Docstoc

Consultation Package20104215123

Document Sample
Consultation Package20104215123 Powered By Docstoc
					                                         1
NOT SOUTH AUSTRALIAN GOVERNMENT POLICY
Disclaimer
Expressions of legal opinion or conclusion in this Consultation Package are not intended as
legal advice. Anyone needing such advice should seek assistance from a legal practitioner.

This publication is copyright. No part may be reproduced by any process except in
accordance with the provisions of the Copyright Act 1968. For advice on how to reproduce
any material from this publication contact the Office of Consumer and Business Affairs.




                                                                                              2
                    NOT SOUTH AUSTRALIAN GOVERNMENT POLICY
Purpose of this Document

The purpose of this document is to invite submissions from SA stakeholders on the draft
model provisions for regulating residential tenancy databases.

The model provisions have been prepared at the request of the Ministerial Council on
Consumer Affairs (MCCA) for a national consultation process.

The draft provisions are provided for consultation purposes only and are yet to receive formal
Government endorsement. However, if adopted, it is planned that the model provisions would
be introduced by all State and Territory Governments in order to provide a consistent national
approach to the regulation of residential tenancy databases.

Background to the Model Provisions

Introduction

Residential Tenancy Databases (RTDs) are privately owned electronic databases which
contain information about individual tenancy histories. Most real estate agents subscribe to
one or more RTD, and use them to screen prospective tenants for the purpose of renting
residential properties.

At the state and territory level, there is no uniform or consistent legislative approach to the
regulation of the use of RTDs by agents and landlords. While Queensland, the Australian
Capital Territory and New South Wales have enacted laws specifically dealing with the use of
RTDs, South Australia and the Northern Territory include provisions which may apply to RTD
listing practices in their Fair Trading legislation. Currently, Victoria, Western Australia and
Tasmania do not specifically regulate the use of RTDs.

The following table outlines current state and te rritory legislation on the use of RTDs and the
relevant part:

              QLD               NSW          SA         ACT           NT          VIC   WA    TAS
Legislation   Residential       Property,    Fair       Residential   Consumer    nil   nil   nil
              Tenancies and     Stock and    Trading    Tenancies     Affairs
              Rooming           Business     Act 1987   Act 1997      and F air
              Accommodation     Agents                                Trading
              Act 2008,         Act 2002                              Act 1997
              (commencing       PS&BA
              on 1 July 2009)   Regulation
                                2003
Part                            Schedule     Part 5     Part 6A       Part 8
                                6A



In 2006, MCCA agreed to the development of model uniform legislation regulating the use of
RTDs, based on the final report of the joint Standing Committee of Attorneys-General
(SCAG)/MCCA Working Party, Report on Residential Tenancy Databases and the associated
Regulation Impact Statement (RIS).

The MCCA asked Queensland to draft the national model provisions based on seven
regulatory recommendations in relation to:

      Notice of RTD listing process;
      Types of permitted listings;
      What constitutes a breach justifying listing;


                                                                                                    3
                        NOT SOUTH AUSTRALIAN GOVERNMENT POLICY
   Listing a breach;
   The accuracy and quality of listings;
   Access and correction of listings and dispute resolution; and
   Duration of listings.

To access the Report and RIS follow these links:

http://www.consumer.gov.au/html/download/Report_on_Residential_Tenancy_Datab
ases.pdf

http://www.consumer.gov.au/html/download/Regulation_Impact_Statement.pdf

For all relevant MCCA publications follow this link:

http://www.consumer.gov.au/html/publications.htm

National Working Group

A national working group including all states and territories, the Department of the Prime
Minister and Cabinet (Privacy and FOI Policy Branch), and the Office of the Privacy
Commissioner was formed to assist Queensland to lead the development of the model
provisions.

Policy Objective of the RTD reforms

The policy objective of the reforms is to address risks to tenancy applicants by ensuring RTDs
are not used unfairly or inappropriately, while maintaining the role of RTDs as a legitimate risk
minimisation tool for landlords and their agents. The reforms are designed to achieve an
effective balance between the competing interests of the stakeholders: tenants, RTD users
and RTD operators.

