2012
2012
2012-12-21
act
government
publicgeneral
act.reprint
alluncommenced
2012-10-17
2012-10-17
0
2012
none
act-2012-074
e2dc8221-103c-40bd-a9e6-be512c5155b8
fa7e497c-44b6-4ad5-889d-c940d9504985
Note—
Amending provisions are subject to automatic
repeal pursuant to sec 30C of the Interpretation
Act 1987 No 15 once the amendments have taken
effect.
An Act to provide for the registration and
regulation of certain boarding houses and the licensing and regulation of
assisted boarding houses.
Part 1Preliminary
1Name of
Act
This Act is the Boarding Houses
Act 2012.
2Commencement
This Act commences on a day or days to be
appointed by proclamation.
3Object 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.
4Definitions
(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 Director-General,
(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
Finance and Services, or
(b)
if no such position exists—the
Director-General of the Department of Finance and
Services.
council means a council within the
meaning of the Local Government Act
1993.
Director-General means the
Director-General of the Department of Family and Community
Services.
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
Department within the meaning of the Public Sector
Employment and Management Act 2002.
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.
(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”.
5Meaning 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 residential
tenancy agreement to which the Residential Parks
Act 1998 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),
(q)
premises (or premises of a kind) prescribed by
the regulations.
6Relationship 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 2Registration of boarding
houses
Division 1Introductory
7Interpretation
(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
Finance and Services.
8Meaning 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 2Provision of information about
registrable boarding houses
9Notification 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.
10Annual 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.
11Notice 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 3Register
12Commissioner 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.
13Information 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.
14Publication 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.
15Evidential 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 officer or employee of the Department of Finance
and Services 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 4Initial compliance
investigations for registered boarding houses
16Requirement 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).
17Power 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.
18Inspections 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.
19Notice 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.
20Use 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.
21Notification 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.
22Care 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.
23Recovery 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.
24Compensation
(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.
25Authority 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.
26Relationship 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 3Occupancy agreements and
principles for registrable boarding houses
Division 1Introductory
27Interpretation
(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
Finance and Services.
(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 2Occupancy
agreements
28Proprietor’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 Consumer, Trader and Tenancy Tribunal may,
however, order a proprietor to enter into a written occupancy agreement on the
application of a resident. See section 33.
29Standard 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 3Occupancy
principles
30Occupancy
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.
31Application 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 rights or powers under the occupancy agreement (including
in relation to the collection, payment, retention and repayment of money)
subject to any requirements of the occupancy
principles.
(2)
If the application of a provision of the
occupancy principles is altered by reason of regulations made for the purposes
of the provision, the provision as altered has effect for the purposes of this
section only on and from the time that the regulations
commence.
(3)
This section is taken to be a term of every
occupancy agreement (whether entered into before or after the commencement of
this section), but only on and from the day that is 3 months after the
commencement of this section.
(4)
Any term of an occupancy agreement or another
agreement is void to the extent to which it is inconsistent with the
provisions of this section.
Division 4Enforcement
32Applications to Consumer,
Trader and Tenancy Tribunal for dispute resolution
(1)
A relevant party may apply to the Consumer,
Trader and Tenancy Tribunal for the resolution of an occupancy principles
dispute.
(2)
A relevant
party is:
(a)
a resident or former resident of a registrable
boarding house (or an authorised representative of the resident or former
resident), or
(b)
a proprietor or former proprietor of a
registrable boarding house.
(3)
An occupancy
principles dispute is a dispute between relevant parties
about the application of the occupancy principles in relation to a resident or
former resident of a registrable boarding house.
(4)
The Tribunal may, on application under this
section, make one or more of the following orders:
(a)
an order that restrains any action in
contravention of the occupancy principles,
(b)
an order that requires an action in performance
of the occupancy principles,
(c)
an order for the payment of an amount of money
(including an order for the refund or repayment of some or all of an amount
paid as an occupancy fee or security deposit),
(d)
an order as to compensation,
(e)
an order that a party to the occupancy agreement
perform such work or take such other steps as the order specifies to remedy a
contravention of the occupancy principles,
(f)
an order that requires payment of part or all of
an occupancy fee to the Tribunal until the whole or part of the occupancy
agreement has been performed or any application for compensation has been
determined,
(g)
an order that requires an occupancy fee paid to
the Tribunal to be paid towards the cost of remedying a contravention of the
occupancy principles or towards the amount of any
compensation,
(h)
an order directing a proprietor,
proprietor’s agent or resident to comply with a requirement of this
Part,
(i)
an order directing a proprietor or
proprietor’s agent to give a former resident or person authorised by a
former resident access to a registrable boarding house for the purpose of
recovering goods of the former resident or fixtures that the former resident
is entitled to remove.
(5)
The Tribunal must not make an order for:
(a)
the payment of an amount that exceeds the amount
(if any) prescribed by the regulations for the purposes of this section,
or
(b)
the performance of work or the taking of steps
the cost of which is likely to or will exceed the amount (if any) prescribed
by the regulations for the purposes of this
section.
(6)
A reference in this section to the occupancy
principles is a reference to those principles as they apply under this Part in
relation to residents of registrable boarding houses under occupancy
agreements.
33Order for written occupancy
agreement
(1)
A resident of a registrable boarding house may
apply to the Consumer, Trader and Tenancy Tribunal for an order that the
proprietor of the boarding house prepare and enter into a written occupancy
agreement with the resident.
(2)
The order may:
(a)
specify the terms of the agreement,
and
(b)
specify a commencement date for the agreement
that occurred before the order was made.
(3)
The Tribunal may make an order under this section
only if it is satisfied that the proprietor and resident are subject to an
existing occupancy agreement that is not in writing or is only partly in
writing.
Part 4Assisted boarding
houses
Division 1Introductory
34Objects of
Part
(1)
The objects of this Part are:
(a)
to ensure that persons with additional needs who
reside at certain boarding premises are provided with accommodation and
support services of an appropriate standard, and
(b)
to enact provisions for this purpose that are
consistent (to the extent that is reasonably practicable) with the purposes
and principles expressed in Articles 5, 9, 12, 14, 15, 16, 19, 21, 22, 25, 26
and 28 of the United Nations
Convention on the Rights of Persons with
Disabilities.
(2)
This Part aims to achieve these objects by
creating a licensing and regulatory scheme for boarding premises that operate
as assisted boarding houses.
(3)
A court or tribunal that, or person who,
exercises any power conferred by or under this Part in relation to assisted
boarding houses must be guided in the exercise of that power by the objects
referred to in this section.
(4)
However, nothing in this section is intended to
create or confer any legally enforceable obligations, rights or
entitlements.
35Definitions
(cf YCS Act, s 3)
(1)
In this Part:
application probity check—see
section 45.
approved means approved by the
Director-General from time to time.
approved
manager means a person who has been granted a manager
approval with respect to an assisted boarding house.
authorised boarding house means an
assisted boarding house with respect to which a boarding house authorisation
is in force.
authorised operator of an authorised
boarding house means:
(a)
if the boarding house is a licensed boarding
house—the licensee, and
(b)
if an interim permit is in force with respect to
the boarding house—the interim permit holder.
boarding
house authorisation means a boarding house licence or
interim permit.
boarding
house licence—see Subdivision 2 of Division
2.
close
associate—see section 38.
competent
relative of a person means a relative of the person who
is:
(a)
18 years old or older, and
(b)
not a person with additional
needs.
compliance notice—see section
79.
interim
permit—see section 54.
interim
permit holder means a person to whom an interim permit has
been granted.
licensed
boarding house means the premises to which a boarding house
licence relates.
licensee means the holder of a
boarding house licence.
manager
approval—see section 60.
relevant
operator of premises means any of the following:
(a)
a proprietor of the premises,
(b)
the person apparently in charge of the
premises.
serious
criminal offence means any of the following offences:
(a)
murder,
(b)
a prescribed sexual offence (within the meaning
of the Criminal Procedure Act
1986),
(c)
any other assault under Part 3 of the Crimes Act 1900 for which the offender
has been sentenced to imprisonment,
and includes an offence committed outside of New South
Wales that, if it had been committed in New South Wales, would have
constituted an offence of the kind referred to in paragraph (a), (b) or
(c).
staff
member of an assisted boarding house means a person
who:
(a)
is 16 years old or older, and
(b)
provides, or is reasonably expected to provide,
care or support services to residents of the boarding house (whether as an
employee, contractor or volunteer) under the control or direction of the
authorised operator or approved manager, and
(c)
has, or is reasonably likely to have, access to
residents in need of such care or services,
and includes the approved manager of the boarding house
or any resident providing, or reasonably expected to provide, such care or
other services to other residents (whether in exchange for accommodation or
otherwise).
unauthorised boarding house means an
assisted boarding house for which there is no boarding house authorisation in
force.
unincorporated body means a
partnership or other unincorporated association of
persons.
(2)
Any matter approved (or any revocation or
amendment of an approved matter) by the Director-General for the purposes of a
provision of this Part (other than Subdivision 4 of Division 2) that
authorises the Director-General to approve the matter does not have effect
until it is published on the website of the Department of Family and Community
Services.
36Meaning of “person with
additional needs”
(1)
For the purposes of this Act, a person is a
person
with additional needs if:
(a)
the person has any one or more of the following
conditions:
(i)
an age related frailty,
(ii)
a mental illness within the meaning of the
Mental Health Act
2007,
(iii)
a disability (however arising and whether or not
of a chronic episodic nature) that is attributable to an intellectual,
psychiatric, sensory, physical or like impairment or to a combination of such
impairments, and
(b)
the condition is permanent or likely to be
permanent, and
(c)
the condition results in the need for care or
support services (whether or not of an ongoing nature) involving assistance
with, or supervision of, daily tasks and personal care such as (but not
limited to) showering or bathing, the preparation of meals and the management
of medication.
(2)
The regulations may make provision for or with
respect to matters and circumstances that may be used to establish or as
evidence that an individual is a person with additional
needs.
37Meaning of “an assisted
boarding house”
(cf YCS Act, s 3)
(1)
For the purposes of this Act, an
assisted boarding house means any of the following:
(a)
boarding premises that provide beds, for a fee or
reward, for use by 2 or more residents who are persons with additional needs
(not counting any persons with additional needs who reside there with their
competent relatives),
(b)
boarding premises that are declared to be an
assisted boarding house by a notice in force under section
39.
(2)
However, an assisted
boarding house does not include any of the following:
(a)
premises that are used as a hotel, motel or bed
and breakfast accommodation,
(b)
premises that are used as a backpackers
hostel,
(c)
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),
(d)
premises that are used to provide accommodation
for workers or employees in connection with their work or
employment,
(e)
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,
(f)
a private health facility licensed under the
Private Health Facilities Act
2007,
(g)
a nursing home within the meaning of the Public Health Act
2010,
(h)
a mental health facility within the meaning of
the Mental Health Act
2007,
(i)
a public hospital within the meaning of the
Health Services Act
1997,
(j)
a residential care facility under the Aged Care Act
1997 of the Commonwealth operated by an approved provider
under that Act,
(k)
a retirement village under the Retirement Villages Act
1999,
(l)
premises that are the subject of a residential
tenancy agreement to which the Residential Parks
Act 1998 applies,
(m)
premises that are the subject of an occupation
agreement to which the Holiday Parks (Long-term Casual
Occupation) Act 2002 applies,
(n)
social housing premises within the meaning of
Part 7 of the Residential Tenancies Act
2010,
(o)
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),
(p)
premises or a part of premises that are exempted
from the operation of this Part by an exemption notice in force under section
40,
(q)
premises (or premises of a kind) prescribed by
the regulations.
