house, parties or agreement concerned is taken to give effect to the occupancy principles in the manner required by or under this Part. (6) The regulations may make provision for or with respect to requiring the use of a standard form of occupancy agreement and the enforceability of agreements that are not in the standard form. Division 3 Occupancy principles 30 Occupancy principles (1) The occupancy principles in relation to registrable boarding houses are the principles set out in Schedule 1. (2) The occupancy principles apply for the purposes of this Division only in relation to residents of registrable boarding houses under occupancy agreements. Note— The definition of occupancy agreement in section 27 (1) excludes any rental agreement between a proprietor and resident of a registrable boarding house (or any persons acting on their behalf). Accordingly, the occupancy principles do not apply in relation to a person who is entitled to reside in a registrable boarding house under a rental agreement. (3) The regulations may make provision for or with respect to— (a) what constitutes, or what does not constitute, compliance with the occupancy principles for the purposes of this Part, and (b) the issuing of guidelines for that purpose. 31 Application of occupancy principles (1) The occupancy principles apply as follows in relation to a registrable boarding house— (a) a resident must be provided with accommodation in compliance with the occupancy principles, (b) a resident must be given the notices, receipts or other information required by the occupancy principles, (c) any notice, receipt or other information to be given to a resident under the occupancy principles must also be given to the authorised representative of the resident if the resident is a person with additional needs who has an authorised representative, (d) the proprietor must exercise the proprietor's righ