The Privacy Act 1988

The Privacy Act 1988 (Cth) contains high level principles (National Privacy Principles or
NPPs) that regulate the collection, retention, use and disclosure of personal information,
although it does not prescribe the detailed acts and practices to be used by organisations in
meeting their information handling obligations. As recommended by MCCA, amendments to
the Privacy Act in August 2007 extended the application of the Privacy Act to all RTDs. The
amendment was made to ensure that all tenancy database operators fulfil the requirements of
the Privacy Act so that a tenant’s personal information is handled fairly and appropriately.

Individuals who believe their privacy rights under the NPPs have been breached can lodge a
complaint with the Privacy Commissioner.




                                                                                                4
                     NOT SOUTH AUSTRALIAN GOVERNMENT POLICY
Application of Residential Tenancy Databases – Model Provisions in States and Territories

In accordance with the Parliamentary Counsel’s Committee Protocol on Drafting National
Uniform Legislation (Third Edition: July 2008), national model legislation is legislation that is
drafted as model legislation and enacted in participating jurisdictions including any local
variations necessary to achieve the agreed uniform national policy when the legislation forms
part of the local law.

Therefore, subject to each jurisdiction’s executive approvals, those jurisdictions that currently
regulate the use of RTDs may amend their legislation so that it is consistent with the model
provisions. Similarly, and subject to executive approvals, those jurisdictions that do not
regulate the use of RTDs may use the model provisions as the basis for introducing new
legislation (or a new part in existing legislation). Local variations may be necessary in some
jurisdictions to achieve the agreed uniform national policy.

A table summarising how the model provisions may be implemented in each jurisdiction is
attached (Attachment 1).

Proposed Implementation of the Model Provisions in SA

South Australia is now consulting on the consultation draft of the Residential Tenancy
Databases – Model Provisions (Attachment 3). The purpose of these model provisions is to
implement the recommendations of the SCAG/MCCA Working Party, Report on Residential
Tenancy Databases and the associated RIS. A brief explanation of the model provisions is
attached (Attachment 2).

South Australia currently broadly re gulates RTDs through the Fair Trading Act 1987. Should
the South Australian     Government decide to adopt the model provisions, a       ppropriate
amendments will be made to South Australian legislation.




                                                                                                    5
                     NOT SOUTH AUSTRALIAN GOVERNMENT POLICY
The Consultation Process

All interested individuals and organisations are encouraged to provide comment on the
consultation draft of the Residential Tenancy Databases – Model Provisions (Attachment 3) by
responding to the following discussion questions:

   1. Do the model provisions provide an effective framework for regulating the conduct of
      landlords, agents and database operators in relation to residential tenancy databases?

       If not, please explain your view and if possible, provide suggestions for how the model
       provisions might be amended to address your concerns.

   2. If these model provisions were adopted, as drafted, would the provisions be workable
      in South Australia?

       If not, please explain why, providing practical examples and whenever possible, attach
       relevant data or documentation to support your view.

   3. Are the provisions clear and unambiguous?

       If not, please explain your view with reference to specific provisions.

   4. Do you have any other comments regarding the draft model provisions?

In addition, in order to understand the context of each submission, we ask that those providing
comments identify their jurisdiction and specify their current role, such as tenant, agent,
landlord, database operator, or advocate etc.

If your submission contains information that you do not wish to be disclosed to others, please
mark it “Confidential”. However, please note that submissions, including confidential
submissions, may be subject to freedom of information and other laws and this should be
taken into consideration when making submissions.

Comments in writing should be forwarded by Friday 11 December 2009 to:

National Regulation of Residential Tenancy Databases
Residential Tenancies Authority
GPO Box 390
BRISBANE QLD 4001

Or by email to: review@rta.qld.gov.au

Please use the following local contact if you wish to make enquiries in your jurisdiction:

Office of Consumer and Business Affairs by email to: rtd@agd.sa.gov.au
or phone enquiries to: 8204 9816.

Process Following Consultation

Feedback received on the draft model provisions will be analysed by the national working
party and a consultation report will be provided to MCCA for their consideration. The model
provisions will then be revised in accordance with the directions of MCCA. Should the model
provisions be progressed at this point, each jurisdiction will then need to take formal steps to
implement the model provisions in their jurisdiction.