38Meaning of “close
associate”
(1)
For the purposes of this Part, a person is a
close
associate of an applicant for an authorisation, approval or
exemption under this Part or an authorised operator if the person:
(a)
holds or will hold any relevant financial
interest, or is or will be entitled to exercise any relevant power (whether in
the person’s own right or on behalf of any other person), in the
business of the applicant or operator that is or will be carried on under the
authority of the authorisation, approval or exemption, and by virtue of that
interest or power is or will be able (in the opinion of the Director-General)
to exercise a significant influence over or with respect to the management or
operation of that business, or
(b)
holds or will hold any relevant position, whether
in the person’s own right or on behalf of any other person, in the
business of the applicant or operator that is or will be carried on under the
authority of the authorisation, approval or
exemption.
(2)
For the purposes of this section, a financial
institution is not a close associate by reason only of having a relevant
financial interest in relation to a business.
(3)
The provisions of this section extend to relevant
financial interests and relevant powers even if those interests and powers are
not payable, exercisable or otherwise enforceable as a matter of law or
equity, but are nevertheless payable, exercisable or otherwise enforceable as
a matter of fact.
(4)
In this section:
relevant
financial interest, in relation to a business, means:
(a)
any share in the capital of the business,
or
(b)
any entitlement to receive any income derived
from the business, or to receive any other financial benefit or financial
advantage from the carrying on of the business, whether the entitlement arises
at law or in equity or otherwise, or
(c)
any entitlement to receive any rent, profit or
other income in connection with the use or occupation of premises on which the
business is or is to be carried on (such as, for example, an entitlement of
the owner of the premises at which the business is carried on to receive rent
as lessor of the premises).
relevant
position means:
(a)
the position of director, manager or secretary,
or
(b)
any other position, however designated, if it is
an executive position.
relevant
power means any power, whether exercisable by voting or
otherwise and whether exercisable alone or in association with others:
(a)
to participate in any directorial, managerial or
executive decision, or
(b)
to elect or appoint any person to any relevant
position.
39Declaration of assisted
boarding houses
(cf YCS Act, s 3A (1))
(1)
The Director-General may, by notice served on the
relevant operator of boarding premises, declare those premises to be an
assisted boarding house if the Director-General is satisfied that:
(a)
the premises provide beds for use by 2 or more
residents who are persons with additional needs (not counting any persons with
additional needs who reside there with their competent relatives),
and
(b)
the premises are not excluded from the definition
of assisted
boarding house by section 37 (2), and
(c)
the making of the declaration is necessary to
ensure the wellbeing of the residents of the
premises.
(2)
The Director-General may declare boarding
premises to be an assisted boarding house under this section even though some
or all of the residents are being provided with beds without fee or
reward.
40Director-General may exempt
premises and persons
(cf YCS Act, ss 3B and 23)
(1)
The Director-General may, by notice (an exemption notice), grant any of the
following:
(a)
an exemption for specified premises, or a
specified part of premises, from the operation of:
(i)
this Part (including the regulations for this
Part), or
(ii)
specified provisions of this Part or the
regulations for this Part,
(b)
an exemption for a specified person from the
operation of:
(i)
specified provisions of this Part or the
regulations for this Part, or
(ii)
a condition of a boarding house authorisation or
manager approval.
(2)
An exemption notice is to be served:
(a)
in the case of an exemption for premises—on
the relevant operator of the premises, and
(b)
in the case of an exemption for a person—on
the person to whom the exemption is being given.
(3)
An exemption:
(a)
may be given unconditionally or subject to such
terms and conditions as may be specified in the exemption notice,
and
(b)
must specify a period for its duration (being a
period not exceeding 12 months).
(4)
Without limiting subsection (3) (a), the terms
and conditions that an exemption notice for premises, or a part of premises,
may specify include terms and conditions for or with respect to any of the
following:
(a)
standards to be observed and facilities to be
provided in connection with the health, safety and wellbeing of persons with
additional needs residing at the premises (including, but not limited to,
standards of the kind referred to in section 43 (4)),
(b)
the carrying out of inspections and
investigations in relation to the premises and its residents and staff
(including, but not limited to, inspections and investigations of the kind
required or permitted to be carried out in relation to authorised boarding
houses under this or any other Act),
(c)
any other conditions that are or may be imposed
by or under this Act on a boarding house authorisation for an authorised
boarding house.
(5)
If an exemption is subject to terms and
conditions, the exemption operates only while the terms and conditions are not
being contravened.
(6)
If the Director-General intends to revoke an
exemption granted under subsection (1) (b), the Director-General must serve a
notice on the person to whom the exemption was granted stating that, when 28
days have expired after service of the notice, the Director-General intends to
revoke the exemption on the grounds specified in the notice unless it has been
established to the Director-General’s satisfaction that the exemption
should not be revoked.
(7)
When 28 days have expired after a notice has been
served on a person under subsection (6), the Director-General may, after
considering any submissions made to the Director-General during that period by
the person on whom the notice was served, revoke the exemption by a further
notice served on that person.
(8)
If premises are exempted from the operation of
Subdivision 1 of Division 2 (whether under this section or by or under the
regulations for this Part), the premises are taken not to be a regulated
assisted boarding house for the purposes of this Act.
Note—
The premises may nevertheless be a general
boarding house.
Division 2Authorisation of assisted
boarding houses
Subdivision 1Requirement for assisted
boarding houses to be authorised
41Assisted boarding houses to be
authorised
(cf YCS Act, ss 21 (2) and (4) and 22 (1) and
(4))
(1)
A proprietor of boarding premises must not use
(or permit the use of) the premises as an assisted boarding house unless the
premises are used in accordance with the authority conferred by a boarding
house authorisation for the premises.
Maximum penalty:
(a)
in the case of a corporation—120 penalty
units and in addition, for a continuing offence, 20 penalty units for each day
the offence continues, and
(b)
in any other case—60 penalty units and in
addition, for a continuing offence, 10 penalty units for each day the offence
continues.
(2)
A person must not act as the manager of boarding
premises that are being used as an assisted boarding house unless the person
is an individual who is:
(a)
an authorised operator of the boarding house,
or
(b)
an approved manager of the boarding house
appointed by the authorised operator of the boarding
house.
Maximum penalty:
(a)
in the case of a corporation—120 penalty
units and in addition, for a continuing offence, 20 penalty units for each day
the offence continues, and
(b)
in any other case—60 penalty units and in
addition, for a continuing offence, 10 penalty units for each day the offence
continues.
(3)
It is a defence in proceedings for an offence
against subsection (1) if the proprietor satisfies the court that the
proprietor did not know, and could not reasonably have been expected to know,
that the premises were being used as an assisted boarding house otherwise than
in accordance with the authority conferred by a boarding house
authorisation.
42Authority granted by boarding
house licence and interim permits
(cf YCS Act, ss 15, 16, 19 (2) (d), 21 (3) and (4)
and 22)
(1)
The following kinds of licences and permits may
be granted and held under this Act:
(a)
a boarding house licence,
(b)
an interim permit.
(2)
A boarding house licence authorises the licensee
to use the premises specified in the licence as an assisted boarding house in
accordance with this Act and the conditions of the
licence.
(3)
An interim permit authorises the interim permit
holder to use the premises specified in the permit as an assisted boarding
house in accordance with this Act and the conditions of the
permit.
(4)
The authorisation conferred by a boarding house
authorisation is subject to this Act and the
regulations.
43Authorisation
conditions—general provisions
(1)
A boarding house authorisation is subject to the
following conditions:
(a)
any condition imposed on the authorisation by
this Act or prescribed by the regulations,
(b)
any condition imposed on the authorisation by the
Director-General under this Act.
(2)
The Director-General may impose conditions on a
boarding house authorisation:
(a)
at the time of the grant of the authorisation,
or
(b)
subsequent to the grant of the authorisation by
variation of the authorisation.
(3)
The Director-General may impose or vary
conditions on a boarding house authorisation for such reasons, and in such
circumstances, as the Director-General considers appropriate or
necessary.
(4)
Without limiting subsections (1) and (3), the
conditions prescribed by the regulations or imposed by the Director-General
may include conditions relating to any or both of the following:
(a)
standards for services provided to residents
(including, but not limited to, standards concerning the physical and mental
welfare, education, social activities, personal protection and meals of
residents),
(b)
standards for accommodation provided to residents
(including, but not limited to, standards concerning bedrooms, bathrooms and
other rooms that are occupied or used by
residents).
(5)
An authorised operator of an assisted boarding
house must not contravene a condition of the boarding house authorisation for
the boarding house.
Maximum penalty:
(a)
in the case of a corporation—40 penalty
units and in addition, for a continuing offence, 10 penalty units for each day
the offence continues, and
(b)
in any other case—20 penalty units and in
addition, for a continuing offence, 5 penalty units for each day the offence
continues.
Subdivision 2Boarding house
licences
44Licence
applications
(cf YCS Act, s 11 (1))
(1)
An application for a boarding house licence is to
be made to the Director-General.
(2)
An application may be made:
(a)
if the proprietor (or proposed proprietor) of the
premises concerned is a natural person, a corporation or a body
politic—by the person, corporation or body politic,
or
(b)
if the proprietor (or proposed proprietor) of the
premises concerned is a trustee—by the trustee, or
(c)
if the proprietors (or proposed proprietors) of
the premises concerned are the members of an unincorporated body—by any
of those members authorised by the members to make the application on their
behalf.
(3)
A person is a proposed
proprietor of premises for the purposes of subsection (2) if
the person is seeking to become a proprietor of the premises in order to use
them as an assisted boarding house.
(4)
An application for a licence:
(a)
must be in the approved form and contain such
particulars and other information as may be approved, and
(b)
may specify only one proposed
licensee.
Note—
Section 60 (3) provides that an application for a
manager approval may, with the consent of the person seeking the approval, be
made on the person’s behalf as part of an application for a boarding
house licence.
45Investigations and inquiries
in relation to licence applications
(cf YCS Act, s 11 (2))
(1)
If the Director-General receives an application
for a boarding house licence, the Director-General may carry out such
investigations and inquiries in relation to the application as the
Director-General considers necessary for a proper consideration of the
application.
(2)
Without limiting subsection (1), the
Director-General is to conduct (or to arrange for the conduct of) the
following checks (an application probity check) before an
application for a licence is determined:
(a)
criminal record checks of the applicant, a
proposed approved manager and any proposed staff members of the proposed
licensed boarding house,
(b)
if the applicant is not a natural
person—criminal record checks of any person involved in the control or
management of the applicant (such as a chief executive officer, director or
majority shareholder of a corporation),
(c)
if the applicant makes the application on behalf
of an unincorporated body—criminal record checks of any partner or
member of the management committee or other office holder of the
body,
(d)
a criminal record check of any other close
associate of the applicant that may be required by the
Director-General,
(e)
a check of the financial capacity of the
applicant and the applicant’s close associates to operate the proposed
assisted boarding house,
(f)
such other checks as may be prescribed by the
regulations.
(3)
The Director-General may require an applicant to
conduct any of the application probity checks and provide the results of those
checks to the Director-General either when the application is made or at a
specified time before the application is determined.
(4)
If a criminal record check in relation to a
person cannot be conducted or is unavailable (whether at all or in relation to
a particular period), the Director-General may require the person concerned to
provide the Director-General with a statutory declaration in the approved form
regarding the person’s criminal record.
Note—
For example, a criminal record check may not be
able to be conducted in relation to a period of time during which the person
concerned resided overseas.
(5)
The Director-General may refuse to determine an
application for a licence if a requirement made by the Director-General under
this section is not complied with.
46Decision of Director-General
in relation to licence application
(cf YCS Act, s 12)
(1)
The Director-General may, after considering an
application for a boarding house licence (including any application probity
checks or other matters required by the regulations), grant the licence or
refuse to grant the licence.
(2)
Without limiting subsection (1), the
Director-General may refuse to grant a boarding house licence if the
Director-General is of the opinion that:
(a)
a person proposed as the licensee, an individual
proposed as the approved manager or any close associate of the applicant is
not a suitable person to be involved in the management or operation of an
assisted boarding house, or
(b)
the applicant does not have (or is unlikely to
have) the financial capacity to operate the proposed licensed boarding
house.
