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RESIDENTIAL TENANCIES AMENDMENT ACT 2010 (NO. 67 OF 2010) - SECT 90 New Part 10A inserted

RESIDENTIAL TENANCIES AMENDMENT ACT 2010 (NO. 67 OF 2010) - SECT 90

New Part 10A inserted

After Part 10 of the Principal Act insert

" PART 10A—RESIDENTIAL TENANCY DATABASES

        439A     Definitions

In this Part—

"database " means a system, device or other thing used for storing information, whether electronically or in some other form;

"database operator " means an entity that operates a residential tenancy database;

"inaccurate" , in relation to personal information in a residential tenancy database, includes information that is inaccurate because—

        (a)     the information indicates that the person owes a landlord an amount that is more than the bond; and

        (b)     the amount owed was paid to the landlord more than 3 months after the amount became due;

"landlord" includes—

        (a)     rooming house owner;

        (b)     caravan park owner;

        (c)     caravan owner;

        (d)     site owner;

        (e)     agent of a landlord or a person referred to in paragraphs (a) to (d);

list , personal information in a residential tenancy database

        (a)     means—

              (i)     enter the personal information into the database; or

              (ii)     give the personal information to a database operator or someone else for entry into the database; and

        (b)     includes amend personal information about a person in the database to include additional personal information about the person;

"out of date" , in relation to personal information in a residential tenancy database, means the information is no longer accurate because—

        (a)     for a listing made on the basis the person owes a landlord an amount that is more than the bond, the amount owed was paid to the landlord within 3 months after the amount became due; or

        (b)     for a listing made on the basis the Tribunal has made a possession order, the order has been revoked following a review of the making of the order;

personal information means information (including an individual's name) or an opinion, whether true or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion;

"rented premises" includes room, site, caravan and Part 4A dwelling;

"residential tenancy database" means a database

        (a)     containing personal information—

              (i)     relating to, or arising from, the occupation of rented premises under a tenancy agreement; or

              (ii)     entered into the database for reasons relating to, or arising from, the occupation of rented premises under a tenancy agreement; and

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        (b)     with an intended purpose of use by landlords for checking a person's tenancy history for deciding whether a tenancy agreement should be entered into with the person;

"tenancy agreement" includes residency right and site agreement;

"tenant" includes—

        (a)     resident; and

        (b)     site tenant; and

        (c)     former tenant, former resident or former site tenant.

        439B     Application

This Part does not apply to a residential tenancy database kept by an entity (including a Department of the government of a State or Territory) for use only by that entity or its officers, employees or agents.

        439C     Notice of usual use of database

    (1)     This section applies if—

        (a)     a person (the applicant ) applies to a landlord to enter into a tenancy agreement; and

        (b)     the landlord usually uses one or more residential tenancy databases for deciding whether a tenancy agreement should be entered into with a person.

    (2)     The landlord must, when the application is made, give the applicant written notice stating the following—

        (a)     the name of each residential tenancy database the landlord usually uses, or may use, for deciding whether a tenancy agreement should be entered into with a person;

        (b)     that the reason the landlord uses a residential tenancy database referred to in paragraph (a) is for checking an applicant's tenancy history;

        (c)     for each residential tenancy database referred to in paragraph (a), how persons may contact the database operator who operates the database and obtain information from the operator.

Penalty:     20 penalty units.

    (3)     Subsection (2) applies in relation to a residential tenancy database whether or not the landlord intends to use the database for deciding whether a tenancy agreement should be entered into with the applicant.

    (4)     However, the landlord is not required to give the written notice referred to in subsection (2) if a written notice stating the matters referred to in that subsection was given to the applicant not more than 7 days before the application was made.

Example

The landlord gave a written notice stating the matters referred to in subsection (2) to the applicant when the applicant obtained the application form and that was less than 7 days before the applicant made the application.

        439D     Notice of listing if database used

    (1)     This section applies if—

        (a)     a person (the applicant ) applies to a landlord to enter into a tenancy agreement; and

        (b)     the landlord uses a residential tenancy database for checking whether personal information about the applicant is in the database; and

        (c)     personal information about the applicant is in the database.

    (2)     The landlord must, as soon as possible but within 7 days after using the database, give the applicant a written notice stating—

        (a)     the name of the database; and

        (b)     that personal information about the applicant is in the database; and

        (c)     the name of each person who listed the personal information in the database; and

        (d)     how and in what circumstances the applicant can have the personal information removed or amended under this Part.