                                                                                                   6
                     NOT SOUTH AUSTRALIAN GOVERNMENT POLICY
                                         7
NOT SOUTH AUSTRALIAN GOVERNMENT POLICY
           Attachment 1: How the model provisions may be implemented in Australia

Jurisdiction   Current RTD    If current regulation, name Act         Proposed legislative        Additional comments                                     Contact details
               regulation?                                            vehicle for model
               Yes/no                                                 provisions
QLD            Yes            Residential Tenancies and Rooming       Residential Tenancies and   If adopted in Qld, the model provisions will be         Russell Morgan, Residential
                              Accommodation Act 2008 (RTRA Act)       Rooming Accommodation       implemented though amendments to the RTRA Act.          Tenancies Authority
                                                                      Act 2008 (RTRA Act)         Consultation in Qld is focused on amendments to this    (07) 3361 3650
                                                                                                  Act.                                                    russell.morgan@rta.qld.gov.au
ACT            Yes            Residential Tenancies Act 1997          Residential Tenancies Act   The Residential Tenancies Act 1997 is currently being   Katie Cameron, ACT Department
                                                                      1997                        reviewed by the ACT Government, including the           of Justice & Community Safety
                                                                                                  existing provisions regulating the use of RTDs.         (02) 6207 0581
                                                                                                  Comments arising from consultation on the model         katie.cameron@act.gov.au
                                                                                                  provisions will be used to inform this review.
NSW            Yes            Property, Stock and Business Agents     Not known at this time                                                              Office of Fair Trading
                              Regulation 2003                                                                                                             policy@oft.commerce.nsw.gov.au

SA             Yes, broadly   Fair Trading Act 1987                   Not known at this time      The COAG reform agenda requires the harmonisation       Office of Consumer and Business
               through Fair                                                                       of all fair trading legislation by 2011.                Affairs
               Trading                                                                                                                                    rtd@agd.sa.gov.au
               legislation
NT             Yes, broadly   Consumer Affairs and Fair Trading Act   Residential Tenancies Act   The COAG reform agenda requires the harmonisation       Sandra Otto, Consumer Affairs
               through Fair   1997                                    1999                        of all fair trading legislation by 2011.                Northern Territory
               Trading                                                                                                                                    Ph: (08) 8935 7705
               legislation                                                                                                                                Sandra.otto@nt.gov.au
VIC            No             nil                                     Residential Tenancies Act                                                           John Unkovich, Consumer Affairs
                                                                      1997                                                                                Victoria ph (03) 8684 6301
                                                                                                                                                          rtdconsult@justice.vic.gov.au
TAS            No             nil                                     Not known at this time                                                              Chris Batt, Office of the
                                                                                                                                                          Residential Tenancy
                                                                                                                                                          Commission, ph (03) 6233 4555
                                                                                                                                                          chris.batt@justice.tas.gov.au

WA             No             nil                                     Not known at this time                                                              Patricia Blake, Department of
                                                                                                                                                          Commerce, ph (08) 9282 0562
                                                                                                                                                          trish.blake@commerce.wa.gov.au




                                                                                                                                                                             8
                                                                NOT SOUTH AUSTRALIAN GOVERNMENT POLICY
Attachment 2: Summary of Residential Tenancy Databases – Model Provisions

Provision 1: Definitions

This provision sets out the definitions for terms used in the model provisions. The
definitions of the terms agent, landlord, premises, rental bond, residential premises,
residential tenancy agreement and tenant have been give the meaning of the terms
in the jurisdiction in which the provisions were drafted. However, if the model
provisions are adopted, these terms will take the meaning in the local jurisdiction.
For example, the term landlord is currently defined as lessor in the model provisions.
Therefore, if the model provisions are adopted in South Australia the term landlord
would be used. Other terms defined will have a consistent meaning across
jurisdictions.

Provision 2: Application of the model provisions

This provision provides that the model provisions do not apply to internal databases
kept by the private and government sector. However, it may be considered
appropriate for the model provisions to apply to the internal databases of large
property management companies that may have large tenancy databases.

Provision 3: Notice of database and listing (Rec 1)

This provision states that landlords/agents that use residential tenancy databases
must give specified information about the databases to applicants before or when an
application is made. In addition, if the landlord or agent uses a database to check on
the applicant, then they must give the applicant details of any listing.