(3)
The Director-General must refuse to grant a
boarding house licence if the Director-General is of the opinion that (based
on information obtained from application probity checks) any of the following
persons has been convicted of a serious criminal offence:
(a)
the applicant,
(b)
an individual proposed as the approved
manager,
(c)
a proposed staff member,
(d)
if the applicant is not a natural
person—any person involved in the control or management of the applicant
(such as a chief executive officer, director or majority shareholder of a
corporation),
(e)
if the applicant makes the application on behalf
of an unincorporated body—any partner or member of the management
committee or other office holder of the body,
(f)
any other close associate of the applicant in
respect of whom an application probity check has been required by the
Director-General.
(4)
The regulations may also specify mandatory or
discretionary grounds for refusing the granting of a
licence.
(5)
As soon as practicable after the Director-General
determines an application, the Director-General must serve the applicant with
a notice stating whether the licence has been granted and, if it has been
refused, the reasons for the refusal.
47Variation of
licence
(cf YCS Act, s 17)
(1)
The Director-General may, by notice served on the
licensee, vary a boarding house licence (including any conditions of the
licence imposed by the Director-General).
(2)
A variation includes the imposition of new
conditions on a licence, the substitution of a condition, or the omission or
amendment of a condition.
48Appointment of substitute
licensee
(1)
The Director-General may, on the
Director-General’s own initiative or on the application of the licensee
or person concerned, vary a boarding house licence to appoint a person as
licensee under the licence in place of the existing
licensee.
(2)
Any such variation may be made only:
(a)
if the licence was granted to authorise the use
of an assisted boarding house by a person for or on behalf of an
unincorporated body or trust and, as a result of a change in circumstances, it
is no longer appropriate for the person to be the licensee for or on behalf of
that body or trust, or
(b)
if the existing licensee has died,
or
(c)
if the existing licensee is a corporation that is
an externally administered body corporate within the meaning of the Corporations
Act 2001 of the Commonwealth, or
(d)
in any other circumstances prescribed by the
regulations.
(3)
A person appointed by the Director-General as
licensee is taken to be the licensee under the licence for the period (if any)
specified by the Director-General in the appointment.
49Suspension or cancellation of
licences
(cf YCS Act, s 18)
(1)
The Director-General may, by notice served on the
licensee, suspend or cancel a boarding house licence:
(a)
if the Director-General is of the opinion that
the licensee or any close associate of the licensee is no longer a suitable
person to be involved in the management or operation of the licensed boarding
house, or
(b)
if the Director-General is of the opinion that
the continued use of the assisted boarding house under the licence would
constitute an unacceptable risk to the safety, welfare or wellbeing of any
person with additional needs or other persons residing at the premises,
or
(c)
if the Director-General is of the opinion that
the licensee has contravened any provision of this Act or the regulations
(whether or not the licensee has been convicted of an offence for the
contravention), or
(d)
if the Director-General is of the opinion that a
condition of the licence has been contravened, or
(e)
on any other grounds specified in the
regulations.
(2)
The notice served on the licensee must state the
reasons why the licence is being suspended or cancelled and, in the case of a
suspension, the period during which the licence is suspended (being a period
of no more than 6 months).
(3)
The Director-General may, by the same notice,
suspend the licence and provide for the cancellation of the licence at the end
of the suspension period unless specified conditions are met during the
suspension period.
(4)
A licensee whose licence is cancelled must
surrender the licence to the Director-General within 28 days after the licence
is cancelled.
Maximum penalty (subsection (4)): 20 penalty
units.
50Surrender of
licence
(1)
A licensee may, by notice in the approved form
given to the Director-General and accompanied by the boarding house licence,
voluntarily surrender the licence.
(2)
If a licensed boarding house ceases to be used as
(or to be) an assisted boarding house, the licensee must surrender the
boarding house licence to the Director-General within 28 days after the
cessation.
Maximum penalty: 20 penalty
units.
(3)
The surrender of a licence under this section
takes effect 28 days after the licence is returned to the Director-General,
unless the Director-General serves the licensee with a notice specifying an
earlier date for the surrender to take effect or the licence is sooner
cancelled or otherwise ceases to be in force.
Note—
An interim permit may be granted in relation to a
licensed boarding house if its licence is surrendered so as to enable it to
continue to function on a short term basis. See section 54 (3)
(c).
51Duration of
licence
(1)
A boarding house licence may be granted for a
fixed term or for no fixed term.
(2)
If a boarding house licence is granted for a
fixed term, the licence remains in force for the term specified in the
licence, unless sooner surrendered or cancelled or it otherwise ceases to be
in force.
(3)
If a boarding house licence is granted for no
fixed term, it remains in force until it is surrendered or cancelled or it
otherwise ceases to be in force.
(4)
In any case, a boarding house licence is taken
not to be in force for the purposes of this Act during any period in which it
is suspended.
(5)
If the licensee under a boarding house licence
dies, the licence is taken to be suspended for the period of 28 days after the
death or such further period as the Director-General may allow.
Note—
See section 48 concerning the variation of a
licence to substitute a new licensee and section 54 concerning the issuing of
interim permits.
52Form of
licence
(cf YCS Act, s 13)
(1)
A boarding house licence is to be in the approved
form.
(2)
Without limiting subsection (1), a boarding house
licence is to specify:
(a)
the person to whom the licence is granted,
and
(b)
the term (if any) for which it is
granted.
53Display of
licence
(cf YCS Act, s 21 (5))
The licensee of a licensed boarding house must
ensure that a copy of the boarding house licence is displayed in a conspicuous
position at the boarding house.
Maximum penalty:
(a)
in the case of a corporation—10 penalty
units, and
(b)
in any other case—5 penalty
units.
Subdivision 3Interim
permits
54When interim permits may be
granted
(cf YCS Act, ss 18 (1) and (2) and
20)
(1)
The Director-General may, on the
Director-General’s own initiative or on the application of the person
concerned, grant a permit (an interim
permit) to a person to use or continue to use specified
boarding premises as an assisted boarding house on a short-term
basis.
(2)
An application for an interim permit is to be
made in the approved form and contain such particulars and other information
as may be approved.
(3)
An interim permit may be granted as
follows:
(a)
to an applicant for a boarding house licence for
the premises concerned pending the final determination by the Director-General
as to whether the licence should be granted,
(b)
to a person seeking appointment by the
Director-General as the replacement licensee under a boarding house licence
for the premises concerned where the licence was suspended because of the
death of the previous licensee, pending the final determination by the
Director-General as to whether the person should be so
appointed,
(c)
to a person (including a former licensee) that
the Director-General considers suitable so as to enable the premises concerned
to continue to be used as an assisted boarding house despite the surrender,
suspension or cancellation of the boarding house licence for the
premises,
(d)
to a person that the Director-General considers
suitable to enable an assisted boarding house to continue to be operated
during the absence of the licensee for the boarding house (whether because of
illness or otherwise),
(e)
to a person in such other circumstances as may be
prescribed by the regulations.
(4)
If a boarding house licence for an assisted
boarding house is in force when an interim permit is granted for the boarding
house, the licence is taken to be suspended while the interim permit remains
in force for the boarding house.
(5)
As soon as practicable after the Director-General
determines an application, the Director-General must serve the applicant with
a notice stating whether the permit has been granted and, if it has been
refused, the reasons for the refusal.
(6)
An interim permit is to be in the approved
form.
55Duration of interim
permit
(cf YCS Act, s 19 (3))
(1)
An interim permit remains in force for the period
specified in the permit, unless:
(a)
sooner revoked or it otherwise ceases to be in
force, or
(b)
the period is extended under subsection
(3).
(2)
The maximum period that may be specified for the
duration of an interim permit is:
(a)
in the case of a permit granted to an applicant
for a boarding house licence or an applicant seeking appointment by the
Director-General as the replacement licensee under a boarding house licence
for the premises concerned—3 months, or
(b)
in any other case—6
months.
(3)
The Director-General may from time to time, by
notice served on the interim permit holder, extend the period during which an
interim permit (other than a permit of the kind referred to in subsection (2)
(a)) remains in force by a period specified in the notice (not exceeding 6
months each time), but not so that the permit remains in force for a total
period of more than 2 years.
56Variation of interim
permit
(1)
The Director-General may, by notice served on the
interim permit holder, vary an interim permit (including any conditions of the
permit imposed by the Director-General).
(2)
A variation includes the imposition of new
conditions on a permit, the substitution of a condition, or the omission or
amendment of a condition.
57Revocation of interim
permit
(cf YCS Act, s 19 (4))
(1)
The Director-General may, by notice served on the
interim permit holder, revoke an interim permit:
(a)
if the Director-General is of the opinion that a
condition of the permit has been contravened, or
(b)
on any other ground that the Director-General
considers sufficient.
(2)
The notice served on the interim permit holder
must state the reasons why the permit is being revoked.
(3)
An interim permit holder whose interim permit is
revoked must surrender the permit to the Director-General within 28 days after
the permit is revoked.
Maximum penalty (subsection (3)):
(a)
in the case of a corporation—40 penalty
units, and
(b)
in any other case—20 penalty
units.
58Surrender of interim
permit
(1)
An interim permit holder may, by notice in the
approved form given to the Director-General and accompanied by the interim
permit, voluntarily surrender the permit.
(2)
If the premises to which an interim permit
relates cease to be used as (or to be) an assisted boarding house, the interim
permit holder must surrender the interim permit to the Director-General within
28 days after the cessation.
Maximum penalty: 20 penalty
units.
(3)
The surrender of an interim permit under this
section takes effect 28 days after the permit is returned to the
Director-General, unless the Director-General serves the interim permit holder
with a notice specifying an earlier date for the surrender to take effect or
the permit is sooner revoked or otherwise ceases to be in
force.
Subdivision 4Approval of managers of
assisted boarding houses
59Assisted boarding house to be
managed by approved manager in certain cases
(1)
It is a condition of a boarding house
authorisation that the authorised operator must ensure that at least one
approved manager is appointed by the operator to act as the manager of the
assisted boarding house to which the authorisation relates if:
(a)
the operator is a corporation, body politic or
trustee or holds the authorisation on behalf of an unincorporated body,
or
(b)
the operator is an individual who is not acting
(or does not intend to act) as the manager of the boarding
house.
(2)
The person appointed must be a person authorised
by his or her manager approval to act as the manager of the assisted boarding
house.
60Manager
approvals
(cf YCS Act, s 14 (1))
(1)
The Director-General may, on application made by
or on behalf of a person, grant an approval (a manager approval) that authorises
the person to act as the manager of a specified assisted boarding
house.
(2)
An application for a manager approval is to be
made in the approved form and contain such particulars and other information
as may be approved.
(3)
Without limiting subsection (1), an application
for a manager approval may, with the consent of the person seeking the
approval, be made on the person’s behalf as part of an application for a
boarding house authorisation.
(4)
A manager approval is to be in the approved
form.
61Decision of Director-General
in relation to applications for manager approval
(cf YCS Act, s 14 (2))
(1)
The Director-General may, after considering an
application for a manager approval (including any probity checks or other
matters required by the regulations), grant the approval or refuse to grant
the approval.
(2)
Without limiting subsection (1), the
Director-General may refuse to grant a manager approval:
(a)
if the Director-General is of the opinion that
the applicant is not a suitable person to be involved in the management of an
assisted boarding house, or
(b)
on any other grounds prescribed by the
regulations.
(3)
As soon as practicable after the Director-General
determines an application, the Director-General must serve the applicant with
a notice stating whether the approval has been granted and, if it has been
refused, the reasons for the refusal.
62Duration of
approval
(1)
A manager approval may be granted for a fixed
term or for no fixed term.