Penalty:     20 penalty units.

    (3)     Subsection (2)(c) does not apply if the residential tenancy database does not identify the person who listed the personal information in the database.

        439E     Listing can be made only for particular breaches by particular persons

    (1)     A landlord or database operator must not list personal information about a person in a residential tenancy database unless—

        (a)     the person was named as a tenant in a tenancy agreement that has ended; and

        (b)     the person has breached the tenancy agreement or section 243, 244, 246, 248, 250, 253, 278, 279, 281, 282, 284, 302, 303, 305, 307, 309, 317X, 317Y, 317ZA, 317ZC or 317ZD; and

        (c)     because of the breach, either—

              (i)     the person owes the landlord an amount that is more than the bond; or

              (ii)     the Tribunal has made a possession order; and

        (d)     the personal information—

              (i)     relates only to the breach; and

              (ii)     is accurate, complete and unambiguous.

    (2)     Without limiting subsection (1)(d)(ii), the personal information must indicate the nature of the breach.

Examples

1     An example of how personal information can indicate the nature of a breach is including the words "rent arrears" in personal information about a person who has breached a tenancy agreement by failing to pay rent.

2     An example of how personal information can indicate the nature of a breach is i ncluding the words "damage to premises" in the personal information about a person who has breached a tenancy agreement by damaging premises.

        439F     Further restriction on listing

    (1)     A landlord or database operator must not list personal information about a person in a residential tenancy database unless the landlord or operator has, without charging a fee—

        (a)     given the person a copy of the personal information; or

        (b)     taken other reasonable steps to disclose the personal information to the person.

Penalty:     20 penalty units.

    (2)     A landlord or database operator must not list personal information about a person in a residential tenancy database unless the landlord or operator has given the person at least 14 days to review the personal information and make submissions—

        (a)     objecting to its entry into the database; or

        (b)     about its accuracy, completeness and clarity.

Penalty:     20 penalty units.

    (3)     A landlord or database operator must not list personal information about a person in a residential tenancy database unless the landlord or operator has considered any submissions made under subsection (2).

Penalty:     20 penalty units.

    (4)     Subsections (1) and (2) do not apply if the landlord or database operator cannot locate the person after making reasonable enquiries.

    (5)     Subsections (2) and (3) do not apply—

        (a)     to information that, at the time of the listing, is contained in publicly available court or Tribunal records; or

        (b)     to a listing involving only an amendment of personal information about a person under section 439G.

        439G     Ensuring quality of listing—landlord's obligation

    (1)     This section applies if a landlord who lists personal information in a residential tenancy database becomes aware that the information is inaccurate, incomplete, ambiguous or out of date.

    (2)     The landlord must, within 7 days, give written notice of the following to the database operator who keeps the database

        (a)     if the information is inaccurate, incomplete or ambiguous—

              (i)     that the information is inaccurate, incomplete or ambiguous; and

              (ii)     how the information must be amended so that it is no longer inaccurate, incomplete or ambiguous;

        (b)     if the information is out of date, that the information is out of date and must be removed.

Penalty:     60 penalty units in the case of a natural person;

300 penalty units in the case of a body corporate.

Example

A landlord lists, in a residential tenancy database, personal information about a tenant who owes the landlord an amount that is more than the bond. The tenant pays the amount owed to the landlord more than 3 months after the amount became due. The landlord must, within 7 days after the landlord becomes aware of the payment, give the database operator who keeps the database written notice of—

        (a)     the personal information being inaccurate; and

        (b)     the details of the payment to be included in the personal information so that it is no longer inaccurate.

    (3)     The landlord must keep a copy of the written notice for one year after it was given under subsection (2).

Penalty:     10 penalty units.

        439H     Ensuring quality of listing—database operator's obligation

    (1)     This section applies if a landlord who has listed personal information in a residential tenancy database gives the database operator who operates the database a written notice stating that the personal information must be—

        (a)     amended in a stated way to make it accurate, complete and unambiguous; or

        (b)     removed.

    (2)     The database operator must amend the personal information in the stated way, or remove the personal information, within 14 days after the operator is given the written notice.

Penalty:     60 penalty units in the case of a natural person;

300 penalty units in the case of a body corporate.