Provision 4: Listing can be made only for particular breaches by particular persons
(Recs 2, 3, 4(a), 5(a) and (b))

This provision sets out the restrictions on listing a person on a residential tenancy
database.

Provision 5: Further restriction on listing (Recs 4 (b), (c), and 5(c))

This provision requires a landlord/agent to consult with a tenant about the proposed
listing before making the listing.

Provision 6: Ensuring quality of listing – landlord or agent’s obligation (Rec 6(c))

This provision requires a landlord/agent that becomes aware of an inaccurate,
incomplete, ambiguous or out-of-date listing to give notification of this to the
database operator.

Provision 7: Ensuring quality of listing – database operator’s obligation (Rec 6(d))

This provision requires a database operator who has been notified of a necessary
amendment to, or removal of, personal information to make the specified change.

Provision 8: Providing copy of personal information (Rec 6(a))

The provision requires a landlord/agent and a database operator to give a person a
copy of personal information on a residential tenancy database on request.


                                                                                        9
                 NOT SOUTH AUSTRALIAN GOVERNMENT POLICY
Provision 9: Dispute about listings (Rec 6(b))

This provision imposes an obligation on a person who disputes a listing to attempt to
resolve the matter with the landlord/agent before applying to a tribunal for an order.

Provision 10: Notifying relevant non-parties of tribunal order about listing (R6(c), (d))

This provision requires a tribunal to give a copy of any relevant orders to a person
that was not a party to the proceeding.

Provision 11: Keeping personal information (Rec 7)

The provision imposes a timeframe on keeping personal information on a residential
tenancy database. However, it allows an RTD operator to keep other personal
information about a person listed if it is not required to be removed. It is not intended
for this provision to allow neutral listings, such as the mere inclusion of a person’s
name without any further information, since such listings are generally interpreted as
negative.




                                                                                       10
                 NOT SOUTH AUSTRALIAN GOVERNMENT POLICY
Attachment 3: Consultation draft - Residential Tenancy Databases – Model
Provisions




                                                                           11
               NOT SOUTH AUSTRALIAN GOVERNMENT POLICY
                     PCC—Draft for Ministerial Council on Consumer
Consultation Draft
                     Affairs

                           General notes—
                           1   In relation to residential tenancy databases, the model
                               provisions confer minimum rights on tenants or potential
                               tenants, and impose minimum obligations and limitations on
                               lessors, agents and database operators. A jurisdiction may add
                               to the rights, obligations or limitations, including by adopting
                               a higher standard for them. For example, a jurisdiction may—
                               (a)   apply the model provisions to a database kept by an
                                     entity for its own use; or
                               (b)   further limit the types of breaches for which a person
                                     may be listed in a database; or
                               (c)   allow a person to apply for a [tribunal] order preventing
                                     a lessor or agent listing a person.
                           2   The model provisions have been prepared on the basis that a
                               person who claims that personal information should not have
                               been listed on a residential tenancy database, or that personal
                               information listed on a residential tenancy database is
                               inaccurate, incomplete, ambiguous or out of date, may apply
                               to a tribunal or another entity (called a ‘tribunal’ in the model
                               provisions) for an order for the removal or amendment of the
                               personal information or another remedy.
                               The model provisions do not otherwise prescribe the
                               consequences for a person contravening them. Each
                               jurisdiction is to prescribe the consequences that are to apply
                               in that jurisdiction. Possible consequences include—
                               (a)   a right of a person adversely affected by a contravention
                                     to apply for a [tribunal] order requiring the
                                     contravention to be remedied; and
                               (b)   a penalty for an offence.
                           3   Key concepts about residential tenancy agreements adopted in
                               the model provisions (namely agent, lessor, premises, rental
                               bond, residential premises, residential tenancy agreement and
                               tenant) are based on the terms and definitions used in
                               Queensland, as this is where the model provisions were
                               drafted. A law enacting the model provisions would use the
                               terms and definitions equivalent to these concepts applying in
                               that jurisdiction’s laws about residential tenancy agreements.
Consultation Draft