(2)
If a manager approval is granted for a fixed
term, the approval remains in force for the term specified in the approval,
unless sooner surrendered or revoked or it otherwise ceases to be in
force.
(3)
If a manager approval is granted for no fixed
term, the approval remains in force until it is surrendered or revoked or it
otherwise ceases to be in force.
(4)
In any case, a manager approval is taken not to
be in force for the purposes of this Act during any period in which it is
suspended.
(5)
An approved manager may, by notice in the
approved form given to the Director-General and accompanied by the manager
approval, voluntarily surrender the approval. Any such surrender takes effect
on the day on which the notice is given to the
Director-General.
63Conditions of
approvals
(1)
A manager approval is subject to the following
conditions:
(a)
any conditions imposed by this Act or prescribed
by the regulations,
(b)
any conditions imposed by the Director-General
under this Act.
(2)
The Director-General may impose conditions on an
approval:
(a)
at the time of the grant of the approval,
or
(b)
subsequent to the grant of the approval by
variation of the approval.
(3)
The Director-General may impose or vary
conditions on an approval for such reasons, and in such circumstances, as the
Director-General considers appropriate or necessary.
(4)
A person who is an approved manager must not
contravene a condition of the person’s manager approval.
Maximum penalty: 20 penalty units and in
addition, for a continuing offence, 5 penalty units for each day the offence
continues.
64Variation of
approval
(1)
The Director-General may, by notice served on the
approved manager, vary a manager approval (including any conditions of the
approval imposed by the Director-General).
(2)
A variation includes the imposition of new
conditions on an approval, the substitution of a condition, or the omission or
amendment of a condition.
65Suspension or revocation of
approval
(1)
The Director-General may, by notice served on the
approved manager, suspend or revoke a manager approval:
(a)
if the Director-General is of the opinion that
the approved manager is no longer a suitable person to be involved in the
management of an assisted boarding house, or
(b)
if the Director-General is of the opinion that
the approved manager has contravened any provision of this Act or the
regulations (whether or not the approved manager has been convicted of an
offence for the contravention), or
(c)
if the Director-General is of the opinion that a
condition of the manager approval has been contravened, or
(d)
on any other grounds prescribed by the
regulations.
(2)
The notice served on the approved manager must
state the reasons why the manager approval is being suspended or revoked and,
in the case of a suspension, the period during which the approval is suspended
(being a period of no more than 6 months).
(3)
The Director-General may, by the same notice,
suspend the approval and provide for the revocation of the approval at the end
of the suspension period unless specified conditions are met during the
suspension period.
(4)
An approved manager whose manager approval is
revoked must surrender the approval to the Director-General within 28 days
after the approval is revoked.
Maximum penalty (subsection (4)): 20 penalty
units.
Division 3Compliance and
enforcement
Subdivision 1Enforcement
officers
66Appointment of enforcement
officers
(cf YCS Act, s 25 (1))
(1)
The Director-General may appoint persons as
enforcement officers for the purposes of this Part.
(2)
A person is eligible for appointment as an
enforcement officer only if the person is a member of staff of the Department
of Family and Community Services.
67Identification
card
(1)
The Director-General is to issue each enforcement
officer with an identification card as an enforcement
officer.
(2)
An identification card is to be in the approved
form.
(3)
A person who has been issued with an
identification card must return it to the Director-General on
demand.
Maximum penalty: 10 penalty
units.
(4)
An enforcement officer must produce his or her
identification card for inspection on request when exercising the functions of
an enforcement officer.
68Obstruction of enforcement
officer
(cf YCS Act, s 25 (6))
(1)
A person must not, without reasonable
excuse:
(a)
hinder or obstruct an enforcement officer in the
exercise of a function under this Part, or
(b)
fail to comply with any requirement made by an
enforcement officer under this Part.
Maximum penalty:
(a)
in the case of a corporation—100 penalty
units, and
(b)
in any other case—50 penalty
units.
(2)
A person is not guilty of an offence against this
section unless it is established that, if requested to do so at the material
time, the enforcement officer produced for inspection the enforcement
officer’s identification card issued under this
Subdivision.
(3)
A person is not guilty of an offence of failing
to comply with a requirement made by an enforcement officer under this Part
unless the person was warned on that occasion that a failure to comply with
the requirement may constitute an offence.
Subdivision 2Investigation
powers
69Definition—person
involved in management of authorised boarding house
In this Subdivision, a person
involved in the management of an authorised boarding house
means:
(a)
a person who is (or was formerly) an authorised
operator of the boarding house, or
(b)
a person who is (or was formerly) an approved
manager of the boarding house, or
(c)
a person who is (or was formerly) a staff member
of an authorised operator or otherwise engaged to provide or assist in
providing services at the boarding house, or
(d)
if the authorised operator (or former authorised
operator) of the boarding house was a corporation or body politic—a
person who is (or was formerly) involved in the control or management of the
authorised operator (such as a director, chief executive officer or majority
shareholder), or
(e)
a person who is (or was formerly) a partner, or a
member of a management committee or other office holder of, an unincorporated
body involved in the management or operation of the boarding house,
or
(f)
a person who is, or was formerly, a trustee of a
trust involved in the management or operation of the boarding house,
or
(g)
any other person (or a person belonging to a
class) prescribed by the regulations.
70Power to require provision of
documents
(1)
The Director-General may, by notice served on a
person involved in the management of an authorised boarding house, require the
person to provide to the Director-General such relevant documents as the
Director-General specifies in the notice.
(2)
The following documents are relevant documents:
(a)
any record that a person is required to keep by
or under this Part (including under the regulations for this
Part),
(b)
such other documents as the Director-General
reasonably requires for the purposes of the administration or enforcement of
this Part.
(3)
A notice under this section must specify the
manner in which the documents are required to be provided and a reasonable
time by which the documents are required to be provided.
(4)
A notice under this section may only require a
person to provide existing documents that are in the person’s possession
or that are within the person’s power to obtain
lawfully.
(5)
If any document required to be provided under
this section is in electronic, mechanical or other form, the notice requires
the document to be provided in written form, unless the notice otherwise
provides.
(6)
If any document required to be provided under
this section is not in the English language, the notice is taken to require a
written translation of its content to be provided with the document, unless
the notice otherwise provides.
(7)
The Director-General may take copies of any
documents provided under this section.
(8)
If the Director-General has reason to believe
that any documents provided under this section are evidence of an offence
against this Part or the regulations for this Part, the Director-General may
retain the documents until proceedings for the offence have been heard and
determined.
71Power to require answers to
questions
(1)
The Director-General may, by notice served on a
person involved in the management of an authorised boarding house, require the
person to answer questions about any matters in respect of which information
is required for the administration or enforcement of this
Part.
(2)
The Director-General may, by notice, require a
corporation to nominate, in writing within the time specified in the notice, a
director or officer of the corporation to be the corporation’s
representative for the purpose of answering questions under this
section.
(3)
Answers given by a person nominated by the
corporation are taken to have been given by the
corporation.
(4)
The Director-General may, by notice, require a
person to attend at a specified place and time to answer questions under this
section if attendance at that place is reasonably required in order that the
questions can be properly put and answered.
(5)
The place and time at which a person may be
required to attend to answer questions under this section is to be:
(a)
a place or time nominated by the person,
or
(b)
if the place or time nominated is not reasonable
in the circumstances or a place or time is not nominated by the person, a
place and time nominated by the Director-General that is reasonable in the
circumstances.
(6)
In this section, a reference to a corporation
includes a reference to a body politic.
72Functions may be exercised
outside this State
(1)
A notice may be given under this Subdivision to a
person involved in the management of an authorised boarding house even though
the person is outside the State, as long as the activities concerned are or
were carried out in this State.
(2)
The Director-General, or a delegate of the
Director-General, may attend at a place outside this State for the purpose of
obtaining answers to questions asked of a person under this
Subdivision.
73Failure to comply with
requirement to provide documents or information or answer
questions
A person who, without reasonable excuse, fails to
comply with a requirement made of the person under this Subdivision is guilty
of an offence.
Maximum penalty:
(a)
in the case of a corporation—40 penalty
units and in addition, for a continuing offence, 10 penalty units for each day
the offence continues, and
(b)
in any other case—20 penalty units and in
addition, for a continuing offence, 5 penalty units for each day the offence
continues.
74Provisions relating to
requirements to provide documents or information or answer
questions
(1)Warning to be given on each
occasion
A person is not guilty of an offence of failing
to comply with a requirement under this Subdivision to provide documents or
information or to answer a question unless the person was warned on that
occasion that a failure to comply is an offence.
(2)Self-incrimination not an
excuse
A person is not excused from a requirement under
this Subdivision to provide documents or information or to answer a question
on the ground that the document, information or answer might incriminate the
person or make the person liable to a penalty.
(3)Information or answer not
admissible if objection made
However, any information provided or answer given
by a natural person in compliance with a requirement under this Subdivision is
not admissible in evidence against the person in criminal proceedings (except
proceedings for an offence against this Subdivision or section 95) if:
(a)
the person objected at the time to doing so on
the ground that it might incriminate the person, or
(b)
the person was not warned on that occasion that
the person may object to providing the information or giving the answer on the
ground that it might incriminate the person.
(4)Documents
admissible
Any document provided by a person in compliance
with a requirement under this Subdivision is not inadmissible in evidence
against the person in criminal proceedings on the ground that the document
might incriminate the person.
(5)Further
information
Further information obtained as a result of a
document or information provided or an answer given in compliance with a
requirement under this Subdivision is not inadmissible on the ground:
(a)
that the document or information had to be
provided or the answer had to be given, or
(b)
that the document or information provided or
answer given might incriminate the person.
75Effect on other
functions
(1)
This Subdivision does not affect any functions
conferred by any other provision of this Act or by any other
Act.
(2)
In particular, this Subdivision does not affect
the functions conferred by Subdivision 3.
(3)
This Subdivision does not limit the conditions
that can be imposed on a boarding house authorisation or manager
approval.
Subdivision 3Powers of
entry
76Powers of entry and inspection
by enforcement officers without consent or warrant
(cf YCS Act, s 25 (2)–(4))
(1)
The following premises may be entered under this
section:
(a)
an authorised boarding house,
(b)
premises that are the subject of an application
for a boarding house authorisation.
(2)
An enforcement officer may, at any time and with
such assistants (including police officers) as may reasonably be required,
enter such premises and do any of the following for an enforcement
purpose:
(a)
inspect the premises and any plant, equipment,
vehicle or other thing,
(b)
photograph or film, or make audio recordings or
make sketches of, any part of the premises or anything at the
premises,
(c)
inspect and make copies of, or take extracts
from, any document kept at the premises,
(d)
take any document or any other thing at the
premises,
(e)
ask a person at the premises:
(i)
to answer a question to the best of that
person’s knowledge, information and belief, or
(ii)
to take reasonable steps to provide information
or produce a document.
(3)
Without limiting subsection (2), an enforcement
officer exercising functions under this section may be accompanied by one or
more medical practitioners and any such medical practitioners may inspect the
premises and observe, examine and speak with any person apparently residing at
the premises.
(4)
A power under subsection (2) (a), (b), (c) or (d)
is limited to a document or thing that is used or likely to be used in the
management or operation of the premises.
(5)
If the enforcement officer takes any document or
thing under this section, he or she must:
(a)
give notice of the taking of the document or
thing to the person apparently in charge of it or to a manager of the
premises, and
(b)
return the document or thing to that person or
the premises within 7 days after taking it.
(6)
An enforcement officer may not enter and inspect
an unauthorised boarding house unless:
(a)
the enforcement purpose for which the officer is
entering the boarding house is to make an inquiry in relation to an
application for a boarding house authorisation for the boarding house,
or
(b)
the manager of the boarding house consents to the
entry and the inspection, or
(c)
the officer is doing so under the authority of a
search warrant.