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        439I     Providing copy of personal information listed

    (1)     A landlord who lists personal information about a person in a residential tenancy database must, if asked in writing by the person, give the person a copy of the information within 14 days after the request is made.

Penalty:     20 penalty units.

    (2)     A database operator must, if asked in writing by a person whose personal information is in the residential tenancy database kept by the operator, give the person a copy of the information within 14 days after the request is made.

Penalty:     20 penalty units.

    (3)     If a landlord charges a fee for giving personal information under subsection (1), or a database operator charges a fee for giving personal information under subsection (2), the subsection applies only if the fee has been paid.

    (4)     A fee charged by a landlord for giving personal information under subsection (1), or by a database operator for giving personal information under subsection (2)—

        (a)     must not be excessive; and

        (b)     must not apply to lodging a request for accessing the information.

        439J     Notifying relevant non-parties of Tribunal order about listing

    (1)     This section applies if—

        (a)     under section 439M, the Tribunal makes an order that a person must, in relation to a residential tenancy database

              (i)     amend personal information in a stated way; or

              (ii)     remove all or particular personal information about a person; and

        (b)     the person against whom the order is made (the relevant person ) is not a party to the proceeding for the dispute.

    (2)     The Tribunal must ensure a copy of the order is given to the relevant person.

        439K     Keeping personal information listed

    (1)     A database operator must not keep personal information about a particular person in the operator's residential tenancy database for longer than—

        (a)     3 years; or

        (b)     if, under the national privacy principles, the operator of the database is required to remove the personal information before the 3 year period referred to in paragraph (a) ends, the period ending when the information must be removed under the national privacy principles.

Penalty:     60 penalty units in the case of a natural person;

300 penalty units in the case of a body corporate.

    (2)     However, a database operator may keep the person's name in the operator's residential tenancy database for longer than the period stated in subsection (1)(a) or (b) if—

        (a)     other personal information about the person in the database is attached to the name; and

        (b)     the other personal information is not required to be removed under subsection (1) or another law.

    (3)     This section does not limit the operation of this Part or a provision of another law that requires the removal of the personal information.

    (4)     In this section—

national privacy principles means the principles stated in Schedule 3 of the Privacy Act 1988 of the Commonwealth.

        439L     Application to Tribunal for removal or amendment of listing

    (1)     A person may apply to the Tribunal for an order—

        (a)     prohibiting a landlord or a database operator from listing personal information about that person that a landlord or database operator proposes to list on a residential tenancy database; or

        (b)     requiring a landlord or a database operator to amend personal information about that person that is listed or to be listed in a residential tenancy database; or

        (c)     requiring a landlord or a database operator to remove personal information about that person that is listed in a residential tenancy database

if the landlord or database operator fails to comply with section 439D, 439E, 439F or 439G in relation to the listing of that personal information.

    (2)     A person may apply to the Tribunal for an order requiring a database operator to remove personal information about that person from a residential tenancy database if the database operator has failed to comply with section 439H or 439K in relation to the listing of that personal information.

    (3)     An application may be made under this section irrespective of whether the personal information in respect of which the application is made was listed in a residential tenancy database before, on or after the commencement of this Part.

Note

This section does not provide for claims for compensation. If a court finds a person guilty of an offence or convicts a person of an offence under this Part, a person who has suffered injury as a direct result of the offence may apply to the court for compensation under Division 2 of Part 4 of the Sentencing Act 1991 .

        439M     What can the Tribunal order?

    (1)     If an application is made under section 439L, the Tribunal may make an order—

        (a)     prohibiting a landlord or database operator from listing personal information about the applicant in a residential tenancy database; or

        (b)     requiring a landlord or database operator to amend personal information about the applicant that is or is to be listed in a residential tenancy database; or

        (c)     requiring a landlord or database operator to remove personal information about the applicant that is listed in a residential tenancy database.

    (2)     The Tribunal may make an order under subsection (1) if the Tribunal determines that—

        (a)     the landlord has not provided written notice to the applicant in accordance with section 439D(2); or

        (b)     the landlord or database operator has listed personal information in the residential tenancy database in contravention of section 439E or 439F; or

        (c)     the landlord has not provided written notice in accordance with section 439G in respect of personal information in the residential tenancy database that the landlord is aware is inaccurate, incomplete, ambiguous or out of date; or

        (d)     the database operator has not amended or removed personal information listed in a residential tenancy database in accordance with section 439H(2); or

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