                     Residential Tenancy Databases—Model
                     Provisions

                     Contents

                                                                                                                                   Page
                     1          Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      3
                     2          Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       6
                     3          Notice of database and listing . . . . . . . . . . . . . . . . . . . . . . . . . . .                  6
                     4          Listing can be made only for particular breaches by particular
                                persons      .........................................                                                7
                     5          Further restriction on listing . . . . . . . . . . . . . . . . . . . . . . . . . . . . .              8
                     6          Ensuring quality of listing—lessor’s or agent’s obligation . . . . . . .                              9
                     7          Ensuring quality of listing—database operator’s obligation . . . . .                                 10
                     8          Providing copy of personal information listed . . . . . . . . . . . . . . . .                        10
                     9          Dispute about listing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          11
                     10         Notifying relevant non-parties of tribunal order about listing . . . .                               12
                     11         Keeping personal information listed . . . . . . . . . . . . . . . . . . . . . . .                    12
                                                 Residential Tenancy Databases—Model Provisions
Consultation Draft
                                                                                           [s 1]

                     1   Definitions
                             In these model provisions—
                             agent, of a lessor, means a person employed, or otherwise
                             authorised, by the lessor to act as the lessor’s agent.
                             database means a system, device or other thing used for
                             storing information, whether electronically or in some other
                             form.
                             database operator means an entity that operates a residential
                             tenancy database.
                             lessor—
                             (a)   means a person who gives the right to occupy residential
                                   premises under a residential tenancy agreement; and
                             (b)   includes—
                                   (i)   a person who is to give the right to occupy
                                         residential premises under a proposed residential
                                         tenancy agreement; and
                                   (ii) a personal representative, successor or assign of a
                                        person mentioned in paragraph (a) or subparagraph
                                        (i).
                             list, personal information about a person in a residential
                             tenancy database—
                             (a)   means—
                                   (i)   enter the personal information into the database; or
                                   (ii) give the personal information to a database
                                        operator or someone else for entry into the
                                        database; and
                             (b)   includes amend personal information about the person
                                   in the database to include additional personal
                                   information about the person.
                             out of date, in relation to personal information in a residential
                             tenancy database, means the information is no longer accurate
                             because—



                                                                                        Page 3
                     Residential Tenancy Databases—Model Provisions
Consultation Draft
                     [s 1]

                                   (a)   for a listing made on the basis the person owes a lessor
                                         an amount that is more than the rental bond for a
                                         residential tenancy agreement—the amount owed was
                                         paid to the lessor within 3 months after the amount
                                         became due; or
                                   (b)   for a listing made on the basis the tribunal has made an
                                         order      terminating    the     residential    tenancy
                                         agreement—the order has been revoked following a
                                         review of the making of the order.
                                         Drafting note—
                                            A jurisdiction’s law enacting paragraph (b) of this definition is to
                                            refer to the existing appeal or review process (if any) available in
                                            that jurisdiction for the making of the termination order.
                                   personal information means—
                                   (a)   an individual’s name; or
                                   (b)   information or an opinion, whether true or not, about an
                                         individual whose identity is apparent, or can reasonably
                                         be ascertained, from the information or opinion.
                                   premises include—
                                   (a)   a part of premises; and
                                   (b)   land occupied with premises; and
                                   (c)   a caravan or its site, or both the caravan and site; and
                                   (d)   a manufactured home in, or intended to be situated in, a
                                         moveable dwelling park or the home’s site, or both the
                                         manufactured home and site; and
                                   (e)   a houseboat.
                                   Drafting note—
                                     Given this definition is subject to local variations, the terms ‘caravan’,
                                     ‘manufactured home’, ‘moveable dwelling park’ and ‘site’ of a
                                     manufactured home have not been defined in these model provisions.
                                     See general note 3.
                                   rental bond, for a residential tenancy agreement—
                                   (a)   means the amount (however described)—


                     Page 4
                                         Residential Tenancy Databases—Model Provisions
Consultation Draft
                                                                                   [s 1]