(7)
In this section:
enforcement purpose means any of the
following purposes:
(a)
making an inquiry in relation to an application
for a boarding house authorisation for premises,
(b)
ensuring that the provisions of this Part and the
regulations for this Part with respect to premises, and of any conditions
imposed on a boarding house authorisation or other authority with respect to
premises, are being complied with,
(c)
ensuring that the conditions of any exemption
relating to premises are being complied with.
77Powers of entry by authorised
service providers without consent or warrant
(1)
The Director-General may, by instrument in
writing (the authorisation instrument), authorise
a person (an authorised service provider) to
enter authorised boarding houses under this section if the Director-General is
of the opinion that the person is able to provide relevant information or
advice to residents of such boarding houses about support services, financial
services, legal services or advocacy services provided by the person or the
organisation to which the person belongs.
(2)
The authorisation of an authorised service
provider:
(a)
is subject to any requirements of this section
and to such conditions as may be specified in the authorisation instrument,
and
(b)
remains in force for the period specified in the
authorisation instrument (being a period not exceeding 12 months), unless
sooner revoked or surrendered.
(3)
An authorised service provider may, at any
reasonable time and subject to the conditions of the authorisation:
(a)
enter an authorised boarding house for the
purpose of conferring with any resident of the boarding house to determine
whether the resident wishes to access the services provided by the provider or
the organisation to which the provider belongs, and
(b)
provide such services, or arrange for the
organisation to provide such services, if a resident wishes to access the
services.
(4)
An authorised service provider must give the
authorised operator or approved manager of the authorised boarding house at
least 24 hours notice of the provider’s intention to enter the boarding
house.
(5)
When entering an authorised boarding house under
this section, an authorised service provider must identify (or make a
reasonable attempt to identify) himself or herself to the manager or any other
person apparently in charge of the boarding house.
(6)
An authorised service provider must produce his
or her authorisation instrument for inspection on demand when exercising his
or her functions under this section.
(7)
The Director-General may, by notice served on the
authorised service provider, revoke the authorisation of the provider at any
time and for any reason.
(8)
It is a condition of a boarding house
authorisation and a manager approval that the authorised operator and approved
manager of an authorised boarding house permit an authorised service provider
to enter, and confer with residents of, the authorised boarding house in the
manner authorised by or under this section.
78Entry and inspection under
search warrant
(cf YCS Act, s 25 (7))
(1)
An enforcement officer may (with the written
consent of the Director-General) apply to an authorised warrants officer for a
search warrant if the enforcement officer has reasonable grounds for believing
that a provision of this Part or the regulations for this Part has been or is
being contravened at any premises.
(2)
An authorised warrants officer to whom such an
application is made may, if satisfied that there are reasonable grounds for
doing so, issue a search warrant authorising an enforcement officer named in
the warrant:
(a)
to enter the premises, and
(b)
to search the premises for evidence of a
contravention of this Part or the regulations for this Part,
and
(c)
to exercise the powers conferred on an
enforcement officer by section 76.
(3)
Division 4 of Part 5 of the Law
Enforcement (Powers and Responsibilities) Act 2002 applies
to a search warrant issued under this section.
(4)
Without limiting the generality of section 71 of
the Law Enforcement (Powers and Responsibilities) Act
2002, a police officer:
(a)
may accompany an enforcement officer executing a
search warrant issued under this section, and
(b)
may take all reasonable steps to assist the
enforcement officer in the exercise of the officer’s functions under
this section.
(5)
In this section:
authorised warrants officer means an
authorised officer within the meaning of the Law Enforcement
(Powers and Responsibilities) Act
2002.
Subdivision 4Compliance
notices
79Issue of compliance notices by
Director-General
(1)
If the Director-General is of the opinion that a
person is contravening a provision of this Part or the regulations for this
Part, the Director-General may serve on the person a notice (a compliance notice) requiring the
person to remedy the contravention within the period specified in the
notice.
(2)
A compliance notice must:
(a)
give particulars of the alleged contravention,
and
(b)
include information about rights (if any) to seek
a review of the Director-General’s decision to issue the
notice.
Note—
Section 91 (9) allows the regulations to provide
for the internal review of compliance notices.
(3)
A compliance notice may include directions as to
the measures to be taken to remedy any contravention to which the notice
relates or to otherwise comply with the notice.
(4)
A compliance notice may offer the person to whom
it is issued a choice of ways in which to remedy the contravention or to
comply with the notice.
80Failure to comply with
compliance notice
A person who, without reasonable excuse, fails to
comply with a requirement imposed by a compliance notice issued to the person
is guilty of an offence.
Maximum penalty:
(a)
in the case of a corporation—40 penalty
units and in addition, for a continuing offence, 10 penalty units for each day
the offence continues, and
(b)
in any other case—20 penalty units and in
addition, for a continuing offence, 5 penalty units for each day the offence
continues.
81Proceedings for offences not
affected by compliance notices
(1)
The issue, variation or revocation of a
compliance notice does not affect any proceedings for an offence against this
Act or the regulations in connection with any matter in respect of which the
notice was issued.
(2)
However, a person cannot be convicted of both an
offence of failing to comply with a compliance notice and another offence
against this Act or the regulations in respect of the same act or
omission.
Subdivision 5Operation of assisted boarding
houses
82Records
(1)
It is a condition of a boarding house
authorisation that the authorised operator ensures that the requirements of
this section concerning records are complied with.
(2)
An authorised operator of an authorised boarding
house must ensure that such records as the regulations require are kept in
relation to the boarding house.
(3)
The authorised operator must ensure that the
records are kept in such a manner that they are readily accessible if the
authorised operator is required to produce them to the Director-General, or to
any other person who is authorised to inspect them, under this
Part.
83Notification of deaths, sexual
assaults and other incidents involving residents of authorised boarding
houses
(cf YCS Act, s 26)
(1)
The manager of an authorised boarding house must,
as soon as is reasonably possible after becoming aware of any of the following
incidents, report the incident to the Director-General:
(a)
the death of a resident of the boarding
house,
(b)
the sexual assault (or the making of an
allegation of sexual assault) of a resident of the boarding
house,
(c)
the absence of a resident of the boarding house
for a period of more than 24 hours if the resident has not informed the
manager of his or her whereabouts,
(d)
such other incidents involving residents as may
be prescribed by the regulations.
Note—
Section 122 of the Children and Young Persons (Care and Protection) Act
1998 requires a person who provides residential
accommodation for another person who the person has reasonable grounds to
suspect is a child living away from home without parental permission to inform
the Director-General of the child’s whereabouts. A child for the
purposes of that section is a person who is under 16 years of
age.
(2)
The manager must also report the death (or the
sexual assault or the making of an allegation of sexual assault) of a resident
of the boarding house to a police officer as soon as is reasonably practicable
after becoming aware of the incident concerned.
(3)
A manager of an authorised boarding house who
contravenes this section is guilty of an offence.
Maximum penalty: 50 penalty
units.
84Probity checks on staff
members of authorised boarding houses
(1)
It is a condition of the boarding house
authorisation that the authorised operator must ensure that the requirements
of this section concerning staff members are complied
with.
(2)
A person must not be engaged as a staff member of
an authorised boarding house unless the authorised operator is satisfied that
the person is a suitable person to be involved in the management or operation
of the boarding house.
(3)
In deciding whether a person is a suitable person
to be involved in the management or operation of the boarding house, the
authorised operator must first ensure that a criminal record check is
conducted on the person.
(4)
The authorised operator must ensure that a new
criminal record check is conducted or obtained in respect of a staff member
every 3 years during the period while the person remains a staff
member.
(5)
The authorised operator of an authorised boarding
house must not engage (or continue to engage) a person to be a staff member of
the boarding house if:
(a)
the operator is satisfied from the person’s
criminal record check that the person has committed a serious criminal
offence, or
(b)
the person refuses to obtain or submit to a
criminal record check for the purposes of this
section.
(6)
The authorised operator must:
(a)
ensure that a record is kept of any criminal
record checks conducted for the purposes of this section for a period of 3
years after the check is conducted, and
(b)
make any such record available for inspection by
an enforcement officer on request.
(7)
The regulations may make provision for or with
respect to the obtaining and conduct of criminal record checks for the
purposes of this section (including the use of a statutory declaration to
verify a person’s criminal record when a criminal record check cannot be
obtained or conducted).
Subdivision 6Removal of persons with
additional needs from unauthorised boarding houses
85Removal of young residents
from unauthorised boarding houses
(cf YCS Act, s 27)
(1)
This section applies in relation to any person
with additional needs who is under 18 years of age and a resident of an
unauthorised boarding house (a young
resident).
(2)
If requested to do so by an officer or employee
of the Department of Family and Community Services, a parent or guardian of a
young resident (or a person acting on behalf of a parent or guardian) is to
remove the young resident from an unauthorised boarding house as soon as
possible after the request is made.
(3)
If a young resident is not removed following any
such request or a parent or guardian of the young resident cannot be located,
the young resident is taken to be a child or young person in need of care and
protection for the purposes of the Children and
Young Persons (Care and Protection) Act
1998.
Note—
The Director-General may take action under the
Children and Young Persons (Care and Protection) Act
1998 to protect children or young persons who are in need
of care and protection.
86Assessment of certain removal
expenses resulting from unauthorised boarding houses
(cf YCS Act, s 31)
(1)
The following persons may apply to the Local
Court for a determination under this section if a person (the offender) has been convicted of
the offence of using (or permitting the use of) boarding premises as an
assisted boarding house without the authority of a boarding house
authorisation:
(a)
a person with additional needs who was a resident
of the boarding house at the time the offence was committed and moved to
another residence within the period of 28 days after the offence was
committed,
(b)
the Director-General if the Department of Family
and Community Services incurred expenses in connection with the removal of
persons with additional needs who were resident at the unauthorised boarding
house and moving them to other residences.
(2)
An application under this section must be made
within 12 months after the conviction of the offender.
(3)
In determining an application under this section,
the Local Court is to determine an amount that seems just and reasonable to
the Court:
(a)
in the case of an application by a person with
additional needs—to compensate for the removal expenses and any other
expenses incurred by the person when the person moved to another residence,
or
(b)
in the case of an application by the
Director-General—to compensate for the removal expenses and any other
expenses incurred by the Department of Family and Community Services when
moving persons with additional needs who were resident at the unauthorised
boarding house to other residences.
(4)
An amount determined by the Local Court on an
application made under this section operates as a judgment debt of the
offender under the Civil Procedure Act
2005 and is enforceable as such under that
Act.
Division 4Review of authorisation,
approval and enforcement decisions
87Applications for reviews by
the Administrative Decisions Tribunal
(cf YCS Act, ss 3A (2)–(4) and
24)
(1)
A person may apply to the Administrative
Decisions Tribunal for a review of any of the following decisions of the
Director-General:
(a)
a refusal to grant a boarding house authorisation
or manager approval to the person,
(b)
the imposition or variation of a condition on a
boarding house authorisation or manager approval held by the person (including
a variation of a boarding house licence to appoint a substitute
licensee),
(c)
the suspension, cancellation or revocation of a
boarding house authorisation or manager approval held by the
person,
(d)
a declaration under section 39 of boarding
premises for which the person is a relevant operator to be an assisted
boarding house for the purposes of this Act,
(e)
a refusal to grant an exemption under section 40
to the person or in respect of premises for which the person is a relevant
operator,
(f)
the imposition or variation of terms and
conditions on an exemption granted, or the revocation of an exemption granted,
under section 40 to the person or in respect of premises for which the person
is a relevant operator,
(g)
the issuing or variation of a compliance
notice.
(2)
For the purposes of this section, an application
for the grant of a boarding house authorisation, manager approval or exemption
under section 40 is taken to have been refused if the authorisation, approval
or exemption is not granted within 60 days after the application is made in
accordance with this Act.
