Draft regulation released

Ned Cutcher, Policy Officer

The Residential Tenancies Act 2010 was passed by the NSW Parliament in June 2010, and NSW Fair Trading tells us the Act will come into operation soon after its supporting regulation is finalised.

The release of the draft Residential Tenancies Regulation 2010, and its regulatory impact statement, brings us one step closer to the introduction of these important new laws for tenants in New South Wales.

Acts of parliament (such as the Residential Tenancies Act 2010) often include a provision allowing regulations to be made, so that the law-makers (parliament) can delegate the 'mechanics', or more technical aspects of the law, to the bureaucracy (the executive arm of government).

In doing this, the government subjects the broad principles of a law to the consideration of members of parliament but it leaves the finer points to the office of the minister in charge. This facilitates quick and easy changes to these technical parts of a law, if required, without an Act of parliament.

A regulation can only be made to the extent that the 'governing' legislation allows it, and several provisions of the Residential Tenancies Act 2010 require a regulation in order to operate effectively. For example, the Act does not specify any time limits for applications to the Consumer, Trader and Tenancy Tribunal, or the tribunal's monetary jurisdiction for tenancy-related applications. These are expressly left to regulation.

NSW Fair Trading has circulated the draft regulation broadly, allowing almost a month for interested parties to make comments and submissions. This consultation period ended in mid-October. The TU made a detailed submission.

There may be changes to the regulation in its final form, but based on the consultation draft, the regulation will do four things. It will:

• provide a standard form of residential tenancy agreement and condition report to which the Act will apply. This means tenants can expect consistency from landlords when entering into new agreements. It also means that landlords can't use the cost of preparing new agreements as an excuse to charge a higher rent – because the costs will be negligible.
• clarify certain rights and obligations of landlords and tenants provided by the Act. This is likely to include details about the information landlords must disclose to tenants before entering into a residential tenancy agreement. It will also outline what landlords will need to do to make properties 'water efficient' so they can ask tenants to pay for their water consumption.
• clarify the forms of rental accommodation that are not covered by the Act. This is likely to include some forms of refuge or crisis accommodation, heritage-listed properties (in some circumstances), residential park agreements to which a 'trial' period applies, life tenancies, and residential colleges in tertiary institutions.
• provide detail on how tenants and landlords may enforce their rights under the Act. This will include setting time-limits for applications to the Consumer, Trader and Tenancy Tribunal and providing a list of offences under the Act for which a penalty notice may be issued by NSW Fair Trading (without the need for prosecution in the courts).

Submission

• Submission on the draft Residential Tenancies Regulation 2010 [PDF] | Submission on the draft Residential Tenancies Bill 2010 [plain text]