                           (i)   paid by or for the tenant under the agreement,
                                 whether to the lessor under the agreement, [name
                                 of Residential Tenancies Authority] or another
                                 entity at the direction of the lessor; and
                           (ii) intended to be available for the financial protection
                                of the lessor against the tenant breaching the
                                agreement; and
                     (b)   does not include rent paid in advance.
                     residential premises means premises used, or intended to be
                     used, as a place of residence or mainly as a place of residence.
                     residential tenancy agreement means an agreement under
                     which a person gives to someone else a right to occupy
                     residential premises as a residence—
                     (a)   whether or not the right is a right of exclusive
                           occupation; and
                     (b)   whether the agreement is—
                           (i)   wholly in writing, wholly oral or wholly implied;
                                 or
                           (ii) partly in a form mentioned in subparagraph (i) and
                                partly in 1 or both of the other forms mentioned in
                                the subparagraph.
                     residential tenancy database means a database—
                     (a)   containing personal information—
                           (i)   relating to, or arising from, the occupation of
                                 residential premises under a residential tenancy
                                 agreement; or
                           (ii) entered into the database for reasons relating to, or
                                arising from, the occupation of residential
                                premises under a residential tenancy agreement;
                                and
                     (b)   used, or intended to be used, by lessors or agents of
                           lessors for checking a person’s tenancy history for
                           deciding whether a residential tenancy agreement
                           should be entered into with the person.
                                                                                Page 5
                     Residential Tenancy Databases—Model Provisions
Consultation Draft
                     [s 2]

                                    tenant means a person to whom the right to occupy residential
                                    premises under a residential tenancy agreement is given.
                                    the tribunal means the [name of tribunal or other entity
                                    empowered to deal with disputes about listings].
                                    Drafting note—
                                      See general note 2.


                     2        Application
                                    These model provisions do not apply to a residential tenancy
                                    database kept by an entity (including a department of the
                                    government of a State or Territory) for use only by that entity
                                    or its officers, employees or agents.

                     3        Notice of database and listing
                              (1)   This section applies if—
                                    (a)   a person (the applicant) applies to a lessor, whether or
                                          not through the lessor’s agent, to enter into a residential
                                          tenancy agreement; and
                                    (b)   the lessor or, if the application is made through the
                                          lessor’s agent, the lessor or agent uses a residential
                                          tenancy database for deciding whether a residential
                                          tenancy agreement should be entered into with a person.
                              (2)   The lessor or agent must, when the application is made, give
                                    the applicant written notice of the following—
                                    (a)   the residential tenancy database the lessor or agent uses
                                          for deciding whether a residential tenancy agreement
                                          should be entered into with a person;
                                    (b)   the reason the lessor or agent uses the residential
                                          tenancy database is for checking an applicant’s tenancy
                                          history;
                                    (c)   how persons may contact the database operator who
                                          operates the residential tenancy database and obtain
                                          information from the operator.


                     Page 6
                                                       Residential Tenancy Databases—Model Provisions
Consultation Draft
                                                                                                 [s 4]

                               Drafting note—
                                 See general note 2.
                         (3)   Subsection (2) applies whether or not the lessor or agent
                               intends to use the residential tenancy database for deciding
                               whether a residential tenancy agreement should be entered
                               into with the applicant.
                         (4)   However, the lessor or agent is not required to give the written
                               notice mentioned in subsection (2) if a written notice stating
                               the matters mentioned in the subsection was given to the
                               applicant not more than 7 days before the application was
                               made.
                         (5)   If the lessor or agent uses the residential tenancy database for
                               checking whether personal information about the applicant is
                               in the database, the lessor or agent must, as soon as possible
                               but within 7 days after using the database, give the applicant a
                               written notice stating—
                               (a)   whether personal information about the applicant is in
                                     the database; and
                               (b)   if personal information about the applicant is in the
                                     database—
                                     (i)   details of the information; and
                                     (ii) how and in what circumstances the applicant can
                                          have the information removed or amended under
                                          these model provisions.
                               Drafting note for subsection (4)—
                                 See general note 2.


                     4   Listing can be made only for particular breaches by
                         particular persons
                               A lessor or lessor’s agent must not list personal information
                               about a person in a residential tenancy database unless—
                               (a)   the person was named as a tenant in a residential
                                     tenancy agreement that has ended; and
                               (b)   the person has breached the agreement; and
                                                                                              Page 7
                     Residential Tenancy Databases—Model Provisions
Consultation Draft
                     [s 5]

                                    (c)   because of the breach, either—
                                          (i)   the person owes the lessor an amount that is more
                                                than the rental bond for the agreement; or
                                          (ii) the tribunal has made an order terminating the
                                               residential tenancy agreement; and
                                                Drafting note—
                                                   The reference to the tribunal in paragraph (c)(ii) is based
                                                   on the position that the entity that deals with disputes
                                                   about breaches of residential tenancy agreements is also
                                                   the entity that deals with disputes about listings. A
                                                   jurisdiction will need to make local variations to the
                                                   paragraph if the matters are not dealt with by the same
                                                   entity.
                                    (d)   the personal information—
                                          (i)   is only about the breach; and
                                          (ii) is accurate, complete and unambiguous.
                                    Drafting note—
                                      See general note 2.