Division 5General
88Certificate evidence
concerning assisted boarding houses
(cf YCS Act, s 3B)
A certificate signed or purporting to be signed
by the Director-General, or an officer or employee of the Department of Family
and Community Services authorised in writing by the Director-General, and
stating that:
(a)
a person named in the certificate was or was not
at a specified time the holder of a boarding house authorisation or a manager
approval, or
(b)
any boarding house authorisation or manager
approval held by a specified person was or was not at a specified time subject
to a specified condition or suspended, or
(c)
premises were or were not at a specified time an
authorised boarding house,
is admissible in any legal proceedings and is evidence
of the matters stated in the certificate.
89Director-General may require
further information for applications
(1)
The Director-General may, by notice served on a
relevant person in relation to an application under this Part, require the
relevant person to do one or more of the following things:
(a)
provide, in accordance with directions in the
notice, such information as, in the opinion of the Director-General, is
relevant to the investigation of the application and is specified in the
notice,
(b)
produce, in accordance with directions in the
notice, such records as, in the opinion of the Director-General, are relevant
to the investigation of the application and permit examination of the records,
the taking of extracts from them and the making of copies of
them,
(c)
authorise a person described in the notice to
comply with a requirement of the kind referred to in paragraph (a) or
(b),
(d)
furnish to the Director-General such
authorisations and consents as the Director-General requires for the purpose
of enabling the Director-General to obtain information (including financial
and other confidential information) from other persons concerning the person
and the person’s close associates.
(2)
A relevant
person in relation to an applicationfor the purposes of this
section is any of the following:
(a)
the applicant,
(b)
if the applicant is not a natural
person—any person involved in the control or management of the applicant
(such as a chief executive officer, director or majority shareholder of a
corporation),
(c)
if the applicant makes the application on behalf
of an unincorporated body—any partner or member of the management
committee or other office holder of the body,
(d)
any other close associate of the
applicant.
(3)
A person who complies with a requirement of a
notice under this section does not on that account incur a liability to
another person.
(4)
The Director-General may refuse to determine an
application under this Part if a requirement made under this section in
relation to the application is not complied with.
90General provisions relating to
notices under this Part
(1)
This section applies in relation to the issuing
of notices by the Director-General or an enforcement officer under this Part
or regulations for this Part.
(2)
A notice must be:
(a)
in writing, and
(b)
served on the person on whom it is required to be
served by the provision under which it is issued.
(3)
A notice has effect on the day on which it is
served or on such later day as may be specified in the notice or specified by
the provision under which it is issued.
(4)
A notice (other than a cancellation or revocation
notice that has already taken effect) may be varied or revoked by a further
notice served on the person on whom the original notice was
served.
(5)
A notice may be varied by modification of, or
addition to, its terms and specifications.
(6)
The revocation or variation has effect when
notice of the revocation or variation is served on the person to whom the
original notice was issued.
(7)
Without limiting the above, a notice may be
varied by extending the time for complying with the
notice.
(8)
The revocation of a notice does not prevent the
issue of another notice.
(9)
A notice is to be in the approved form, subject
to any other requirements of the regulations or the provision of this Part
under which a notice is issued.
91Regulations relating to
assisted boarding houses
(cf YCS Act, s 32 (2))
(1)Authorisations and manager
approvals
The regulations may make provision for or with
respect to the following matters:
(a)
classes of boarding house authorisations and
manager approvals,
(b)
the matters to be specified in a boarding house
authorisation,
(c)
prescribed conditions of boarding house
authorisations.
(2)Applications for
authorisations and manager approvals
The regulations may make provision for or with
respect to the following matters:
(a)
the persons who may apply for boarding house
authorisations and manager approvals,
(b)
the form and manner in which, and the time within
which, an application for a boarding house authorisation or manager approval
may be made,
(c)
the information and evidence required to be
provided in connection with an application (which may include, without
limitation, personal information about the applicant and proposed staff and
any close associate of the applicant),
(d)
requiring that an application (and its supporting
documents and information) be lodged in stages as specified in the
regulations,
(e)
the consideration and determination of
applications, including (but not limited to) the following:
(i)
the time within which an application (or a
particular stage of an application) is to be dealt with,
(ii)
the grounds on which an application (or a
particular stage of an application) may be rejected,
(iii)
the grounds on which the Director-General may
refuse to grant a licence or approval,
(iv)
the way in which the rejection or determination
of the application (or a particular stage of an application) is to be
communicated to the applicant.
(3)Probity
checks
The regulations may make provision for or with
respect to the following matters:
(a)
the carrying out of probity checks (including,
for example, checks concerning financial matters and criminal
histories),
(b)
the persons who may be the subject of a probity
check (including applicants for boarding house authorisations or manager
approvals, authorised operators and approved managers and close associates of
such persons),
(c)
the verifying of criminal records or other
probity matters by means of statutory declarations.
(4)Variation, suspension,
cancellation and revocation of authorisations and
approvals
The regulations may make provision for or with
respect to the following matters:
(a)
additional grounds on which a boarding house
authorisation or manager approval may be varied, suspended, cancelled or
revoked,
(b)
requiring the giving of notice of an intention to
vary, suspend, cancel or revoke a boarding house authorisation or manager
approval,
(c)
allowing an authorised operator or an approved
manager time to make submissions in relation to any such
intention,
(d)
the effect of a variation, suspension,
cancellation or revocation of a boarding house authorisation or manager
approval,
(e)
the restoration of a boarding house authorisation
or manager approval that has been suspended, cancelled or
revoked.
(5)Authorised
operators
The regulations may make provision for or with
respect to the following matters:
(a)
the functions of authorised operators in
connection with authorised boarding houses,
(b)
requiring an authorised operator to notify the
Director-General of the particular service or services that the operator
provides or intends to provide,
(c)
the appointment by the Director-General of a
person as licensee under a boarding house licence in substitution for an
existing licensee.
(6)Approved
managers
The regulations may make provision for or with
respect to the following matters:
(a)
the appointment and functions of approved
managers in connection with authorised boarding houses,
(b)
the maximum number of assisted boarding houses in
respect of which the same approved manager may be appointed as an approved
manager,
(c)
the maximum number of persons who may be
appointed as an approved manager of an assisted boarding
house,
(d)
the authorisation by the Director-General of
another person to act as the approved manager of an assisted boarding house
during the absence (because of illness or otherwise) of the approved manager
of the assisted boarding house.
(7)Operation and inspection of
authorised boarding houses
The regulations may make provision for or with
respect to the following matters:
(a)
standards to be observed and facilities to be
provided in connection with the health, safety and wellbeing of persons with
additional needs residing at authorised boarding houses (including, but not
limited to, standards of the kind referred to in section 43
(4)),
(b)
the screening of staff members and residents of
authorised boarding houses,
(c)
the assessment of persons as persons with
additional needs,
(d)
the qualifications and skills of staff members of
authorised boarding houses,
(e)
complaint handling procedures for authorised
boarding houses,
(f)
the inspection of authorised boarding
houses.
(8)Advisory
bodies
The regulations may make provision for or with
respect to the constitution and functions of bodies (including the
remuneration of their members) to advise on the regulation of assisted
boarding houses under this Act.
(9)Compliance
notices
The regulations may make provision for or with
respect to the following matters:
(a)
the internal review of a decision to issue a
compliance notice,
(b)
the stay of a decision to issue a compliance
notice pending the determination of such an internal
review.
(10)Records and
returns
The regulations may make provision for or with
respect to the following matters:
(a)
the records that are to be kept by authorised
operators and approved managers (or former authorised operators and approved
managers), including (but not limited to) the following:
(i)
the information that the records are to
contain,
(ii)
the form in which they are to be
made,
(iii)
the person responsible for making and maintaining
them,
(iv)
the persons who may inspect
them,
(v)
the period for which they are to be
retained,
(b)
the provision of returns and other information
with respect to authorised boarding houses (including, but not limited to,
returns and other information about residents, staff members and
managers).
(11)Exemptions
The regulations may make provision for or with
respect to the following matters:
(a)
exempting (whether conditionally or
unconditionally) specified assisted boarding houses, or assisted boarding
houses of a specified class, from the requirement that they be authorised
under this Part or from any other requirement imposed by or under this
Part,
(b)
regulating the assisted boarding houses so
exempted (including, without limitation, establishing standards to be met by
those assisted boarding houses and inspections of such boarding
houses),
(c)
the making of applications for exemptions under
section 40.
(12)Fees
The regulations may make provision for or with
respect to the following matters:
(a)
the charging of fees in connection with the
administration of this Part (including, but not limited to, application
fees),
(b)
the waiver, reduction, postponement or refund of
fees charged in connection with the administration of this
Part.
(13)Relationship of section to
other provisions
This section does not limit the generality of
section 103 (Regulations) or any other provision of this Act that requires or
permits regulations to be made with respect to a matter.
Part 5Miscellaneous
92Act to bind
Crown
This Act binds the Crown in right of New South
Wales and, in so far as the legislative power of the Parliament of New South
Wales permits, the Crown in all its other capacities.
93Delegations
(1)
An Act administrator may delegate any of the
administrator’s functions under this Act or the regulations to an
authorised delegate of the administrator, other than this power of
delegation.
(2)
A delegate may sub-delegate any of the functions
delegated to the delegate by the Act administrator to another authorised
delegate of the administrator if the delegate is authorised in writing to do
so by the administrator.
(3)
In this section:
authorised delegate of an Act
administrator means any of the following:
(a)
if the administrator is not a Minister—a
member of staff of the Government Department of which the administrator is the
Department Head or to which the administrator belongs,
(b)
if the administrator is a Minister—a member
of staff of a Government Department for which the Minister is
responsible.
94Exchange of
information
(1)
An Act administrator may enter into an
arrangement (an
information sharing arrangement) with a relevant agency for
the purposes of sharing or exchanging any information that is held by the
administrator or the agency.
(2)
The information to which an information sharing
arrangement may relate is limited to information that assists the Act
administrator or relevant agency:
(a)
to determine applications made under this Act or
the regulations, or
(b)
to determine whether to cancel, revoke, suspend
or vary a licence, permit, registration or other approval, or an exemption or
declaration, that is granted, made or given under this Act or the regulations,
or
(c)
to facilitate the carrying out of inspections,
probity checks or other enforcement action under this Act or the regulations,
or
(d)
to determine whether a person is a person with
additional needs.
(3)
Under an information sharing arrangement, the Act
administrator and the relevant agency are, despite any other Act or law of the
State, authorised:
(a)
to request and receive information that is held
by the other party to the arrangement, and
(b)
to disclose that information to the other
party.
(4)
In this section:
relevant
agency means any of the following:
(a)
the NSW Police Force,
(b)
a Government Department of which the Commissioner
or Director-General is the Department Head or to which he or she
belongs,
(c)
a council.
95False and misleading
information
A person who provides any document or information
or does any other thing in purported compliance with a requirement made by or
under this Act, knowing that it is false or misleading in a material
particular, 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.
96Enforcement of provisions of
this Act and regulations
(1)
In this section, contravention includes a threatened
or apprehended contravention.
(2)
An Act administrator, and only an Act
administrator, may apply to the Land and Environment Court for an order to
remedy or restrain a contravention of a provision of this Act or the
regulations, whether or not any right of the administrator has been or may be
infringed by or as a consequence of that contravention.
(3)
On any such application, the Land and Environment
Court may, if satisfied that a contravention has occurred, or that a
contravention will, unless restrained by order of the Court, continue or be
committed, make such order or orders as it thinks fit to remedy or restrain
the contravention.
97Continuing
offences
(1)
A person who is guilty of an offence because the
person fails to comply with a requirement made by or under this Act or the
regulations (whether the requirement is imposed by a notice or otherwise) to
do or cease to do something (whether or not within a specified period or
before a particular time):
(a)
continues, until the requirement is complied with
and despite the fact that any specified period has expired or time has passed,
to be liable to comply with the requirement, and
(b)
is guilty of a continuing offence for each day
the contravention continues.