                     5        Further restriction on listing
                              (1)   A lessor or lessor’s agent must not list personal information
                                    about a person in a residential tenancy database unless the
                                    lessor or agent—
                                    (a)   has—
                                          (i)   given the person a copy of the personal
                                                information; or
                                          (ii) taken other reasonable steps to disclose the
                                               personal information to the person; and
                                    (b)   has given the person a reasonable opportunity to review
                                          the personal information and make submissions—
                                          (i)   objecting to its entry into the database; or
                                          (ii) about its accuracy, completeness and clarity; and
                                    (c)   has considered any submissions made.

                     Page 8
                                                       Residential Tenancy Databases—Model Provisions
Consultation Draft
                                                                                                    [s 6]

                               Drafting note—
                                 See general note 2.
                         (2)   Subsection (1) does not apply if the lessor or lessor’s agent
                               can not locate the person after making reasonable enquiries.
                         (3)   Subsection (1)(b) and (c) do not apply to information that, at
                               the time of the listing, is publicly available.
                               Example of publicly available information—
                                 information obtained from publicly available court records


                     6   Ensuring quality of listing—lessor’s or agent’s obligation
                         (1)   This section applies if a lessor or lessor’s agent who lists
                               personal information in a residential tenancy database
                               becomes aware that the information is inaccurate, incomplete,
                               ambiguous or out of date.
                               Examples for subsection (1)—
                                 1   The lessor or lessor’s agent obtains new information, including, for
                                     example, from the person to whom the personal information relates,
                                     that shows that the personal information is inaccurate, incomplete,
                                     ambiguous or out of date.
                                 2   The lessor or lessor’s agent becomes satisfied the personal
                                     information is inaccurate, incomplete, ambiguous or out of date
                                     following the resolution of a dispute under section 9(3).
                         (2)   The lessor or agent must, within 7 days, give written notice of
                               the following to the database operator who keeps the
                               database—
                               (a)   if the information is inaccurate, incomplete, or
                                     ambiguous—
                                     (i)   that the information is inaccurate, incomplete or
                                           ambiguous; and
                                     (ii) how the information must be amended to make it
                                          accurate, complete and unambiguous;
                               (b)   if the information is out of date—that the information is
                                     out of date and must be removed.
                               Drafting note—
                                 See general note 2.

                                                                                                 Page 9
                     Residential Tenancy Databases—Model Provisions
Consultation Draft
                     [s 7]

                               (3)   The lessor or agent must keep a copy of the written notice for
                                     1 year after it was given under subsection (2).
                                     Drafting note—
                                       See general note 2.


                     7         Ensuring quality of listing—database operator’s
                               obligation
                               (1)   This section applies if a lessor or lessor’s agent who has listed
                                     personal information about a person in a tenancy database
                                     gives the database operator who operates the database a
                                     written notice stating that the personal information must be—
                                     (a)   amended in a stated way to make it accurate, complete
                                           and unambiguous; or
                                     (b)   removed.
                               (2)   The database operator must amend the personal information
                                     in the stated way, or remove the personal information, within
                                     14 days after the operator is given the written notice.
                                     Drafting note—
                                       See general note 2.


                     8         Providing copy of personal information listed
                               (1)   A lessor or lessor’s agent who lists personal information about
                                     a person in a residential tenancy database must, if asked in
                                     writing by the person, give the person a copy of the
                                     information, without payment of a fee, within 14 days after
                                     the request is made.
                                     Drafting note—
                                       See general note 2.
                               (2)   A database operator must, if asked in writing by a person
                                     whose personal information is in the residential tenancy
                                     database kept by the operator, give the person a copy of the
                                     information within 14 days after the request is made.
                                     Drafting note—
                                       See general note 2.