(2)
This section does not apply to an offence if the
relevant provision of this Act or the regulations does not provide for a
penalty for a continuing offence.
(3)
This section does not apply to the extent that a
requirement of a notice is revoked.
98Penalty
notices
(1)
An authorised officer may serve a penalty notice
on a person if it appears to the officer that the person has committed an
offence against this Act or the regulations, being an offence prescribed by
the regulations as a penalty notice offence.
(2)
A penalty notice is a notice to the effect that,
if the person served does not wish to have the matter determined by a court,
the person can pay, within the time and to the person specified in the notice,
the amount of the penalty prescribed by the regulations for the offence if
dealt with under this section.
(3)
A penalty notice under this section is declared
to be a penalty notice for the purposes of the Fines Act
1996.
(4)
A penalty notice may be served personally or by
post.
(5)
If the amount of penalty prescribed for an
alleged offence is paid under this section, no person is liable to any further
proceedings for the alleged offence.
(6)
Payment under this section is not to be regarded
as an admission of liability for the purpose of, and does not in any way
affect or prejudice, any civil claim, action or proceeding arising out of the
same occurrence.
(7)
The regulations may:
(a)
prescribe an offence for the purposes of this
section by specifying the offence or by referring to the provision creating
the offence, and
(b)
prescribe the amount of penalty payable for the
offence if dealt with under this section, and
(c)
prescribe different amounts of penalties for
different offences or classes of offences.
(8)
The amount of a penalty prescribed under this
section for an offence is not to exceed the maximum amount of penalty that
could be imposed for the offence by a court.
(9)
This section does not limit the operation of any
other provision of, or made under, this or any other Act relating to
proceedings that may be taken in respect of offences.
(10)
In this section, authorised officer means:
(a)
a police officer, and
(b)
in relation to an offence against a provision of
Part 2 or regulations for that Part—a person who:
(i)
is employed by a council or subject to its
control or direction, and
(ii)
is an authorised person (within the meaning of
the Local Government Act 1993) for the
purposes of section 679 (Penalty notices for certain offences) of that Act,
and
(c)
in relation to an offence against a provision of
Part 4 or regulations for that Part—an enforcement officer within the
meaning of that Part, and
(d)
a person (or a person belonging to a class)
prescribed by the regulations for the purposes of this
paragraph.
99Nature of proceedings for
offences
(cf YCS Act, s 28)
(1)
Proceedings for an offence against this Act or
the regulations may be dealt with:
(a)
summarily before the Local Court,
or
(b)
summarily before the Land and Environment Court
in its summary jurisdiction.
(2)
If proceedings are brought in the Local Court,
the maximum monetary penalty that the Local Court may impose for the offence
is 200 penalty units, despite any higher maximum monetary penalty provided in
respect of the offence.
(3)
Proceedings for an offence against this Act or
the regulations may be commenced within 12 months after the time when the
offence is alleged to have been committed.
(4)
Proceedings for an offence against a provision of
this Act or the regulations may only be commenced with the written consent of
the Minister administering the provision, except as provided by subsection
(5).
(5)
A council may commence proceedings for an offence
against a provision of Part 2 or regulations for that Part without obtaining
the written consent of the Minister administering that
provision.
100Evidence of use of boarding
premises as general or assisted boarding houses
(1)
This section applies to the following
proceedings:
(a)
proceedings before a court or tribunal to remedy
or restrain a contravention of this Act or the regulations in relation to the
use of a general boarding house or assisted boarding
house,
(b)
applications for a search warrant in respect of a
general boarding house or assisted boarding house.
(2)
In any proceedings to which this section applies,
the court, tribunal or other person determining the proceedings may rely on
circumstantial evidence to find that particular premises are a general
boarding house or assisted boarding house.
Note—
Examples of circumstantial evidence include (but
are not limited to) the following:
(a)
evidence of the premises being advertised
expressly or implicitly for the purposes of a general boarding house or
assisted boarding house (including advertisements on the premises, on public
notice boards, in newspapers, in directories or on the
Internet),
(b)
evidence relating to internal and external signs
and notices at the premises (including price lists, notices to occupants and
offers of services) that is consistent with the use of the premises as a
general boarding house or assisted boarding house,
(c)
evidence of the layout of rooms, and the number
and arrangement of beds, at the premises that is consistent with the use of
the premises as a general boarding house or assisted boarding
house,
(d)
evidence relating to persons entering and leaving
the premises (including the depositing of luggage) that is consistent with the
use of the premises as a general boarding house or assisted boarding
house.
101Giving or service of
documents
(cf YCS Act, s 34)
(1)
A document that is authorised or required by this
Act or the regulations to be given to or served on any person may be given or
served:
(a)
in the case of a natural person:
(i)
by delivering it to the person personally,
or
(ii)
by sending it by post to the address specified by
the person for the giving or service of documents or, if no such address is
specified, the residential or business address of the person last known to the
person giving or serving the document, or
(iii)
by sending it by facsimile transmission to the
facsimile number of the person, or
(b)
in the case of a body corporate:
(i)
by leaving it with a person apparently of or
above the age of 16 years at, or by sending it by post to, the head office, a
registered office or a principal office of the body corporate or to an address
specified by the body corporate for the giving or service of documents,
or
(ii)
by sending it by facsimile transmission to the
facsimile number of the body corporate.
(2)
Nothing in this section affects the operation of
any provision of a law (including the regulations) or of the rules of a court
authorising a document to be served on or given to a person in any other
manner.
102Provision of documents to Act
administrator
(1)
A document may be served on, or given to, or
lodged with, an Act administrator by leaving it at, or by sending it by post
to:
(a)
the office of the administrator,
or
(b)
if the administrator has more than one office,
any one of the administrator’s offices.
(2)
Nothing in this section affects the operation of
any provision of a law (including the regulations) or of the rules of a court
authorising a document to be served on or given to an Act administrator in any
other manner.
103Regulations
(cf YCS Act, s 32 (1) and (3) (d))
(1)
The Governor may make regulations, not
inconsistent with this Act, for or with respect to any matter that by this Act
is required or permitted to be prescribed or that is necessary or convenient
to be prescribed for carrying out or giving effect to this
Act.
(2)
A regulation may create an offence punishable by
a penalty not exceeding 40 penalty units in the case of a corporation or 20
penalty units in any other case.
104Repeal of Youth
and Community Services Act 1973 No 90 and related
legislation
Each of the following is repealed:
(a)
the Youth and
Community Services Act 1973,
(b)
the Youth and
Community Services Regulation 2010,
(c)
the Miscellaneous Acts (Disability
Services and Guardianship) Repeal and Amendment Act
1987.
105Review of
Act
(1)
The Minister is to review this Act to determine
whether the policy objectives of the Act remain valid and whether the terms of
the Act remain appropriate for securing those
objectives.
(2)
The review is to be undertaken as soon as
possible after the period of 5 years from the date of assent to this
Act.
(3)
A report on the outcome of the review is to be
tabled in each House of Parliament within 12 months after the end of the
period of 5 years.
Schedule 1Occupancy
principles
(Section 30
(1))
1State of
premises
A resident is entitled to live in premises that
are:
(a)
reasonably clean, and
(b)
in a reasonable state of repair,
and
(c)
reasonably secure.
2Rules of registrable boarding
house
A resident is entitled to know the rules of the
registrable boarding house before moving into the boarding
house.
3Penalties for breaches of
agreement or house rules prohibited
A resident may not be required to pay a penalty
for a breach of the occupancy agreement or the rules of the registrable
boarding house.
4Quiet enjoyment of
premises
A resident is entitled to quiet enjoyment of the
premises.
5Inspections and
repairs
A proprietor is entitled to enter the premises at
a reasonable time on reasonable grounds to carry out inspections or repairs
and for other reasonable purposes.
6Notice of increase of
occupancy fee
A resident is entitled to 4 weeks written notice
before the proprietor increases the occupancy fee.
7Utility
charges
(1)
The proprietor is entitled to charge a resident
an additional amount for the use of a utility if:
(a)
the resident has been notified before or at the
time of entering the occupancy agreement of the use of utilities in respect of
which the resident will be charged, and
(b)
the amount charged is based on the cost to the
proprietor of providing the utility and a reasonable measure or estimate of
the resident’s use of that utility.
(2)
A utility for the purposes of this
clause is each of the following:
(a)
the supply of electricity,
(b)
the supply of gas,
(c)
the supply of oil,
(d)
the supply of water,
(e)
the supply of any other service prescribed by the
regulations.
8Payment of security
deposits
(1)
The proprietor may require and receive a security
deposit from the resident or the resident’s authorised representative
only if:
(a)
the amount of the deposit does not exceed 2 weeks
of occupancy fee under the occupancy agreement, and
(b)
the amount is payable on or after the day on
which the resident (or the resident’s authorised representative) enters
the agreement.
(2)
Within 14 days after the end of the occupancy
agreement, the proprietor must repay to the resident (or the resident’s
authorised representative) the amount of the security deposit less the amount
necessary to cover the following:
(a)
the reasonable cost of repairs to, or the
restoration of, the registrable boarding house or goods within the premises of
the boarding house, as a result of damage (other than fair wear and tear)
caused by the resident or an invitee of the resident,
(b)
any occupation fees or other charges owing and
payable under the occupancy agreement or this Act,
(c)
the reasonable cost of cleaning any part of the
premises occupied by the resident not left reasonably clean by the resident,
having regard to the condition of that part of the premises at the
commencement of the occupancy,
(d)
the reasonable cost of replacing locks or other
security devices altered, removed or added by the resident without the consent
of the proprietor,
(e)
any other amounts prescribed by the
regulations.
(3)
The proprietor may retain the whole of the
security deposit after the end of the occupancy agreement if the costs, fees
or charges referred to in subclause (2) (a)–(e) are equal to, or exceed,
the amount of the security deposit.
(4)
In this clause:
security
deposit means an amount of money (however described) paid or
payable by the resident of a registrable boarding house or another person as
security against:
(a)
any failure by the resident to comply with the
terms of an occupancy agreement, or
(b)
any damage to the boarding house caused by the
resident or an invitee of the resident, or
(c)
any other matter or thing prescribed by the
regulations.
9Information about occupancy
termination
A resident is entitled to know why and how the
occupancy may be terminated, including how much notice will be given before
eviction.
10Notice of
eviction
(1)
A resident must not be evicted without reasonable
written notice.
(2)
In determining what is reasonable notice, the
proprietor may take into account the safety of other residents, the proprietor
and the manager of the registrable boarding house.
(3)
Subclause (2) does not limit the circumstances
that are relevant to the determination of what is reasonable
notice.
11Use of alternative dispute
resolution
A proprietor and resident should try to resolve
disputes using reasonable dispute resolution processes.
12Provision of written
receipts
A resident must be given a written receipt for
any money paid to the proprietor or a person on behalf of the
proprietor.
Schedule 2Savings, transitional and
other provisions
Part 1General
1Regulations
(1)
The regulations may contain provisions of a
savings or transitional nature consequent on the enactment of this Act or any
Act that amends this Act.
(2)
If the regulations so provide, any such provision
may:
(a)
have effect despite any specified provisions of
this Act (including a provision of this Schedule), and
(b)
take effect from the date of assent to the Act
concerned or a later date.
(3)
To the extent to which any such provision takes
effect from a date that is earlier than the date of its publication on the NSW
legislation website, the provision does not operate so as:
(a)
to affect, in a manner prejudicial to any person
(other than the State or an authority of the State), the rights of that person
existing before the date of its publication, or
(b)
to impose liabilities on any person (other than
the State or an authority of the State) in respect of anything done or omitted
to be done before the date of its publication.
(4)
A regulation made for the purposes of this clause
may make separate savings and transitional provisions or amend this Schedule
to consolidate the savings and transitional provisions.