                     Page 10
                                                      Residential Tenancy Databases—Model Provisions
Consultation Draft
                                                                                                [s 9]

                         (3) If a database operator charges a fee for giving personal
                             information under subsection (2)—
                             (a) the fee must not be excessive; and
                             (b) subsection (2) applies only if the fee has been paid.
                         (4) Subsection (1) or (2) does not require a lessor, lessor’s agent
                             or database operator to give a person personal information if
                             the lessor, agent or operator has previously given the
                             information to the person under this section.

                     9   Dispute about listing
                         (1)   This section applies if—
                               (a)   a lessor or lessor’s agent lists personal information
                                     about a person in a residential tenancy database; and
                               (b)   the person claims that the personal information is
                                     inaccurate, incomplete, ambiguous or out of date.
                         (2)   The person must notify the lessor or agent of the person’s
                               claim.
                         (3)   If the lessor or agent disputes the claim, the lessor or agent
                               and the person must make a reasonable attempt to resolve the
                               dispute, with or without help from another person.
                               Example of another person for subsection (3)—
                                 a professional conciliator
                         (4)   Despite the [law empowering the dispute to be brought before
                               the tribunal], the person may [bring a dispute about the
                               person’s claim before the tribunal] only if—
                               (a)   the person and the lessor or agent have complied with
                                     subsection (3) and have been unsuccessful in resolving
                                     the dispute; or
                               (b)   the person has complied with subsection (2) but has
                                     been unable to comply with subsection (3) because the
                                     lessor or agent has been unwilling to comply with
                                     subsection (3); or
                               (c)   the person has been unable to comply with subsection
                                     (2) or (3) because the person has been unable, after
                                                                                            Page 11
                     Residential Tenancy Databases—Model Provisions
Consultation Draft
                     [s 10]

                                           making a reasonable attempt, to contact the lessor or
                                           agent for the purpose of complying with subsection (2)
                                           or (3).
                                     Drafting note for subsection (4)—
                                       See general note 2.


                     10        Notifying relevant non-parties of tribunal order about
                               listing
                               (1)   This section applies if—
                                     (a)   under the [law empowering the tribunal to make orders
                                           in relation to disputes about listings], the tribunal makes
                                           an order that a person must, in relation to a residential
                                           tenancy database—
                                           (i)   remove all or particular personal information about
                                                 a person; or
                                           (ii) amend personal information in a stated way; and
                                     (b)   the person against whom the order is made (the relevant
                                           person) is not a party to the proceeding for the dispute.
                                     Drafting note—
                                       See general note 2.
                               (2)   The tribunal must give a copy of the order to the relevant
                                     person.
                               (3)   The tribunal complies with subsection (2) if the tribunal
                                     orders a party to the proceeding to give a copy of the order to
                                     the relevant person.
                                     Drafting note—
                                       This section presumes that the law empowering the tribunal to make
                                       orders of a kind mentioned in subsection (1) includes a requirement to
                                       comply with the order that applies to all persons against whom it is
                                       made.


                     11        Keeping personal information listed
                               (1)   A database operator must not keep personal information in the
                                     operator’s residential tenancy database for longer than—
                     Page 12
                                                   Residential Tenancy Databases—Model Provisions
Consultation Draft
                                                                                            [s 11]

                           (a)   if the national privacy principles require the operator of
                                 the database to remove the personal information within
                                 a stated period of less than 3 years—the stated period; or
                           (b)   otherwise—3 years.
                           Drafting note—
                             See general note 2.
                     (2)   However, subsection (1) does not apply to a person’s name if
                           it is necessary to keep the name in the residential tenancy
                           database for other personal information about the person in
                           the database that is not required to be removed under
                           subsection (1) or another law.
                     (3)   This section does not limit the operation of another provision
                           of these model provisions or a provision of another law that
                           requires the removal of the personal information.
                     (4)   In this section—
                           national privacy principles means the principles stated in the
                           Privacy Act 1988 (Cwlth), schedule 3.




                                                                                         Page 13

				
DOCUMENT INFO
Shared By:
Categories:
Stats:
views:6
posted:4/25/2010
language:English
pages:26
Description: Consultation Package20104215123