Part 2Provisions consequent on
enactment of this Act
2Interpretation
(1)
In this Part:
repeal
day means the day on which the YCS Act is repealed by this
Act.
residential centre for handicapped
persons has the same meaning as it had in the YCS
Act.
YCS
Act means the Youth and
Community Services Act 1973 as in force immediately before
the repeal day.
(2)
Any terms or expressions used in this Part that
are defined for the purposes of Part 4 of this Act have the same meanings as
in that Part, except in so far as they are defined differently in this Part or
the context or subject-matter otherwise indicates or
requires.
(3)
If this Part provides for an event or other thing
to occur on the repeal day, that event or thing is taken to occur at the
beginning of that day.
(4)
A condition of a licence, permit or order in
force under the YCS Act (whether imposed by the Minister or by that Act or
regulations under that Act) that is continued in effect by operation of this
Part for the licence, permit, approval or notice under this Act into which the
licence, permit or order under the YCS Act is converted may be varied by the
Director-General under this Act as if the Director-General had imposed the
condition.
(5)
If a declaration, condition or exemption under
the YCS Act that is converted by this Part refers to a provision of the YCS
Act, the reference is to be read on the conversion to be a reference to a
provision (if any) of this Act that substantially corresponds to the provision
of the YCS Act.
(6)
For the purposes of this Part, proceedings are
not finally determined if:
(a)
any period for bringing an appeal as of right in
respect of the proceedings has not expired (ignoring any period that may be
available by way of extension of time to appeal), or
(b)
any appeal in respect of the proceedings is
pending (whether or not it is an appeal brought as of
right).
3Conversion of orders under
sections 3A and 3B of YCS Act
(1)
On and from the repeal day, an order in force
under section 3A of the YCS Act immediately before that day (an existing
inclusion order) is taken to be a notice for the purposes of
section 39 with respect to the same premises, and may be amended and revoked
under this Act accordingly.
(2)
On and from the repeal day, an order in force
under section 3B of the YCS Act immediately before that day:
(a)
is taken to be an exemption notice for the
purposes of section 40 (1) (a) (i) with respect to the same premises and
subject to the same terms and conditions, and may be amended and revoked under
this Act accordingly, and
(b)
is taken to have a duration of 12 months
commencing on the repeal day, unless a sooner expiry date was specified in the
order under section 3B of the YCS Act.
(3)
If an application to the Administrative Decisions
Tribunal for the review of an existing inclusion order had been made (but not
finally determined) before the repeal day, the application may be dealt with
and determined as if the application for review had been made under section
87.
4Conversion of section 23
exemptions
On and from the repeal day, an exemption in force
under section 23 of the YCS Act immediately before that day:
(a)
is taken to be an exemption notice for the
purposes of section 40 (1) (b) with the same kind of provisions and
conditions, and may be amended and revoked under this Act accordingly,
and
(b)
is taken to have a duration of 12 months
commencing on the repeal day, unless a sooner expiry date was specified under
section 23 of the YCS Act.
5Conversion of existing
licences
(1)
On and from the repeal day, a licence that was in
force (including a suspended licence) under the YCS Act (an existing
licence) immediately before that day with respect to a
residential centre for handicapped persons is taken to be a boarding house
licence (a converted
licence) granted for the same premises, period (if any) and
licensee, and may be varied, surrendered, suspended and cancelled under this
Act accordingly.
(2)
If a suspended existing licence becomes a
converted licence:
(a)
the converted licence is taken to have been
suspended under section 49 for the period of 60 days commencing on the repeal
day or the remaining period of suspension (if any) of the existing licence
(whichever is the shorter), and
(b)
the Director-General is taken to have issued a
notice of suspension under section 49 that cancels the licence at the end of
that period, and
(c)
if an application to the Administrative Decisions
Tribunal for the review of the suspension of the existing licence had been
made (but not finally determined) before the repeal day—the application
may be dealt with and determined by the Tribunal as if the application for
review had been made under section 87.
(3)
Without limiting section 43, the conditions of
the converted licence are taken (until they are varied under this Act) to
include the same conditions to which the existing licence was subject, except
to the extent that any of those conditions are inconsistent with this Act, the
regulations or conditions that are imposed by or under this
Act.
(4)
The condition imposed by section 84 on boarding
house licences in its application to a converted licence applies subject to
the following additional requirements:
(a)
the licensee is to provide the Director-General
with a criminal record check in relation to the licensee within 6 months after
the repeal day if the licensee had been a licensee under the YSC Act since
before 1995,
(b)
the licensee is also to ensure that a criminal
record check is conducted for each person who is a staff member on the repeal
day within 6 months after the repeal day.
(5)
For the purposes of deciding whether to suspend
or cancel a converted licence, the Director-General may treat a contravention
of the YCS Act, the regulations under that Act or a condition of the existing
licence occurring before the repeal day as if it were a contravention of this
Act, the regulations under this Act or a condition of the converted licence
(as the case requires).
6Conversion of existing
permits
(1)
On and from the repeal day, a permit that was in
force under the YCS Act immediately before that day with respect to a
residential centre for handicapped persons (an existing
permit) is taken to be an interim permit granted for the
same premises, period and permit holder (a converted
permit), and may be varied, surrendered and revoked under
this Act accordingly.
(2)
Without limiting section 43, the conditions of
the converted permit are taken (until they are varied under this Act) to
include the same conditions to which the existing permit was subject, except
to the extent that any of those conditions are inconsistent with this Act, the
regulations or conditions that are imposed by or under this
Act.
(3)
For the purposes of deciding whether to revoke a
converted permit, the Director-General may treat a contravention of the YCS
Act, the regulations under that Act or a condition of the existing permit
occurring before the repeal day as if it were a contravention of this Act, the
regulations under this Act or a condition of the converted permit (as the case
requires).
7Proceedings with respect to
cancelled former licences
(1)
If proceedings are commenced (but not finally
determined) before the repeal day for the review of the revocation of a
licence under the YCS Act (a former
licence), the proceedings may be dealt with and determined
as if the YCS Act and the regulations under that Act had not been
repealed.
(2)
If the determination of the Administrative
Decisions Tribunal or court in any such proceedings (once they are finally
determined) is that the former licence should not have been revoked, the
Director-General is required to issue the former licensee with a boarding
house licence with respect to the premises concerned.
(3)
Nothing in this clause prevents the
Director-General from subsequently varying, suspending or cancelling a
boarding house licence that the Director-General is required to issue under
this clause.
8Approval of existing licensed
managers
(1)
This clause applies to the following persons (an
existing
manager):
(a)
a person who was the licensed manager of licensed
premises under the YCS Act immediately before the repeal
day,
(b)
a person who was authorised under section 20 of
the YCS Act immediately before the repeal day to have the conduct of a
residential centre for handicapped persons during the absence of the person
authorised by a licence or permit under that Act to have that
conduct.
(2)
On and from the repeal day, an existing manager
is taken to have been granted a manager approval for the premises concerned,
and the approval may be varied, suspended or revoked under this Act
accordingly.
(3)
The approval is taken to have been granted for
the period of 6 months commencing on the repeal day, unless sooner suspended
or revoked.
(4)
Without limiting section 63, the conditions of
the approval are taken (until they are varied under this Act) to include the
same conditions to which the existing manager’s authorisation under the
YCS Act was subject, except to the extent that any of those conditions are
inconsistent with this Act, the regulations or conditions that are imposed by
or under this Act.
9Allocation of proceedings in
the Administrative Decisions Tribunal
Any functions under the YCS Act to be exercised
by the Administrative Decisions Tribunal (whether by reason of the operation
of this Part or otherwise) on or after the repeal day continue to be allocated
to the Community Services Division of the Tribunal under the Administrative Decisions Tribunal Act
1997 despite the amendment made to Schedule 2 to that Act
by this Act.
10Effect of this Part on
premises that are not assisted boarding houses
Nothing in this Part operates to convert a
licence, permit or other authorisation granted or issued under the YCS Act in
respect of premises if those premises are not an assisted boarding house
within the meaning of this Act.
Schedule 3Amendment of
legislation
3.1Administrative Decisions Tribunal Act 1997 No
76
[1]Schedule 2 Composition and
functions of Divisions
Insert in alphabetical order of Acts in clause 2
of Part 1:
Boarding Houses
Act 2012
[2]Schedule 2, Part
1
Omit “Youth and
Community Services Act 1973” from clause
2.
3.2Community Services (Complaints, Reviews and Monitoring) Act
1993 No 2
[1]Section 4
Definitions
Insert in alphabetical order in section 4
(1):
assisted
boarding house has the same meaning as it has in the Boarding Houses Act
2012.
[2]Section 4 (1), definition of
“community welfare legislation”
Omit paragraph (h).
[3]Section 4 (1), definition of
“community welfare legislation”
Insert after paragraph (i):
and includes the provisions of the Boarding Houses Act 2012 and the
regulations under that Act that are administered by the
Minister.
[4]Section 4 (1), definition of
“residential centre for handicapped persons”
Omit the definition.
[5]Sections 4 (1) (definition of
“service provider”), 8 (6) (definition of “visitable
service”) and 35 (1) (f)
Omit “a residential centre for handicapped
persons” wherever occurring.
Insert instead “an assisted boarding
house”.
[6]Section 35
(2)
Insert in alphabetical order:
assisted
boarding house includes premises that were a residential
centre for handicapped persons (within the meaning of this Act before it was
amended by the Boarding Houses Act
2012) at the time of the death
concerned.
3.3Community Welfare Act 1987 No
52
Section 5
Delegation
Insert after section 5 (3):
(4)
However, a reference to community welfare
legislation in this section does not include a reference to the Boarding Houses Act 2012 even if it is
wholly or partly administered by the Minister.
3.4Coroners Act 2009 No
41
[1]Section 24 Jurisdiction
concerning deaths of children and disabled persons
Omit “a residential centre for disabled
persons” from section 24 (1) (e).
Insert instead “an assisted boarding
house”.
[2]Section 24
(3)
Insert in alphabetical order:
assisted
boarding house has the same meaning as it has in the Boarding Houses Act 2012, and
includes:
(a)
premises that would be an assisted boarding house
within the meaning of that Act but for an exemption for the premises granted
under section 40 of, or given by the regulations under, that Act,
and
(b)
premises that were a residential centre for
disabled persons (within the meaning of this section before it was amended by
that Act) at the time of the death concerned.
[3]Section 24 (3), definition of
“residential centre for disabled persons”
Omit the definition.
3.5Law
Enforcement (Powers and Responsibilities) Act 2002 No
103
Schedule 2 Search warrants
under other Acts
Insert in alphabetical order of Acts:
Boarding Houses
Act 2012, section 78
3.6Local Government (General) Regulation
2005
Clause
83
Omit the clause. Insert instead:
83Relevant standards for certain
places of shared accommodation
(1)
This clause applies to the following kinds of
places of shared accommodation:
(a)
places of shared accommodation that are class 3
buildings under the Building Code
of Australia (within the meaning of the Environmental Planning and Assessment Act
1979),
(b)
places of shared accommodation that are general
boarding houses within the meaning of the Boarding Houses
Act 2012.
(2)
For the purposes of Order No 5 (d) in its
operation as to places of shared accommodation to which this clause applies,
the standards for places of shared accommodation set out in Part 1 of Schedule
2 are relevant standards referred to in Columns 1 and 2 of the Table to
section 124 of the Act.
Note—
An Order can be made requiring compliance with
these standards if they are not being complied with.
Historical
notes
Table of amending
instruments
Boarding Houses
Act 2012 No 74. Assented to 29.10.2012. Date of
commencement of Part 1 (except sec 3 (b) and (c)), Part 2, Part 5 (except sec
104), Sch 2 (except Part 2) and Sch 3.3 and 3.6, 1.1.2013, sec 2 and 2012
(642) LW 21.12.2012; date of commencement of the remainder: not in
force.